United States Department of Labor

Employees’ Compensation Appeals Board

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T.J., Appellant

and

U.S. POSTAL SERVICE, BULK MAIL 

CENTER, Jersey City, NJ, Employer

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Docket No. 19-0735

Issued: April 30, 2020

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On February 12, 2019 appellant, through counsel, filed a timely appeal from October 3, 

2018 and January 17, 2019 decisions of the Office of Workers’ Compensation Programs (OWCP). 

The Clerk of the Appellate Boards docketed the appeal as No. 19-0735.

On January 11, 2007 appellant, then a 51-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that he developed a bilateral knee condition due to factors of 

his federal employment. OWCP accepted the claim for aggravation of bilateral knee osteoarthritis.

On June 11, 2007 OWCP was informed that on January 11, 2007 appellant had signed a 

retainer agreement authorizing James D. Muirhead, Esq., to represent him in his claim.

 

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

By letter dated April 27, 2017, OWCP acknowledged receipt of a statement designating

Mr. Muirhead as appellant’s representative.

On December 1, 2017 appellant filed a claim for a schedule awardand submitted additional 

medical evidence.

OWCP scheduled a second opinion examination with Dr. Jeffrey Lakin, a Board-certified 

orthopedic surgeon, which occurred on July 30, 2018. While appellant attended the examination, 

the correspondence advising him and/or his designated representative about the scheduled second 

opinion examination is not of record.

By decision dated October 3, 2018, OWCP denied an additional schedule award. It based 

its decision on Dr. Lakin’s medical examination findings. On November 12, 2018 appellant, 

through counsel, requested reconsideration of OWCP’s October 3, 2018 decision. Counsel 

objected to Dr. Lakin’s second opinion examination, noting that he had not been advised of his 

selection to perform a second opinion examination. By decision dated January 17, 2019, OWCP 

denied reconsideration of the merits of appellant’s claim.

The Board has held that the notification of a referral for a second opinion examination is 

an administrative action, and that notification to the claimant’s authorized representative of a 

second opinion examination is required.2 In the present case, appellant authorized Mr. Muirhead

to represent him on January 11, 2007. Despite this authorization, there is no evidence of record 

that OWCP sent the authorized representative notice of appellant’s referral to Dr. Lakin for a 

second opinion examination. OWCP therefore improperly relied on Dr. Lakin’s opinion in 

denying appellant’s additional schedule award claim. The case must therefore be remanded to

OWCP for another second opinion examination for the purpose of affording appellant the 

opportunity to have his physician participate in the examination.3 OWCP shall then further 

develop the evidence as it deems necessary and issue an appropriate de novo decision.4

 

2

See K.J.,Docket No. 09-2317 (issued June 15, 2010); Donald J. Knight, 47 ECAB 706 (1996) ( OWCP’s failure 

to notify appellant’s authorized representative of the referral to a second opinion physician effectively denied 

appellant’s statutory right to have a physician designated and paid by him to be present and participate in the 

examination pursuant to 5 U.S.C. § 8123). .

3

See P.C., Docket No. 16-1714 (issued October 18, 2017); C.M., Docket No. 14-1302 (issued May 5, 2015).

4 Given the disposition of the schedule award issue, the nonmerit issue is moot. See W.G., Docket No. 18-0451 

(issued February 21, 2019).
3

IT IS HEREBY ORDERED THAT the October 3, 2018 decision of the Office of 

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

consistent with this order.

Issued: April 30, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees' Compensation Appeals Board

Janice B. Askin, Judge

Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees' Compensation Appeals Board