United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.T., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

JAMES A. HALEY VETERANS HOSPITAL, 

Tampa, FL, Employer 

__________________________________________ 

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Docket No. 16-0013 

Issued: January 21, 2016 

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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 5, 2015 appellant filed a timely appeal from a July 20, 2015 merit decision 

and a September 2, 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.2

ISSUES 

The issues are: (1) whether appellant has met his burden of proof to establish more than 

three percent permanent impairment of the left leg, for which he has received a schedule award; 

and (2) whether OWCP properly denied appellant’s request for further merit review of his claim 

pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that following issuance of OWCP’s September 2, 2015 decision, OWCP received new 

evidence. The Board lacks jurisdiction to review evidence which was not before OWCP at the time it issued its final 

decision. See 20 C.F.R. § 501.2(c)(1); D.B., Docket No. 12-1653 (issued March 26, 2013). 
2

On appeal, appellant contends that his attending physician, and not OWCP, should 

provide information regarding his maximum medical improvement for a schedule award. 

FACTUAL HISTORY 

On June 16, 2014 appellant, then a 51-year-old housekeeping aid, filed a traumatic injury 

claim (Form CA-1) alleging that on that day he injured his left knee when he fell onto the floor 

while hurrying to turn in keys at the end of his shift. He submitted medical evidence from 

June 25 to July 10, 2014. 

In an August 6, 2014, decision, OWCP denied appellant’s claim as the medical evidence 

of record was insufficient to establish that he sustained an injury causally related to the work 

incident. 

On August 13, 2014 appellant underwent diagnostic arthroscopy of the left knee, 

arthroscopic debridement, and left partial medial meniscectomy performed by Dr. Edward S. 

Homan, Jr., a Board-certified orthopedic surgeon. By letter dated August 29, 2014, he requested 

reconsideration of the August 6, 2014 decision and submitted medical evidence from June 18 to 

September 5, 2014. 

In an October 21, 2014 decision, OWCP vacated its August 6, 2014 decision and 

accepted that appellant sustained a left medial meniscus tear on June 16, 2014. 

On March 27, 2015 appellant filed a claim (Form CA-7) for a schedule award. In a 

March 30, 2015 letter, OWCP advised him of the type of medical evidence needed to establish a 

claim for a schedule award. Appellant subsequently informed OWCP that his physician refused 

to provide an impairment rating. 

By letter dated May 27, 2015, QTC Medical Services, OWCP’s medical appointment 

scheduler, notified appellant that he was scheduled for a June 12, 2015 appointment for a second 

opinion examination and evaluation with Dr. William Dinenberg, a Board-certified orthopedic 

surgeon. In a June 18, 2015 report, Dr. Dinenberg provided a history of the June 16, 2014 

employment injury and appellant’s medical and social background. He noted his review of the 

medical record. Dr. Dinenberg provided examination findings, noting that appellant ambulated 

with no cane, crutches, or walker, but with an antalgic gait on his left lower extremity. He had a 

brace wrapped around his left knee. Appellant climbed onto the examination table. Range of 

motion of the left knee was 0 to 80 degrees. There was no effusion, erythema, or ecchymosis. 

There were well-healed surgical scars consistent with a prior arthroscopy, positive medial joint 

line tenderness, and no lateral joint line tenderness. There was a negative anterior drawer test 

and negative posterior drawer test. There was also negative varus or valgus laxity. There was no 

patellofemoral compression pain. Thigh and calf were soft and nontender on the left. 

Dr. Dinenberg provided an impression of left knee medial meniscal tear and preexisting left knee 

degenerative joint disease. He indicated that, in accordance with Table 16-3, page 509 of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment, appellant 

had a class 1 impairment for partial medial meniscectomy. Dr. Dinenberg found grade modifiers 

of 2 for functional history and physical examination and grade modifier of 1 for clinical studies. 
3

He moved the default value two places to the right to find three percent permanent impairment of 

the left lower extremity. 

On July 1, 2015 an OWCP medical adviser reviewed the medical record, including 

Dr. Dinenberg’s June 18, 2015 findings. He agreed with Dr. Dinenberg’s three percent left 

lower extremity impairment rating. The medical adviser opined that appellant reached maximum 

medical improvement on June 18, 2015, the date of Dr. Dinenberg’s examination. 

In a July 20, 2015 decision, OWCP granted appellant a schedule award for three percent 

permanent impairment of the left leg. It found that the weight of the medical evidence rested 

with the reports of Dr. Dinenberg and the medical adviser. 

By letters dated August 10, 2015, appellant requested reconsideration. He contended that 

he did not request a second opinion examination. Appellant asserted that new medical evidence 

from his current physician, Dr. Robert R. Reppy, an osteopath, provided information regarding 

his maximum medical improvement for a schedule award. 

In reports dated July 15 to September 10, 2015, Dr. Reppy reviewed appellant’s medical 

records and noted his complaint of left knee pain. He listed findings on examination, and 

diagnosed osteoarthritis and a medial meniscus tear of the left knee. In his August 20, 2015 

report, Dr. Reppy advised that appellant was approaching maximum medical improvement. 

Reports from appellant’s physical therapist addressed his treatment from July 15 to 

August 26, 2015. 

In a September 2, 2015 decision, OWCP denied further merit review of appellant’s claim. 

It found that he had not submitted any new and relevant legal argument or evidence. 

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA3 and its implementing regulations4 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 to all claimants, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform stands applicable to all 

claimants. OWCP evaluates the degree of permanent impairment according to the standards set 

forth in the specified edition of the A.M.A., Guides.

5

 The A.M.A., Guides has been adopted by 

the implementing regulations as the appropriate standard for evaluating schedule losses.6

 For 

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5 Id. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any physician evaluating 

permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule 

Awards and Permanent Disability Claims, Chapter 2.808.5.a (February 2013). 

6 See id.; Jacqueline S. Harris, 54 ECAB 139 (2002). 
4

impairment ratings calculated on or after May 1, 2009, OWCP should advise any physician 

evaluating per impairment to use the sixth edition.7

The sixth edition requires identifying the impairment Class of Diagnosis (CDX), which is 

then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination 

(GMPE), and Clinical Studies (GMCS).8

 The net adjustment formula is (GMFH-CDX) + 

(GMPE-CDX) + (GMCS-CDX).9 The sixth edition of the A.M.A., Guides also provides that 

range of motion may be selected as an alternative approach in rating impairment under certain 

circumstances. A rating that is calculated using range of motion may not be combined with a 

diagnosis-based impairment and stands alone as a rating.10

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.11

ANALYSIS -- ISSUE 1 

The Board finds that appellant has not established that he has greater than three percent 

permanent impairment of the left leg. OWCP accepted that on June 16, 2014 appellant sustained 

a left medial meniscus tear while working as a housekeeping aid. On August 13, 2014 appellant 

underwent diagnostic arthroscopy of the left knee, arthroscopic debridement, and left partial 

medial meniscectomy. 

In developing the claim, OWCP referred appellant to Dr. Dinenberg for a second opinion 

examination. In a June 18, 2015 report, Dr. Dinenberg provided findings on physical 

examination of the left knee which included range of motion from 0 to 80 degrees. He reported 

no effusion, erythema, ecchymosis, patellofemoral compression pain, or lateral joint line 

tenderness. Dr. Dinenberg found well-healed surgical scars consistent with a prior arthroscopy 

and positive medial joint line tenderness. He reported a negative anterior drawer test, positive 

drawer test, and negative varus or valgus laxity. Dr. Dinenberg further reported soft and 

nontender left thigh and calf. He diagnosed left knee medial meniscal tear and preexisting left 

knee degenerative joint disease. Dr. Dinenberg applied Table 16-3 on page 509 of the sixth 

edition of the A.M.A., Guides which provides a default, grade C, leg impairment of two percent 

for a class 1 partial medial meniscectomy. He assigned grade modifiers of 2 for functional 

history and physical examination and a grade modifier of 1 for clinical studies. Dr. Dinenberg 

then applied the net adjustment formula and moved the default value two places to find three 

percent permanent impairment of the left lower extremity. 

 7

 Federal (FECA) Procedure Manual, supra note 5. 

8

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

9 Id. at 521. 

10 L.B., Docket No. 12-910 (issued October 5, 2012). 

11 See Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.808.6(f) (February 2013). 
5

OWCP’s medical adviser reviewed this report on July 1, 2015 and agreed with 

Dr. Dinenberg’s impairment rating. 

The Board finds that the weight of the medical evidence is represented by the reports of 

Dr. Dinenberg and OWCP’s medical adviser who reviewed the findings on examination and 

properly applied the A.M.A., Guides. These physicians agreed that appellant has three percent 

permanent impairment of his left lower extremity due to his partial medial meniscectomy. There 

is no current medical evidence of record, in conformance with the A.M.A., Guides, which 

supports a greater impairment. 

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 of FECA,12

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) constitute relevant and pertinent new evidence not previously 

considered by OWCP.13 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.14 Section 10.608(b) of the implementing regulations state 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.15

ANALYSIS -- ISSUE 2 

Appellant disagreed with OWCP’s schedule award decision granting him a schedule 

award for three percent impairment of the left leg. He requested reconsideration. 

In his August 10, 2015 request for reconsideration and on appeal, appellant asserted that 

he did not request a second opinion examination. This assertion, however, does not show a legal 

error by OWCP or a new and relevant legal argument. 

The underlying issue in this case is whether appellant submitted medical evidence 

establishing that he has more than three percent impairment of the left leg. That is a medical 

issue which must be addressed by relevant new medical evidence.16 Appellant submitted 

 12 5 U.S.C. §§ 8101-8193. 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). 

13 20 C.F.R. § 10.606(b)(3). 

14 Id. at § 10.607(a). 

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

16 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
6

medical reports from Dr. Reppy, an attending physician, who found that he had osteoarthritis and 

a medial meniscus tear of the left knee. Dr. Reppy noted that he was approaching maximum 

medical improvement. Although his reports are new, Dr. Reppy indicates that appellant had not 

reached maximum medical improvement and did not provide an opinion as to whether appellant 

had a left lower extremity impairment greater than the three percent already awarded. The Board 

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

the case does not constitute a basis for reopening the claim.17 The Board finds, therefore, that 

Dr. Reppy’s reports are insufficient to warrant further merit review of the claim. 

The reports dated July 15 to August 26, 2015 from appellant’s physical therapist, while 

new, are also insufficient to warrant further merit review as physical therapists are not 

considered physicians as defined under FECA.18 The Board finds, therefore, that this evidence is 

not relevant to the underlying medical issue on appeal and is insufficient to warrant further merit 

review of appellant’s claim. 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that appellant has failed to meet his burden of proof to establish more 

than three percent permanent impairment of the left lower extremity, for which he has received a 

schedule award. The Board further finds that OWCP properly denied appellant’s request for 

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

 17 D’Wayne Avila, 57 ECAB 642 (2006). 

18 See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, 

and physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this 

subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, 

and osteopathic practitioners within the scope of their practice as defined by State law). 
7

ORDER 

IT IS HEREBY ORDERED THAT the September 2 and July 20, 2015 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: January 21, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board