United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.B., Appellant 

and 

DEPARTMENT OF THE INTERIOR, 

SEQUOIA NATIONAL PARK SERVICES, 

Three Rivers, CA, Employer 

__________________________________________ 

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Docket No. 14-796 

Issued: September 12, 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 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On February 25, 2014 appellant filed a timely appeal from a February 5, 2014 decision of 

the Office of Workers’ Compensation Programs (OWCP) denying his request for 

reconsideration. Because more than 180 days elapsed from issuance of the last merit decision on 

January 29, 2013 to the filing of this appeal, the Board lacks jurisdiction to review the merits of 

his claim pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3. 

ISSUE 

The issue is 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 October 15, 1997 appellant, then a 26-year-old firefighter, injured his right knee while 

hiking on a hillside. OWCP accepted the claim for right plica syndrome, right knee sprain and 

right patella chondromalacia. It authorized right knee arthroscopies which were performed on 

March 3, 1998, February 9, 1999, September 6, 2000 and January 26, 2010. 

On January 7, 2011 appellant filed a claim for a schedule award. 

On October 5, 2011 OWCP referred appellant for a second opinion evaluation to 

Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, who was asked to determine 

whether appellant had any permanent impairment due to his accepted injury. 

In a report dated October 17, 2011, Dr. Swartz, reviewed the statement of accepted facts 

and the medical evidence of record. He noted the accepted employment conditions of right knee 

strain, right patella chondromalacia and right plica syndrome. The physical examination 

revealed that appellant squatted well with both knees, walked without a limp, had good gait, no 

right knee instability mild right knee anter-medial tenderness, pain with McMurray’s test 

maneuver and reverse McMurray’s maneuver and no pain with patellofemoral compression. The 

range motion was -15/120 degrees. Dr. Swartz stated x-rays were required in order to provide an 

impairment rating. OWCP authorized the diagnostic testing. 

In a November 29, 2011 supplemental report, Dr. Swartz stated that appellant would not 

qualify for an impairment rating for knee arthritis under the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) as 

the cartilage interval was too small. Appellant had flexion contracture up to 15 degrees, which 

represented a 20 percent impairment pursuant to Table 16-23 at page 549 of the 

A.M.A., Guides.

2

 Dr. Swartz indicated that 120 degrees of flexion did not qualify for an 

impairment rating under this table. Using Table 16-6, functional history adjustment, he found 

that appellant remained in class 2 as the grade modifier was zero.3 Dr. Swartz found that 

appellant had a 20 percent right lower extremity impairment based on loss of range of motion, a 

class 2 moderate impairment under Table 16-25 at page 550 of the A.M.A., Guides.

In a Janaury 20, 2012 report, Dr. Leonard A. Simpson, a medical adviser, concurred with 

Dr. Swartz’s impairment rating of 20 percent to the right lower extremity. He noted that 

Dr. Swatz recommended a stand alone range of motion impairment rating. Dr. Simpson related 

that 15 degrees flexion contracture was considered moderate under Table 16-23 or 20 percent 

lower extremity impairment. Under Table 16-25 a moderate impairment was a class 2. Using 

Table 16-17, page 545 for functional history adjustment, he found a grade modifier of zero and 

no increase in the impairment rating. Thus, Dr. Simpson found a total 20 percent lower 

extremity permanent impairment with October 17, 2011 as the date of maximum medical 

improvement. 

 2

 A.MA., Guides 549 (6th ed.). 

3 Id. at 516, Table 16-6. 
3

By decision dated January 29, 2013, OWCP granted appellant a schedule award for a 

20 percent impairment of the right lower extremity. The award covered a period of 57.60 weeks 

and ran from October 17, 2011 to November 23, 2012. 

In a letter dated October 22, 2013, appellant requested reconsideration. He contended 

that Dr. Swartz’s evaluation was inaccurate and did not provide accurate range of motion 

findings for his right knee. 

By decision dated February 5, 2014, OWCP denied reconsideration. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

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) submit relevant and pertinent new evidence not previously 

considered by OWCP.5 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.6 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.7 

ANALYSIS 

On January 29, 2013 OWCP issued a decision granting appellant a schedule award for a 

20 percent impairment of his right lower extremity. Appellant requested reconsideration of this 

decision on October 22, 2013. The issue presented is whether he 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 his request for reconsideration, appellant did not contend that OWCP erroneously 

applied or interpreted a specific point of law. He did not advance a new and relevant legal 

argument. Appellant also did not submit pertinent new and relevant evidence. He contended 

that Dr. Swartz’s opinion was inaccurate as to the physical findings and impairment rating. 

Appellant, however, provided no evidence to establish that the physical findings or rating made 

by Dr. Swartz were incorrect. A claimant may be entitled to a merit review by submitting 

pertinent new and relevant evidence, but he did not submit any evidence in support of his 

request. 

 4

 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. 

5

 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). 

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

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

598 (2006). 
4

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Thus, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit 

review. 

CONCLUSION 

The Board further finds that OWCP properly denied appellant’s request for further 

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

ORDER 

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

Compensation Programs dated February 5, 2014 is affirmed. 

Issued: September 12, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board