United States Department of Labor

Employees’ Compensation Appeals Board

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M.B., Appellant

and

U.S. POSTAL SERVICE, MERCHANDISE 

MART POST OFFICE, Chicago, IL, Employer

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Docket No. 19-0525

Issued: March 20, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

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 January 4, 2019 appellant filed a timely appeal from a September 6, 2018 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards 

docketed the appeal as No. 19-0525.

1

On December 28, 1998 appellant, then a 42-year-old rehabilitation letter carrier, filed a 

traumatic injury claim (Form CA-1) for a right knee injury sustained on December 26, 1998 in the 

performance of duty. OWCP assigned this claim File No. xxxxxx040 and it was accepted for the 

conditions of right knee contusion, right knee strain, and right knee chondromalacia.

Appellant had previously filed a traumatic injury claim (Form CA-1) on January 15, 1992 

that was accepted by OWCP for bilateral frostbite of the feet and bilateral plantar fibromatosis. 

This claim was assigned OWCP File No. xxxxxx102. Acceptance of that claim was later expanded 

 

1 The Board notes that appellant submitted additional evidence to OWCP following the September 6, 2018 decision 

and on appeal. 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.
2

to include the additional conditions of bilateral tarsal tunnel syndrome and bilateral lesion of the 

plantar nerve as work related.

2

On April 30, 2018 appellant filed a claim for a schedule award (Form CA-7) under File 

No. xxxxxx040. The record indicates that she submitted medical reports dated January 15, 2016 

through September 8, 2017 regarding her right knee condition.

In a development letter dated May 7, 2018, OWCP notified appellant that she had 

previously received a schedule award for 23 percent permanent impairment of the right lower 

extremity under OWCP File No. xxxxxx102,

3

 in accordance with the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).

4

 In 

order to receive an additional award for her accepted right knee conditions, it advised that appellant

should submit a new permanent impairment rating which established a greater than 23 percent 

permanent impairment of the right lower extremity as a result of a new period of exposure or 

progression of the work-related condition. Appellant was afforded 30 days to submit the necessary 

evidence. 

In a case doubling memorandum transfer sheet, the OWCP claims examiner indicated that 

File Nos. xxxxxx040 and xxxxxx102 should be doubled as there was a pending request for an 

additional schedule award. The claims examiner noted that appellant had previously received

multiple schedule awards under multiple claims. Under File No. xxxxxx030, which had since been 

retired, the claims examiner noted a schedule award had been paid for four percent permanent 

impairment of the right lower extremity. With regard to the bilateral foot conditions accepted 

under File No. xxxxxx102, the claims examiner reported that multiple right lower extremity 

 

2 The record further reflects a prior claim involving the right lower extremity under OWCP File No. xxxxxx030 

which has since been retired. No further information pertaining to this case is available. The record also reflects that 

appellant had previously filed a claim for a traumatic injury on April 12, 1985, while employed as a commodity grader 

with the Department of Agriculture, which was accepted by OWCP for lumbosacral strain under OWCP File No. 

xxxxxx224.

3 The record reflects that, under OWCP File No. xxxxxx102, by decision dated May 30, 2013, OWCP issued a

schedule award for a reflecting a total of 16 percent permanent impairment of the left lower extremity and 23 percent 

permanent impairment of the right lower extremity. Appellant requested reconsideration of the schedule award 

decision and was referred to a second opinion examination conducted by Dr. Allan Brecher, a Board-certified 

orthopedic surgeon. By decision dated April 7, 2014, OWCP determined that the evidence of record was insufficient 

to modify the prior schedule award decision. On August 4, 2014 appellant appealed to the Board. By decision dated 

July 2, 2015, the Board determined that Dr. Brecher did not base his report on an accurate factual history and remanded 

the case to OWCP for further medical development. Docket No. 14-1689 (issued July 2, 2015).

On remand appellant was referred to Dr. James Elmes, a Board-certified orthopedic surgeon, for a second opinion 

evaluation. On April 29, 2016 Dr. Michael M. Katz, a Board-certified orthopedic surgeon and OWCP DMA, 

reviewed Dr. Elmes’ calculations and concluded that he correctly determined impairment. However, he noted that 

appellant’s right knee conditions were accepted under a different claim and therefore, Dr. Elmes’ determination of 

eight percent permanent impairment for the right lower extremity pertaining to the right knee should not be considered. 

By decision dated May 13, 2016, OWCP found that appellant had not established greater than 16 percent permanent 

impairment of her left lower extremity and 23 percent permanent impairment of her right lower extremity for which 

she previously received schedule awards. On May 15, 2017 the Board affirmed OWCP’s May 13, 2016 decision. 

Docket No. 16-1826 (issued May 15, 2017).

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

schedule awards had been granted totaling 23 percent permanent impairment of the right lower 

extremity. The claims examiner noted that appellant now claimed that she was entitled to eight 

percent permanent impairment of the right knee based upon her injury in OWCP File No. 

xxxxxx040. The claims examiner related that the claims would be doubled and the case would be 

referred back to the DMA. 

On June 12, 2018, OWCP combined this claim, File No. xxxxxx040, with File Nos. 

xxxxxx030 and xxxxxx102, and the last file was designated the master file.

On June 12, 2018, OWCP referred a May 20, 2014 statement of accepted facts (SOAF) 

and the case file to Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as an 

OWCP district medical adviser (DMA), to determine if appellant was entitled to additional 

impairment of the right knee. It indicated that the case files had been doubled.

In a June 13, 2018 report, Dr. Katz noted that he previously had not recommended payment 

of a schedule award for right knee impairment in his April 29, 2016 report regarding OWCP File 

No. xxxxxx102 as he was not then aware that the case files were combined. He reported that based 

on his current review, if prior awards paid for the right lower extremity included eight percent on 

the basis of conditions of the right knee, then there would be no additional award. Dr. Katz 

reported that a schedule award for 10 percent permanent impairment of the right lower extremity 

permanent impairment for a right knee condition had been recommended in a medical report dated 

October 4, 2002, under File No. xxxxxx040, and so it would be reasonable to assume that at some 

point appellant was paid at least eight percent permanent impairment for her right knee condition. 

As such, he determined that she would be entitled to no further award for impairment of the right 

knee.

On August 20, 2018, OWCP requested an addendum report from the DMA, as to whether 

appellant had additional permanent impairment of the right lower extremity. It noted that he should 

review the SOAF dated May 20, 2014. OWCP noted again that appellant had received schedule 

award compensation for 23 percent permanent impairment of the right lower extremity. It 

instructed the DMA that in providing a rating of appellant’s current permanent impairment of the 

right knee, he should stipulate whether the rating was included in the prior percentage awarded or 

if there should be consideration of an additional award. 

The Board notes that the May 20, 2014 SOAF provided to the DMA did not include any 

information regarding appellant’s right lower extremity permanent impairment claims or schedule 

awards paid under any of the combined OWCP files.

In an August 31, 2018 addendum report, the DMA again related that while medical 

evidence had been received in OWCP File No. xxxxxx102 regarding appellant’s right knee 

permanent impairment and an eight percent permanent impairment had been proposed, he had not

recommended acceptance of the proposed impairment rating in his April 29, 2016 report as the 

claims had not been combined. He concluded however that based on OWCP’s August 20, 2018 

memorandum, it appeared that all prior recommended awards had been paid and thus, the prior 

awards paid with respect to the conditions of the right knee exceeded the present impairment of 

eight percent permanent impairment of the right lower extremity.
4

By decision dated September 6, 2018, OWCP denied appellant’s claim for a schedule 

award finding that she had no greater impairment of the right lower extremity than the 23 percent 

previously awarded.

The Board, having reviewed the case record submitted by OWCP, finds that this case is 

not in posture for decision.

On April 30, 2018 appellant filed a claim for a schedule award pertaining to her accepted 

right knee conditions under OWCP File No. xxxxxx040. 

While OWCP recognized that the record was unclear as to whether appellant’s prior 

schedule awards, under multiple OWCP file numbers, incorporated a rating for permanent 

impairment of appellant’s right knee, the August 20, 2018 clarification request to the DMA failed 

to resolve the issue as he had not been presented with a proper SOAF. 

It is OWCP’s responsibility to provide a complete and proper frame of reference for a 

physician by preparing a SOAF.

5

 OWCP’s procedures dictate that when a DMA, second opinion 

specialist, or referee physician renders a medical opinion based on a SOAF which is incomplete 

or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the 

probative value of the opinion is seriously diminished or negated altogether.6 OWCP did not 

provide the DMA with an accurate SOAF as it did not list the previous schedule awards appellant 

had received for her right lower extremity and did not clarify whether the awards were paid for 

permanent impairment of appellant’s right knee or for permanent impairment of other regions of 

appellant’s right lower extremity. Thus, the Board finds that reports from the DMA were not based 

on an accurate factual framework and cannot represent the weight of the medical evidence 

sufficient to deny appellant’s claim for an additional schedule award.

7

Once OWCP undertakes to develop the medical evidence, it has the responsibility to do so 

in a manner that will resolve the relevant issues in the case.8 Accordingly, the Board finds that the 

case must be remanded to OWCP. On remand, OWCP should prepare a complete and accurate 

SOAF and request that he DMA submit clarifying reports regarding appellant’s right lower

extremity permanent impairment. Following this and any further development deemed necessary, 

it shall issue a de novo decision.

 

5

J.N., Docket No. 19-0215 (issued July 15, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

6 R.W., Docket No. 19-1109 (issued January 2, 2020); Federal (FECA) Procedure Manual, Part 3 -- Medical, 

Requirements for Medical Reports, Chapter 3.600.3 (October 1990).

7 G.C., Docket No 18-0842 (issued December 20, 2018).

8 D.S., Docket No. 19-0292 (issued June 21, 2019); G.C., id.
5

IT IS HEREBY ORDERED THAT the September 6, 2018 decision of the Office of 

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

consistent with this order.

Issued: March 20, 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