United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.H., Appellant 

and 

DEPARTMENT OF COMMERCE, 2000 

DECENNIAL CENSUS, Dallas, TX, Employer 

__________________________________________ 

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Docket No. 15-0809 

Issued: October 19, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 23, 2015 appellant filed a timely appeal from an August 28, 2014 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.2

 1

 5 U.S.C. § et seq.

2

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from August 28, 2014, the date of OWCP’s last merit decision, was 

February 24, 2014. Since using February 26, 2014, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is February 23, 2015, rendering the appeal timely filed. See 20 

C.F.R. § 501.3(f)(1). 
2

ISSUE 

The issue is whether OWCP properly determined the date of maximum medical 

improvement (MMI) and the period of appellant’s schedule award because the April 23, 2013 

schedule award was an increased schedule award, not an amended award. 

FACTUAL HISTORY 

This case has previously been before the Board.3 By decision dated February 7, 2013, the 

Board found that OWCP had improperly determined on May 1, 2012 that appellant’s February 1, 

2012 request for an increased schedule award was an untimely request for reconsideration of a 

February 1, 2011 schedule award. The case was remanded for determination under the proper 

standard of review. 

The findings and facts as set forth in the prior decision are herein incorporated by 

reference. The relevant facts are set forth below. 

On November 20, 2000 OWCP accepted that appellant, then a 37-year-old enumerator, 

sustained a left ankle sprain on April 28, 2000 when she slipped and fell down the steps of a 

building.4

 Appellant missed worked intermittently following the injury until she was placed on 

the periodic rolls for wage-loss benefits on January 18, 2002. 

Appellant continued to treat with Dr. Richard Gasalberti, a specialist in physical medicine 

and rehabilitation. Dr. Gasalberti submitted progress notes to the record, through the years, 

regarding appellant’s left ankle and right knee conditions. 

On June 15, 2007 OWCP referred appellant to Dr. Salvatore R. Lenzo for a second 

opinion evaluation to determine appellant’s disability status. Based upon Dr. Lenzo’s August 14, 

2007 report, by decision dated September 11, 2007, OWCP expanded the acceptance of 

appellant’s claim to include left ankle sprain, tear of medial meniscus of the right knee, tear of 

lateral meniscus of the right knee, osteoarthritis of the left lower leg, and joint pain in multiple 

sites. 

On May 11, 2010 appellant requested a schedule award. In support of this request she 

submitted an April 8, 2010 report from Dr. Arnold Goldman, a Board-certified radiologist. In 

his report, Dr. Goldman diagnosed internal derangement of the right knee and left ankle. Based 

upon loss of range of motion, he opined that appellant had a 20 percent permanent impairment of 

the right knee, and a 15 percent impairment of the left ankle. 

Noting that Dr. Goldman’s permanent impairment rating was not based on the sixth 

edition of the A.M.A., Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides) 

OWCP referred appellant, a statement of accepted facts, and the case record to Dr. P. Leo 

 3

 Docket No. 12-1655 (issued February 7, 2013). 

4

 No formal acceptance decision from 2000 appears in the record, however, the acceptance is noted in a letter to 

OWCP from the employing establishment dated December 28, 2000. 
3

Varialle, a Board-certified orthopedic surgeon, for a second opinion evaluation on 

August 10, 2010 under the A.M.A., Guides. According to Table 16-2 of the A.M.A. Guides,

Dr. Varialle calculated an impairment rating of 10 percent for the left ankle.5 Using Table 16-3, 

he calculated an impairment rating of two percent for the right knee.6

 Dr. Varialle noted the date 

of MMI as 2004. 

On September 2, 2010 an OWCP district medical adviser (DMA) reviewed Dr. Varialle’s 

August 10, 2010 report and agreed with the physician that appellant had 10 percent permanent 

impairment of the left lower extremity and 2 percent permanent impairment of the right lower 

extremity. He noted that he could not determine the date of MMI from the medical records and 

Dr. Varialle did not provide a date other than noting the year as 2004. 

In a November 16, 2010 supplemental report, Dr. Varialle stated that a tear of the medial 

meniscus of the right knee, osteoarthritis, and left ankle osteochondral defect of the talus 

typically would stabilize without surgery in approximately one year. Thus, he opined that 

appellant’s date of MMI was reached on April 28, 2001, one year after her injury. 

On November 29, 2010 the DMA reviewed Dr. Varialle’s supplemental report and agreed 

that the date of MMI was April 28, 2001. 

By decision dated February 1, 2011, OWCP granted appellant a schedule award for 2 

percent permanent impairment of the right lower extremity and 10 percent permanent 

impairment of the left lower extremity. The date of MMI was noted as April 28, 2001. The 

award covered a period of 34.56 weeks from March 24 to November 20, 2010.7

 

On February 1, 2012 appellant requested reconsideration of OWCP’s February 1, 2011 

schedule award decision. 

Dr. David Weiss, a Board-certified orthopedic surgeon, submitted a report dated 

January 17, 2012 wherein he provided a detailed medical history, reviewed appellant’s prior 

diagnostic and medical reports, and stated findings on physical examination. He opined that the 

April 28, 2000 work-related injury was the competent producing factor for her subjective and 

objective findings. Using Table 16-3, Table 16-7, and Table 16-8 of the sixth edition of the 

A.M.A., Guides, Dr. Weiss classified the right knee medial collateral ligament injury with 

moderate laxity in class 2 and calculated a right lower extremity impairment of 18 percent.8

 He 

calculated the left osteochondral fracture of the talus within class 1 for a net adjustment of 13 

 5

 A.M.A., Guides, at 502-08, Table 16-2 (6th ed. 2009). 

6 Id. at 509-11, Table 16-3. 

7

 The Board notes that because appellant was receiving wage-loss compensation after her April 28, 2001 injury, 

the period of her schedule award began on March 24, 2010. 

8

 A.M.A., Guides 510-19. 
4

percent impairment of the left lower extremity.9

 Dr. Weiss noted the date of MMI as 

January 17, 2012. 

By letter dated March 23, 2012, appellant argued that her schedule award should be 

increased based on greater impairment which was established by the additional medical evidence 

submitted. 

By decision dated May 1, 2012, OWCP denied appellant’s claim finding that the 

evidence submitted was not sufficient to warrant modification of the February 1, 2011 decision. 

It noted that its decision was based on whether it committed clear evidence of error when 

rendering its previous decision. 

On August 1, 2012 appellant requested an appeal before the Board. The appeal was 

docketed as 12-1655.10 She argued that Dr. Weiss’ January 17, 2012 medical report was new 

evidence which provided an impairment rating and date of MMI, but was not reviewed or 

considered by OWCP. 

In a February 7, 2013 decision, the Board set aside the May 1, 2012 OWCP decision 

finding that it failed to properly conduct a merit review of appellant’s claim and incorrectly 

determined that she filed an untimely reconsideration request. The case was remanded to OWCP 

to review the newly submitted evidence and properly consider her request under the standard of 

review applicable to timely requests for reconsideration. 

On remand, OWCP referred the case file, statement of accepted facts, and Dr. Weiss’ 

January 17, 2012 report to a DMA for review and a determination on appellant’s permanent 

partial impairment of the right and left lower extremity and date of MMI. 

In an April 8, 2013 report, the DMA reviewed Dr. Weiss’ January 17, 2012 report and 

agreed with the physician that appellant had 18 percent permanent impairment for the right lower 

extremity and 13 percent permanent impairment of the left lower extremity. He found that she 

was entitled to 18 percent impairment of the right lower extremity after applying the net 

adjustment formula for a class 2 right knee medial collateral ligament injury.11 Applying the net 

adjustment formula to the left osteochondral fracture of the talus, the DMA calculated 13 percent 

permanent impairment of the left lower extremity.12 He also agreed with Dr. Weiss’ January 17, 

2012 date of MMI. The DMA explained that January 17, 2012 was the appropriate date of MMI 

based on the medical documentation and objective evidence considered in order to determine a 

schedule award. 

By decision dated April 23, 2013, OWCP granted appellant a schedule award for an 

additional 16 percent impairment of the right lower extremity, or a total impairment of 18 

 9 Id. at 503-19, Tables 16-2, 16-7, and 16-8. 

10 Supra note 3. 

11 A.M.A., Guides, Table 16-3. 

12 Id. at 503, Table 16-2. 
5

percent. It further granted her a schedule award for an additional 3 percent impairment of the left 

lower extremity, or a total impairment of 13 percent. The date of MMI was noted as 

January 17, 2012. The award covered a period of 54.72 weeks from January 17, 2012 to 

February 3, 2013. 

On January 30, 2014 appellant requested reconsideration of OWCP’s April 23, 2013 

decision. She did not contest the percentage of impairment awarded. Rather, appellant argued 

that the April 23, 2013 award was an amended schedule award and the period of the award 

should have started on November 21, 2010, the day following the end of the previously issued 

February 1, 2011 award. She argued that, because OWP previously paid 10 percent left lower 

extremity and 2 percent right lower extremity impairment was deducted from her April 23, 2013 

schedule award, the award was an amended schedule award, and should have begun on 

November 21, 2010. In support of her argument, appellant cited Chapter 2.808.9(a) of FECA 

procedure manual which stated, “If it is determined after payment of a schedule award that the 

claimant is entitled to a greater percentage of loss, an amended award should be issued. The pay 

rate will remain the same, and the revised award will begin on the day following the end of the 

award issued previously.”13 She also submitted the February 1, 2011 schedule award decision, 

the April 23, 2013 schedule award decision, citations to FECA procedure manual, a January 20, 

2012 medical report from Dr. Weiss, and a September 23, 2013 letter from Dr. Weiss. 

By letter dated September 23, 2013, received by OWCP on February 6, 2014, Dr. Weiss 

reported that appellant brought to his attention that the new accepted percentages which were 

calculated in his updated January 20, 2012 report were not used to calculate her impairment from 

March 24 through November 20, 2010. He submitted an attached report for review of the 

impairment percentages. 

A report dated January 20, 2012 from Dr. Weiss was newly submitted in support of 

appellant’s claim. The original report was dated January 17, 2012 with an “updated” date of 

January 20, 2012. In the updated January 20, 2012 report, Dr. Weiss placed appellant in class 2 

primary right knee joint arthritis with a default value of 20 percent. He found no applicable 

grade modifier for clinical studies and assigned a grade modifier 3 for functional history and 

grade modifier 2 for physical examination.14 Applying the Net Adjustment Formula, Dr. Weiss 

subtracted 2, the numerical value of the class, from the numerical value of the grade modifier for 

each applicable component (functional history and physical examination) and then added those 

values, resulting in a net adjustment of 1 ((3-2) + (2-2)). Application of the Net Adjustment 

Formula meant that movement was warranted one place to the right of class 2 default value grade 

C to grade D yielding a 22 percent impairment of the right lower extremity. Dr. Weiss did not 

modify his 13 percent left lower extremity impairment rating, nor did he modify the date of MMI 

as January 17, 2012. He concluded that appellant’s final combined right lower extremity 

impairment amounted to 32 percent. 

 13 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.9(a) (February 2013). 

14 A.M.A., Guides 517, Table 16-7. 
6

By decision dated August 28, 2014, OWCP denied modification of the April 23, 2013 

schedule award decision. As appellant did not contest the percentage of permanent impairment 

in her January 30, 2014 request for reconsideration, OWCP did not review the impairment 

calculation Dr. Weiss provided in his updated January 20, 2012 report. OWCP found that it 

correctly paid her schedule award based on the January 17, 2012 date of MMI. It noted that the 

April 23, 2013 decision was not an amended schedule award, but rather was an increased 

schedule award based on Dr. Weiss’ January 17, 2012 report and the DMA’s April 8, 2013 

report. 

LEGAL PRECEDENT 

The schedule award provision of FECA and its implementing regulations set forth the 

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

loss or loss of use of scheduled members or functions of the body.15 However, FECA does not 

specify the manner in which the percentage of loss shall be determined. For consistent results 

and to ensure equal justice under the law to 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 adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.16

ANALYSIS 

OWCP has accepted that appellant sustained injury on April 28, 2000 which caused left 

ankle sprain, tear of the medial meniscus of the right knee, tear of the lateral meniscus of the 

right knee, osteoarthritis of the left lower leg, and multiple site joint pain. By decision dated 

February 1, 2011, it granted her a schedule award claim for 2 percent permanent impairment of 

the right lower extremity and 10 percent permanent impairment of the left lower extremity. The 

date of MMI was noted as April 28, 2001 and the award covered a period of 34.56 weeks from 

March 24 to November 20, 2010. The schedule award was based on Dr. Varialle’s August 10, 

2010 evaluation, impairment rating, and date of MMI which was confirmed by an OWCP DMA. 

Later appellant submitted a new report from Dr. Weiss and OWCP, by decision dated 

April 23, 2013, granted an additional schedule award of 16 percent of the right lower extremity 

and an additional 3 percent impairment of the left lower extremity. 

On January 30, 2014 appellant requested reconsideration of OWCP’s April 23, 2013 

decision. She did not contest the percentage of impairment awarded, but argued that, as the 

April 23, 2013 award was an amended schedule award, the period of the award should have 

started on November 21, 2010, the day following the end of the previously issued schedule 

award and not on January 17, 2012. 

 15 5 U.S.C. § 8107; 20 C.F.R. § 10.404. 

16 K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth 

edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010). 
7

By decision dated August 28, 2014, OWCP denied modification of its April 23, 2013 

schedule award decision finding that it correctly paid appellant’s schedule award based on the 

January 17, 2012 date of MMI. It noted that the April 23, 2013 decision was not an amended 

schedule award and rather was an award for an increased schedule award based on Dr. Weiss’ 

January 17, 2012 report and the April 8, 2013 DMA report. 

The Board finds that OWCP properly determined that appellant’s April 23, 2013 

schedule award was an increased schedule award and not an amended award of the previously 

issued February 1, 2011 award. 

The February 1, 2011 schedule award was based on Dr. Varialle’s August 10, 2010 

evaluation and impairment rating which was confirmed by an OWCP DMA. On January 26, 

2012 appellant requested reconsideration and submitted a new evaluation and impairment rating 

from Dr. Weiss dated January 17, 2012 to establish an increased schedule award. There was no 

allegation that the previous schedule award was incorrect. 

In schedule award cases, a distinction is made between an application for an additional 

schedule award and a request for reconsideration of an existing schedule award. When a 

claimant is asserting that an original award was erroneous based on his or her medical condition 

at the time of the original award, this is a request for reconsideration. However, 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 additional 

schedule award. A claim for an additional schedule award may be based on new exposure to 

employment factors or on the progression of an employment-related condition, without new 

exposure, resulting in greater permanent impairment.17

OWCP procedures clearly explain that if it is determined after payment of a schedule 

award that the award was erroneous and the claimant was entitled to a greater percentage of loss, 

an amended award should be issued. The pay rate will remain the same, and the revised award 

will begin on the day following the end of the award issued previously. If, on the other hand, the 

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. In this case, the original 

award is undisturbed and the new award has its own date of MMI, percent of impairment, and 

period of award. 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.18

In this instance, appellant submitted a new January 17, 2012 evaluation and impairment 

rating from Dr. Weiss who determined that she was entitled to 18 percent permanent impairment 

for the right lower extremity and 13 percent permanent impairment of the left lower extremity 

based on a new January 17, 2012 date of MMI. On April 8, 2013 an OWCP DMA confirmed 

 17 R.L., Docket No. 09-1948 (issued June 29, 2010); B.K., 59 ECAB 228, 229-30 (2007); Candace A. Karkoff, 56 

ECAB 622, 625 (2005); Linda T. Brown, 51 ECAB 115, 115-16 (1999); Paul R. Reedy, 45 ECAB 488, 490 (1994); 

see Leonard E. Redway, 28 ECAB 242, 246-47 (1977). 

18 Supra note 13. 
8

Dr. Weiss’ findings. Appellant did not assert that the original February 11, 2011 schedule award 

was erroneous based on her medical condition on February 11, 2011.19 Rather, she submitted 

medical evidence in support of an increased impairment on a later date based on Dr. Weiss’ 

January 17, 2012 evaluation. Appellant did not establish entitlement to an amended award as she 

did not establish that she was entitled to a greater percentage of loss as of February 1, 2011, the 

date of the initial schedule award.20

Regarding the date of MMI for the increased schedule award, OWCP procedures explain 

that schedule awards begin on the date of MMI, unless circumstances show a later date should be 

used.21 The MMI date is determined solely on the basis of the medical evidence; however, a 

subsequent date may be chosen to start the award if the MMI date falls within a period of 

compensable disability such that converting disability payments into a schedule award would be 

disadvantageous to the claimant.22 

Based on the evidence of record, there is no indication that OWCP incorrectly utilized 

January 17, 2012 as the date of MMI for the increased schedule award. It further correctly 

determined that the date of the award started on January 17, 2012.23 Dr. Weiss and the DMA 

both agreed that the date of MMI for the increased impairment was January 17, 2012 based on 

the date of evaluation.24 As appellant submitted support for an increased impairment at a later 

date, the original February 1, 2011 award was undisturbed and the new award had its own date of 

MMI, percent of impairment, and period of award. 

On appeal, appellant alleges that, because OWCP determined that the April 23, 2013 

schedule award was an increased award and not an amended award, it erroneously deducted the 

previously awarded 2 percent permanent impairment of the right lower extremity and 10 percent 

permanent impairment of the left lower extremity issued in the February 1, 2011 decision. 

OWCP procedures state that any previous impairment to the member under consideration 

is included in calculating the percentage of loss, except when the prior impairment is due to a 

previous work-related injury, in which case the percentage already paid is subtracted from the 

total percentage of impairment.25 Appellant previously received an award for 2 percent 

impairment to her right lower extremity, and an award for 10 percent impairment to the left 

lower extremity, these amounts were properly subtracted from the current determination.26 

 19 See M.M., Docket No. 14-192 (issued May 22, 2014). 

20 Supra note 13. 

21 Supra note 13, at Chapter 2.808.7(b). 

22 See Franklin L. Armfield, 28 ECAB 445 (1977). 

23 L.M., Docket No. 09-690 (issued December 29, 2009). 

24 The Board is reluctant to find a retroactive date of MMI absent persuasive proof. E.L., Docket No. 13-943 

(issued November 8, 2013). 

25 Supra at note 13, Chapter 2.808.7.a(1). 

26 See G.B., Docket NO. 15-0445 (issued May 4, 2015). 
9

On appeal before the Board, appellant also argues that Dr. Weiss’ January 20, 2012 

report establishes that she is entitled to a greater impairment of the right lower extremity. The 

Board notes that when requesting reconsideration of OWCP’s April 23, 2013 decision, appellant 

did not contest the percentage of impairment. Rather, she argued that the period of her award 

should begin on November 21, 2010. As appellant did not contest the percentage of the award, 

OWCP did not address this issue in its August 28, 2014 decision, and this issue is not before the 

Board on this appeal.27 

Appellant may request an 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. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant’s April 23, 2013 

schedule award was an increased schedule award and not an amended award of the previously 

issued February 1, 2011 award. The Board further finds that she reached MMI on January 17, 

2012 and the period of the award properly started on that date. 

 27 T.B., Docket No. 15-0001 (issued July 1, 2015). 
10

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decision dated August 28, 2014 is affirmed. 

Issued: October 19, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board