United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.K., Appellant

and

U.S. POSTAL SERVICE, JUANITA CRAFT

POST OFFICE, DALLAS, TX, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 21-0245

Issued: November 30, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On December 14, 2020 appellant, through counsel, filed a timely appeal from a 

November 16, 2020 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).2 The Clerk of the Appellate Boards assigned Docket No. 21-0245.

On July 2, 2016 appellant, then a 47-year-old city carrier associate, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he injured the ball of his foot when he stepped on a 

rock or crack walking while in the performance of duty. On December 6, 2017 OWCP accepted 

this claim for bilateral hallux valgus, bilateral foot sprains, and plantar f ascial fibromatosis.

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 The case record also contains an August4, 2020 merit decision of OWCP. As counsel did not appealfrom that 

decision, it is not presently before the Board. See 20 C.F.R. § 501.3. 
2

On May 4, 2018 appellant filed a schedule award claim (Form CA-7). By decision dated 

March 26, 2020, OWCP granted him a schedule award for two percent permanent impairment of 

each of his lower extremities. On March 31, 2020 appellant, through counsel, requested an oral 

hearing before a representative of OWCP’s Branch of Hearings and Review. By decision dated 

August 4, 2020, OWCP’s hearing representative affirmed the March 26, 2020 schedule award 

decision.

On September 15, 2020 appellant, through counsel, requested reconsideration of the 

August 4, 2020 decision. Appellant submitted a September 4, 2020 report from Dr. Neil Allen, a 

Board-certified in internal medicine and neurology, finding that appellant had 11 percent 

permanent impairment of each of his lower extremities based on loss of range of motion 3 under 

the standards of the sixth edition of the American Medical Association, Guides to the Evaluation 

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

By decision dated November 16, 2020, OWCP denied appellant’s request for 

reconsideration of the merits of his claim under 5 U.S.C. § 8128(a).

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

decision. As noted, by decision dated March 26, 2020, OWCP granted appellant a schedule award 

for two percent permanent impairment of each lower extremity. Subsequently, appellant submitted 

a September 4, 2020 report from Dr. Allen who determined that appellant had 11 percent 

permanent impairment of each lower extremity under the standards of the sixth edition of the 

A.M.A., Guides. By decision dated November 16, 2020, OWCP denied appellant’s claim without 

reviewing the merits, finding that he failed to provide relevant and pertinent new evidence.

The Board has held that a claimant may request a schedule award or increased schedule 

award at any time based on evidence of a new exposure or medical evidence showing progression 

of an employment-related conditions resulting in permanent impairment or increased impairment.4

When a claimant has requested reconsideration and has submitted evidence of permanent 

impairment or increased permanent impairment, then he or she will be entitled to a merit decision 

on the issue.5

In the present case, appellant submitted a September 4, 2020 report from Dr. Allen 

following OWCP’s March 26, 2020 schedule award decision. This report contained an impairment 

rating that referenced the A.M.A., Guides. As noted above, where a claimant has requested 

reconsideration, and has submitted evidence of increased permanent impairment, then he or she 

will be entitled to a merit decision on the issue.6 The case will therefore be remanded to OWCP

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

4 E.S., Docket No. 20-0656 (issued February 5, 2021); J.D., Docket No. 19-0019 (July 26, 2019); R.D.,Docket No. 

18-0579 (issued September 14, 2018);E.G., Docket No. 17-1710 (issued January 4, 2018); G.E., Docket No. 17-0594 

(issued September 14, 2017); D.S.,Docket No. 17-0407 (issued May 24, 2017).

5 C.W.,Docket No. 18-1110 (issued December 28, 2018).

6

Id.
3

to adjudicate this matter as a request for an increased schedule award. Following this and such 

other development as deemed necessary, OWCPshall issue a de novo decision on appellant’s claim 

for an increased schedule award.

IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of 

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

proceedings consistent with this order of the Board.

Issued: November 30, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board