United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.H., Appellant 

and 

U.S. POSTAL SERVICE, EMBACADERO 

POSTAL CENTER, San Francisco, CA, 

Employer 

__________________________________________ 

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Docket No. 14-415 

Issued: November 20, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On December 17, 2013 appellant filed a timely appeal of an August 28, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). The Board also has 

jurisdiction over a nonmerit decision dated December 5, 2013. Pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether appellant has established that she has more than 18 percent 

left lower extremity impairment or 8 percent right lower extremity impairment, for which she 

received schedule awards; and (2) whether OWCP properly refused to reopen appellant’s case 

for further review of the merits pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 19, 1999 appellant, then a 44-year-old mail carrier, sustained injury to her 

right calf when stepping down from a curb while delivering mail.2

 OWCP accepted the claim for 

right ankle sprain and right plantaris tendon rupture with consequential left ankle peroneal 

tenosynovitis.3

 It authorized left ankle peroneal tendon repair surgery which occurred on 

February 11, 2002. On May 7, 2001 appellant accepted a modified job offer. 

By decision dated April 27, 2007, OWCP granted appellant a schedule award for six 

percent impairment to the right and left lower extremities. It noted that she had previously 

received a schedule award under File No. xxxxxx607 for eight percent left leg impairment and 

that the current award did not exceed the amount previously awarded. 

By decision dated February 8, 2008, an OWCP hearing representative set aside the 

April 27, 2007 schedule award decision and remanded for further development on the issue of 

whether appellant was entitled to an additional schedule award for impairment to her lower 

extremities. 

By decision dated March 24, 2008, OWCP granted appellant an additional two percent 

impairment for her right lower extremity for a total eight percent right lower extremity 

impairment. 

In a separate decision dated March 24, 2008, OWCP granted appellant an additional 10 

percent impairment for her left lower extremity for a total 18 percent left lower extremity 

impairment. 

On July 28, 2012 appellant filed a claim for an additional schedule award. 

In an October 27, 2012 letter, Dr. Jules P. Steimnitz, an attending Board-certified 

physiatrist and pain medicine physician, responded to OWCP’s August 27, 2012 letter requesting 

an impairment rating. Using Table 16-2, page 501, he concluded that appellant’s left ankle 

condition was a class 2 or 14 percent lower extremity impairment. 

 2

 This was assigned File No. xxxxxx765. 

3

 Under File No. xxxxxx607, OWCP accepted appellant’s occupational disease claim for left ankle sprain and 

injury date of March 23, 1999. On July 8, 1999 it combined File No. xxxxxx607 with File No. xxxxxx765, with the 

latter serving as the master file number. On September 23, 2003 OWCP granted appellant a schedule award for an 

eight percent left lower extremity impairment under File No. xxxxxx607. On September 28, 2009 it combined File 

Nos. xxxxxx706 and xxxxxx612 with File No. xxxxxx765, with the latter as the master file number. Under File No. 

xxxxxx706, OWCP accepted that appellant sustained a left medial meniscus tear on January 2, 2008 when her knee 

locked up and snapped while getting up from her desk. It approved a left medial meniscectomy, which occurred on 

March 23, 1999. Under File No. xxxxxx612, OWCP accepted a left knee and leg sprain due to a May 10, 2008 

traumatic injury. On April 23, 2013 it combined File Nos. xxxxxx966 and xxxxxx732 with File No. xxxxxx765 as 

the master File No. Under File No. xxxxxx966, appellant filed a traumatic injury claim alleging that on August 12, 

1991 she sprained her left ankle while delivering mail. OWCP accepted the claim for a left ankle sprain. Under File 

No. xxxxxx732, appellant filed a traumatic injury claim alleging that on November 9, 1987 she sustained a swollen 

right ankle when she slipped and fell while delivering mail. OWCP accepted the claim for a right ankle sprain. 
3

In a June 29, 2013 report, Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon and 

second opinion physician, reviewed the statement of accepted facts and medical evidence. On 

physical examination he noted that appellant was being evaluated for a schedule award under the 

sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides). Using Table 16-2, page 501, Dr. Hanley determined that she was 

a class 1 for her left ankle based on mild motion deficit and falls. For grade modifiers he 

assigned a 1 for functional history, 2 for physical examination and clinical studies. Dr. Hanley 

found that this resulted in a grade E rating or seven percent lower extremity impairment. He 

considered appellant’s left knee injury under Table 16-3, page 509. Dr. Hanley assigned a 

class 1 based on her partial medial meniscectomy. Applying the grade modifiers, he found a 

1 for functional history, clinical studies and physical examination. This resulted in a grade C 

with a default impairment of two percent. Combining the impairment for appellant’s left knee 

and ankle resulted in a total nine percent left lower extremity impairment. As to her right ankle 

and knee, Dr. Hanley found that she was a class 0 for both right ankle sprain and right knee 

arthralgia and, had no ratable impairment of her right ankle or knee. 

On August 13, 2013 the medical adviser reviewed Dr. Hanley’s report and concurred 

with the impairment rating. He noted that appellant’s prior impairment ratings under the fifth 

edition of the A.M.A., Guides were higher than the current rating. Therefore, the medical 

evidence did not warrant an additional schedule award. 

By decision dated August 28, 2013, OWCP denied appellant’s claim for increased 

schedule awards. It found that her current impairment rating was less than the rating she 

received. 

On August 30, 2013 appellant requested reconsideration. She submitted an October 3, 

2013 report from Dr. Steimnitz, who related that appellant was diagnosed with rheumatoid 

arthritis following development of increased pain in various joints. On physical examination the 

ankles revealed no swelling, tenderness on palpitation, intact sensation and motor and slightly 

antalgic gait. Dr. Steimnitz diagnosed diabetes mellitus, bilateral ankle sprain and new onset 

rheumatoid arthritis. He advised that appellant had reached maximum medical improvement and 

a disability retirement examination would be scheduled at a later date. 

By decision dated December 5, 2013, OWCP denied reconsideration. 

LEGAL PRECEDENT -- ISSUE 1 

Under section 8107 of FECA4

 and section 10.404 of the implementing federal 

regulations,5

 schedule awards are payable for permanent impairment of specified body members, 

functions or organs. FECA, however, does not specify the manner in which the percentage of 

impairment shall be determined. For consistent results and to ensure equal justice under the law 

for all claimants, good administrative practice necessitates the use of a single set of tables so that 

there may be uniform standards applicable to all claimants. The A.M.A., Guides has been 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 
4

adopted by the implementing regulations as the appropriate standard for evaluating schedule 

losses.6

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).7

 Under the sixth edition, the evaluator identifies the impairment Class of 

Diagnosis (CDX), which is then adjusted by grade modifiers based on Functional History 

(GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).8

 The net adjustment 

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed through the medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser 

providing rationale for the percentage of impairment specified.10

ANALYSIS -- ISSUE 1 

OWCP accepted the conditions of right ankle sprain, right plantaris tendon rupture, left 

ankle peroneal tenosynovitis, left ankle sprain and left knee meniscal tear. Appellant received 

schedule awards totaling an 18 percent left lower extremity impairment and an 8 percent right 

lower extremity impairment. The Board finds that she has not established that she has greater 

impairment of her left or right lower extremities. 

On October 27, 2012 Dr. Steimnitz, an attending Board-certified physiatrist and pain 

medicine physician, concluded that appellant had a 14 percent left lower extremity impairment 

using Table 16-2, page 501 with a class 2. 

In a June 29, 2013 report, Dr. Hanley, a second opinion Board-certified orthopedic 

surgeon, concluded that appellant had no (zero percent) impairment of her right ankle and right 

knee as she was at class 0. He determined that she had nine percent impairment for her left ankle 

and left knee conditions. Dr. Hanley noted that, under Table 16-2, page 501, appellant’s mild 

motion deficits and falls resulted in a default class C. He explained that the grade modifiers of 1 

for functional history, 2 for physical examination and clinical studies resulted in a grade E rating 

or seven percent impairment for the left ankle. 

 6 D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000). 

7

 A.M.A., Guides (6th ed. 2009), page 3, section 1.3, ICF: A Contemporary Model of Disablement. 

8 Id. at 383-419. 

9 Id. at 411. 

10 See C.K., Docket No. 09-2371 (issued August 18, 2010); see Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(d) (January 2010). Frantz Ghassan, 

57 ECAB 349 (2006).
5

Next Dr. Hanley considered appellant’s left knee injury under Table 16-3, page 509. He 

assigned a class 1 based on her partial medial meniscectomy. Applying the grade modifiers, 

Dr. Hanley found a 1 for functional history, clinical studies and physical examination, which 

resulted in a grade C with a default impairment of two percent. Combining the impairment for 

appellant’s left knee and ankle resulted in a total nine percent left lower extremity impairment. 

On August 13, 2013 an OWCP medical adviser reviewed the medical evidence and 

concurred with the impairment rating of Dr. Hanley. OWCP properly found that appellant was 

not entitled to additional schedule awards. The medical evidence does not establish greater 

impairment than that previously awarded. Under the sixth edition of the A.M.A., Guides,

appellant’s lower extremity impairment had not increased. Her treating physician, Dr. Steimnitz 

found a 14 percent left lower extremity impairment. Dr. Hanley and the medical adviser 

concluded that appellant had nine percent impairment of the left leg. None of the physicians 

rated impairment for her right lower extremity. Appellant did not submit medical evidence 

showing that she has additional impairment of her lower extremities. She has not shown that she 

has more than an 18 percent left lower extremity impairment or an 8 percent right lower 

extremity impairment. 

Appellant may request a schedule award or increased schedule award based on evidence 

of a new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,11

OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or 

interpreted a specific point of law; (2) advance a relevant legal argument not previously 

considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously 

considered by OWCP.12 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant also must file his or her application for review within one year 

of the date of that decision.13 When a claimant fails to meet one of the above standards, OWCP 

will deny the application for reconsideration without reopening the case for review on the 

merits.14

 11 5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award 

for or against payment of compensation at any time on his own motion or on application. 

12 20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB 

630 (2006). 

13 Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

14 Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB 

598 (2006).
6

ANALYSIS -- ISSUE 2 

On August 28, 2013 OWCP denied appellant’s request for an additional schedule award 

for her bilateral extremity impairments. Appellant requested reconsideration of this decision on 

August 30, 2013. The issue presented is whether she met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. In her 

application for reconsideration, appellant did not contend that OWCP erroneously applied or 

interpreted a specific point of law. She did not advance a new and relevant legal argument. 

Appellant submitted an October 3, 2013 report from Dr. Steimnitz, who provided 

physical findings for her ankle, diagnoses of bilateral ankle sprain, diabetes mellitus and 

rheumatoid arthritis. Dr. Steimnitz stated that she had reached maximum medical improvement, 

but provided no permanent impairment rating. His October 3, 2013 report is not relevant to the 

issue of whether appellant has greater impairment to her right or left lower extremities.15

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific 

point of law, advance a relevant legal argument not previously considered by OWCP or 

constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that appellant has no more than 18 percent left lower extremity 

impairment and 8 percent right lower extremity impairment, for which she received schedule 

awards. The Board further finds that OWCP properly denied her request for further review of 

the merits pursuant to 5 U.S.C. § 8128(a). 

 15 Joseph A. Brown, Jr., 55 ECAB 542 (2004). 
7

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated December 5 and August 28, 2013 are affirmed. 

Issued: November 20, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board