United States Department of Labor

Employees’ Compensation Appeals Board

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D.L., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, West Palm Beach, FL, 

Employer

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Docket No. 20-0512

Issued: November 30, 2020

Appearances: Case Submitted on the Record

Christina Berrios, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On January 6, 2020 appellant, through his representative, filed a timely appeal from an 

October 2, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days has elapsed from OWCP’s last merit decision, dated June 27, 2018, to the 

 

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

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.3 

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 June 30, 2013 appellant, then a 61-year-old automation clerk, filed a traumatic injury 

claim (Form CA-1) alleging that, on June 19, 2013, he noticed a sharp pain in his right knee when

pushing a general postal container (GPC) of mail while in the performance of duty. He stopped 

work on June 21, 2013 and returned to work on June 29, 2013.4 Appellant stopped work on 

September 5, 2013 and underwent a right knee arthroscopy. OWCP accepted the claim for right 

knee medial meniscus tear. Appellant returned to work on November 9, 2013. OWCP paid him

intermittent wage-loss compensation on the supplemental rolls as of August 3, 2013. 

On June 2, 2017 appellant filed a claim for a schedule award (Form CA-7).

In a May 29, 2017 report, Dr. Graham F. Whitfield, an orthopedic surgeon, provided a

permanent impairment rating based on a compilation of appellant’s subjective complaints and 

examination findings from August 16, September 20, and November 10, 2016, and February 23, 

and April 4, 2017. Multiple measurements of range of motion (ROM) findings of the right knee 

were recorded and averaged from the different dates of service. Dr. Whitfield opined that appellant 

reached maximum medical improvement (MMI) on February 23, 2017. Utilizing the sixth edition 

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

(A.M.A., Guides),5 he opined that appellant had 12 percent permanent impairment of the right 

lower extremity for Class 1 partial tear of the medial and lateral menisci after the assignment of 

grade modifiers and application of the net adjustment formula.

In a report dated July 29, 2017, Dr. Eric M. Orenstein, a Board-certified orthopedic 

surgeon serving as a district medical adviser (DMA), noted deficiencies in Dr. Whitfield’s report

and indicated that there was not enough information to perform a permanent impairment rating. 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the October 2, 2019 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.

4 A July 19, 2013 magnetic resonance imaging (MRI) scan of appellant’s right knee revealed tear of posterior horn 

medial meniscus, bone bruise in medial femoral condyle, small joint effusion and soft tissue edema anteriorly. The 

lateral meniscus, anterior and posterior cruciate ligaments, collateral ligaments, quadriceps and patellar tendons were 

intact.

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

He recommended that appellant be sent to a second opinion examiner to perform an impairment 

evaluation and rating.

OWCP forwarded the case record, including Dr. Whitfield’s report and an August 9, 2017

statement of accepted facts (SOAF), to Dr. Jon D. Donshik, a Board-certified orthopedic surgeon, 

for a second opinion impairment evaluation. In a September 1, 2017 report, Dr. Donshik related

appellant’s history of injury and medical history. He noted that appellant was involved in a 

nonwork-related motor vehicle accident on September 26, 2016 and sustained, in relevant part, a 

nondisplaced fracture of the right patella and had been placed in a brace. He also discussed

compared magnetic resonance imaging (MRI) scans of the right knee dated June 22, 2015 and 

May 19, 2016. Dr. Donshik reported the findings of his physical examination, noting that 

appellant had an antalgic gait, ROM of the right knee was 0 to 120 degrees of knee flexion with 

no instability. Appellant had medial and lateral joint line tenderness as well as patellar tenderness 

and crepitus. He noted that Dr. Whitfield rated appellant for tears and meniscectomies of the 

medial and lateral meniscus; however, the case was accepted only for medial meniscal tear. 

Dr. Donshik opined that using the lateral meniscus for rating purposes was incorrect. He 

determined that appellant’s date of MMI was August 31, 2017, the date of appellant’s examination. 

Dr. Donshik opined that appellant’s final right lower extremity impairment was Class 1, grade C 

or two percent impairment of the right lower extremity for partial medial menisectomy under 

Table 16-3, page 509 of the A.M.A., Guides.

In an October 28, 2017 report, the DMA opined that appellant reached MMI on 

September 1, 2017, the date of Dr. Donshik’s examination. He concurred with Dr. Donshik’s 

rating and method of calculation for permanent impairment of appellant’s right lower extremity. 

He noted that, although appellant underwent a partial medial and lateral meniscectomy, the lateral 

meniscal tear was not an accepted condition and was not included in the calculation. The DMA 

also noted that Dr. Donshik correctly utilized the diagnosis-based impairment (DBI) rating 

method. Under Table 16-3, page 509 of the A.M.A., Guides, Knee Regional Grid -- Lower 

Extremity Impairment, he found a class of diagnosis (CDX) of 1, grade C default impairment 

rating for a partial medial meniscal injury was two percent impairment. He indicated that appellant 

had a grade modifier for functional history (GMFH) of 1, a grade modifier for physical 

examination (GMPE) of 1, and that a grade modifier for clinical studies (GMCS) was not 

applicable. Application of the net adjustment formula resulted in a net adjustment of 0, equaling 

two percent permanent impairment of the right lower extremity. 

By decision dated November 14, 2017, OWCP granted appellant a schedule award for two 

percent permanent impairment of the right lower extremity. The period of the award, equivalent 

to 5.76 weeks of compensation, ran for the period September 1 through October 11, 2017. 

On December 1, 2017 appellant, through his representative, requested a telephonic hearing 

before a representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

May 16, 2018. Appellant’s representative alleged that appellant had sustained both medial and 

lateral meniscus right knee tears due to the accepted employment injury. Evidence received 

included an April 25, 2018 statement from appellant regarding the sufficiency of Dr. Donshik’s 

examination. 
4

In a January 30, 2018 report, Dr. Whitfield acknowledged that appellant’s post-injury MRI 

scan did not show lateral meniscal tear, but it was present during the September 5, 2013 

arthroscopic procedure. He opined that it was appropriate to include both the lateral meniscal tear 

and the medial meniscal tear in the impairment rating as it was within reasonable medical 

probability that both tears were sustained at the time of appellant’s June 19, 2013 employment 

injury. Dr. Whitfield explained that findings made during an arthroscopic procedure were a more 

accurate way to precisely delineate the nature and extent of a patient’s injuries/pathology in the 

knee as compared to a preoperative MRI scan.

By decision dated June 27, 2018, OWCP’s hearing representative affirmed the 

November 14, 2017 schedule award decision. The hearing representative found that “while

Dr. Whitfield argues that [the impairment rating] was incorrect because a lateral meniscal tear 

should be included, this inclusion was not supported by reports from appellant’s initial treating 

surgeon, Dr. Reno Amro, a Board-certified orthopedic surgeon.

On June 27, 2019 appellant’s representative requested reconsideration, arguing that the 

schedule award should include the lateral meniscal tear as it was present during the September 5, 

2013 right knee arthroscopy. She also argued that OWCP’s procedures emphasized that a schedule 

award should include permanent impairment resulting from conditions accepted by OWCP as jobrelated as well as any nonindustrial permanent impairment present in the same schedule member

at the time of the rating examination. Appellant’s representative further contended that OWCP 

failed to request clarification from Dr. Whitfield regarding his methodology in obtaining the date 

of MMI and his reasoning for using different examination dates for an impairment rating and that 

it had therefore improperly declined to determine whether a conflict existed between Dr. Whitfield 

and OWCP’ s second opinion physician.

By decision dated October 2, 2019, OWCP denied appellant’s request for reconsideration 

of the merits of the claim. 

LEGAL PRECEDENT

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.6 

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.7 Alternatively, the reconsideration request will be 

determined under Section 8128(a) of FECA, which vests OWCP with discretionary authority to 

 

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

7 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 an application for reconsideration).
5

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.8

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.9

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

OWCP’s decision for which review is sought.10 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.11 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.12

ANALYSIS

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).

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

correspondence as a request for reconsideration and not as a claim for an increased schedule 

award.13 The underlying issue on reconsideration is whether the medical evidence demonstrates a 

greater permanent impairment. Thus, the Board must determine whether appellant presented 

sufficient evidence or argument regarding the extent of permanent impairment to warrant a merit 

review pursuant to 5 U.S.C. § 8128(a).14

 

8 5 U.S.C. § 8128(a); see 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).

9 20 C.F.R. § 10.606(b)(3); J.K., Docket No. 19-1420 & 19-1422 (issued August 12, 2020); see 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).

10 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 OWCP’s 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 2.1602.4b.

11 Id. at § 10.608(a); M.S., Docket No. 19-1090 & 20-0408 (issued April 20, 2020); see also M.S., 59 ECAB 

231 (2007).

12 Id. at § 10.608(b); J.D., Docket No. 19-1757 (issued April 15, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

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

14 S.W., Docket No. 18-1261 (issued February 22, 2019).
6

The Board finds that appellant’s representative raised a relevant legal argument in her 

request for reconsideration, which was not previously considered.

Under Table 16-3 of the A.M.A., Guides, a permanent impairment rating for both partial 

and medial meniscectomy would result in greater impairment than that previously awarded for 

impairment based solely on a partial medial meniscectomy. Counsel correctly noted that OWCP’s 

procedures provide in relevant part that: “Rated impairment should reflect the total loss as 

evaluated for the scheduled member (i.e., arm, leg, etc.) at the time of the rating examination.15 

There are no provisions for apportionment under FECA. As such, schedule awards include 

permanent impairment resulting from conditions accepted by OWCP as job related as well as and 

any nonindustrial permanent impairment present in the same scheduled member at the time of the 

rating examination.”

16

 The Board finds that appellant’s request for reconsideration therefore raised 

a relevant legal argument not previously considered or addressed by OWCP sufficient to warrant 

reopening the claim for further merit review. 

Pursuant to 20 C.F.R. § 10.606(b)(3), appellant is entitled to a merit review of the claim. 

The case will be remanded to OWCP for an appropriate merit decision.

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).

 

15 See Raymond E. Gwynn, 35 ECAB 247, 253 (1983). 

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.5(d) (March 2017).
7

ORDER

IT IS HEREBY ORDERED THAT the October 2, 2019 decision of the Office of 

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

consistent with this decision.

Issued: November 30, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board