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U. S. DEPARTMENT OF LABOR Employees Compensation Appeals Board In the Matter of BILLY J. GAGE, JR. and DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, Bremerton, WA Docket No. 00-1632; Submitted

The Court considers the following issues in this appeal: 1. Whether a one percent permanent impairment of the right lower, including lower extremity below the knee, for which appellant received a schedule award could be deemed as a permanent disability in light of the following four factors: (a) He has previously received disability compensation; (b) he is not able to work as he wishes; (c) the disability is due in part by reason of an injury that occurred many years prior to the receipt of the disability award; and (d) his impairment is disabling. The Court finds, based on the Court's examination of the record that has been submitted, that appellant meets (a) and (b). In addition, on December 5, 2001, the Secretary of Labor made a finding on record that the disability is due in part by reason of the injuries that occurred many years prior to the receipt of the disability award. Based on this record, the Court concludes that the permanent impairment of the lower extremity below the knee is an impairment of the right lower extremity for which a schedule award is inappropriate, and therefore the disability is not permanent, although appellant clearly has such an impairment. Therefore, appellant has a temporary impairment of the right lower extremity. Appellant did not challenge the determination that he has a permanent impairment of the right lower extremity. Appellant's contention that his impairment is a temporary one, is rejected because the determination of a permanent impairment does not necessarily have to involve a trial on the merits; however, appellant did not submit any evidence that would convince the Court that an impairment of his lower extremity is temporary. 2. Whether, in deciding on disability benefits, the Secretary must rely upon the criteria set forth in section 6(b)(2) of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12114(b)(2): the severity of the impairment, and the likelihood of its recurrence. Appellant concedes that the evidence shows that the disability is permanent and not temporary, and consequently, his disability benefits did not comply with the criteria set forth in sections 6(b) and 6(b)(2). The Court finds, based on the record that has been submitted, that the Secretary did not rely upon the permanent impairment as the criterion for determining whether appellant's disability was permanent.

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