United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Atlanta, GA, Employer 

__________________________________________ 

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Docket No. 16-1411 

Issued: December 23, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 29, 2016 appellant filed a timely appeal from an April 25, 2016 merit decision 

and a June 3, 2016 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 the case. 

ISSUES 

The issues are: (1) whether appellant has more than 50 percent permanent impairment of 

the left lower extremity, for which she received a schedule award; and (2) whether OWCP 

properly denied her request for reconsideration of the merits of her claim under 5 U.S.C. 

§ 8128(a). 

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated March 13, 2013, the 

Board affirmed an August 15, 2012 nonmerit decision of OWCP denying appellant’s request for 

 1

 5 U.S.C. § 8101 et seq. 
2

reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.2

 The 

facts and circumstances as set forth in the Board’s prior decision and order are incorporated 

herein by reference. The facts relevant to this appeal will be set forth. 

On April 29, 2002 appellant, then a 59-year-old supervisor, filed a traumatic injury claim 

(Form CA-1) alleging that on that date she injured her head, left hand, left arm, and left leg when 

she tripped and fell. OWCP accepted the claim for a left knee strain, an exacerbation of left knee 

osteoarthritis, and long-term use of anticoagulants. 

An OWCP medical adviser, in a report dated September 22, 2006, found that appellant 

had 50 percent permanent impairment of the left lower extremity due to left knee arthritis. He 

utilized the fifth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides) in reaching his conclusion. 

In a decision dated November 2, 2006, OWCP granted a schedule award for 50 percent 

permanent impairment of the left lower extremity. The period of the award ran for 144 weeks 

from June 23, 2006 to March 26, 2009. 

On March 10, 2008 appellant underwent an authorized left knee total arthroplasty.3 She 

filed a claim for an increase schedule award. 

In a decision dated February 5, 2010, OWCP denied appellant’s claim for an increased 

schedule award. It found that she had not submitted any evidence to establish that she had more 

than 50 percent permanent impairment of the left lower extremity. 

On September 30, 2015 appellant filed a claim for an increased schedule award. By letter 

dated October 13, 2015, OWCP requested that she submit an impairment evaluation from her 

attending physician in accordance with the sixth edition of the A.M.A., Guides. 

Appellant, on November 23, 2015, submitted an October 9, 2015 report from Dr. Thomas 

Branch, a Board-certified orthopedic surgeon. Dr. Branch discussed her complaints of a swollen 

and painful left knee. He noted that blood clot testing revealed deep vein thrombosis and venous 

insufficiency on the left side. On examination, Dr. Branch found moderate swelling, tenderness 

of the medial and lateral facet joint, mild patellofemoral crepitation and effusion, and no laxity. 

He measured 0 degrees extension, 90 degrees flexion, and a grade 1 anterior drawer at 90 

degrees. Dr. Branch opined that a bone scan showed “no loosening or infection” of the left knee 

 2

 Docket No. 12-1928 (issued March 13, 2013). By decision dated April 2, 2009, OWCP reduced appellant’s 

compensation to zero after finding that her actual earnings as a modified attendance control supervisor effective 

November 7, 2008 fairly and reasonably represented her wage-earning capacity. In decisions dated April 8 and 

September 29, 2010, it denied her claim for compensation after January 30, 2009 as she had not established 

modification of its April 2, 2009 loss of wage-earning capacity determination. Appellant appealed to the Board on 

January 4, 2012. By order dated March 14, 2012, the Board dismissed her appeal as more than 180 days had elapsed 

from the last merit decision dated September 29, 2010.2

 Order Dismissing Appeal, Docket No. 12-0490 (issued 

March 14, 2012). On June 5, 2012 appellant requested reconsideration. In a decision dated August 15, 2012, 

OWCP denied her request for reconsideration as it was untimely filed and failed to demonstrate clear evidence of 

error. 

3

 The operative report indicated that the physician was performing a right total knee arthroplasty, but this appears 

to be a typographical error. 
3

prosthesis and that an x-ray showed that the components were “well fixed and in good position” 

with exaggeration of the lateral joint space. He diagnosed left knee ankyloses, and an embolism 

and fibrosis due to internal orthopedic devices. 

In an impairment evaluation dated October 9, 2015, Dr. Branch diagnosed class 4 total 

knee replacement using Table 16-3, the knee regional grid, on page 511 of the A.M.A., Guides. 

He indicated that appellant had a poor result from her total knee replacement “with 

moderate[-]to[-]severe motion deficits, [and] residual mononeuritis without instability,” for 55 

percent lower extremity impairment. Dr. Branch advised that her condition was permanent and 

stationary. 

An OWCP medical adviser reviewed Dr. Branch’s report on February 21, 2016. He 

noted that appellant had 90 degrees flexion, 0 degrees extension, a grade 1 anterior drawer at 90 

degrees, mild effusion, and mild crepitation. The medical adviser related that objective studies 

showed components of the total knee replacement in good position with no loosening. He 

diagnosed class 3 total knee replacement under Table 16-3 due to appellant’s mild loss of 

motion, which yielded a default value of 37 percent. The medical adviser applied a grade 

modifier of zero for functional history as she did not have an abnormal gait or use an assistive 

device, a grade modifier of two for moderate palpatory physical examination findings, and a 

grade modifier of one for clinical studies as x-rays verified the diagnosis. Applying the net 

adjustment formula moved the grade modifier two places to the left for 31 percent left lower 

extremity impairment. The medical adviser opined that appellant had reached maximum medical 

improvement. He explained that he disagreed with Dr. Branch’s characterization of her motion 

deficit as moderate or severe and also noted that Dr. Branch had not applied grade modifiers. 

OWCP, by letter dated March 4, 2016, requested that Dr. Branch review and discuss the 

finding by its medical adviser that appellant did not have 55 percent permanent impairment of 

the left lower extremity. No response was received. 

By decision dated April 25, 2016, OWCP denied appellant’s claim for an increased 

schedule award. It found that she had not submitted evidence showing more than the previously 

awarded 50 percent left leg impairment. 

Appellant, on April 27, 2016, requested reconsideration. She related that she and her 

physician had reviewed OWCP’s medical adviser’s findings and agreed with his conclusion that 

she had 31 percent impairment of the left leg. Appellant argued that she was entitled to an award 

for an additional 31 percent impairment of the left lower extremity in addition to the 50 percent 

permanent impairment previously received. She noted that her knee condition adversely affected 

activities of daily living. 

Appellant submitted progress reports dated March 10 and May 19, 2016 from 

Dr. Branch.4

 

By decision dated June 3, 2016, OWCP denied appellant’s request for reconsideration as 

she had not raised an argument or submitted evidence sufficient to warrant reopening her case 

for further review of the merits under section 8128(a). 

 4

 The record also contains an April 25, 2016 report from a physician assistant. 
4

On appeal appellant argues that she had experienced additional loss of use of her left 

lower extremity since her prior schedule award for 50 percent permanent impairment. She 

asserts that she is entitled to an award for an additional 31 percent permanent impairment as 

found by OWCP’s medical adviser. 

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA,5 and its implementing federal regulations,6 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. 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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

The sixth edition requires identifying the impairment class for the diagnosed condition 

Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on Functional 

History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).9

 The net 

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

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to the medical adviser for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale 

for the percentage of impairment specified.10

OWCP procedures provide 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.11

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained left knee strain, an exacerbation of left knee 

arthritis, and long-term use of anticoagulants due to an April 29, 2002 employment injury. On 

 5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 

7 Id. at § 10.404(a). 

8

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

Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

9

 A.M.A., Guides 494-531. 

10 See supra note 8 at Chapter 2.808.6(f) (February 2013). 

11 Id. at Chapter 2.808.7(a)(1) (February 2013); see also L.G., Docket No. 15-1289 (issued January 21, 2016). 
5

November 2, 2006 it granted 50 percent permanent impairment of the left lower extremity due to 

the accepted conditions. 

Appellant underwent a total arthroplasty of the left knee on March 10, 2008. On 

February 5, 2010 OWCP denied her claim for an increased schedule award. Appellant filed a 

claim for an increased schedule award on September 30, 2015. She submitted an October 9, 

2015 report from Dr. Branch in support of her request. On examination, Dr. Branch measured 95 

degrees of flexion, 0 degrees extension, and a grade 1 anterior drawer at 90 degrees. He found 

moderate swelling, and mild patellofemoral crepitation and effusion without laxity. Dr. Branch 

identified the diagnosis as a class 4 total knee replacement with a poor result, or 55 percent lower 

extremity impairment using Table 16-3 on page 511 of the A.M.A., Guides. Table 16-3 provides 

that a class 4 impairment is appropriate for a poor result from a total knee replacement with 

“poor position, moderate[-]to[-]severe instability, and/or moderate[-]to[-]severe motion deficit.” 

Dr. Branch did not explain his rating of appellant’s total knee replacement as a class 4 poor result 

given his finding that she had no instability, good position, and range of motion measurements 

that did not identify the motion loss as moderate or severe. Additionally, he did not apply grade 

modifiers or the net adjustment formula to his finding and thus his opinion is not in accordance 

with the A.M.A., Guides and of little probative value.12

On February 21, 2016 an OWCP medical adviser reviewed Dr. Branch’s report and 

identified the diagnosis as a class 3 total knee replacement with a fair result from the surgery 

with a mild motion deficit. He applied grade modifiers and utilized the net adjustment formula 

to find that appellant had 31 percent permanent impairment. The maximum allowed for a class 3 

impairment as a result of a total knee replacement is 43 percent, which is less than the previously 

awarded 50 percent permanent impairment. The Board finds that the report of OWCP’s medical 

adviser is in accordance with the A.M.A., Guides and thus constitutes the weight of the evidence 

and establishes that appellant has no more than 50 percent permanent impairment of the left leg 

for which she previously received a schedule award. 

On appeal appellant contends that she is entitled to an award for an additional 31 percent 

permanent impairment as found by OWCP’s medical adviser. As discussed, however, the 

percentage already paid due to the work-related injury is subtracted from the total percentage of 

impairment.13 The medical evidence is insufficient to support an increased schedule award as it 

does not establish that appellant has more than the 50 percent permanent impairment previously 

awarded for the left lower extremity. 

Appellant also maintains on appeal that her current left lower extremity problems are 

more severe than when she received the 50 percent permanent impairment. She has the burden, 

however, to submit probative medical evidence establishing a greater extent of impairment.14 

Additionally, factors such as limitations on daily activities have no bearing on the calculation of 

a schedule award.15

 12 See Mary L. Henninger, 52 ECAB 408 (2001). 

13 See supra note 11. 

14 See D.E., Docket No. 16-0463 (issued May 17, 2016); A.B., Docket No. 12-1392 (issued January 24, 2013). 

15 See T.E., Docket No. 12-1691 (issued January 29, 2013); Kimberly M. Held, 56 ECAB 670 (2005). 
6

Appellant may request a schedule award or 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. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,16

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.17 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant’s application for review must be received within one year of the 

date of that decision.18 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.19

The Board has held that the submission of evidence which repeats or duplicates evidence 

already in the case record does not constitute a basis for reopening a case.20 The Board also has 

held that the submission of evidence which does not address the particular issue involved does 

not constitute a basis for reopening a case.21 

ANALYSIS -- ISSUE 2 

By decision dated April 25, 2016, OWCP denied appellant’s claim for an increased 

schedule award as the evidence established that she had no more than the previously awarded 50 

percent permanent impairment of the left lower extremity. On April 27, 2016 appellant timely 

requested reconsideration of the April 25, 2016 decision. She maintained that she and her 

physician agreed with OWCP’s medical adviser’s finding that she had 31 percent left lower 

extremity impairment. Appellant contended that she was entitled to the additional 31 percent 

permanent impairment as an additional award. As discussed, however, a prior award for a work 

injury is subtracted from the total percentage of impairment.22 Appellant’s argument is not new 

and relevant and does not show that OWCP erred in applying a point of law. Consequently, it is 

insufficient to warrant reopening her case for further merit review. 

 16 Supra note 1. Section 8128(a) of FECA provides 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.” 

17 20 C.F.R. § 10.606(b)(3). 

18 Id. at § 10.607(a). 

19 Id. at § 10.608(b). 

20 F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001). 

21 P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 

180 (2000). 

22 See supra note 11. 
7

Appellant submitted progress reports dated March 10 and May 19, 2016 from Dr. Branch. 

The reports, however, do not contain an impairment rating and thus are irrelevant to the issue at 

hand. Evidence that does not address the particular issue involved does not warrant reopening a 

case for merit review.23

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law, advance a relevant legal argument not previously considered by OWCP, or submit pertinent 

and relevant evidence not previously considered. As she did not meet any of the necessary 

regulatory requirements, she is not entitled to further merit review. 

CONCLUSION 

The Board finds that appellant has no more than 50 percent permanent impairment of the 

left lower extremity, for which she received a schedule award. The Board further finds that 

OWCP properly denied her request to reopen her case for further review of the merits under 

section 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the June 3 and April 25, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: December 23, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 23 Freddie Mosley, 54 ECAB 255 (2002).