United States Department of Labor

Employees’ Compensation Appeals Board

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T.C., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF INVESTIGATION, Richmond, VA, 

Employer

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Docket No. 20-0618

Issued: September 28, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

On January 28, 2020 appellant filed a timely appeal from a September 18, 2019 merit 

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

Boards assigned Docket No. 20-0618.

On November 16, 2015 appellant, then a 32-year-old special agent, filed a traumatic injury 

claim (Form CA-1) alleging that on November 13, 2015 he injured his right ankle while in the 

performance of duty. He explained that he was running a trail on a Marine Corp base when he 

rolled his right ankle resulting in a popping sensation, pain, swelling, and bruising. Appellant did 

not stop work. On March 25, 2016 OWCP accepted his claim for a sprain of the right ankle.

In a March 16, 2016 medical report, Dr. Seth Cheatham, a Board-certified orthopedic 

surgeon, evaluated appellant for right ankle pain. He noted appellant’s November 13, 2015 right 

ankle sprain and that he was still experiencing intermittent pain. On evaluation Dr. Cheatham 

discussed a small effusion and opined that appellant may have some type of cartilage injury

On January 17, 2019 appellant filed a claim for a schedule award (Form CA-7). 

In a letter dated January 18, 2019, OWCP requested that appellant submit an impairment 

evaluation from his attending physician in accordance with the sixth edition of the American 
2

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).1 It 

afforded him 30 days to submit additional evidence.

In a February 27, 2019 functional capacity evaluation Elliott Skorupa, a physical therapist, 

evaluated the residual functional capacity of appellant’s right ankle in relation to his November 13, 

2015 right ankle sprain. He referenced Table 16-22 (Ankle Motion Impairments) at page 549 of 

the A.M.A., Guides to find seven percent impairment for maximum dorsiflexion measured at 10

degrees and zero percent impairment for maximum plantar flexion measured at 24 degrees, which 

combined to seven percent impairment of the right lower extremity. In a March 11, 2019 medical 

report, Dr. Cheatham reviewed Mr. Skorupa’s right ankle functional capacity evaluation and 

countersigned the results, opining that his findings were valid. 

On May 22, 2019 OWCP referred the medical record and statement of accepted facts 

(SOAF) to Dr. Norman Marcus, a Board-certified orthopedic surgeon, for a second opinion 

examination and an opinion on permanent impairment in accordance with the A.M.A., Guides. 

In his June 14, 2019 medical report, Dr. Marcus noted his review of the medical evidence 

of record and the SOAF, and his own examination findings. Dr. Marcus reasoned that the right 

ankle injury had not reached maximum medical improvement (MMI) and was therefore not 

suitable for an impairment rating. 

In an August 14, 2019 addendum, Dr. Marcus noted his review of imaging scans. He 

provided an impairment rating of zero percent as status post ankle sprain.

By decision dated September 18, 2019, OWCP denied appellant’s request for a schedule 

award.

Having reviewed the case record submitted by OWCP, the Board finds that this case is not 

in posture for decision.2

In the case of William A. Couch,

3

the Board held that when adjudicating a claim, OWCP is 

obligated to consider all evidence properly submitted by a claimant and received by OWCP before 

the final decision is issued.

In its September 18, 2019 decision, OWCP denied appellant’s request for a schedule 

award. While the September 18, 2019 decision discussed Dr. Marcus’ opinion of zero percent 

permanent impairment, it failed to acknowledge Mr. Skorupa’s

4 medical examination findings and

Dr. Cheatham’s February 27, 2019 medical report which found seven percent impairment of the 

 

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

2 See K.F., Docket No. 19-0888 (issued January 2, 2020); J.J., Docket No. 13-1666 (issued August 18, 2014).

3 41 ECAB 548, 553 (1990).

4 A report from a physician assistant, physical therapist or certified nurse practitioner will be considered medical 

evidence if countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3a(1) (January 2013).
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right lower extremity. As OWCP did not note receipt or consideration of this medical report, it 

failed to follow its own procedures to properly discuss the relevant medical reports of record.5

As the Board’s decisions are final as to the subject matter appealed, it is crucial that all 

evidence relevant to the subject matter of the claim which was properly submitted to OWCP prior 

to the time of issuance of its final decision be reviewed and addressed by OWCP.6 Because OWCP 

failed to consider Dr. Cheatham’s February 27 2019 medical report, the Board cannot review such 

evidence for the first time on appeal.7

For this reason, the case will be remanded to OWCP to properly consider8all of the 

evidence of record.9 Following this and other such further development as deemed necessary, 

OWCP shall issue a decision de novo.

10

 Accordingly,

 

5 All evidence submitted should be reviewed and discussed in the decision. Evidence received following 

development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be 

referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter 

2.1401.5(b)(2) (November 2012).

6 See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also Linda 

Johnson, 45 ECAB 439 (1994).

7 20 C.F.R. § 501.2(c). See also G.M., Docket No. 16-1766 (issued February 16, 2017).

8 On remand OWCP should request that Dr. Marcus clarify and elaborate on his August 14, 2019 addendum in 

accordance with the sixth edition of the A.M.A., Guides.

9 M.J., Docket No. 18-0605 (issued April 12, 2019).

10 B.N., Docket No. 17-0787 (issued July 6, 2018).
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IT IS HEREBY ORDERED THAT the September 18, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for proceedings consistent 

with this order of the Board.

Issued: September 28, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board