United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

DEPARTMENT OF THE NAVY, FLEET 

FORCES COMMAND - SHIPYARDS, NAVAL 

SHIPYARD, Norfolk VA, Employer 

__________________________________________ 

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Docket No. 16-0532 

Issued: August 9, 2017 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 19, 2016 appellant filed a timely appeal from a July 28, 2015 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1

 Pursuant to the Federal 

Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction to consider the merits of the case. 

 1

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

decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. 20 C.F.R. § 501.3(e)-(f). 

The 180th day from July 28, 2015, the date of OWCP’s last decision, was January 24, 2016. As this fell on a 

Sunday, the appeal would have been due the following business day which was Monday, January 25, 2016. Since 

using January 28, 2016, 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 January 19, 2016, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUES 

The issues are: (1) whether appellant has established more than 59 percent permanent 

impairment of his right lower extremity, for which he previously received schedule awards; 

(2) whether OWCP used the proper pay rate in calculating appellant’s schedule award pursuant 

to 5 U.S.C. § 8101(4); and (3) whether appellant has established that his schedule award should 

be paid at the augmented rate. 

On appeal appellant contends that his schedule award should be paid at the 75 percent 

augmented pay rate and his weekly pay rate should be greater. 

FACTUAL HISTORY 

This case has previously been before the Board.3

 The facts as set forth in the Board’s 

prior decision are incorporated herein by reference. The relevant facts are as follows. 

On August 6, 1991 appellant, then a 39-year-old woodworker, injured his right knee 

while in the performance of duty. OWCP accepted his claim for contusion of right knee, tear of 

medial meniscus right knee, chondromalacia patellae, and post-traumatic arthritis of the right 

knee. It paid appellant compensation on the supplemental roll from March 3, 1998 until 

August 9, 1999. Appellant received Office of Personnel Management disability retirement 

benefits as of September 4, 1999. 

Appellant underwent authorized right knee arthroscopies on April 7, 1992 and March 3, 

1997, as well as an authorized total right knee arthroplasty on March 25, 2013. 

By decision dated November 24, 1992, OWCP issued appellant a schedule award for 

seven percent permanent impairment of his right leg for the period May 26 to October 14, 1992. 

The award ran from May 26 to October 14, 1992 and it was paid at the augmented compensation 

rate of 75 percent. 

When appellant filed claims for compensation (Forms CA-7) on January 7, 1997 and 

April 30, 1998, he listed his three children as dependents. His youngest child was born on 

July 20, 1981. Additionally, when appellant filed a claim for a schedule award on April 22, 

2009, he listed his wife as a dependent. 

On August 2, 2012 OWCP issued a schedule award for a total of 26 percent impairment 

of the right lower extremity. The date of maximum medical improvement (MMI) was listed as 

March 3, 1998 and the award ran from March 3, 1998 to August 9, 1999 for a period of 74.88 

weeks. The effective date of the pay rate was listed as August 13, 1996 and the award was based 

on the augmented compensation rate of 75 percent. Appellant subsequently appealed that 

decision to the Board. 

In a May 10, 2013 decision, the Board affirmed OWCP’s determination in part, finding 

that appellant had no more than 26 percent permanent impairment of the right lower extremity. 

 3

 Docket No. 13-0285 (issued May 10, 2013). 
3

The Board, however, set aside the determination in part as the schedule award should have 

commenced on June 28, 2012. The Board remanded the case for OWCP to determine whether 

he was entitled to receive an increased pay rate due to the change.4 

On remand, in a November 21, 2013 decision, OWCP issued an amended schedule award 

for 26 percent permanent impairment of the right lower extremity, which corrected the period of 

the award to run from June 28, 2012 to December 4, 2013, resulting in an increased monetary 

award. This award was paid based on the basic compensation rate of 66 2/3 percent and the 

effective date of pay rate was listed as March 3, 1997. 

On May 12, 2014 appellant filed a claim for an increased schedule award (Form CA-7). 

He left blank the section of the form where he was asked to list his dependents. By letter dated 

May 23, 2014, OWCP informed appellant that the evidence of record was insufficient to support 

his claim because there was no narrative report outlining his current condition and discussing 

whether he had any permanent impairment as a result of his work-related condition. Appellant 

was provided 30 days to submit this information. No new evidence was timely submitted. 

By decision dated July 8, 2014, OWCP denied appellant’s claim for an increased 

schedule award, finding that the evidence of record was insufficient to demonstrate impairment 

greater than the 26 percent permanent impairment previously awarded. 

On February 18, 2015 appellant requested reconsideration. In support thereof, he 

submitted a December 10, 2014 report wherein Dr. Jon H. Swenson, a Board-certified orthopedic 

surgeon, indicated that pursuant to Table 16-3 of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009), a diagnosis of status 

post right total knee arthroplasty fell within class 3, with a default impairment value of 37 

percent.5 Dr. Swenson then applied grade modifiers as follows: Functional History (GMFH) 

grade modifier of 1, a Physical Examination (GMPE) grade modifier of 2, and Clinical Studies 

(GMCS) grade modifier of 0, which he determined yielded a total adjustment of negative 6, or an 

impairment rating of 31 percent (grade A) of the right lower extremity. 

On May 14, 2015 OWCP requested that an OWCP medical adviser review 

Dr. Swenson’s report. In a June 3, 2015 report, the medical adviser concluded that appellant was 

entitled to a greater award. He noted that, in a September 16, 2014 report, Dr. Swenson 

indicated that appellant had right knee range of motion of 10 to 102 degrees, that there was good 

position of the components and good alignment, and that there was slight lucency about the tibial 

baseplate. The medical adviser noted that Table 16-23 of the A.M.A., Guides allowed a total of 

30 percent permanent impairment for the described range of motion. He noted that the loss of 

range of motion would result in 10 percent impairment for flexion to 102 degrees, and 20 percent 

impairment for flexion contracture to 10 degrees.6

 The medical adviser then noted that the Knee 

Regional Guide, found at Table 16-3 indicated moderate-to-severe motion impairment would be 

 4

 Docket No. 13-0285 (issued May 10, 2013). 

5

 A.M.A., Guides 511. 

6 Id. at 529, Table 16-23. 
4

classified in a class 4 category for the diagnosis of right knee replacement.7

 Then using the 

grade modifiers as set forth by Dr. Swenson, he concluded that a class 4, grade A impairment 

equated to 59 percent right lower extremity permanent impairment. The medical adviser noted 

that as appellant was previously issued awards based on 26 percent permanent impairment of the 

right lower extremity, this would allow an additional 33 percent permanent impairment for the 

right lower extremity. He noted that the date of MMI was December 10, 2014, the date of 

Dr. Swenson’s report. 

By decision dated June 4, 2015, OWCP vacated the July 8, 2014 decision and noted that 

appellant’s case was now approved for an additional 33 percent permanent impairment of the 

right lower extremity. The date of MMI was found to be December 10, 2014. 

By letter to appellant dated June 18, 2015, OWCP noted that it could not proceed with the 

claim because the employing establishment portion of the Form CA-7 claim was not completed. 

It specifically instructed him to ask the employing establishment to indicate his pay rate effective 

December 10, 2014. This letter did not list a date by which this information should be provided 

to OWCP. In a telephone note dated July 16, 2015, the claims examiner indicated that appellant 

informed him that the employing establishment would be sending additional pay information. 

In a July 28, 2015 decision, OWCP issued a schedule award for an additional 33 percent 

permanent impairment of the right lower extremity. It found that the date of MMI was 

December 10, 2014 and determined that the award ran from December 10, 2014 to 

October 5, 2016. The effective date of rate of pay was listed as March 3, 1997 and the award 

was based on the basic compensation rate of 66 2/3 percent. 

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA8 and its implementing regulations9 set forth the 

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

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 insure equal justice under the law to all claimants, good administrative practice 

necessitates the use of single set of tables so that here 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.10 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.11 

 7 Id. at 511. 

8

 5 U.S.C. § 8107. 

9

 20 C.F.R. § 10.404. 

10 Id.

11 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 
5

The sixth edition requires identifying the impairment Class of Diagnosis (CDX) for the 

diagnosed condition, which is then adjusted by grade modifiers based on GMFH, GMPE and 

GMCS.12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13 

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.14 

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s claim for contusion of the right knee, tear of medial 

meniscus right knee, chondromalacia patellae, post-traumatic arthritis of the right knee, as well 

as a total knee replacement. It previously paid schedule awards totaling 26 percent permanent 

impairment of the right lower extremity. In a July 28, 2015 decision, OWCP issued a schedule 

award for an additional 33 percent permanent impairment of the right lower extremity. 

Dr. Swenson applied the A.M.A., Guides, and determined that appellant was entitled to 

31 percent permanent impairment of the right lower extremity. OWCP’s medical adviser 

determined that appellant actually sustained 59 percent permanent impairment of his right lower 

extremity. He noted that pursuant to Table 16-3 appellant had undergone a total knee 

replacement and had a severe impairment class 4, based upon his loss of range of motion of the 

right knee. The medical adviser then used the grade modifiers as set by Dr. Swenson and 

determined that appellant had a grade A, class 4 impairment, which equaled 59 percent 

permanent impairment of the right lower extremity under Table 16-3 of the A.M.A., Guides. He 

correctly noted that as appellant had already received 26 percent permanent impairment of the 

right lower extremity, an additional award should be issued for 33 percent permanent impairment 

of the right lower extremity. The calculations of the medical adviser are supported by the 

A.M.A., Guides, and the medical evidence of record. Appellant has not submitted evidence of 

greater impairment. 

The Board, therefore, finds that appellant has not established more than 59 percent 

permanent impairment of the right lower extremity. 

LEGAL PRECEDENT -- ISSUE 2 

Under 5 U.S.C. § 8101(4), monthly pay means the monthly pay at the time of injury, 

monthly pay at the time disability begins, or the monthly pay at the time compensable disability 

recurs, if the recurrence begins more than six months after the injured employee resumes regular 

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

13 See supra note 11 at Chapter 2.808.6(f) (February 2013). 

14 See id. 
6

full-time employment with the United States, whichever is greater. For a schedule award, the 

rate of pay is the highest rate which satisfies the terms of 5 U.S.C. § 8101(4).15

When an employee has a recurrence of disability more than six months after resuming 

regular, full-time employment with the employing establishment, under section 8101(4) of 

FECA, the employee is entitled to have his compensation increased based on his pay at the time 

of the recurrence of disability.16

ANALYSIS -- ISSUE 2 

The Board finds that the case not in posture as to the effective pay rate. As stated supra, 

section 8101(4) of FECA defines monthly pay for purposes of computing compensation as 

follows: The monthly pay at the time of injury or the monthly pay at the time disability begins 

or the monthly pay at the time compensable disability recurs, if the recurrence begins more than 

six months after the injured employee resumes regular full-time employment with the United 

States, whichever is greater.17 Despite appellant’s requests and the Board’s directive in its 

May 10, 2013 decision, OWCP did not address the effective pay rate date in its July 28, 2015 

decision. It made an attempt to obtain further information when it wrote him on June 18, 2015 

and instructed him to have the employing establishment provide information with regard to his 

pay rate. The letter did not list a due date for submission of the evidence. A report of a 

telephone call indicates that on July 16, 2015, appellant informed the claims examiner that the 

employing establishment would be sending the information. 

However, in the July 28, 2015 remand decision, OWCP listed the effective date of pay 

rate as March 3, 1997, without further explanation of how it selected that date pursuant to section 

8101(4) of FECA. Section 10.126 of OWCP’s regulations provides that a decision of OWCP 

shall contain findings of fact and a statement of reasons.18 A final decision of OWCP must also 

include findings of fact and provide a correct description of the basis for the decision so that the 

parties of interest will have a clear understanding of the precise defect of the claim and the kind 

of evidence which would tend to overcome it.19 The Board finds that OWCP failed to set forth 

proper findings and provide analysis in its decision as required under section 10.126 of OWCP’s 

regulations. 

The Board finds that the pay rate used in determining appellant’s additional schedule 

award is not properly explained. On remand OWCP shall further develop the evidence as to the 

appropriate rate of pay, and issue a de novo decision. 

 15 R.P., Docket No. 15-1291 (issued September 21, 2016). 

16 J.R., Docket No. 14-1728 (issued June 17, 2015). 

17 20 C.F.R. § 8101(4). 

18 Id. at § 10.126. 

19 Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005). 
7

LEGAL PRECEDENT -- ISSUE 3 

Compensation for impairment is computed based on the employee’s effective pay rate 

and whether he or she has any eligible dependents.20 Compensation will be paid at 66 2/3 

percent or 75 percent of the effective pay when the employee has at least one dependent.21 For 

purposes of entitlement to augmented compensation, a dependent includes: (1) a wife or 

husband; (2) an unmarried child under 18 years of age; (3) an unmarried child over 18 who is 

incapable of self-support; (4) a student, until he/she reaches 23 years of age or completes four 

years of school beyond the high school level; and (5) a wholly dependent parent.22 

The basic rate of compensation paid under FECA is 66 2/3 percent of the injured 

employee’s monthly pay. Where the employee has one or more dependents, the employee is 

entitled to have his basic compensation augmented at the rate of 8 1/3 percent for a total of 75 

percent of monthly pay.23 

A wife is considered an employee’s dependent if she is a member of the same household, 

is receiving regular contributions from the employee for her support, or if the employee has been 

ordered by a court to contribute to her support.24 In determining dependency under FECA, the 

decisive test is whether the person for whom benefits are claimed as a dependent of the 

employee, in fact, looked to and relied in whole or in part, upon the contributions given by the 

employee as a means of maintaining or helping to maintain a customary standard of living.25

ANALYSIS -- ISSUE 3 

In its July 28, 2015 decision issuing an increased schedule award, OWCP indicated that 

appellant was to be paid at the basic compensation rate of 66 2/3 percent. On appeal appellant 

contends that he should be paid based on the augmented rate of 75 percent as he had a 

dependent. 

The Board finds that the case is not in posture with regard to appellant’s compensation 

rate. Appellant’s youngest child was born on July 20, 1981, and would have turned 18 on 

July 20, 1999. There is also no evidence of record that any of appellant’s children were under 

the age of 23 and still in school, or that appellant had an unmarried child over age 18 who is 

incapable of self-support. Accordingly, the record does not establish that he had any children 

who would qualify as dependents under FECA. 

 20 See 5 U.S.C. §§ 8107 and 8110; 20 C.F.R. § 10.404(c). 

21 Id. at § 10.404(b); supra note 11 at Chapter 2.808.7(f) (February 2013). 

22 20 C.F.R. § 10.405(a). 

23 5 U.S.C. § 8110(a); id. at § 10.405(a) and (b). 

24 Id. at § 8110(a)(2). 

25 See W.A., Docket No. 13-0544 (issued July 2, 2013); see also Nancy J. Masterson, 52 ECAB 507 (2001); 

Helyn E. Girmann, 11 ECAB 557 (1960). 
8

However, the record does support that appellant may have had a wife who qualifies as a 

dependent under FECA. The Board notes that when he filed a Form CA-7 claim for a schedule 

award on April 22, 2009, he listed his wife as a dependent. When appellant filed a claim for an 

increased schedule award on May 12, 2014, he did not complete the section of the claim form 

regarding dependents. 

OWCP procedures provide that an indication on a claim form, such as a Form CA-1 

(notice of traumatic injury) or Form CA-7 (claim for compensation), is usually sufficient to 

verify marital status, since both forms require certification of the information provided via the 

claimant’s signature and have warnings pertaining to false statements. If evidence to the 

contrary is present, however, the claims examiner should develop the issue further and may 

request documentary evidence such as a marriage certificate. If necessary, the employing 

establishment may assist in verifying marital status in the initial stages of the claim.26

The Board, therefore, finds the case must be remanded for OWCP to further develop the 

factual evidence with regard to whether appellant had any eligible dependents. If appellant had 

an eligible dependent, he would have been entitled to compensation at the augmented rate of 

75 percent. 

CONCLUSION 

The Board finds that appellant has not established more than 59 percent permanent 

impairment of his right lower extremity for which he previously received schedule awards. 

However, the case is not in posture for decision as to the effective pay rate and compensation 

rate. 

 26 Supra note 11 at Part 2 -- Claims, Compensation Rate, Chapter 2.901.12 (February 2013). 
9

ORDER 

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

Compensation Programs dated July 28, 2015 is affirmed in part and set aside in part. The case is 

remanded for further consideration consistent with this opinion. 

Issued: August 9, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board