United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.C., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, SPACE 

& MISSILE SYSTEMS CENTER, LOS 

ANGELES AIR FORCE BASE, El Segundo, CA, 

Employer 

__________________________________________ 

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Docket No. 14-1247 

Issued: January 7, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 7, 2014 appellant timely appealed an April 17, 2014 nonmerit decision and a 

November 14, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

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 greater than 51 percent permanent impairment 

of the right leg; and (2) whether the Branch of Hearings and Review properly denied his 

March 19, 2014 request for a hearing. 

 1

 5 U.S.C. §§ 8101-8193 (2006). 
2

FACTUAL HISTORY 

Appellant, a 62-year-old police officer, injured his right knee on January 29, 2004 while 

participating in work-related physical training.2

 OWCP initially accepted the claim for right 

medial meniscus tear. On April 6, 2004 appellant underwent a right knee partial medial 

meniscectomy and chondroplasty. In March 2008 OWCP expanded the claim to include left 

medial meniscus tear as a consequential injury. On October 27, 2011 appellant underwent a left 

knee partial medial and lateral meniscectomy, synovectomy, and chondroplasty. Between 

November 2005 and May 2012, OWCP issued multiple schedule awards for both the left and 

right lower extremities. As of May 8, 2012, it granted a combined 51 percent impairment of the 

right leg and 35 percent for the left leg.3

On April 23, 2013 appellant underwent a right partial knee replacement, which OWCP 

authorized. 

In an August 21, 2013 report, Dr. Harbinder S. Chadha indicated that appellant reached 

maximum medical improvement following his latest right knee surgery.4

 He found 21 percent 

impairment of the right leg was based on a good result from the April 2013 knee replacement 

surgery. Dr. Chadha referenced the A.M.A., Guides (6th ed. 2008) as the basis for the latest 

impairment rating.5

In November 2013, appellant filed a claim for an additional schedule award based on 

Dr. Chadha’s August 21, 2013 impairment rating. 

By decision dated November 14, 2013, OWCP denied appellant’s claim for an additional 

RLE schedule award. It noted that he had previously received awards totaling 51 percent right 

leg impairment, and Dr. Chadha’s latest rating found only 21 percent impairment. As such, 

appellant was not entitled to an additional schedule award. 

 2

 Appellant’s injury occurred at the Federal Law Enforcement Training Center in Artesia, NM. He was running 

with classmates when his right knee began to swell and became very painful. 

3

 On November 18, 2005 appellant received a schedule award for seven percent impairment of the right leg under 

the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (2001). 

On August 13, 2008 he received an award for 5 percent impairment of the left leg and an additional 44 percent 

impairment for the right leg under the A.M.A., Guides (5th ed. 2001). OWCP awarded an additional 15 percent left 

leg impairment on May 13, 2011. On May 8, 2012 appellant received an award for an additional 15 percent left leg 

impairment. The May 13, 2011 and May 8, 2012 left leg awards were pursuant to the sixth edition of the A.M.A., 

Guides (2008). 

4

 Dr. Chadha is a Board-certified orthopedic surgeon, who performed both the 2004 and 2013 right knee surgical 

procedures. 

5

 Although Dr. Chadha did not cite Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 509, 511 (6th ed. 

2008), he appears to have relied upon this table and the diagnosis of “status post knee replacement” as a basis for his 

21 percent right leg impairment rating. 
3

Approximately four months after the November 14, 2013 decision, appellant requested an 

oral hearing. He submitted the appeal request form that accompanied OWCP’s November 14, 

2013 decision. Appellant’s request was dated March 19, 2014, and postmarked March 20, 2014. 

In an April 17, 2014 nonmerit decision, the Branch of Hearings and Review denied the 

hearing request as untimely. The hearing representative also denied a discretionary hearing, 

noting that appellant could instead file a request for reconsideration. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions and organs of the body.6 FECA, 

however, does not specify the manner by which the percentage loss of a member, function, or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.7 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2008).8

FECA and its implementing regulations provide for the reduction of compensation for 

subsequent injury to the same schedule member.9 Benefits payable under 5 U.S.C. § 8107(c) 

shall be reduced by the period of compensation paid under the schedule for an earlier injury if: 

(1) compensation in both cases is for impairment of the same member or function or different 

parts of the same member or function; and (2) the latter impairment in whole or in part would 

duplicate the compensation payable for the preexisting impairment.10

If a claimant sustains increased impairment at a later date which is due to work-related 

factors, an additional award will be payable if supported by the medical evidence.11 In this case, 

the original award is undisturbed and the new award has its own date of maximum medical 

improvement (MMI), percent of impairment, and period of award.12 This may occur if the 

claimant sustains additional impairment due to the original work factors with no intervening or 

additional exposure to those same work factors.13

 6

 For complete loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2). 

7

 20 C.F.R. § 10.404 (2014). 

8 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability 

Claims, Chapter 2.808.6a (February 2013). 

9

 5 U.S.C. § 8108; 20 C.F.R. § 10.404(c). 

10 20 C.F.R. § 10.404(c)(1), (c)(2).

11 Supra note 8 at Chapter 2.808.9b (February 2013). 

12 Id.

13 Id.
4

If a claimant who has received a schedule award calculated under a previous edition of 

the A.M.A., Guides is entitled to additional benefits, the increased award will be calculated 

according to the sixth edition.14 Should the subsequent calculation result in a percentage of 

impairment lower than the original award, as sometimes occurs, a finding should be made that 

the claimant has no more than the percentage of impairment originally awarded, that the 

evidence does not establish an increased impairment, and that OWCP has no basis for declaring 

an overpayment.15 

ANALYSIS -- ISSUE 1 

OWCP previously awarded a combined 51 percent right leg impairment and the most 

recent prior award is dated August 13, 2008. This schedule award was largely based on 

impairment due to right knee arthritis under Table 17-31, A.M.A., Guides 544 (5th ed. 2001). 

Since then appellant has undergone a right partial knee replacement involving the medial 

compartment. 

In an August 21, 2013 report, Dr. Chadha rated appellant based on the diagnosis of 

“status post knee replacement.” Appellant had a good result from the April 23, 2013 knee 

replacement surgery, which Dr. Chadha identified as class 2 Class of Diagnosis (CDX 2) 

impairment, with a default lower extremity rating of 25 percent.16 Dr. Chadha then calculated a 

net adjustment of -5 based on grade modifiers for Functional History (GMFH 0), Physical 

Examination (GMPE 1), and Clinical Studies (GMCS 0).17 Based on the negative net 

adjustment, he adjusted appellant’s rating downward to 21 percent right leg impairment. 

Appellant has not demonstrated a greater impairment than the prior right leg schedule 

awards totaling 51 percent and is not entitled to an additional schedule award for his right leg. 

LEGAL PRECEDENT -- ISSUE 2 

A claimant, injured on or after July 4, 1966, who has received a final adverse decision by 

OWCP may obtain a hearing by writing to the address specified in the decision.18 The hearing 

request must be sent within 30 days (as determined by postmark or other carrier’s date marking) 

of the date of the decision for which a hearing is sought.19 The claimant must not have 

previously submitted a reconsideration request (whether or not it was granted) on the same 

 14 Id. at Chapter 2.808.9d. 

15 Id.

16 See Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 509, 511 (6th ed. 2008). Dr. Chadha rated 

appellant based on a total knee replacement; however, he only performed a partial knee replacement involving the 

medial compartment. 

17 Net Adjustment (-5) ꞊ (GMFH 0 - CDX 2) + (GMPE 1 - CDX 2) + (GMCS 0 - CDX 2). See Section 16.3d, 

A.M.A, Guides 521 (6th ed. 2008). 

18 20 C.F.R. § 10.616(a). 

19 Id.
5

decision.20 If the request is not made within 30 days, a claimant is not entitled to a hearing as a 

matter of right. However, the Branch of Hearings and Review may exercise its discretion to 

either grant or deny a hearing.21

ANALYSIS -- ISSUE 2 

OWCP issued its latest merit decision on November 14, 2013. Appellant had 30 days to 

request a hearing, but the hearing request was postmarked March 20, 2014. The regulations 

provide that “[t]he hearing request must be sent within 30 days ... of the date of the decision for 

which a hearing is sought.”22 Because appellant’s March 20, 2014 request was untimely, he was 

not entitled to a hearing as a matter of right. The Branch of Hearings and Review also denied 

appellant’s hearing request because it found that his claim for an additional schedule award could 

be equally well-addressed by requesting reconsideration before OWCP. The Board finds that the 

hearing representative properly exercised her discretionary authority in denying appellant’s 

request for a hearing.23

CONCLUSION 

Appellant failed to establish that he has greater than 51 percent impairment of the right 

leg. The Board also finds that the Branch of Hearings and Review properly denied appellant’s 

hearing request. 

 20 Id.

21 5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33 

ECAB 140 (1981). 

22 20 C.F.R. § 10.616(a). 

23 Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest 

error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable 

deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002). 
6

ORDER 

IT IS HEREBY ORDERED THAT the April 17, 2014 and November 14, 2013 

decisions of the Office of Workers’ Compensation Programs are affirmed. 

Issued: January 7, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board