United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.K., Appellant

and

THE CITY OF NEW YORK POLICE 

DEPARTMENT, New York, NY, Employer

__________________________________________

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Docket No. 21-0001

Issued: May 4, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On September 15, 2020 appellant filed a timely appeal from a March 25, 2020 merit 

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

Boards docketed the appeal as No. 21-0001.

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

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

OWCP accepted that on July 2, 1974 appellant, then a 25-year-old New York City police 

officer, sustained an injury when he jumped over a wall and landed on his left knee while chasing 

a suspect in the performance of duty. Appellant stopped work on that date. The record reveals 

that OWCP accepted appellant’s claim for tear of the left knee medial meniscus, consequential 

1 Docket No. 19-0995 (issued December 3, 2019).
impairment to the right leg, and lumbar spondylosis. In December 1975, appellant retired from 

the employing establishment due to disability.2

On August 11, 2015 and July 26, 2017 appellant filed a claim for compensation (Form 

CA-7) for a schedule award due to a cervical condition and submitted medical evidence in support 

of his claim.

In a September 9, 2015 development letter, OWCP indicated that appellant’s claim had 

been accepted for tear of medial meniscus of the knee, bilateral; cervical spondylosis without 

myelopathy; lumbosacral spondylosis without myelopathy; displacement of lumbar intervertebral 

disc without myelopathy; lateral collateral ligament sprain of knee, bilateral; old bucket handle 

tear of medial meniscus, left; and non-traumatic rupture of other tendon, bilateral. It requested 

that appellant provide a medical report, which included an impairment rating utilizing the sixth 

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

(A.M.A., Guides)

3 and The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using 

the Sixth Edition (July/August 2009) (The Guides Newsletter). OWCP afforded him 30 days to 

submit the requested information.

Appellant subsequently submitted a May 5, 1975 OWCP claim summary form report, 

which indicated that appellant’s accepted conditions included left knee tear of the medial 

meniscus, consequential impairment to the right leg and lumbar spondylosis.

OWCP also received a printout from the Integrated Federal Employees’ Compensation 

System (iFECS) case query, which was last updated on March 14, 2011. It listed appellant’s 

accepted conditions as tear of the medial meniscus of the knee, cervical spondylosis without 

myelopathy, knee sprain, old bucket handle tear of the medial meniscus, non-traumatic rupture of 

other tendon, lumbosacral spondylosis without myelopathy, and displacement of lumbar 

intervertebral disc without myelopathy.4

Appellant also submitted a Eligibility Response Form dated November 2, 2012. It 

indicated that he was eligible for compensation for the following conditions: bilateral lateral 

ligament sprains; left old bucket tear of the medial meniscus; bilateral non-traumatic tendon 

ruptures of the neck; lumbosacral spondylosis; lumbar disc displacement; bilateral tears of the 

medial meniscus of the knees; and cervical spondylosis.

By decision dated April 18, 2018, OWCP denied appellant’s claim for a schedule award. 

It found that the evidence of record failed to establish that his claim was accepted for a cervical 

condition and, thus, he was not entitled to a schedule award for his cervical condition.

2 On March 5, 1974 OWCP granted appellant a schedule award for 20 percent permanent impairment of the left 

lower extremity. The award ran for 57.6 weeks from January 5, 1976 throughFebruary11, 1977. Between 1989 and 

1996, OWCP granted appellant additional schedule award compensation for permanent impairment to his bilateral

lower extremities for a total of 64 percent permanent impairment of the left lower extremity and 45 percent permanent 

impairment of the right lower extremity.

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

4 The ICD 9 codes on the iFECS case query no longer include cervical spondylosis without myelopathy as an 

accepted condition.
3

On May 11, 2018 appellant requested a review of the written record before a representative 

from OWCP’s Branch of Hearings and Review. Following a preliminary review, by decision dated 

August 31, 2018, OWCP’s hearing representative vacated the April 18, 2018 decision and 

remanded appellant’s case for further development.

In an October 3, 2018 decision, OWCP again denied appellant’s schedule award claim,

finding that the medical evidence of record was insufficient to establish permanent impairment of 

appellant’s bilateral upper extremities as a result of his accepted July 2, 1974 employment injury. 

It noted that OWCP’s documentation, which reflected that appellant’s claim was accepted for 

cervical spondylosis, must have been incorrectly added to his case file.

On October 19, 2018 appellant requested a review of the written record before a 

representative of OWCP’s Branch of Hearings and Review. By decision dated March 6, 2019, 

OWCP’s hearing representative affirmed the October 3, 2018 decision.

Appellant filed an appeal with the Board. In a decision dated December 3, 2019, the Board 

set aside the March 6, 2019 OWCP decision and remanded the case to OWCP. The Board found 

that the March 6, 2019 OWCP decision constituted a rescission of the acceptance of appellant’s 

cervical condition and, accordingly, that OWCP had failed to follow its established procedures for 

rescission. The Board directed that on remand OWCP follow its procedures and issue a proper 

decision regarding the rescission of the acceptance of appellant’s claim for a cervical condition. 

The Board further directed that, following such other development, OWCP shall issue a de novo 

decision on appellant’s schedule award claim.

In a January 14, 2020 letter, OWCP requested that appellant provide any correspondence 

sent directly to him that formally accepted his claim for a cervical spine condition.

In a January 22, 2020 memorandum of telephone call (Form CA-110), appellant informed 

OWCP that he had submitted everything regarding the formal acceptance for his cervical 

condition.

Appellant subsequently submitted OWCP’s September 9, 2015 schedule award 

development letter.

By decision dated March 25, 2020, OWCP denied appellant’s schedule award claim,

finding that the medical evidence of record was insufficient to establish permanent impairment of 

a scheduled member or function of the body as a result of his accepted July 2, 1974 employment 

injury. It found that the evidence of record was insufficient to establish that appellant’s claim was 

accepted for a cervical injury.5

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

decision as OWCP did not comply with the Board’s instructions as set forth in its December 3, 

2019 decision.

6

 By that decision, the Board found that OWCP f ailed to follow its established 

5 The decision also noted that, while the Board had previously determined that the March 6, 2019 decision had 

constituted a rescission of appellant’s cervical condition, it was not a rescission as appellant’s claim had not been 

formally accepted for a cervical condition.

6

See Order Remanding Case, B.O., Docket No. 19-0015 (issued July 29, 2019); see also Order Remanding Case, 

K.N., Docket No. 17-771 (issued August9, 2018).
4

procedures when it rescinded the acceptance of appellant’s claim for a cervical condition and did 

not inform appellant correctly and accurately of the basis of its rescission decision. 7 The Board 

concludes that OWCP prematurely issued a de novo decision regarding appellant’s schedule award 

claim prior to issuing a proper decision rescinding the acceptance of appellant’s claim for a cervical 

condition.8 

As OWCP did not follow its procedures to properly rescind the acceptance of appellant’s 

claim for a cervical condition prior to issuing its March 25, 2020 schedule award decision, the case 

must again be remanded to OWCP for a proper decision with regard to any rescission proposed by 

OWCP. Following this and such other development as deemed necessary, OWCP shall issue a de 

novo decision on appellant’s schedule award claim.

IT IS HEREBY ORDERED THAT the March 25, 2020 decision of the Office of 

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

consistent with this order of the Board.

Issued: May 4, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

7 OWCP procedures require a proposed and final decision rescinding the original finding. These procedures further 

provide that a rescission decision should contain a brief background of the claim, discuss the evidence on which the 

original decision was based, and explain why OWCP finds that the decision should be rescinded. Federal (FECA) 

Procedure Manual, Part 2 --Claims, Disallowances, Chapter 2.1400.19(b) & (d) (February 2013). 

8

See Order Remanding Case, C.C., Docket No. 18-0079 (issued May 2, 2018).