United States Department of Labor

Employees’ Compensation Appeals Board

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N.S., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF INVESTIGATION, 

Washington, DC, Employer

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Docket No. 19-0622

Issued: March 26, 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 28, 2019 appellant filed a timely appeal from August 23 and December 12, 

2018 decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the 

Appellate Boards docketed the appeal as No. 19-0622.

On August 7, 2007 appellant, then a 38-year-old alternative dispute resolution manager,

filed a traumatic injury claim (Form CA-1) alleging that when she was attending a work-related 

conference in San Francisco, CA on August 2, 2007, she was struck by a taxicab in a crosswalk 

while in the performance of duty. OWCP accepted her claim for bilateral lower leg/knee contusion 

and sprain and patellofemoral and medial compartment mild arthritis, left worse than right.1

On July 30, 2014 appellant filed a claim for a schedule award (Form CA-7). In a 

December 18, 2014 report Dr. Steven H. Bernstein, a Board-certified orthopedic surgeon, utilized 

the fourth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides) and found 7 percent permanent impairment of the whole body or 16 

percent of the left lower extremity. In an April 14, 2015 report, OWCP’s district medical adviser 

 

1 On April 18, 2008 and December 10, 2010 appellant underwent OWCP-approved left knee arthroscopic 

procedures to address her degenerative arthritis.
2

(DMA) reviewed the relevant evidence, including Dr. Bernstein’s report, and using his 

examination findings applied the sixth edition of the A.M.A., Guides2and found 8 percent left 

lower extremity permanent impairment based on a diagnosis of left knee primary joint arthritis 

with full-thickness articular cartilage defect under Table 16-3, Knee Regional Grid, of the A.M.A., 

Guides.

By decision dated April 23, 2015, OWCP granted appellant a schedule award for eight

percent permanent impairment of the left lower extremity. The award covered a 23.04-week period 

from December 18, 2014 through May 28, 2015.

On May 17, 2018 appellant filed a claim for an increased schedule award (Form CA-7). 

In a May 18, 2018 report, Dr. Bernstein noted that he had evaluated appellant’s left knee 

condition and he provided range of motion measurements, observing near full range of motion on 

the right and 95 degrees of flexion on the left. He explained that there was a progressive decrease 

in flexion from her prior examination.

By decision dated August 23, 2018, OWCP denied appellant’s claim for an increased 

schedule award finding that no medical evidence was submitted to “support a permanent 

impairment to a scheduled member or function of the body.”

On September 14, 2018 appellant requested reconsideration. By decision dated 

December 12, 2018, OWCP denied her request for reconsideration.

In denying appellant’s May 2018 schedule award claim, OWCP failed to consider all the 

relevant medical evidence. In its August 23, 2018 decision, it found that no additional medical 

evidence had been submitted to support a permanent impairment to a scheduled member or 

function of the body. However, Dr. Bernstein’s May 18, 2018 report, finding progressive decrease 

in flexion of the left knee, was not addressed. 

Because Board decisions are final with regard to the subject matter appealed,3it is crucial 

that OWCP address all relevant evidence received prior to the issuance of its final decision.4 As 

OWCP did not review Dr. Bernstein’s May 18, 2018 report, the Board finds that this case is not in 

posture for decision.5 On remand OWCP shall review all relevant evidence of record and,

following any further development of the medical evidence deemed necessary, it shall issue a 

de novo decision on appellant’s schedule award claim.6

 

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

3 20 C.F.R. § 501.6(d).

4 See B.C., Docket No. 15-1222 (issued October 20, 2015); William A. Couch, 41 ECAB 548, 553 (1990).

5 See H.H., Docket No. 14-1985 (issued June 26, 2015).

6

In light of the Board’s disposition of the schedule award issue, the nonmerit issue of whether OWCP properly 

denied appellant’s request for reconsideration of the merits of the claim is rendered moot. See W.G., Docket No. 

18-0451 (issued February 21, 2019).
3

IT IS HEREBY ORDERED THAT the August 23, 2018 and December 12, 2018 

decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded 

for further action consistent with this order of the Board.

Issued: March 26, 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