United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.G., Appellant

and

U.S. POSTAL SERVICE, CHICAGO CENTRAL 

CARRIER ANNEX, Chicago, IL, Employer

__________________________________________

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Docket No. 21-1192

Issued: March 14, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 29, 2021 appellant filed a timely appeal from an April 23, 2021 merit decision and 

a May 26, 2021 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 her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award; and 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the May 26, 2021 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

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her

claim, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On December 18, 2015 appellant, then a 47-year-old sales and services distribution 

associate, filed a traumatic injury claim (Form CA-1) alleging that on December 12, 2015 she 

strained her abdomen when lifting a package while in the performance of duty. OWCP accepted 

the claim for a ventral hernia without obstruction or gangrene. On August 15, 2016 appellant 

underwent an OWCP-authorized ventral hernia repair. OWCP paid her wage-loss compensation 

on the supplemental rolls for time lost from work for the period August 13 through

October 21, 2016. Appellant returned to modified light-duty employment on October 17, 2016 

and to her date-of-injury employment on November 7, 2016. 

In an impairment evaluation dated November 23, 2020, Dr. Blair Andrew Rhode, a Boardcertified orthopedic surgeon, discussed appellant’s history of sustaining a ventral hernia lifting a 

package at work on December 12, 2015. He noted that the hernia had been surgically repaired and 

that she had returned to her regular work duties. On examination, Dr. Rhode found tenderness 

along the midline of the abdomen with no evidence of a recurrent hernia. Referencing the sixth 

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

(A.M.A., Guides),3 he found class 1 impairment of the abdomen using Table 6-4 on page 107, 

relevant to determining impairments of the digestive tract, which yielded a default whole person 

impairment of five percent. Dr. Rhode applied grade modifiers of zero for functional history, 

physical examination, and clinical studies, and found a total of five percent whole person 

impairment.

On February 3, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

In a development letter dated February 3, 3021, OWCP requested that appellant submit an 

impairment evaluation addressing whether she had obtained maximum medical improvement 

(MMI) and providing an impairment rating in accordance with the A.M.A., Guides. 

On March 18, 2021 Dr. David I. Krohn, a Board-certified internist serving as a district 

medical adviser (DMA), noted that Dr. Rhode had not described any current symptoms or 

attributed the tenderness to palpation along the midline to the surgical incision. Utilizing Table 

6-10 on page 122 of the A.M.A., Guides, relevant to determining impairment due to abdominal 

herniation, he found class 0 impairment based on physical findings showing “no palpable defect 

in supporting structures of the abdominal wall and no description of slight protrusion at the site of 

defect with increased abdominal pressure.” Dr. Krohn advised that Dr. Rhode had used Table 6-4, 

which was relevant to impairment of the upper digestive tract, instead of Table 6 -10, the 

appropriate method set forth in the A.M.A., Guides for calculating impairment due to herniations. 

He found that appellant had reached MMI on December 15, 2020.

3 A.M.A., Guides(6th ed. 2008).
3

On March 22, 2021 OWCP requested that Dr. Rhode review and discuss Dr. Krohn’s 

March 14, 2021 report. It afforded him 30 days to submit the requested information. No response 

was received.

By decision dated April 23, 2021, OWCP denied appellant’s schedule award claim. It 

found that Dr. Krohn’s report constituted the weight of the evidence and established that she had 

no permanent impairment.

On May 24, 2021 appellant requested reconsideration. She argued that Dr. Rhode had not 

responded to OWCP’s March 22, 2021 letter requesting clarification of his report, as he had 

retired. Appellant asserted that she had recently attended an appointment at a new facility for an 

evaluation.

By decision dated May 26, 2021, OWCP denied appellant’s request for reconsideration of 

the merits under 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA,4 and its implementing federal regulations,

5 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 . FECA, 

however, does not specify the manner in which the percentage loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

the use of a single set of tables so that there may be uniform standards 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, published in 2009.6 The Board has approved the use by 

OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a 

member of the body for schedule award purposes.7

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning Disability 

and Health (ICF): A Contemporary Model of Disablement.

8

 Under the sixth edition, the evaluator 

identifies the impairment class of diagnosis (CDX), which is then adjusted by grade modifiers 

based on functional history (GMFH), physical examination (GMPE), and clinical studies 

4

Supra note 1.

5

20 C.F.R. § 10.404.

6 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guidesis used. A.M.A., Guides(6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, 

Chapter 2.808.5(a)(March2017); see also id., atChapter 3.700, Exhibit 1 (January 2010).

7 P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8 A.M.A., Guides(6th ed. 2009), p.3, section 1.3.
4

(GMCS).9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 

Evaluators are directed to provide reasons for their impairment choices, including the choices of 

diagnoses from regional grids and calculations of modifier scores.11

No schedule award is payable for a member, function, or organ of the body not specified 

in FECA or in the implementing regulations.

12

 FECA identifies members such as the arm, leg, 

hand, foot, thumb and finger, organs to include the eye and functions as loss of hearing and loss 

of vision.13 Section 8107(c)(22) of FECA provides for the payment of compensation for 

permanent loss of any other important external or internal organ of the body as determined by the 

Secretary of Labor.14 The Secretary of Labor has made such a determination and pursuant to the 

authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis, testicle, 

ovary, uterus, and tongue to the schedule.15

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to a DMA for an opinion concerning the percentage of permanent impairment 

using the A.M.A., Guides.

16

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.

In a November 23, 2020 impairment evaluation, Dr. Rhode found that appellant had 

tenderness along the abdominal midline with no evidence of a recurrent hernia. Utilizing Table 

6-4 on page 107, which rates upper digestive tract impairment, he found that she had five percent 

whole person impairment. FECA, however, does not allow schedule awards for impairment of the 

body as a whole.17 Furthermore, a schedule award cannot be granted for a digestive impairment 

or hernia because neither are listed in FECA or the regulations as a scheduled member or function 

of the body.18 The terms of FECA are specific as to the method and amount of payment of 

9

Id. at 494-531.

10 Id. 411.

11 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April1, 2011). 

12 See G.S., Docket No. 17-1318 (issued October 11, 2017); Leroy M. Terska, 53 ECAB 247 (2001).

13 5 U.S.C. § 8107(c).

14 Id. at § 8122(c)(22).

15 20 C.F.R. § 10.404;Henry B. Floyd, III, 52 ECAB 220 (2001).

16 Supra note 6 at Chapter 2.808.6(f) (March 2017); B.B., Docket No. 18-0782 (issued January 11, 2019).

17 D.K., Docket No. 21-0303 (issued July 8, 2021); S.M.,Docket No. 14-1052 (issued September 4, 2014).

18 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404; see D.C., Docket No. 14-1618 (issued December 15, 2014).
5

compensation. Neither OWCP, nor the Board, has the authority to enlarge the terms of FECA or 

to make an award of benefits under terms other than those specified in the statute.19

On March 18, 2021 Dr. Krohn found that appellant had no impairment due to her hernia 

using Table 6-10 on page 122, which provides criteria for evaluating whole person impairment

due to abdominal herniation. As discussed, however, a hernia is not listed in FECA or the 

regulations as a scheduled member or function of the body, and thus there is no basis for awarding 

a schedule award for a hernia.20 

As the medical evidence of record is insufficient to establish permanent impairment of a 

member or function of the body listed in FECA or its implementing regulations, the Board finds 

that appellant has not met her burden of proof.21

Appellant 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 permanent impairment.

LEGAL PRECEDENT -- ISSUE 2

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 payment of compensation at any time on his or her own motion or on application.22

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

provide evidence or an argument that: (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.23

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

of OWCP’s decision for which review is sought.24 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.25 If the request is timely, but fails to meet at least one 

19 G.S., supra note 12; S.K.,Docket No. 08-848 (issued January26, 2009).

20 Supra note 18.

21 G.S., supra note 12.

22 5 U.S.C. § 8128(a).

23 20 C.F.R. § 10.606(b)(3); see also S.S., Docket No. 18-0647 (issued October 15, 2018).

24 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision forwhich review is sought. Supranote 6 at Chapter 2.1602.4 

(September 2020). 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.

25 Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).
6

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

reopening the case for review on the merits.26

ANALYSIS -- ISSUE 2

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

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

Initially, the Board finds that OWCP properly considered appellant’s representative’s 

correspondence as a request for reconsideration and not as a claim for a schedule award.27 The 

underlying issue on reconsideration is whether the medical evidence demonstrates a permanent 

impairment of a scheduled member or function warranting a schedule award. Thus, the Board 

must determine whether appellant presented sufficient evidence or argument demonstrating 

permanent impairment sufficient to warrant a merit review pursuant to 5 U.S.C. § 8128(a).28

Appellant has not submitted evidence or raised an argument in support of her request for 

reconsideration sufficient to warrant further merit review pursuant to 20 C.F.R. § 10.606(b)(3). 

She did not show that OWCP erroneously applied or interpreted a specific point of law or raise a 

relevant legal argument not previously considered. On reconsideration, appellant asserted that

Dr. Rhode had retired and that she had sought an impairment evaluation from another physician. 

Her contention, however, is not relevant to the underlying issue of whether she sustained a 

permanent impairment causally related to her accepted employment injury.29 That is a medical 

issue which must be addressed by relevant and pertinent medical evidence. 30 Thus, appellant is 

not entitled to a review of the merits of her claim based on the first and second above -noted 

requirements under section 10.606(b)(3).31

The Board further finds that appellant did not submit any relevant or pertinent new 

evidence not previously considered. As she did not provide relevant and pertinent new evidence, 

appellant is not entitled to a merit review based on the third requirement under section 

10.606(b)(3).32

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.33

26 Id. at § 10.608(b); K.S., Docket No. 18-1022 (issued October 24, 2018).

27 See K.W., Docket No. 19-0553 (issued November 8, 2019); B.W., Docket No. 18-1415 (issued March 8, 2019).

28 S.W., Docket No. 18-1261 (issued February 22, 2019).

29 See A.G., Docket No. 20-0290 (issued June 24, 2020).

30 See T.V., Docket No. 19-1504 (issued January 23, 2020); S.P., Docket No. 18-1419 (issued February 27, 2019).

31 20 C.F.R. § 10.606(b)(3)(i) and (ii); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

32 Id. at § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January13, 2020).

33 A.F., Docket No. 18-1154 (issued January 17, 2019); C.C., Docket No. 17-0043 (issued June 15, 2018).
7

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award. The 

Board further finds that OWCP properly denied her request for reconsideration of the merits of her

claim pursuant to 5 U.S.C. § 8128(a).

ORDER

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

Compensation Programs dated May 26, 2021 and April 23, 2021 are affirmed.

Issued: March 14, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board