United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer 

__________________________________________ 

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Docket No. 16-0328 

Issued: November 1, 2016 

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

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 December 11, 2015 appellant, through counsel, filed a timely application for review 

from a November 4, 2015 merit decision of the Office of Workers’ Compensation Programs 

(OWCP). The Clerk of the Board docketed the appeal as 16-0328. 

The Board notes that appellant is a former driver instructor who injured his left leg on 

May 16, 2008 when he stepped into a small depression as he returned to his building. OWCP 

accepted his claim, assigned OWCP File No. xxxxxx942, for medial meniscus tear of the left 

knee, aggravation of preexisting right median nerve entrapment and right ulnar neuropathy, right 

carpal tunnel syndrome, right lesion of the ulnar nerve, and a single episode of major 

 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

depression.2

 OWCP also authorized neuroplasty, right carpal tunnel release, and synovectomy 

performed on October 20, 2009. 

In a September 28, 2012 decision, OWCP granted a schedule award for 8 percent 

permanent impairment of the right arm and 10 percent permanent impairment of the left leg. In a 

May 30, 2013 decision, an OWCP hearing representative set aside the September 28, 2012 

decision and remanded the case for referral to an impartial medical examiner to resolve a conflict 

in medical opinion regarding the extent of permanent impairment to appellant’s right arm and 

left leg. On July 24, 2013 OWCP referred appellant to Dr. Menachem M. Meller, a Boardcertified orthopedic surgeon, for an impartial medical examination. 

The Board finds, however, that the record does not establish that Dr. Meller was properly 

selected to act as the impartial impairment specialist in this case. The record indicates that 

Dr. Meller previously served as an impartial specialist in appellant’s claim for a schedule award 

for the left upper extremity under File No. xxxxxx668.3

 In that case, he examined appellant and 

provided an October 9, 2006 medical report. The Board has held that a physician serving as an 

impartial medical examiner should be one who is wholly free to make a completely independent 

evaluation and judgment, untrammeled by a conclusion rendered on a prior examination.4

The importance of safeguarding the independence of an impartial medical specialist is 

recognized in OWCP procedures. The procedures provide that physicians previously connected 

with the claim or the claimant, or physicians in partnership with those already so connected may 

not be used as impartial medical specialists.5

 OWCP has an obligation to verify that it selected 

Dr. Meller in a fair and unbiased manner. As Dr. Meller had previously conducted an impartial 

examination of appellant in his claim under OWCP File No. xxxxxxx668, there is an appearance 

of impropriety in the instant claim under OWCP File No. xxxxxx942 due to their previous 

association. The Board finds that Dr. Meller was not properly selected as the impartial medical 

specialist. OWCP has not met its affirmative obligation to establish that it properly followed its 

selection procedures in this case.6

 Thus, the conflict of medical opinion evidence remains 

unresolved. 

Accordingly, the Board will set aside OWCP’s November 4, 2015 decision and remand 

the case for proper selection of a referee physician. OWCP shall follow its procedures and refer 

appellant, a statement of accepted facts, the medical record, and a list of specific questions, to an 

appropriate Board-certified physician to resolve the issue of whether he has more than 8 percent 

 2

 It also accepted that appellant sustained a recurrence of disability commencing March 12, 2009 due to his 

authorized arthroscopic left knee partial medial and lateral meniscectomies performed on that date. 

3

 In a prior appeal involving appellant’s claim assigned File No. xxxxxx668, the Board, in a September 27, 2010 

decision, affirmed an OWCP decision finding that appellant had no more than 24 percent impairment of the left arm. 

Docket No. 09-2259 (issued September 27, 2010). 

4 Ronald Santos, 53 ECAB 742 (2002); Raymond E. Heathcock, 32 ECAB 2004 (1981). 

5

 Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 

3.500.4.b(3)(b) (July 2011); Raymond E. Heathcock, id.

6 See T.K., Docket No. 10-445 (issued December 6, 2010). 
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permanent impairment of the right arm and 10 percent permanent impairment of the left leg. 

After such further development as deemed necessary, it shall issue a de novo decision. 

IT IS HEREBY ORDERED THAT the November 4, 2015 decision of the Office of 

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

consistent with this order of the Board. 

Issued: November 1, 2016 

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