United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.P., Appellant

and

U.S. POSTAL SERVICE, CATHEDRAL 

STATION, New York, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 23-0938

Issued: November 7, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

On June 28, 2023 appellant filed a timely appeal from a February 3, 2023 merit decision 

of the Office of Workers’Compensation Programs (OWCP).

1

 The Clerk of the Appellate Boards 

assigned the appeal Docket No. 23-0938.

On March 20, 2017 appellant, then a 35-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that date he sustained left foot and ankle injuries when he moved to 

the side to avoid a dog approaching in his direction while in the performance of duty. He stopped 

work on March 20, 2017 and did not return. OWCP accepted the claim for left ankle and foot 

muscle and tendon strain and left leg posterior tibial tendonitis. 

In a December 21, 2020 report, Dr. Mina Baskhron, a podiatrist, advised that appellant 

reached maximum medical improvement (MMI) on June 7, 2020. He determined appellant had

10 percent permanent impairment of the foot and 10 percent permanent impairment of the ankle 

due to loss of range of motion (ROM). 

In a report dated March 21, 2021, Dr. Herbert White, Jr., a physician Board-certified in 

occupational medicine and serving as a district medical adviser (DMA) reviewed the medical 

1 The Board notes that following the February 3, 2023 decision, OWCP received additional evidence. 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

evidence including diagnostic tests and Dr. Baskhron’s December 21, 2020 impairment rating. 

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

Permanent Impairment (A.M.A., Guides),2 he used the diagnosis-based method (DBI) to find that 

appellant had five percent left lower extremity permanent impairment. The DMAreported that the

A.M.A., Guides did not indicate that the range of motion (ROM) method could be used to rate this 

impairment. 

In a February 10, 2022 report, Dr. Frank J. Corrigan, a second opinion Board-certified 

orthopedic surgeon, diagnosed left ankle posterior tibialis tendinosis, which he attributed to 

appellant’s accepted March 20, 2017 employment injury, and nonemployment-related left ankle 

osteoarthritis. Using the sixth edition of the A.M.A., Guides, he determined appellant had four 

percent left lower extremity permanent impairment using the DBI method and seven percent left 

lower extremity permanent impairment using the ROM method. Dr. Corrigan found appellant 

reached MMI as of the date of the examination on February 10, 2022.

Dr. White, in a supplemental April 7, 2022 report, reviewed Dr. Corrigan’s February 10, 

2022 report. He determined that appellant had four percent left lower extremity permanent 

impairment using the DBI method. Dr. White explained that the ROM method was not applicable 

as the A.M.A., Guides did not indicate that the ROM method could be used to rate the impairment.

On October 14, 2022 OWCP referred appellant to Dr. Albert Johnson, a Board-certified 

orthopedic surgeon, for an impartial medical examination to resolve a conflict in the medical 

opinion regarding appellant’s permanent impairment rating and date of MMI.3

In a report dated December 6, 2022, received by OWCP on January 10, 2023, Dr. Johnson 

diagnosed post-traumatic left ankle sprain and strain, post-traumatic left posterior tibial tendinosis

with a healed partial left ankle tear, and post-traumatic left. He agreed with Dr. White that the 

ROM method could not be used to evaluate appellant’s permanent impairment and with his finding 

that appellant had four percent left lower extremity permanent impairment.

By decision dated February 3, 2023, OWCP granted appellant a schedule award for four 

percent left lower extremity permanent impairment. In reaching this determination, it only 

referenced second opinion physician Dr. Corrigan’s February 10, 2022 report, and DMA

Dr. White’s April 12, 2022 report.

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

decision.

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

3 The Board notes that OWCP improperly declared a conflict in the medical opinions between its DMAand the 

second opinion physician, as neither physician was appellant’s treating physician. See 5 U.S.C. § 8123(a); 20 C.F.R. 

§ 10.321(b); S.G., 58 ECAB 383, 387 (2007) (a conflict may only exist between an employee’s physician and a 

physician designated or approved by OWCP); Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and 

Evaluating Medical Evidence, Chapter 2.810.11a (September 2010).
3

In the case of William A. Couch,

4

the Board held that when adjudicating a claim, OWCP is 

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

the final decision is issued.

In its February 3, 2023 decision, OWCP failed to consider and address the December 6, 

2022 report of Dr. Johnson or the December 21, 2020 report of Dr. Baskhron. 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 properly submitted to OWCP be considered and addressed. 5 For this 

reason, the case will be remanded to OWCP to enable it to consider and address all of the evidence 

of record as of the February 3, 2023 decision. Following this and other such further development 

as deemed necessary, OWCP shall issue a de novo decision regarding appellant’s schedule award 

claim. Accordingly,

IT IS HEREBY ORDERED THAT the February 3, 2023 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: November 7, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

4

41 ECAB 548 (1990); see also Order Remanding Case, T.L., Docket No. 0708 (issued June 21, 2023); Order 

Remanding Case, T.F., Docket No. 22-0015 (issued May 16, 2022); Order Remanding Case, F.A., Docket No. 20-

1324 (issued March 1, 2021); T.G., Docket No. 19-1930 (issued January 8, 2021).

5

See T.L., id.; T.F., id.; Order Remanding Case, G.A., Docket No. 19-1080 (issued January 2, 2020); Order 

Remanding Case, T.J., Docket No. 14-1854 (issued February 3, 2015); Order Remanding Case, J.J., Docket No. 12-

1062 (issued December 12, 2012); Willard McKennon, 51 ECAB 145 (1999); Linda Johnson, 45 ECAB 439 (1994).