United States Department of Labor

Employees’ Compensation Appeals Board

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J.M., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

SUPPLY SYSTEMS COMMAND, Gulfport, MS, 

Employer

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Docket No. 19-0601

Issued: October 22, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On January 24, 2019 appellant filed a timely appeal from August 8, 2018 and January 7, 

2019 decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the 

Appellate Boards docketed the appeal as Docket No. 19-0601.

This case has previously been before the Board.1 The facts and circumstances as set forth 

in the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.

On July 10, 2008 appellant, then a 48-year-old materials handler, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his right upper extremity while unloading pallets while 

in the performance of duty. On October 7, 2008 OWCP accepted the claim for conditions of sprain 

of right elbow and forearm, other specified sites, as well as right lateral epicondylitis. 

In its most recent decision dated April 10, 2018, the Board set aside a January 18, 2017 

schedule award decision regarding appellant’s upper extremity impairment and remanded the case 

 

1 Docket No. 10-0823 (issued November 15, 2010); Docket No. 12-1699 (issued February 14, 2013); Docket No. 

12-1906 (issued February 14, 2013); Docket No. 16-0669 (issued October 24, 2016); and Docket No. 17-1603 (issued 

April 10, 2018).
2

for OWCP to follow the procedures set forth in FECA Bulletin No. 17-062, to be followed by a de 

novo decision.

Subsequent to the Board’s April 10, 2018 decision, OWCP referred appellant to Dr. Joseph 

McGowin, III, a Board-certified orthopedic surgeon, for a second-opinion examination and an 

evaluation of his permanent impairment. Dr. McGowin submitted a July 11, 2018 report to 

OWCP, which does not include page four. As such, this report does not contain physical 

examination findings other than to indicate loss of elbow motion. Further, the report only generally 

included a statement that appellant had eight percent permanent impairment for diagnoses of lateral 

epicondylitis and ulnar neuropathy. However, in the report’s conclusion, Dr. McGowin found that 

appellant had nine percent permanent impairment based on the range of motion (ROM)

methodology set forth in the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides).

3

Dr. McGowin’s report was forwarded to Dr. Amanda D. Trimpey, Board-certified in 

preventive medicine and serving as a district medical adviser. In an August 1, 2018 report, 

Dr. Trimpey noted that Dr. McGowin’s report did not include rating calculations, examination 

findings, or the methodology used in reaching his impairment ratings. Nonetheless, she found that 

appellant had six percent permanent impairment under the diagnosis-based impairment method for 

rating permanent impairment for a diagnosis of lateral epicondylitis and nine percent permanent 

impairment under the ROM method.

By decision dated August 8, 2018, OWCP granted appellant a schedule award for nine 

percent permanent impairment of the right arm, less seven percent previously paid, for an increased 

schedule award of two percent.4 

The Board has duly considered the matter and finds that this case is not in posture for 

decision. 

Section 501.2(c) of the Board’s Rules of Procedure,

5 provides that the Board has 

jurisdiction “to consider and decide appeals from final decisions of OWCP in any case arising 

under the [Federal Employees’ Compensation] Act” (FECA).6 Since the record as transmitted to 

the Board does not contain a complete copy of Dr. McGowin’s July 11, 2018 second-opinion 

evaluation, the Board is unable to properly “consider and decide” appellant’s claim for a schedule 

award. 

The case shall therefore be remanded to OWCP for reconstruction and proper assemblage 

of the case record, including obtaining a complete copy of Dr. McGowin’s July 11, 2018 report, if 

 

2 FECA Bulletin No. 17-06 (issued May 8, 2017).

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

4 By decision dated April3, 2013, appellant was granted a schedule award for seven percent permanent impairment 

of the right arm.

5

20 C.F.R. § 501.2(c).

6

5 U.S.C. § 8101 et seq.
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available, or obtaining a new second opinion report as to appellant’s upper extremity permanent 

impairment under the A.M.A., Guides. Following this and such further development as deemed 

necessary, OWCP shall issue a de novo decision.7 Accordingly,

IT IS HEREBY ORDERED THAT the January 7, 2019 and August 8, 2018 decisions

are set aside and the case is remanded to OWCP for proceedings consistent with this order of the 

Board. 

Issued: October 22, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

7

In light of the Board’s disposition as to the merits of appellant’s schedule award claim, the issue of whether OWCP 

properly denied reconsideration in its January 7, 2019 nonmerit decision is rendered moot.