United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Gloucester, MA, Employer

__________________________________________

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Docket No. 19-1146

Issued: September 21, 2020

Appearances: Case Submitted on the Record

Daniel B. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 22, 2019 appellant, through counsel, filed a timely appeal from an October 26, 

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 August 8, 2017, 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 to review the merits of this case.3

 

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 5 U.S.C. § 8101 et seq.

3 Together with the appeal request, appellant, though counsel, submitted a timely request for oral argument pursuant 

to 20 C.F.R. § 501.5(b). After exercising its discretion, by order dated September 15, 2020, the Board denied the 

request as the arguments on appeal could be adequately addressed in a decision based on a review of the case as 

submitted on the record. Order Denying Request for Oral Argument, Docket No. 19-1146 (issued 

September 15, 2020).
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 February 3, 2012 appellant, then a 61-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that his repetitive work duties had aggravated his bilateral hip 

osteoarthritis. He first became aware of his claimed condition and its relation to his federal 

employment on June 10, 2011. OWCP accepted appellant’s claim for permanent aggravation and 

acceleration of bilateral hip arthritis.4

In a December 5, 2011 report, Dr. David C. Morley, Jr., a Board-certified orthopedic 

surgeon, advised that appellant’s left hip reached maximum medical improvement (MMI) in 

January 2007 and his right hip reached MMI in January 2010. He applied the diagnosis-based 

impairment (DBI) rating method under the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 Utilizing Table 16-4 (Hip 

Regional Guide) on page 515, Dr. Morley determined that appellant’s bilateral total hip 

replacements fell under the class of diagnosis (CDX) of class 4 with a default value of 67 percent 

permanent impairment of each lower extremity. He determined that the grade modifier for 

functional history (GMFH) equaled 2 when based on appellant’s answers to the American 

Academy of Orthopedic Surgeons (AAOS) lower limb questionnaire, but equaled 0 when based 

on hislack of gait derangement. Dr. Morley determined that the GMFH was excluded as unreliable 

because these two values differed by two grades. He further found that the grade modifier for 

physical examination (GMPE) and the grade modifier for clinical studies (GMCS) were excluded 

for both extremities because the physical examination and clinical studies were used to confirm 

the CDX. Therefore, the net adjustment formula was not applicable and appellant’s permanent 

impairment remained at the default values for each lower extremity, i.e., 67 percent permanent 

impairment.

On May 22, 2012 appellant filed a claim for a schedule award (Form CA-7).

On June 14, 2012 OWCP referred appellant’s case, including Dr. Morley’s December 5, 

2011 report, to Dr. David I. Krohn, a Board-certified internist serving as an OWCP district medical 

adviser (DMA). It requested that he evaluate appellant’s lower extremity permanent impairment 

under the sixth edition of the A.M.A., Guides.

On June 24, 2012 the DMA utilized Table 16-4 of the sixth edition of the A.M.A., Guides

to find that appellant’s bilateral hip condition fell under class 3 with a default value of 37 percent 

for each lower extremity. He found that appellant had a GMFH of 2 (due to his AAOS survey 

response of moderate symptoms) and GMCS of 3 (due to 50 percent cartilage loss), and that the 

GMPE was not applicable as it was used to confirm the class. Application of the net adjustment 

 

4 Appellant previously underwent a total left hip arthroplasty on January 4, 2006, total right hip arthroplasty on 

January 13, 2009, and total left hip revision arthroplasty on September 5, 2012.

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

formula required movement one space to the left of the default value for each lower extremity and, 

therefore, appellant had 34 percent permanent impairment of each lower extremity. 

Appellant underwent OWCP-authorized total left hip revision arthroplasty on 

September 5, 2012.

On October 17, 2012 OWCP determined that there was a conflict in the medical opinion 

evidence regarding permanent impairment between Dr. Morley and the DMA. It referred appellant 

to Dr. Murray J. Goodman, a Board-certified orthopedic surgeon, for an impartial medical 

examination and opinion on permanent impairment. On November 12, 2012 Dr. Goodman

indicated that it was premature to render a permanent impairment rating for either of appellant’s

hips as his left hip had not reached MMI and his altered gait also affected the assessment of his 

right hip condition.

OWCP determined, on September 30, 2014, that it was appropriate to refer appellant for 

an impartial medical examination and evaluation of permanent impairment to Dr. Robert R. 

Pennell, a Board-certified orthopedic surgeon, to resolve the conflict between Dr. Morley and

Dr. Krohn. In a report dated October 21, 2014, Dr. Pennell indicated that appellant’s right hip 

reached MMI on September 2, 2012 and his left hip reached MMI on September 5, 2013. Utilizing 

the DBI rating method under Table 16-4 of the sixth edition of the A.M.A., Guides, he determined 

that both of appellant’s hip conditions fell under class 2 due to right and left total hip replacements 

with good results, thereby warranting a 25 percent default impairment value for each hip. For the 

right hip, appellant had a GMFH of 0 (due to no functional problem) and GMPE of 1. The GMCS 

was not applicable because the clinical studies were used to determine the class. For the left hip, 

appellant had a GMFH of 1 due to moderate difficulty getting on his left shoe, needing to carefully 

lift his left foot when going up stairs, and having difficulty completing his golf swing. The GMPE 

was 1 and the GMCS was not applicable. Dr. Pennell noted that application of the net adjustment 

formula required movement two spaces to the left of the default value on Table 16-4 for each lower 

extremity. Therefore, appellant had 21 percent permanent impairment of each lower extremity.

On March 17, 2015 OWCP referred Dr. Pennell’s October 21, 2014 report to Dr. Morley 

Slutsky, a Board-certified occupational medicine physician serving as a DMA. It requested that 

he review the report and provide an opinion on appellant’s lower extremity permanent impairment.

In a March 18, 2015 report, Dr. Slutsky utilized Table 16-4 of the sixth edition of the A.M.A., 

Guides to find that appellant’s hip conditions fell under class 3 due to total hip replacements with 

fair results(including mild motion deficit), thereby warranting 37 percent default impairment value 

for each hip. He noted that the GMCS was excluded for both hips. For the right hip, appellant 

had a GMFH of 0 and GMPE of 0. For the left hip, he had a GMFH of 1 and GMPE of 1. The 

DMA advised that application of the net adjustment formula yielded a total of 31 percent 

permanent impairment of each lower extremity.

On July 9, 2015 OWCP forwarded the DMA’s March 18, 2015 report to Dr. Pennell for 

his review and comments. In an addendum report dated July 28, 2015, Dr. Pennell advised that he 

agreed with the DMA that the fair results of appellant’s total hip replacements warranted a CDX 

of class 3 with a default impairment value of 37 percent for each lower extremity. For the right 

hip, appellant had a GMFH of 0 (no limp or need for modified footwear), but the GMPE and 

GMCS were not applicable because the physical examination and clinical studies were used to 

determine the class. For the left hip, he had a GMFH of 1 (mild functional difficulties) and a 

GMPE of 1 (mild tenderness upon palpation), but the GMCS was not applicable. Dr. Pennell noted 
4

that application of the net adjustment formula yielded a total of 31 percent permanent impairment 

of each lower extremity.

On June 6, 2016 OWCP referred the case back to Dr. Slutsky for further evaluation, and 

he indicated in a June 12, 2016 report that appellant had reached MMI on October 21, 2014 and 

that he concurred with Dr. Pennell’s finding of 31 percent permanent impairment of each lower 

extremity.

By decision dated December 16, 2016, OWCP granted appellant a schedule award for 31 

percent permanent impairment of each lower extremity (the hips). The award ran for 178.56 weeks

from October 21, 2014 to March 23, 2018 and was based on the opinion of Dr. Pennell as 

confirmed by Dr. Slutsky.

On December 28, 2016 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. In a February 27, 2017 letter, counsel 

requested that Dr. Pennell be issued a subpoena to testify at the hearing, but OWCP later denied 

the subpoena request.

On March 8, 2017 appellant underwent a total left hip revision arthroplasty due to an 

infection. 

During a May 24, 2017 hearing before OWCP’s hearing representative, counsel argued 

that the evidence which served as the basis for the December 16, 2016 schedule award, including

Dr. Pennell’s October 2014 physical examination findings, should be considered stale medical 

evidence. Counsel indicated that new medical evidence would be submitted within 30 days.

On June 23, 2017 OWCP received a June 1, 2017 report from Dr. Morley who indicated 

that appellant was recovering from the total left hip revision replacement performed on 

March 8, 2017. Dr. Morley noted that appellant complained of continued achy discomfort in the 

left hip and stiffness in both hips, left more than right. Appellant reported using a handrail to 

negotiate stairs, using a cane, and walking for approximately 20 to 30 minutes (with a need to rest 

thereafter due to bilateral hip discomfort). Dr. Morley detailed the findings of his June 1, 2017 

physical examination, including findings for range of motion (ROM) testing for both hips. He 

determined that appellant’s right hip reached MMI on January 12, 2012. Utilizing Table 16-4 of 

the sixth edition of the A.M.A., Guides, Dr. Morley found that appellant’s right hip condition fell 

under class 4 due to a moderate ROM deficit. He noted that GMFH was 0 as determined by gait 

derangement and was 2 as determined by the score on the AAOS lower limb questionnaire, but 

that the A.M.A., Guides indicated that the higher grade modifier 2 was to be used. Dr. Morley 

found that the GMPE was not applicable because the physical examination findings (including 

ROM findings) were used to determine the class and there were no other pertinent physical 

examination findings, and that the GMCS also was not applicable because the clinical studies were 

used to determine the class. He indicated that, per Chapter 16.3d on pages 521-22 of the sixth 

edition of the A.M.A., Guides, a value of +1 would be automatically added to each grade modifier 

because appellant’s right hip condition fell under class 4. Application of the net adjustment 

formula necessitated no movement from the default impairment value of Table 16-4 and yielded 

67 percent permanent impairment of the right lower extremity. With respect to the left hip,

Dr. Morley determined that appellant had not yet reached MMI and no impairment rating was 

possible. Appellant also submitted hospital records dated from February 10 through 

March 8, 2017.
5

By decision dated August 8, 2017, OWCP’s hearing representative affirmed the 

December 16, 2016 decision. She found that appellant had not met his burden of proof to establish 

more than 31 percent permanent impairment of each lower extremity, for which he previously 

received a schedule award. The hearing representative found that the special weight of the medical 

opinion evidence with respect to appellant’s permanent impairment continued to rest with the 

opinion of Dr. Pennell, the impartial medical specialist.

On August 2, 2018 appellant requested reconsideration of his claim. In an August 2, 2018 

statement, counsel argued that Dr. Pennell’s October 21, 2014 examination findings, upon which 

OWCP based its granting of a schedule award, were stale and of little evidentiary value given that 

they were now almost four years old. He asserted that the attached July 10, 2018 impairment 

rating report of Dr. Morley, based on June 1, 2017 examination findings, required vacating 

OWCP’s prior schedule award determination and presenting the report to a DMA for review, 

followed by the issuance of a new decision. Counsel argued that Dr. Morley’s July 10, 2018 report 

contained new analysis not previously considered.

Appellant submitted a July 10, 2018 report from Dr. Morley who maintained that he 

correctly noted in his June 1, 2017 report that appellant’s GMFH for the right hip was 0 as 

determined by gait derangement and was 2 as determined by the score on the AAOS lower limb 

questionnaire. However, Dr. Morley further advised that he also should have indicated that the 

GMFH was excluded as unreliable because these two values differed by two grades. He advised

that OWCP’s hearing representative noted in her August 8, 2017 decision that that the 67 percent 

permanent impairment rating of the right hip contained in his June 1, 2017 report was the same 

percent of impairment he found in his original December 5, 2011 report. Dr. Morley indicated 

that, although the percent of impairment was the same, the analysis was based on different, more 

recent medical findings from June 2017. He further noted that these medical findings were some 

32 months more current than those of Dr. Pennell’s October 21, 2014 examination upon which 

OWCP relied in granting schedule award compensation. Dr. Morley maintained that it was

medically unacceptable to make decisions on outdated and stale medical findings while ignoring 

more current and updated findings. He advised that he would provide “the corrected and accurate

impairment analysis from the most recent medical findings” and noted that, utilizing Table 16-4 

of the sixth edition of the A.M.A., Guides, appellant’s right hip condition fell under class 4 due to 

a moderate ROM deficit. Dr. Morley indicated that the GMFH was excluded as unreliable for the 

reasons discussed earlier in his report. He found that the GMPE was not applicable because the 

physical examination findings (including ROM findings) were used to determine the class and 

there were no other pertinent physical examination findings, and that the GMCS also was not 

applicable because the clinical studies were used to determine the class. Dr. Morley indicated that 

application of the net adjustment formula necessitated no movement from the default impairment 

value of Table 16-4 and yielded 67 percent permanent impairment of the right lower extremity.

He noted, “My analysis of the left hip from my examination of [June 1, 2017], which are the most 

current examination findings for [appellant] by some 32 months, remains the same.”

By decision dated October 26, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
6

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.6

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

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

OWCP.7

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.9 If the request is timely, but fails to meet at least one of the 

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.10

The Board has held that a claimant may request a schedule award or increased schedule 

award at any time based on evidence of a new exposure or medical evidence showing progression 

of an employment-related condition resulting in permanent impairment or increased impairment.11 

When a claimant has requested reconsideration, and has submitted new and relevant evidence with 

respect to a permanent impairment or an increased permanent impairment, then he or she will be 

entitled to a merit decision on the issue.12

 

6 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued 

October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

7 20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517 

(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

8 20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). 

Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received 

date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

9

Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

10 20 C.F.R. § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

11 R.D., Docket No. 18-0579 (September 14, 2018); D.S., Docket No. 17-0407 (issued May 24, 2017).

12 See C.W., Docket No. 18-1110 (issued December 28, 2018); Linda T. Brown, 51 ECAB 115 (1999); Paul R. 

Reedy, 45 ECAB 488 (1994); see also B.K., 59 ECAB 228 (2007) (where it was evident that the claimant was seeking 

a schedule award based on new and current medical evidence, OWCP should have issued a merit decision on the 

schedule award claim rather than adjudicate a request for reconsideration).
7

ANALYSIS

The Board finds this case not in posture for decision.

By decision dated August 8, 2017, OWCP’s hearing representative affirmed the 

December 16, 2016 schedule award decision, finding that appellant had not met his burden of 

proof to establish more than 31 percent permanent impairment of each lower extremity, for which 

he previously received a schedule award. Appellant subsequently requested reconsideration and 

submitted a July 10, 2018 report of Dr. Morley who again found 67 percent permanent impairment 

of the right lower extremity. He maintained that he correctly noted in his June 1, 2017 report that 

appellant’s GMFH for the right hip was 0 as determined by gait derangement and was 2 as 

determined by the score on the AAOS lower limb questionnaire. However, he further advised that 

he also should have indicated that the GMFH was excluded as unreliable because these two values 

differed by two grades. Dr. Morley advised that OWCP’s hearing representative noted in her 

August 8, 2017 decision that that the 67 percent permanent impairment rating of the right hip 

contained in his June 1, 2017 report was the same percent of impairment he found in his original 

December 5, 2011 report. He indicated that, although the percent of impairment was the same, the 

analysis was based on different, more recent medical findings from June 2017. Dr. Morley further 

noted that these medical findings were some 32 months more current than those of Dr. Pennell’s 

October 21, 2014 examination upon which OWCP relied in granting schedule award 

compensation. He maintained that it was medically unacceptable to make decisions on outdated 

and stale medical findings while ignoring more current and updated findings. Dr. Morley advised 

that, utilizing Table 16-4 of the sixth edition of the A.M.A., Guides, appellant’s right hip condition 

fell under class 4 due to a moderate ROM deficit. He indicated that the GMFH was excluded as 

unreliable for the reasons discussed earlier in his report. Dr. Morley found that the GMPE was not 

applicable because the physical examination findings (including ROM findings) were used to 

determine the class and there were no other pertinent physical examination findings, and that the 

GMCS also was not applicable because the clinical studies were used to determine the class. He 

indicated that application of the net adjustment formula necessitated no movement from the default 

impairment value of Table 16-4 and yielded 67 percent permanent impairment of the right lower 

extremity. Dr. Morley noted, “My analysis of the left hip from my examination of [June 1, 2017], 

which are the most current examination findings for [appellant] by some 32 months, remains the 

same.” By decision dated October 26, 2018, OWCP denied appellant’s request for reconsideration 

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

Dr. Morley’s report addressed the pertinent issue of this case, i.e., whether appellant was 

entitled to additional schedule award compensation, as it contained an amended analysis 

supporting increased impairment that referenced the A.M.A., Guides. Although appellant 

submitted a letter and form in which he requested reconsideration, it is evident that he was not 

simply seeking reconsideration of the August 8, 2017 decision, but was seeking an increased 

schedule award based on new medical evidence. As noted above, where a claimant has requested 

reconsideration, and has submitted new and relevant evidence with respect to a permanent 

impairment or an increased permanent impairment, then he or she will be entitled to a merit 

decision on the issue.

The case will therefore be remanded for OWCP to adjudicate this matter as a request for 

an increased schedule award. Following this and such other development as deemed necessary, 

OWCP shall issue an appropriate de novo decision on appellant’s claim.
8

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the October 26, 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 decision of the Board.

Issued: September 21, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board