United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.G., Appellant 

and 

DEPARTMENT OF THE ARMY, ARMY 

HEALTH CLINIC, Schweinfurt, Germany, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1919 

Issued: January 21, 2016 

Appearances: Case Submitted on the Record

Brett Blumstein, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 21, 2015 appellant, through counsel, filed a timely appeal from an 

April 29, 2015 merit decision and a September 9, 2015 nonmerit 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 more than three percent left leg permanent 

impairment, for which he received a schedule award on April 29, 2015; and (2) whether OWCP 

properly denied a request for reconsideration without merit review of the claim. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On April 3, 2013 appellant, then a 66-year-old social worker, filed a traumatic injury 

claim (Form CA-1) alleging that on December 11, 2012 he sustained a left knee injury in the 

performance of duty. He indicated that twice he slipped on ice in the employing establishment 

parking lot. There is no indication that appellant stopped work or received wage-loss 

compensation. In an attending physician’s form report (Form CA-20) dated January 10, 2013, a 

physician noted a history of the December 11, 2012 incidents and diagnosed left knee 

degeneration.2

The record indicates that appellant underwent a left knee magnetic resonance imaging 

(MRI) scan on April 10, 2013. In a report of that date Dr. Knut Eberhardt, a radiologist, 

indicated that the results showed arthrosis of the medial compartment, “after former 

meniscectomy degeneration of the posterior horn,” focal cartilage lesion of the lateral femoral 

condyle, “after partial tear of the [acromioclavicular ligament] with a secondary atrophy of the 

ligament,” signs of arthrosis of the patellar bone, and joint effusion. 

In a report dated November 14, 2013, Dr. Stefan Reinsdorf, an orthopedic surgeon, 

reported that the April 10, 2013 MRI scan showed joint effusion, a meniscus tear in the 

dorsal/posterior part of the lateral meniscus, and a cartilage lesion. He indicated that appellant 

needed arthroscopic surgery and removal of the damaged meniscus and cartilage. On 

January 24, 2014 OWCP accepted the claim for a left knee medial meniscus tear. 

Appellant underwent left knee surgery on March 24, 2014. The record does not contain a 

copy of the surgical report. 

On February 2, 2015 OWCP received a claim for compensation (Form CA-7) indicating 

that appellant was claiming a schedule award. In support of his claim, appellant submitted a 

December 4, 2014 report from Dr. Jacob Tauber, a Board-certified orthopedic surgeon. 

Dr. Tauber provided a history and results on examination. He reported that x-rays of the left 

knee revealed tricompartmental arthritis and a collapse of the medial compartment. Dr. Tauber 

opined that under Table 16-3 of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides) (sixth edition), appellant had 50 percent permanent 

impairment of the left leg based on severe arthritis and no cartilage interval. 

OWCP referred the medical record to Dr. Leonard Simpson, an OWCP medical adviser, 

for review. In a report dated March 28, 2015, Dr. Simpson opined that the left leg impairment 

for the accepted meniscal injury was three percent under Table 16-3. He noted that there was no 

indication that OWCP had accepted left knee osteoarthritis. The medical adviser further noted 

that the net adjustment under Table 16-3 for the meniscal injury resulted in a grade E impairment 

of three percent. Dr. Simpson noted that, if OWCP were to accept left knee osteoarthritis as 

employment related, the impairment would be 50 percent. The date of maximum medical 

improvement was reported as December 4, 2014. 

 2

 The signature of the physician is illegible. 
3

By decision dated April 29, 2015, OWCP issued a schedule award for three percent 

permanent impairment of the left leg. The period of the award was 8.64 weeks commencing 

December 4, 2014. 

On June 15, 2015 appellant, through counsel, requested reconsideration. He argued that 

OWCP should consider preexisting conditions in a schedule award. On July 7, 2015 appellant 

submitted a June 18, 2015 report from Dr. Tauber, who noted his prior examination of appellant 

on December 4, 2014 and his impairment rating. Dr. Tauber diagnosed degenerative arthritis of 

the left knee. He opined that the “arthritis was clearly permanently aggravated by the incident of 

December 11, 2012.” Dr. Tauber also indicated that appellant’s repetitive job activities 

contributed to his arthritis as well. He concluded that his prior opinions remained unchanged. In 

a report dated June 15, 2015, Dr. Reinsdorf opined that the impairment rating of three percent 

was too low since over the years there had been more or less constantly arthritis of the knee. 

By decision dated September 9, 2015, OWCP found that the evidence was insufficient to 

warrant merit review of the claim. It indicated that osteoarthritis had not been accepted as 

employment related. 

LEGAL PRECEDENT -- ISSUE 1 

5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of 

use of a member or function of the body, the claimant is entitled to a schedule award for the 

permanent impairment of the scheduled member or function.3 Neither FECA nor the regulations 

specify the manner in which the percentage of impairment for a schedule award shall be 

determined. For consistent results and to ensure equal justice for all claimants OWCP has 

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4

 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.5 

With respect to a knee impairment, the A.M.A., Guides provide a regional grid at Table 

16-3. The class of impairment Class of Diagnosis (CDX) is determined based on specific 

diagnosis, and then the default value for the identified CDX is determined. The default value 

(grade C) may be adjusted by using grade modifiers for Functional History (GMFH), Table 16-6, 

Physical Examination (GMPE), Table 16-7, and Clinical Studies (GMCS), Table 16-8. The 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).6

 The permanent 

impairment must be causally related to an accepted employment injury.7 

 3

 5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(a). 

4 A. George Lampo, 45 ECAB 441 (1994). 

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

Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 

3.700, Exhibit 1 (January 2010). 

6

 The net adjustment is up to +2 (grade E) or -2 (grade A). 

7 Rosa Whitfield Swain, 38 ECAB 368 (1987). 
4

ANALYSIS -- ISSUE 1 

In the present case, OWCP issued a schedule award for three percent permanent 

impairment of the left leg on April 29, 2015. An attending physician, Dr. Tauber, had opined in 

a December 4, 2014 report that appellant had 50 percent impairment based on a diagnosis of 

severe left knee arthritis, but Dr. Tauber did not provide a history of the diagnosed arthritis 

condition or offer an opinion as to the relationship between the arthritis condition and the 

December 11, 2012 employment injury. The employment incidents were two slip and falls on 

ice, and the accepted condition was a torn medial meniscus of the left knee. As noted above, the 

permanent impairment must be causally related to the employment injury. 

Under Table 16-3, for a meniscal injury with a partial meniscectomy, it is CDX 1 

impairment and the default (grade C) impairment is two percent. Applying the grade modifiers 

noted above, the medical adviser found a GMFH 2, GMPE 3, and GMCS 3. Applying the 

adjustment formula results in +5, or the maximum adjustment of grade E. Under Table 16-3, this 

is three percent leg impairment. 

The Board finds that OWCP properly found that appellant had three percent permanent 

impairment to his left leg. Based on the probative evidence that was before OWCP as of 

April 29, 2015, there was no evidence of a permanent impairment greater than three percent. 

The maximum number of weeks for loss of use of the leg is 288 weeks under 5 U.S.C. § 8107(c). 

Appellant properly received three percent of 288 weeks or 8.64 weeks of compensation. The 

period covered by a schedule award commences on the date that the employee reaches maximum 

medical improvement (MMI) from residuals of the employment injury.8

 The date of MMI was 

December 4, 2014, representing the date of Dr. Tauber’s examination and consistent with the 

opinion of the medical adviser. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9

OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

evidence that either: “(1) shows that OWCP erroneously applied or interpreted a specific point 

of law; (2) advances a relevant legal argument not previously considered by OWCP; or 

(3) constitutes relevant and pertinent evidence not previously considered by OWCP.”10 20 

C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.11

 8 Albert Valverde, 36 ECAB 233, 237 (1984). 

9

 5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.”) 

10 20 C.F.R. § 10.606(b)(3). 

11 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
5

ANALYSIS -- ISSUE 2 

In the present case, appellant requested reconsideration of the April 29, 2015 decision. 

Although a claimant may at any time seek an additional schedule award and receive a merit 

decision,12 he did not submit medical evidence with new examination results showing an 

increased impairment. Appellant submitted evidence and argued that the April 29, 2015 was 

incorrect. OWCP properly determined that he was requesting reconsideration of the April 29, 

2015 decision. 

The Board finds that appellant has submitted new, relevant, and pertinent evidence on the 

issue presented. As noted, no medical evidence had previously discussed causal relationship 

between a diagnosed left knee arthritis condition and the employment injury. The June 18, 2015 

report from Dr. Tauber provides, for the first time, an opinion that the condition was employment 

related. This is clearly relevant to the schedule award decision. Dr. Tauber had previously 

opined in his December 4, 2014 report that based on the arthritis appellant had 50 percent left leg 

permanent impairment. Moreover, the medical adviser had acknowledged in his March 28, 2015 

report that, if arthritis were to be accepted as employment related, there would be a greater 

impairment. 

In addition, Dr. Tauber’s June 18, 2015 report states that appellant’s arthritis condition 

“was clearly permanently aggravated by the incident of December 11, 2012,” indicating that the 

arthritis was a preexisting condition. OWCP procedures provide that impairment ratings for 

schedule awards include those conditions accepted by OWCP as employment related, and any 

preexisting permanent impairment of the same member or function. If the work-related injury 

has affected any residual usefulness in whole or in part, a schedule award may be appropriate as 

there is no apportionment.13

Appellant is entitled to a merit review as he submitted relevant and pertinent evidence an 

argument previously considered by OWCP. The case will be remanded to OWCP for a proper 

decision on the merits of the claim. OWCP should develop the evidence as necessary to properly 

resolve the issues presented and issue a merit schedule award decision. 

CONCLUSION 

The Board finds that the April 29, 2015 properly found three percent impairment to the 

left leg. The Board further finds that appellant submitted sufficient evidence to require a merit 

review and the case is remanded to OWCP for a merit decision. 

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

13 Federal (FECA) Procedure Manual, Part 2, supra note 5. 
6

ORDER 

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

Compensation Programs dated April 29, 2015 is affirmed. The decision dated September 9, 

2015 is set aside and the case is remanded for further action consistent with this decision of the 

Board. 

Issued: January 21, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board