United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.T., Appellant 

and 

DEPARTMENT OF THE ARMY, U.S. ARMY 

FORCES COMMAND, Fort McCoy, WI, 

Employer 

__________________________________________ 

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Docket No. 15-1033 

Issued: September 7, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On April 6, 2015 appellant filed a timely appeal from a March 26, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) and a January 21, 2015 

merit decision of 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 established more than 35 percent permanent 

impairment to her left upper extremity and more than 35 percent to her left lower extremity for 

which she has received a schedule award; and (2) whether OWCP properly denied her request 

for further merit review of her claim pursuant to 5 U.S.C. § 8128(a). 

On appeal, appellant contends that she never received payment for the schedule award. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. By decision dated February 25, 1994, 

the Board found that appellant had no more than 35 percent permanent impairment of the left 

upper extremity and 35 percent permanent impairment of the left lower extremity, for which she 

had received a schedule award.2

 The period of the award would run from February 12, 1988 to 

February 20, 1992, but appellant was advised that the award would be offset by any 

compensation previously paid for the loss of wage-earning capacity for the same period. The 

letter stated that the award would be paid in a lump sum of $13,302.83. Appellant was advised 

to contact OWCP within 10 days if a check was not received when due. A note in the record 

reflects that she visited an OWCP office on July 13, 1992 to discuss payment of medical bills, 

but there is no reference to any discussion at that time regarding the schedule award payment.3

 

The facts as presented in the previous Board decision are incorporated herein by reference. 

On August 25, 2014 appellant filed a claim for an increased schedule award (Form 

CA-7). In an August 28, 2014 report, Dr. Danielle Schiff, a Board-certified physiatrist, noted 

that appellant was under her medical care for right frontal intracerebral hemorrhage on 

February 12, 1986 with continued residual left-sided paralysis and severe cognitive deficits. She 

noted that appellant continued to struggle with left hemiplegia affecting her independence in 

self-care and that her severe cognitive deficits inhibit her from working. Dr. Schiff opined that 

appellant had reached maximum medical improvement. As for her left hemiparesis, strength was 

anti-gravity, but coordination impaired. 

In a September 16, 2014 report, Dr. Jeffrey L. Visotsky, a Board-certified orthopedic 

surgeon, noted the history of injury and presented examination findings. He opined that 

appellant was disabled from the 1986 stroke. Dr. Visotsky advised that appellant had paralysis 

involving the left side. Appellant’s primary reason for being disabled was not the arthritic 

conditions in her shoulder, but the paralysis, hypertension, stroke, and seizure disorder. 

Dr. Visotsky opined that her disability papers were best completed by her treating physicians. 

 2

 Docket No. 92-1860 (issued February 25, 1994). On September 4, 1987 appellant, then a 36-year-old 

accounting technician, filed an occupational disease claim alleging that factors of her federal employment caused or 

contributed to her February 12, 1986 intracerebral hemorrhage. She stopped work on January 30, 1986 and has not 

returned. By decision dated February 21, 1989, OWCP accepted that appellant’s February 12, 1986 intracerebral 

hemorrhage with hematoma formation (cognitive deficits) were causally related to her federal employment and paid 

benefits. It subsequently accepted other conditions including poisoning by unspecified anticonvulsants, depressive 

disorder, hypertensive heart disease, and abnormal serum enzyme levels. OWCP paid appellant compensation for 

temporary total disability from February 19, 1986 to September 7, 1987 and thereafter placed her on the periodic 

rolls for partial disability, beginning September 8, 1987, following a wage-earning capacity decision based on actual 

earnings. Appellant subsequently claimed a schedule award (Form CA-7). On May 11, 1992 OWCP issued 

appellant an award for 35 percent permanent impairment of the left upper extremity and 35 percent permanent 

impairment of the left lower extremity. The period of the award was February 12, 1988 to February 20, 1992, less 

previously paid compensation for loss of wage-earning capacity for the same period. 

3

 The record further reflects that appellant had contacted OWCP several times about the status of her payments. 

On February 19, 2015 appellant was advised to follow her appeal rights with the January 21, 2015 decision and that 

the statute of limitations to trace a check had passed. She was informed that the U.S. Treasury had a retention 

period of seven years. 
3

OWCP referred appellant, along with a statement of accepted facts and her medical 

record, to Dr. Ricardo Kohn, a neurologist, for a second opinion evaluation as to permanent 

impairment. In a November 14, 2014 report, Dr. Kohn noted the history of injury, appellant’s 

medical treatment and his review of the records, including the statement of accepted facts. 

Examination findings were provided and an impression of intracerebral hemorrhage status post 

right frontal craniotomy and intracranial pressure monitor with residuals, left spastic 

hemiparesis, severe cognitive impairments, and seizure disorder were provided. Examination 

findings of the left arm found that appellant had drift without pronation, decreased motor 

intuition, impaired fine motility, and positive Romberg and Babinski tests. Examination of the 

left leg found that appellant had a gait with slightly wide base, and drag of the left leg. Dr. Kohn 

opined that appellant continued to have residuals of her work-related conditions and she was 

totally disabled from a neurological standpoint secondary to her work-related injuries. He 

opined that she had reached maximum medical improvement many years ago, noting the records 

indicated it was in 1998. 

On December 27, 2014 OWCP’s medical adviser reviewed appellant’s file for 

determination of permanent impairment and maximum medical improvement of the upper and 

lower extremities due to the accepted conditions. Applying Dr. Kohn’s findings to the sixth 

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

Impairment4

 (hereinafter A.M.A., Guides), the medical adviser found maximum medical 

improvement was reached on February 1, 1988 and appellant had 8 percent left upper extremity 

impairment and 13 percent left lower extremity impairment.5 

Under Table 13-11, page 335, appellant’s left upper extremity central nervous system 

(CNS) dysfunction was considered a class 1 diagnosis. She was awarded the greatest percentage 

of whole person impairment, (five percent) which converted to eight percent left upper extremity 

impairment under Table 15-11, page 420. Under Table 13-12, page 336, appellant’s left lower 

extremity station and gait disorder was considered a class 1 diagnosis. She was awarded the 

middle range of 5 percent whole person impairment, which converted to 13 percent left lower 

extremity impairment under Table 16-10, page 530. The medical adviser noted that Dr. Kohn 

had not detailed how appellant’s cognitive deficits affected the upper and lower extremities and, 

thus, he did not provide any impairment calculations for the extremities. 

By decision dated January 21, 2015, OWCP denied appellant’s claim for an increased 

schedule award as the medical evidence of record did not support an increase in the impairment 

already compensated. 

On March 3, 2015 OWCP received appellant’s request for reconsideration. In a 

February 23, 2015 letter, appellant stated she never received compensation for the schedule 

award for 35 percent impairment to her left upper extremity and 35 percent impairment to her 

left lower extremity. 

 4

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

5

 The medical adviser noted that appellant’s shoulder and elbow conditions have not been accepted as work 

related. 
4

By decision dated March 26, 2015, OWCP denied appellant’s request for reconsideration. 

LEGAL PRECEDENT -- ISSUE 1 

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.6

 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.7 

A claimant may seek an increased schedule award if the evidence establishes that she 

sustained an increased impairment at a later date causally related to her employment injury. 

Such a request for increased impairment is not subject to the one-year time limitation for 

reconsideration.8 Moreover, OWCP procedures provides that a claim for an increased schedule 

award may be based on an incorrect calculation of the original award or an increased impairment 

at a later date which is due to work-related factors. In such a situation, an increased schedule 

award may be payable if supported by the medical evidence.9

The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World 

Health Organization’s International Classification of Functioning, Disability and Health (ICF). 

For upper and lower extremity impairments, the evaluator identifies the impairment class for the 

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

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

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 Evaluators are 

directed to provide reasons for their impairment rating choices, including the choices of 

diagnoses from regional grids and calculations of modifier scores.11 

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

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

 6

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

7 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). 

8 Linda T. Brown, 51 ECAB 115, 116 (1999); Paul R. Reedy, 45 ECAB 488, 490 (1994). 

9

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

Chapter 2.809 (February 2013). In addition, OWCP procedures provide that a request for reconsideration of a 

schedule award based on a disagreement with the percentage awarded must be distinguished from a situation where 

a claimant who previously received an award is filing for an increased impairment due to a worsening of the 

claimant’s medical condition due to deterioration of his condition or increased exposure. 

10 R.Z., Docket No. 10-1915 (issued May 19, 2011). 

11 J.W., Docket No. 11-289 (issued September 12, 2011). 
5

using the A.M.A., Guides.

12 In some instances, the medical adviser’s opinion can constitute the 

weight of the medical evidence. This occurs in schedule award cases where an attending 

physician indicates maximum medical improvement has been reached and described the 

permanent impairment of the affected member, but does not offer an impairment rating. In this 

instance, a detailed opinion by an OWCP medical adviser which gives a percentage based on 

reported findings and the A.M.A., Guides may constitute the weight of the medical evidence.13 

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained the conditions of intracerebral hemorrhage with 

hematoma formation (right frontal intracerebral hemorrhage with left hemiplegia) and cognitive 

deficits as a result of her February 12, 1986 work injury and paid benefits. The Board previously 

affirmed OWCP’s May 11, 1992 decision that appellant had 35 percent permanent impairment of 

the left upper extremity and 35 percent permanent impairment of the left lower extremity, for 

which she had received a schedule award. By decision dated January 21, 2015, OWCP denied 

appellant’s request for an additional schedule award. 

The Board finds that appellant has not established more than 35 percent impairment of 

the left upper extremity nor more than 35 percent impairment of the left lower extremity, for 

which she had received a schedule award. Both Dr. Kohn, the medical adviser, and the medical 

record support appellant had reached maximum medical improvement in 1998. As Dr. Kohn did 

not detail any impairment findings, the medical adviser applied Dr. Kohn’s findings to the 

A.M.A., Guides and found appellant had 8 percent left upper extremity impairment for 

appellant’s CNS dysfunction and 13 percent left lower extremity impairment for appellant’s 

station and gait disorder. Under Table 13-11, page 335, appellant’s left upper extremity was 

considered a class 1 diagnosis. She was awarded five percent whole person impairment, which 

converted to eight percent left upper extremity impairment under Table 15-11, page 420. Under 

Table 13-12, page 336, appellant’s left lower extremity was considered a class 1 diagnosis for 

station and gait disorder. She was awarded 5 percent whole person impairment, which converted 

to 13 percent left lower extremity impairment under Table 16-10, page 530. 

The Board finds that OWCP properly relied on the medical adviser’s impairment rating. 

The medical adviser’s opinion was based on the complete record. He properly applied the 

appropriate portions of the A.M.A., Guides to Dr. Kohn’s clinical findings in determining 

permanent impairment to the left upper extremity and left lower extremity. As appellant was 

previously awarded 35 percent impairments to her left upper and left lower extremities under the 

sixth edition of the A.M.A., Guides, OWCP properly denied an increased schedule award. There 

is no medical evidence of record supporting a greater impairment than that previously awarded. 

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

Chapter 2.808.6(f) (February 2013); see also L.R., Docket No. 14-674 (issued August 13, 2014); D.H., Docket No. 

12-1857 (issued February 26, 2013). 

13 See id. at Developing and Evaluating Medical Evidence, Chapter 2.810.8(i) (September 2010). 
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.14 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,15

OWCP regulations provide that the evidence or argument submitted by 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) constitute relevant and 

pertinent new evidence not previously considered by OWCP.16 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her 

application for review within one year of the date of that decision.17 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.18 

ANALYSIS -- ISSUE 2 

The underlying issue on reconsideration is whether appellant has submitted sufficient 

medical evidence to establish an increased schedule award. Appellant’s request for 

reconsideration neither alleged nor demonstrated that OWCP erroneously applied or interpreted a 

specific point of law. Rather appellant claimed before OWCP and on appeal that she never 

received the compensation payment for the previously paid schedule award. The record reflects 

that the period of the award ran from February 12, 1988 to February 20, 1992 less previously 

paid compensation for loss of wage-earning capacity for the same period. Appellant’s statements 

regarding this issue did not constitute new and relevant evidence to substantiate her allegation.19 

The Board finds that appellant has failed to show that OWCP erroneously interpreted a 

specific point of law, has failed to advance a relevant legal argument not previously considered, 

and has failed to submit relevant and pertinent new evidence not previously considered by 

 14 Paul R. Reedy, 45 ECAB 488, 490 (1994); A.A., 51 ECAB 115, 116 (1999). 

15 Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a). 

16 20 C.F.R. § 10.606(b)(3). 

17 Id. at § 10.607(a). 

18 Id. at § 10.608(b). 

19 Appellant did not contact OWCP at the time that the schedule award was made in 1992 regarding the allegedly 

missing schedule award payment and did not discuss the status of the payment while visiting OWCP on 

July 13, 1992. The record also does not reflect that she raised this issue during the prior appeal to the Board in 

1994. The record reflects that when appellant contacted OWCP in 2015 regarding the allegedly missing check, on 

February 19, 2015, she was advised that the statute of limitations to trace a check had passed. Appellant was 

informed that the U.S. Treasury had a retention period of seven years. 
7

OWCP. Appellant thus has not met any of the regulatory requirements and OWCP properly 

declined her request for reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).20 

CONCLUSION 

The Board finds that appellant has not met her burden of proof to establish more than 35 

percent permanent impairment of the left upper extremity and 35 percent of the left lower 

extremity, for which she received a schedule award. OWCP also properly denied appellant’s 

request for reconsideration under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the March 26 and January 21, 2015 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: September 7, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 20 M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued 

August 3, 2010) (when an application for reconsideration does not meet at least one of the three requirements 

enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration without reopening the 

case for a review on the merits).