United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 15-1307 

Issued: September 8, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 22, 2015 appellant filed a timely appeal from a March 18, 2015 merit decision 

and a May 6, 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 established an increased schedule award; and 

(2) whether OWCP properly denied a request for reconsideration without merit review of the 

claim. 

FACTUAL HISTORY 

The case has been before the Board on prior appeals. In a decision dated August 21, 

1989, the Board noted that appellant had filed a traumatic injury claim (Form CA-1) alleging that 

 1

 5 U.S.C. § 8101 et seq. 
2

on December 14, 1978 she fell in the performance of duty and injured her knees and ankles.2 

The claim had not been initially forwarded to OWCP. On September 10, 1987 OWCP accepted 

bilateral contusions of the knees and ankles. The Board also noted that on October 3, 1986 

appellant had filed an occupational disease claim (Form CA-2) alleging that she had developed 

arthritis as a result of the December 14, 1978 injury. OWCP denied this claim on May 31, 1988 

finding that there was no rationalized medical evidence of record explaining how the diagnosed 

condition was causally related to the December 14, 1978 injury, or any other factors of her 

employment. The Board remanded the case for further development on the issue of whether 

appellant had an arthritis condition causally related to her federal employment. The Board found 

that a conflict in medical evidence had not been resolved by the physician selected as an 

impartial medical specialist. 

Following development of the medical evidence, OWCP accepted a permanent 

aggravation of bilateral degenerative arthritis of the knees. By decision dated December 19, 

1991, it issued a schedule award for a 33 percent impairment to each leg. Appellant underwent 

bilateral total knee replacement surgeries in October 2002. 

By decision dated November 1, 2002, the Board set aside an OWCP decision dated 

October 18, 2001 denying authorization for the knee surgeries.3

 The Board found that the report 

of the second opinion referral physician, Dr. Julie M. Wehner, a Board-certified orthopedic 

surgeon, was of diminished probative value as it was not based on the statement of accepted facts 

in the case. The Board noted that OWCP had accepted a permanent aggravation of bilateral knee 

degenerative arthritis, but Dr. Wehner had based her opinion as to knee surgery on a finding that 

appellant did not have an employment-related arthritis condition. 

OWCP rescinded acceptance of a permanent aggravation of bilateral knee degenerative 

arthritis in a decision dated March 20, 2003.4 In a March 10, 2004 decision, the Board found it 

had failed to meet its burden of proof to rescind acceptance.5 In addition, the Board remanded 

the case to OWCP for an appropriate decision with respect to authorization of knee surgery. 

On April 19, 2004 OWCP advised appellant that her claim was accepted for permanent 

aggravation of bilateral knee osteoarthritis and authorized reimbursement for bilateral knee 

replacement surgeries. Appellant submitted a May 3, 2004 form report (Form CA-1303) from 

Dr. John Martell, a Board-certified orthopedic surgeon, with respect to a permanent impairment 

to the knees. In a report dated August 9, 2004, an OWCP medical adviser opined that appellant 

had a 37 percent permanent impairment to each leg. The medical adviser opined that the 

impairment was based on a good result for total knee replacement surgery under the fifth edition 

of the American Medical Association, Guides to the Evaluation of Per0manent Impairment. 

 2

 Docket No. 89-904 (issued August 21, 1989). 

3

 Docket No. 02-276 (issued November 1, 2002). 

4

 OWCP denied modification of the rescission by decisions dated April 4 and October 10, 2003. 

5

 Docket No. 04-165 (issued March 10, 2004). 
3

By decision dated September 28, 2004, OWCP issued a schedule award for an additional 

four percent to each leg. The period of the award was 23.04 weeks from October 11, 2003. 

On July 21, 2014 OWCP received a Form CA-7 (claim for compensation) and appellant 

checked a box that she was claiming a schedule award.6

 Appellant submitted a September 4, 

2014 report from Dr. Gregory Primus, a Board-certified orthopedic surgeon, who indicated that 

she was treated for knee and ankle pain. Dr. Primus provided a history of a work-related injury 

on December 14, 1978 and noted that she presented with right knee and bilateral ankle pain. He 

provided results on examination and diagnosed knee pain, knee osteoarthritis, acquired genu 

varum, ankle and foot joint pain, and knee replacement prosthesis. In a report dated 

September 29, 2014, Dr. Primus provided results on examination and repeated the diagnoses 

found in the prior report. He recommended physical therapy and activity modification. 

Appellant also submitted a note dated November 11, 2014 from Dr. Harold Pye, a preventative 

medicine specialist, requesting authorization for a functional capacity evaluation (FCE), and 

notes from a physical therapist regarding a scooter. 

By decision dated March 18, 2015, OWCP determined that appellant had failed to 

establish an increased schedule award. 

On March 27, 2015 appellant requested reconsideration of the March 18, 2015 decision. 

She stated that Dr. Primus could not give her a percentage rating and Dr. Pye refused to fill out 

the medical form provided. Appellant submitted a prescription note for a wheel chair range 

scooter. 

By decision dated May 6, 2015, OWCP declined to review the merits of the claim. It 

found the reconsideration request was insufficient to warrant merit review. 

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.7

 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.8 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.9 

 6

 The signature date on the form was March 8, 2003, and the form appeared to be copy of a previously submitted 

form. 

7

 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). 

8 A. George Lamp, 45 ECAB 441 (1994). 

9

 FECA Bulletin No. 09-03 (March 15, 2009). 
4

A claimant seeking compensation under FECA has the burden to establish the essential 

elements of his or her claim.10 With respect to a schedule award, it is appellant’s burden of proof 

to establish an increased schedule award.11 A claimant may seek an increased schedule award if 

the evidence establishes that he or she sustained an increased impairment causally related to an 

employment injury.12 The medical evidence must include a detailed description of the 

permanent impairment.13

ANALYSIS -- ISSUE 1 

In the present case, appellant submitted a claim for a schedule award that was received by 

OWCP on July 21, 2014. She received prior schedule awards of 33 percent impairment to each 

leg by decision dated December 19, 1991, and an additional 4 percent impairment to each leg by 

decision dated September 28, 2004. 

It is appellant’s burden of proof to submit medical evidence to establish an increased 

permanent impairment. The medical evidence she offered did not discuss a permanent 

impairment to the legs. Dr. Primus did not provide a detailed description of a permanent 

impairment, or provide an opinion as to the degree of impairment under the A.M.A., Guides. 

Dr. Pye provided only a brief note referring to an FCE authorization request. Further, physical 

therapists are not physicians under FECA and their reports are of no probative medical value.14 

The Board accordingly finds appellant did not meet her burden of proof. Appellant did 

not submit probative medical evidence of an increased employment-related permanent 

impairment to her legs. 

On appeal, appellant states that she did send updated reports regarding her knee condition 

as requested. The Board has reviewed the evidence of record that was before OWCP as of 

March 18, 2015. For the reasons noted, appellant did not establish an increased permanent 

impairment. 

LEGAL PRECEDENT -- ISSUE 2 

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

OWCP’s regulations provides 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 

 10 John W. Montoya, 54 ECAB 306 (2003). 

11 Edward W. Spoor, 54 ECAB 806, 810 (2003). 

12 See Rose V. Ford, 55 ECAB 449 (2004). 

13 See Vanessa Young, 55 ECAB 575 (2004). 

14 See Barbara J. Williams, 40 ECAB 649 (1989); 5 U.S.C. § 8101(2). 

15 Id. at § 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.”) 
5

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

(3) constitutes relevant and pertinent evidence not previously considered by OWCP.16 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.17

ANALYSIS -- ISSUE 2 

In her application for reconsideration, appellant reported that Dr. Primus would not 

provide an impairment rating and that she had been referred to Dr. Pye for a rating. She stated 

that Dr. Pye refused to complete a form report regarding permanent impairment. While appellant 

has asserted that her attending physicians have been unable to provide medical reports to support 

her claim for a schedule award, it is still her burden of proof to submit that supporting medical 

evidence. Her letter does not show that OWCP erroneously applied or interpreted a specific 

point of law, or advance a relevant legal argument not previously considered by OWCP. 

With respect to new evidence, appellant submitted a prescription note regarding a 

scooter. She did not submit any new and relevant evidence tending to show she had a permanent 

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

C.F.R. § 10.606(b)(3), and therefore OWCP correctly declined to reopen the case for merit 

review. 

CONCLUSION 

The Board finds appellant did not establish entitlement to an increased schedule award. 

The Board also finds OWCP properly denied appellant’s reconsideration request without merit 

review of the claim. 

 16 20 C.F.R. § 10.606(b)(3). 

17 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
6

ORDER 

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

Compensation Programs dated May 6 and March 18, 2015 are affirmed. 

Issued: September 8, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board