United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Dallas, TX, Employer 

__________________________________________ 

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Docket No. 15-1167 

Issued: November 10, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 28, 2015 appellant filed a timely appeal of a February 9, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

has elapsed from the last merit decision, dated August 30, 2012, and the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3 the Board lacks jurisdiction to review the merits of the claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration as it 

was untimely filed and failed to establish clear evidence of error. 

FACTUAL HISTORY 

On February 14, 2008 appellant, then a 52-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his left hip and lower back when he slipped and fell 

 1

 5 U.S.C. § 8101 et seq.
2

in the performance of duty on February 8, 2008. On August 15, 2008 appellant’s attending 

physician, Dr. Ronnie D. Shade, a Board-certified orthopedic surgeon, diagnosed acute lumbar 

strain on February 13, 2008. He included the additional conditions of lumbar radiculitis as well 

as lumbar radiculopathy L5 and S1 on August 15, 2008, based on electrodiagnostic studies. 

OWCP accepted appellant’s claim for sprain of the lumbar back, thoracic or lumbosacral 

neuritis or radiculitis and aggravation of brachial neuritis, or radiculitis on September 19, 2008. 

In a report dated March 4, 2010, Dr. Shade opined that appellant had reached maximum 

medical improvement on that date. He reviewed magnetic resonance imaging (MRI) scans 

which demonstrated a disc bulge and protrusion at L5-S1, electromyogram (EMG) and nerve 

conduction velocity (NCV) studies which demonstrated lumbar radiculopathy at L5. Dr. Shade 

diagnosed lumbar radiculitis and lumbar radiculopathy at L5. He applied the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment,

2

 (A.M.A., 

Guides) and found that appellant had seven percent impairment of his “lower extremity” due to a 

herniated disc at L5-S1 based on Table 17-4.3

 Dr. Shade reviewed the grade modifiers and 

concluded that functional history had a grade modifier 1, physical examination had a grade 

modifier 0 and “[c]linical [e]xamination” or clinical studies was grade modifier 4. This resulted 

in an additional two percent impairment for an impairment rating of nine percent. 

Appellant requested a schedule award on April 12, 2010. 

An OWCP medical adviser reviewed Dr. Shade’s report on May 5, 2011 and stated that 

Dr. Shade had not utilized the appropriate table in reaching his impairment rating. He noted that 

Table 17-4 cited by Dr. Shade provided impairment ratings for the spine rather than for 

scheduled body members.4 The medical adviser further noted that Dr. Shade found intact motor 

and sensory function in the lower extremities which would not result in a finding of permanent 

impairment of these members. 

By decision dated May 6, 2011, OWCP denied appellant’s claim for a schedule award as 

the medical evidence did not support a permanent impairment of a scheduled member in 

accordance with the sixth edition of the A.M.A., Guides. 

 2

 For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides. 

A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, 

Chapter 3.700, Exhibit 1 (January 2010). 

3

 A.M.A., Guides 570, Table 17-4, Lumbar Spine Regional Grid: Spine Impairments. 

4

 No schedule award is payable for a member, function or organ of the body not specified in FECA or in the 

regulations. Because neither FECA nor the regulations provide for the payment of a schedule award for the 

permanent loss of use of the back or spine, no claimant is entitled to such an award. As the schedule award 

provisions of FECA include the extremities, a claimant may be entitled to a schedule award for permanent 

impairment to a limb even though the cause of the impairment originated in the spine. W.D., Docket No. 10-274 

(issued September 3, 2010); Ernest P. Govednick, 27 ECAB 77 (1975). OWCP will address lower extremity 

impairments originating in the spine through Table 16-11. A.M.A., Guides 533, Table 16-11. 
3

Appellant requested reconsideration on March 16, 2012 and submitted an additional 

report dated September 15, 2011 from Dr. Shade addressing appellant’s impairment rating. He 

stated that appellant had experienced lower back pain radiating into his left leg. Appellant 

reported difficulty walking as well as going up and down stairs. Dr. Shade reviewed appellant’s 

MRI scans and electrodiagnostic studies. He found that appellant had a normal gait, with 

bilateral iliolumbar tenderness, and bilateral spinolumbar spasms. Dr. Shade found that 

appellant’s patellar reflexes were diminished bilaterally and his Achilles reflex was absent 

bilaterally. He reported a normal motor examination on the right with decreased strength in the 

left lower extremity. Dr. Shade also found sensation deficits in the left lower extremity at L5-S1. 

He applied the appropriate tables of the A.M.A., Guides and found that appellant had 12 percent 

permanent impairment of his left upper extremity due to sensory and motor cervical impairments 

at C5, C6, and C7. Dr. Shade further found that appellant had a total left lower extremity rating 

of 24 percent permanent impairment based on sensory and motor impairments of L4, L5, and S1. 

The medical adviser reviewed Dr. Shade’s September 15, 2011 report on 

March 21, 2012. He noted that Dr. Shade had previously described normal sensation and normal 

motor function in the lower extremities. The medical adviser requested an additional medical 

examination to determine the findings on physical examination. 

On June 12, 2012 OWCP referred appellant for a second opinion evaluation with Dr. Zvi 

Kalisky, a Board-certified physiatrist. Appellant underwent NCV studies and an EMG on 

August 1, 2012 which were normal with no evidence of diffuse or entrapment peripheral 

neuropathy or radiculopathy in either the upper or lower extremities. Dr. Kalisky reported on 

August 13, 2012 following an examination that deep tendon reflexes were symmetric and motor 

examination was intact. He reported hypoesthesia in the anterior and lateral right thigh on 

sensory examination. Dr. Kalisky reviewed appellant’s August 1, 2012 electrodiagnostic studies 

and diagnosed status post cervical sprain/strain with nonverifiable radicular symptoms in the 

upper extremities with no objective findings of radiculopathy. He also diagnosed status post 

lumbar sprain/strain with chronic pain and nonverifiable radicular symptoms in the right thigh 

with no objective findings of radiculopathy. Dr. Kalisky found that appellant had reached 

maximum medical improvement and applied the A.M.A., Guides to his findings on physical 

examination. He found that appellant had no ratable impairment in either the upper or lower 

extremities due to the lack of objective physical or electrodiagnostic findings of radiculopathy. 

By decision dated August 30, 2012, OWCP reviewed the merits of appellant’s claim and 

denied modification of the May 6, 2011 decision denying a schedule award. 

Appellant requested reconsideration on January 22, 2015. He submitted a note dated 

January 11, 2015 and alleged that Dr. Kalisky had been fired or removed by OWCP as a referee 

physician due to false medical examinations he had performed on behalf of the employing 

establishment. Appellant submitted additional NCV and EMG results dated June 30, 2014 which 

were interpreted as demonstrating bilateral median neuropathy at the wrist or carpal tunnel 

syndrome moderate on the right and mild on the left as well as evidence of chronic right C5-6 

radiculopathy. He also submitted a September 18, 2013 cervical MRI scan. 

In an October 2, 2012 report, Dr. Shade again provided findings on examination and 

noted his symptoms of pain in the lower back that radiated down into the left leg as well as pain, 
4

numbness, tingling sensation, night pain, and cramps, in addition to pain in his arm. He 

diagnosed brachial neuritis, lumbar sprain, and lumbar neuritis. Dr. Shade applied the tables of 

the sixth edition of the A.M.A., Guides and concluded that appellant had 12 percent permanent 

impairment of the left upper extremity and 24 percent permanent impairment of the left lower 

extremity entitling him to schedule awards. He noted that the latter impairment demonstrated an 

increase from the nine percent permanent impairment from his prior rating. 

By decision dated February 9, 2015, OWCP declined to reopen appellant’s claim for 

consideration of the merits on the grounds that the request for reconsideration was not timely 

received within one year of the August 30, 2012 merit decision. It further found that the 

evidence and argument submitted did not establish clear evidence of error. 

LEGAL PRECEDENT 

The schedule award provision of FECA5 and its implementing regulations6 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for 

loss of use of scheduled members or functions of the body. FECA, however, does not specify 

the manner in which the percentage loss of a member shall be determined. The method used in 

making such determination is a matter which rests in the discretion of OWCP. For consistent 

results and to ensure equal justice, the Board has authorized the use of a single set of tables so 

that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of 

permanent impairment according to the standards set forth in the specified edition of the A.M.A., 

Guides.

7

 

To the extent that a claimant asserts that a schedule award decision was erroneous based 

on his or her medical condition at that time, this would properly be considered a request for 

reconsideration.8 A claimant may, however, seek an increased schedule award if the evidence 

establishes that he sustained increased impairment at a later date causally related to the accepted 

employment injury. Even if the term reconsideration is used, when a claimant is not attempting 

to show error in the prior schedule award decision and submits medical evidence regarding a 

permanent impairment at a date subsequent to the prior schedule award decision, it should be 

considered a claim for an increased schedule award.9

 A proper claim for an increase in 

permanent impairment is not subject to time limitations or to the clear evidence of error 

standard.10

 5

 5 U.S.C. §§ 8101-8193, 8107. 

6

 20 C.F.R. § 10.404. 

7 Supra note 2 at Chapter 2.808.5a (February 2013); see also Chapter 3.700, Exhibit 1 (January 2010). 

8 See J.K., Docket No. 14-1082 (issued November 24, 2014). 

9 B.K., 59 ECAB 228 (2007). 

10 R.P., Docket No. 10-1123 (issued January 25, 2011). 
5

ANALYSIS 

The Board finds that this case is not in posture for decision. 

Appellant requested reconsideration on January 22, 2015 and submitted new evidence 

regarding his claim for a schedule award, including additional electrodiagnostic studies dated 

June 30, 2014 and an October 2, 2012 report from Dr. Shade. Dr. Shade provided findings on 

examination and described appellant’s symptoms of pain in the lower back that radiated down 

into the left leg as well as pain, numbness, tingling sensation, night pain, and cramps, in addition 

to pain in his arm. He diagnosed brachial neuritis, lumbar sprain, and lumbar neuritis. Dr. Shade 

then applied the tables of the sixth edition of the A.M.A., Guides and concluded that appellant 

had 12 percent permanent impairment of the left upper extremity and 24 percent permanent 

impairment of the left lower extremity entitling him to schedule awards. He noted that this was 

an increased impairment from that which had previously been awarded. 

In its February 9, 2015 decision, OWCP denied appellant’s request for reconsideration 

finding that it was untimely filed and failed to present clear evidence of error. Its procedures 

state that, if a claimant is seeking an increased schedule award due to increased impairment 

and/or additional exposure, but not contesting the decision or prior award, this should not be 

treated as a reconsideration request and OWCP should develop the issue of entitlement to an 

additional award.11

In the present case, appellant submitted a new medical report from Dr. Shade dated 

October 2, 2012 after OWCP’s August 30, 2012 schedule award decision. This report addressed 

the pertinent issue of this case, i.e., whether he was entitled to schedule award compensation for 

extremity impairment, and it contained an impairment rating that referenced the A.M.A., Guides. 

It is evident from the record that appellant was seeking a schedule award based on new medical 

evidence. The Board has held that, even if the term reconsideration is used, when a claimant is 

not attempting to show error in the prior schedule award decision and submits medical evidence 

regarding a permanent impairment at a date subsequent to the prior schedule award decision, it 

should be considered a claim for an increased schedule award and OWCP should issue a merit 

decision on the schedule award claim, rather than adjudicate an application for reconsideration.12 

The Board finds that OWCP improperly adjudicated appellant’s request for an additional 

schedule award as a request for reconsideration under the clear evidence of error standard.13 The 

case will be remanded for further development on the issue of whether appellant has a permanent 

impairment of his right upper extremity entitling him to a schedule award. After this 

development is carried out, OWCP shall issue a de novo decision on appellant’s claim. 

 11 See A.C., Docket No. 13-1810 (issued January 6, 2014); supra note 2 at Chapter 2.1602.3(b) (October 2011). 

12 See B.K., 59 ECAB 228, 229-30 (2007); supra note 2 at Chapter 2.808.9.b (February 2013). 

13 K.D., Docket No. 15-0524 (issued August 3, 2015). 
6

CONCLUSION 

The Board finds that this case is not in posture for a decision. 

ORDER 

IT IS HEREBY ORDERED THAT the February 9, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further action consistent with 

this decision of the Board. 

Issued: November 10, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board