United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.L., Appellant

and

U.S. POSTAL SERVICE, OGDEN PARK 

STATION, Chicago, IL, Employer

__________________________________________

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Docket No. 22-0434

Issued: August 24, 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

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 29, 2022 appellant filed a timely appeal from a January 13, 2022 nonmerit 

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

elapsed from the last merit decision dated January 26, 2021, 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 over the merits of this case.

ISSUE

The issue is 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 October 17, 2014 appellant, then a 33-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on October 8, 2014 after delivering mail to a home, she sustained 

lower back and left knee injuries when the porch collapsed and she fell while in the performance 

1

5 U.S.C. § 8101 et seq.
2

of duty. She did not stop work. OWCP accepted the claim for lumbar sprain, left hand, back, and 

left knee contusions and left knee chondromalacia. 

In a February 7, 2020 report, Dr. Thomas P. Poepping, a physician Board-certified in 

orthopedic surgery and sports medicine, related that he had examined appellant that day for her 

complaints of left knee pain. He diagnosed left knee patellofemoral chondromalacia and used a 

diagnosis of left patellofemoral arthritis, to rate appellant’s permanent impairment under Table 

16-3, page 511 of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides).2 Dr. Poepping assigned class of diagnosis (CDX) of 1 based on 

mild symptoms, and a grade modifier for functional history (GMFH) of 2 for moderate deficits, a 

grade modifier for physical examination (GMPE) of 2 for moderate palpatory findings, and a grade 

modifier for clinical studies (GMCS) of 2 for moderate findings. Next, he found that the net 

adjustment was 2, which moved the rating to the right and resulted in a final permanent impairment 

rating of five percent. Dr. Poepping opined that appellant had reached maximum medical 

improvement (MMI) on April 17, 2017.

On June 11, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

On December 8, 2020 OWCP forwarded Dr. Poepping’s report, the medical record, and a 

statement of accepted facts to Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving 

as district medical adviser. In a report dated December 29, 2020, Dr. Hammel reviewed

Dr. Poepping’s findings and concluded that appellant had five percent permanent impairment of 

the left lower extremity. He noted that she had a diagnosis of left patellofemoral arthritis, ratable 

under Table 16-3, page 511 of the A.M.A., Guides. Dr. Hammel explained that appellant’s mild 

problems fell into CDX of 1, and that she had a GMFH of 2 for ongoing significant difficulties, 

and a GMPE of 2 for moderate palpatory findings, and that GMCS was not applicable since it was

used to set the class. Next, he found that the net adjustment was 2, which moved the rating to the 

right and resulted in a final permanent impairment rating of five percent. Dr. Hammel found that 

the DBI section did not reference the diagnosis-based impairment (ROM) section as an alternative 

method for calculation of a permanent impairment rating for the diagnosis of patellofemoral 

arthritis and, therefore, the ROM method was not applicable. He also related that the date of MMI 

was February 7, 2020, the date of Dr. Poepping’s examination.

By decision dated January 26, 2021, OWCP granted appellant a schedule award for a five 

percent permanent impairment of the left lower extremity. The award was for 4.40 weeks and the 

period of the award ran from February 7 to May 17, 2020. 

OWCP subsequently received duty status forms (Form CA-17) covering the period 

May 19, 2017 through August 20, 2021 noting a diagnosis of left knee chondromalacia and

providing work restrictions. It also received a series of reports covering the period September 30, 

2015 through November 19, 2021 providing examination findings, injury history, and diagnosis 

of left knee chondromalacia from Dr. Poepping. 

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

On December 29, 2021 OWCP received an August 5, 2016 left knee magnetic resonance 

imaging (MRI) scan, a June 7, 2017 functional capacity evaluation, as well as medical 

documentation that did not address the issue of MMI. 

On December 29, 2021 appellant requested reconsideration with an accompanying letter 

asserting that the date of MMI, February 7, 2020, was incorrect as that was the date of

Dr. Poepping’s report and that her MMI occurred prior to that date. 

By decision dated January 13, 2022,OWCP denied appellant’s request for reconsideration.

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.

3

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.

4

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

OWCP’s decision for which review is sought.

5

 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.

6

 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.

7

3

5 U.S.C. § 8128(a); see M.M., Docket No. 21-0816(issued January 12, 2022);A.M., Docket No. 20-1417 (issued 

July 30, 2021); J.D., Docket No. 19-1757 (issued April15, 2020); L.D., Docket No. 18-1468 (issued February 11, 

2019);see also 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).

4

20 C.F.R. § 10.606(b)(3); see M.M., id.; A.M., id.; J.D., id.; L.D., id.;see also L.G., Docket No. 09-1517 (issued 

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

5 Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of the merit decision for which review is sought. 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 2.1602.4(b). 

6

Id. at § 10.608(a); see also M.M., supra note 3; A.M., supra note 3; M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b).
4

ANALYSIS

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

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

On January 26, 2021OWCP granted appellant a schedule award for five percent permanent 

impairment of her left lower extremity with a date of MMI of February 7, 2020.

The Board notes that appellant did not submit any evidence showing increased permanent 

impairment or additional exposure, and, therefore, OWCP properly reviewed her submission as a 

request for reconsideration, rather than a request for an additional schedule award.8

In her reconsideration request appellant did not take issue with the percentage of 

impairment awarded, but challenged OWCP’s finding that she reached MMI as of 

February 7, 2020. She asserted that the date of MMI occurred prior to that date. 

In assessing eligibility for a schedule award, the medical evidence must show that the 

impairment has reached a permanent and fixed state, which is generally referred to as MMI. 9 

Assuming MMI has been attained, the date of MMI is usually considered to be the date of the 

evaluation by the attending physician that is accepted as definitive by OWCP.

10

As customarily is the case, OWCP’s identified date of MMI coincided with the date of the 

medical evaluation that formed the basis of the schedule award, which in this case was 

February 7, 2020. Appellant failed to provide medical evidence and/or legal justification as to an 

earlier MMI date.11 Thus, she did not establish that OWCP erroneously applied or interpreted a 

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

Consequently, appellant is not entitled to review of the merits of her claim based on the first and 

second above-noted requirements under 20 C.F.R. § 10.606(b)(3).12

Additionally, appellant has not submitted relevant and pertinent new evidence not 

previously considered by OWCP. Following the issuance of the January 26, 2021 decision, OWCP 

received Form CA-17s covering the period May 19, 2017 through August 20, 2021, reports 

covering the period September 30, 2015 through November 19, 2021 from Dr. Poepping, an 

August 5, 2016 left knee MRI scan, a June 7, 2017 functional capacity evaluation, as well as other 

8

See A.A., Docket No. 19-0939 (issued August 8, 2019); F.K.,Docket No. 17-0308 (issued December 21, 2017).

9

Supra note 5 at Chapter 2.808.5(b)(1) (March 2017).

10 Id. at Chapter 2.808.7(b)(1).

11 In assessing eligibility for a schedule award, the medical evidence must show that the impairment has reached a 

permanent and fixed state, which is generally referred to as MMI. See id. at Chapter 2.808.5b(1). Assuming MMI 

has been attained, the date of MMI is usually based on the probative evidence of record. Schedule awards begin on 

the date of MMI, unless circumstances show that a later date should be used. A retroactive determination of the date 

of MMI is not per se erroneous. When the medical evidence establishes that the employee did in fact reach MMI by 

such date, the determination is proper. Id. at Chapter 2.808.7b.

12 F.R., Docket No. 20-1406 (issued March 2, 2021); M.O., Docket No. 19-1677 (issued February 25, 2020); E.W., 

Docket No. 19-1393 (issued January 29, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).
5

medical documentation. This evidence is irrelevant as none of it addresses an increased permanent 

impairment or the date of MMI. The Board has held that the submission of evidence that does not 

address the underlying issue involved does not constitute a basis for reopening a case .

13

 As 

appellant did not provide relevant and pertinent new evidence, she is not entitled to a merit review 

based on the third requirement under 20 C.F.R. § 10.606(b)(3).

14

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.15

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the January 13, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 24, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

13 V.H., Docket No. 21-0910 (issued January12, 2022); E.J., Docket No. 20-0841 (issued February 12, 2021);T.T., 

Docket No. 19-1624 (issued October 28, 2020); Edward Matthew Diekemper, 31 ECAB 224 (1979).

14 See R.E., Docket No. 21-0172 (issued June15, 2021); T.W., Docket No. 18-0821 (issued January 13, 2020).

15 See R.E., id.; J.B., Docket No. 20-0145 (issued September 8, 2020).