United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.G., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

WRIGHT-PATTERSON AIR FORCE BASE, 

OH, Employer

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Docket No. 18-1482

Issued: March 19, 2019

Appearances: Case Submitted on the Record

Daniel B. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 23, 2018 appellant, through counsel, filed a timely appeal from a February 1, 2018 

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

days has elapsed from OWCP’s last merit decision, dated November 21, 2016, to the filing of this 

appeal, pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks jurisdiction over the merits of this case.

2

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 The Board notes that following the February 1, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

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

merits of his claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY

On August 13, 2008 appellant, then a 42-year-old lead firefighter, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his right knee when his foot missed a step while 

carrying bunker gear into the station. On October 21, 2008 OWCP accepted right knee lateral 

meniscus tear. It later expanded acceptance of the claim to include right knee chondromalacia 

patellae.

Dr. Kevin J. Paley, a Board-certified orthopedic surgeon, performed partial lateral 

meniscectomy of appellant’s right knee on October 28, 2008. On December 19, 2013 Dr. Paley 

performed right total knee replacement, and on November 5, 2015 he performed revision of right 

total knee secondary to chondromalacia. Appellant received wage-loss compensation on the 

supplemental rolls for intermittent periods of disability from December 29, 2012 through

January 23, 2014. 

On September 13, 2016 appellant filed a claim for a schedule award (Form CA-7). 

OWCP received a July 28, 2016 report from Dr. Daniel S. Brown, Board-certified in 

occupational medicine, which evaluated appellant’s permanent impairment. Following a physical 

examination, Dr. Brown diagnosed right knee osteoarthritis, status post right total knee 

replacement in December 2013, chronic right knee pain and dysfunction, and deep vein thrombosis 

(DVT) that occurred approximately three months prior to the December 2013 surgery. He advised 

that, in accordance with the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides),3appellant had a fair result following his 

knee replacement. Dr. Brown indicated that under Table 16-3, Knee Regional Grid, for a total 

knee replacement, appellant had a class 3 impairment based on mild instability (under Table 16-

7) and mild motion deficit (under Table 16-23) which had a default impairment of 37 percent. He 

noted that grade modifiers for physical examination and clinical studies were not applicable as 

they were used to assign the class of injury, and that, because his functional history modifier of 

grade 2 differed by 2 or more from both the physical examination and clinical studies modifier, it 

also was excluded. Dr. Brown concluded that appellant had 37 percent right lower extremity 

permanent impairment with February 24, 2016 the date of maximum medical improvement

(MMI). 

In a September 26, 2016 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon 

and OWCP district medical adviser (DMA), reviewed Dr. Brown’s report. He agreed that 

appellant had a class 3 permanent impairment under Table 16-3. Dr. Katz, however, disagreed 

with Dr. Brown’s conclusion. He indicated that, while Dr. Brown excluded the functional history 

grade modifier of 2 on the basis that it was 2 grades different from either the physical examination 

or clinical studies modifiers, it was not a proper analysis because if the grade modifiers were not 

applicable, the value was not determined to be zero. Dr. Katz maintained that the grade modifier 

for physical examination would be at least 2, based on the motion deficit found in Table 16-23, 

 

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

and for that reason the functional history grade modifier would still be valid for the purpose of 

calculating the net adjustment. He concluded that, under Table 16-3, appellant’s permanent

impairment was 34 percent rather than 37 percent, with February 24, 2016 the date of MMI. 

By letter dated October 19, 2016, OWCP forwarded Dr. Katz’s report to Dr. Brown for 

comment. No response was received. In correspondence dated November 8, 2016, counsel 

maintained that the Board’s case W.B.

4 was applicable in this case and, therefore, based on

Dr. Brown’s assessment, appellant had 37 percent right lower extremity permanent impairment. 

By decision dated November 21, 2016, OWCP granted appellant a schedule award for 34 

percent permanent impairment of the right lower extremity, for a total of 97.92 weeks. The award 

ran from February 24 to November 12, 2016.

Dr. Paley continued to submit reports in follow-up. He advised that appellant was working 

full duty and planned to retire in December 2017. Dr. Paley did not provide another permanent

impairment evaluation. 

On November 8, 2017 appellant, through counsel, requested reconsideration. Counsel 

asserted that it was an error of law to afford the weight of medical evidence to OWCP’s DMA

regarding the percentage of appellant’s right lower extremity permanent impairment. He 

maintained that the Board had previously held in the case of W.B. that Dr. Brown’s analysis and 

interpretation of the A.M.A., Guides was correct.5 Counsel continued that Dr. Brown’s analysis 

and exclusion of the grade modifier for functional history exactly mirrored the Board’s finding in 

W.B. and asserted that, as the DMA had not followed the precedent set forth in W.B., it was error 

for OWCP to accept his permanent impairment rating. He concluded that appellant was, therefore, 

entitled to 37 percent permanent impairment of the right lower extremity, based on Dr. Brown’s 

analysis which was controlling law.

By decision dated February 1, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of his claim. It found that the evidence presented did not contain a relevant legal 

argument not previously considered by OWCP and that Dr. Brown had not rebutted the DMA’s

opinion. Thus, no medical evidence explaining or supporting why the DMA’s report was 

inaccurate had been submitted. 

LEGAL PRECEDENT

Under section 8128(a) of FECA,6 OWCP has the discretion to reopen a case for review on 

the merits. It must exercise this discretion in accordance with the guidelines set forth in section 

10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain 

review of the merits of his or her written application for reconsideration, including all supporting 

documents, sets forth arguments and contain evidence which either: (1) shows that OWCP 

erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument 

 

4 Docket No. 14-1982 (issued August 26, 2015).

5

Id.

6 5 U.S.C. § 8128(a).
4

not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.7

Section 10.608(b) provides that any application for review of the merits of the claim which 

does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP 

without review of the merits of the claim.8

ANALYSIS

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

the merits of his schedule award claim pursuant to 5 U.S.C. § 8128(a).

With the November 8, 2017 reconsideration request, counsel asserted that it was an error 

of law to afford the weight of medical evidence to the DMA regarding the percentage of appellant’s 

right lower extremity permanent impairment. He maintained that, based on the Board’s finding in 

the W.B. case, Dr. Brown’s analysis and interpretation of the A.M.A., Guides was correct. Counsel 

continued that, as Dr. Katz had not followed the precedent of the W.B. decision, it was error for 

OWCP to accept his impairment rating. He concluded that appellant was, therefore, entitled to 37 

percent permanent impairment of the right lower extremity, based on Dr. Brown’s analysis, which 

was controlling law. 

In its February 1, 2018 decision denying reconsideration of the merits of appellant’s claim, 

OWCP indicated that appellant had not submitted a relevant legal argument not previously 

considered by OWCP. It noted that he had not submitted medical evidence explaining or 

supporting why and how the DMA’s report was inaccurate, finding, “The memorandum in support 

of your request for reconsideration is not medical evidence. It is also not a new legal argument or 

errors [sic] of law not previously considered by this [o]ffice.”

In its November 21, 2016 decision granting appellant a schedule award for 34 percent 

permanent impairment of the right lower extremity, OWCP did not discuss the legal argument 

presented by counsel in his November 8, 2017 reconsideration request in which he referenced the 

Board decision in W.B. and asserted that it was applicable to the instant case. It merely indicated 

that the percentage of impairment awarded was calculated by a DMA who applied the A.M.A., 

Guides to the medical findings provided by appellant’s physician. OWCP noted that the DMA

determined that appellant’s physician incorrectly applied the A.M.A., Guides. At no point in that 

decision did OWCP mention the Board’s analysis and legal holding in the W.B. decision.9

The Board finds that the argument submitted by counsel on reconsideration is a relevant 

legal argument not previously considered by OWCP as it brings into question the applicability of 

the precedent of the W.B. decision to the impairment findings in this case.10

 

7 20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(b).

9 Supra note 4; see also J.C., Docket No. 15-0534 (issued May 12, 2016).

10 See J.M., Docket No. 18-0541 (issued October 11, 2018).
5

As such, the case shall be remanded to OWCP to conduct a merit review. After such further 

development as is deemed necessary, it shall issue an appropriate merit decision.11

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the February 1, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

proceedings consistent with this opinion.

Issued: March 19, 2019

Washington, DC

Christopher J. Godfrey, 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

 

11 Id.