United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.D., Appellant 

and 

DEPARTMENT OF THE ARMY, ARMY 

DEPOT, Corpus Christie, TX, Employer 

__________________________________________ 

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Docket No. 16-1080 

Issued: October 5, 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 26, 2016 appellant filed a timely appeal of a February 29, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

has elapsed from the last merit decision dated August 5, 2015, to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction to review the merits of the claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration of 

the merits pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On June 22, 2000 appellant, then a 58-year-old aircraft sheet metal repair inspector, filed 

a traumatic injury claim (Form CA-1) alleging that he twisted his right ankle and knee on 

 1

 5 U.S.C. § 8101 et seq.
2

June 21, 2000 when he fell on a wheel strut in the performance of duty. On December 7, 2000 

OWCP accepted appellant’s claim for medial and lateral meniscal tears in the right knee. 

Appellant underwent a right knee arthroscopy with partial medial meniscectomy on 

January 12, 2001. He had previously received a schedule award for 20 percent permanent 

impairment of the right leg, attributable to the knee, on December 24, 1996. 

On June 29, 2011 appellant filed a recurrence claim (Form CA-2a) alleging that on 

June 15, 2011 his right knee began to hurt. He noted that he retired on January 3, 2004 and that 

he currently required a knee replacement. OWCP accepted the recurrence claim on 

September 28, 2011. 

OWCP subsequently expanded appellant’s claim to include the additional conditions of 

tear of the right medial meniscus, tear of the right lateral meniscus, and traumatic arthroplasty of 

the right lower leg on April 8, 2013. Appellant underwent a right total knee replacement on 

August 30, 2013. 

On June 19, 2014 appellant filed a claim for compensation (Form CA-7) requesting a 

schedule award. He submitted a report dated June 11, 2014 from Dr. Thomas Martens, an 

osteopath, evaluating his permanent impairment of his right lower extremity in accordance with 

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

2

 

Dr. Martens found that appellant had reached maximum medical improvement and demonstrated 

31 percent permanent impairment of his right lower extremity. 

OWCP’s medical adviser reviewed this report on August 7, 2014 and found that appellant 

had 31 percent impairment of his right lower extremity under the A.M.A., Guides. He noted that 

Dr. Martens did not provide documentation to support a class 3 impairment for knee replacement 

as there was no note of malposition of the prosthesis, no note of instability, and 123 degrees of 

range of motion which was not a ratable impairment. OWCP’s medical adviser recommended a 

second opinion evaluation. 

OWCP referred appellant for a second opinion evaluation with Dr. Jairo Puentes, a 

Board-certified physiatrist, on October 24, 2014. In his November 10, 2014 report, Dr. Puentes 

found that appellant had right knee pain which interfered with activity. He found that appellant 

had right knee flexion of 105 degrees, extension of 105 degrees, right lateral bending of 120 

degrees and left lateral bending of 120 degrees. Dr. Puentes found no evidence of swelling in 

either knee. He reported that appellant’s gait was within normal limits. Dr. Puentes diagnosed 

right knee osteoarthritis. He found that appellant had 31 percent permanent impairment of the 

right knee and 16 percent impairment of the left knee. Dr. Puentes concluded that appellant 

required no further treatment. 

An OWCP medical adviser reviewed this report on March 12, 2015 and found that it was 

insufficient to calculate appellant’s lower extremity impairment for schedule award purposes. 

He requested an additional report addressing the findings required by the A.M.A., Guides. 

 2

 A.M.A., Guides, 6th ed. (2009). 
3

On March 26, 2015 OWCP referred appellant for a second opinion evaluation with 

Dr. James E. Butler, a Board-certified orthopedic surgeon. In a report dated April 13, 2015, 

Dr. Butler described appellant’s history of injury and his medical history. He reviewed 

appellant’s diagnostic studies and noted appellant’s complaints of right knee pain with 

numbness, tingling, burning, and weakness. Dr. Butler found no positive stress test results and 

no effusion in appellant’s right knee. He reported no atrophy and normal sensation and strength. 

Dr. Butler indicated that appellant had loss of range of motion with flexion of 118 degrees and 

extension of 0 degrees. He found that appellant had a total right knee replacement with a good 

result. Dr. Butler found no evidence of instability and normal range of motion and concluded 

that appellant had reached maximum medical improvement. He applied the net adjustment 

formula of the A.M.A., Guides and determined that appellant had 23 percent permanent 

impairment of his right lower extremity. 

OWCP’s medical adviser reviewed this report on May 8, 2015 and determined that 

appellant had an additional 3 percent impairment of his right lower extremity when the prior 

award of 20 percent was considered. 

By decision dated August 5, 2015, OWCP granted appellant a schedule award for an 

additional three percent impairment of the right lower extremity. 

Appellant requested reconsideration on December 16, 2015. He questioned why 

Dr. Butler’s impairment rating was given the weight of the medical evidence rather than the 31 

percent impairment awarded by Dr. Martens. Appellant questioned the methodology of the 

A.M.A., Guides, which resulted in 20 percent impairment for arthroscopic surgery and 23 

percent permanent impairment for a total knee replacement. He asserted that his trauma, pain, 

rehabilitation, loss of walking, kneeling, standing, bending, and body posture was more than 31 

percent of his lower extremity. Appellant requested that he receive the 31 percent permanent 

impairment found by Dr. Martens. In support of his request for reconsideration, appellant 

resubmitted the reports of OWCP’s medical adviser, Dr. Martens’ August 11, 2014 report, his 

October 5, 2012 MRI scan, and Dr. Butler’s report. 

In a decision dated February 29, 2016, OWCP declined to reopen appellant’s claim for 

consideration of the merits as he failed to submit pertinent and relevant new evidence, new legal 

argument, or support that OWCP erroneously applied or interpreted a point of law. 

LEGAL PRECEDENT 

FECA provides in section 8128(a) that OWCP may review an award for or against 

payment of compensation at any time on its own motion or on application by the claimant.3 

Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain 

review of the merits of the claim by submitting in writing an application for reconsideration 

which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted 

a specific point of law; or advances a relevant legal argument not previously considered by 

OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.4 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(3). 
4

Section 10.608 of OWCP’s regulations provides that when a request for reconsideration is 

timely, but does meet at least one of these three requirements, OWCP will deny the application 

for review without reopening the case for a review on the merits.5 Section 10.607(a) of OWCP’s 

regulations provides that to be considered timely an application for reconsideration must be 

received by OWCP within one year of the date of OWCP’s merit decision for which review is 

sought.6

ANALYSIS 

The Board finds that OWCP properly declined to reopen appellant’s claim for 

consideration of the merits of his permanent impairment and schedule award. 

Appellant filed a timely request for reconsideration from OWCP’s August 5, 2015 merit 

decision on December 16, 2015. However, he failed to submit any relevant and pertinent new 

evidence not previously considered in support of his request for reconsideration. Instead 

appellant merely resubmitted medical evidence already considered by OWCP in reaching the 

August 5, 2015 schedule award determination. As this evidence was previously of record and 

reviewed by OWCP in reaching the August 5, 2015 decision, it is not sufficient to require OWCP 

to reopen appellant’s claim for consideration of the merits under 20 C.F.R. § 10.606(b)(3).7

Appellant also failed to present relevant new argument in support of his request for 

reconsideration or to show that OWCP erroneously applied or interpreted a specific point of law. 

He merely opined that his total knee replacement should have resulted in more than 23 percent 

impairment of his right lower extremity given that he received an impairment rating of 20 

percent following arthroscopic surgery.8 The Board finds that appellant’s statement alone is 

insufficient to require reopening of his claim for consideration of the merits. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration of 

the merits pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(3). 

 5 Id. at § 10.608. 

6

 20 C.F.R. § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations ̧ Chapter 

2.1602.4 (October 2011). 

7 Eugene F. Butler, 36 ECAB 393 (1984). 

8

 To the extent that a claimant asserts that a schedule award decision was erroneous based on his or her medical 

condition at that time, this would properly be considered a request for reconsideration. See J.K., Docket No. 14-

1082 (issued November 24, 2014). 
5

ORDER 

IT IS HEREBY ORDERED THAT February 29, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 5, 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