United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Drexel Hill, PA, Employer 

__________________________________________ 

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Docket No. 15-546 

Issued: May 20, 2015 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

On January 13, 2015 appellant, through counsel, filed a timely application for review of 

the December 5, 2014 decision of the Office of Workers’ Compensation Programs (OWCP), 

which denied an increased schedule award. 

On the prior appeal,1

 the Board set aside OWCP’s November 18, 2013 decision and 

remanded the case for a de novo decision on the extent of appellant’s bilateral lower extremity 

impairment under Table 4-12, page 69 of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009). The Board found that 

neither Dr. Robert A. Smith, the Board-certified orthopedic surgeon and second opinion 

physician, nor OWCP medical adviser explained how they used the criteria of that table to 

determine appellant’s impairment. Although Dr. Smith placed the impairment in class 2, he did 

not explain how appellant met the criteria. He did not explain how appellant’s functional history 

 1

 Docket No. 14-333 (issued June 25, 2014). On September 8, 1998 appellant, a 46-year-old letter carrier, 

sustained an injury in the performance of duty when he lifted his mail satchel. OWCP accepted his claim for 

lumbosacral strain, displacement of an intervertebral disc, aggravation of lumbar degenerative disc disease, 

phlebitis, and thrombophlebitis. Appellant received a schedule award for 18 percent impairment of his right lower 

extremity and for 10 percent impairment of his left lower extremity. On July 17, 2012 OWCP issued a schedule 

award for an additional 10 percent impairment of the left lower extremity, for a total rating of 20 percent on that 

side. 
2

met the criteria for mild, nor did he explain how appellant’s physical findings met the criteria for 

mild on the right and moderate on the left. 

OWCP referred appellant to Dr. Willie E. Thompson, a Board-certified orthopedic 

surgeon, but he simply adopted Dr. Smith’s earlier opinion, which he described as well-reasoned, 

clear, and succinct. An OWCP medical adviser agreed with Dr. Thompson’s conclusion. 

The Board finds that OWCP has not complied with the Board’s June 25, 2014 decision. 

The Board remanded the case for further development because neither Dr. Smith nor the OWCP 

medical adviser explained how appellant met the stated criteria for a class 2 impairment under 

Table 4-12, page 69 of the A.M.A., Guides, nor did they explain how they chose the relevant 

grade modifiers. As appellant’s representative correctly observes, the further development that 

OWCP undertook did nothing to resolve those issues. Dr. Thompson adopted Dr. Smith’s 

opinion without elaboration or clarification. The Board will therefore set aside OWCP’s 

December 5, 2014 decision and remand the case for further development that will answer the 

questions the Board raised in its June 25, 2014 decision. Following such development, OWCP 

shall issue a de novo decision on appellant’s bilateral lower extremity impairment under 

Table 4-12 of the A.M.A., Guides. 

IT IS HEREBY ORDERED THAT the December 5, 2014 decision of the Office of 

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

Issued: May 20, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board