United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.O., Appellant

and

U.S. POSTAL SERVICE, WOODSTOCK POST 

OFFICE, Woodstock, IL, Employer

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Docket No. 23-0608

Issued: October 25, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On March 21, 2023 appellant, through counsel, filed a timely appeal from a February 8, 

2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of 

the Appellate Boards assigned Docket No. 23-0608.

On August 29, 2017 appellant, then a 58-year-old rural letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on August 28, 2017 she sustained a left ankle fracture and 

left foot sprain when she rolled her ankle while in the performance of duty. She stopped work on 

August 29, 2017. OWCP accepted the claim for left ankle displaced lateral malleolus fracture and 

left ankle sprain under OWCP File No. xxxxxx819.

OWCP previously accepted that appellant sustained a sprain of the left ankle and closed 

fracture of the left fifth metatarsal bone due to a September 26, 2008 employment injury, under 

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

OWCP File No. xxxxxx357. The record reflects that appellant underwent an open reduction and 

internal fixation of the left fifth metatarsal fracture.

On July 23, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule 

award under OWCP File No. xxxxxx819.

By decision dated August 31, 2021, OWCP denied appellant’s schedule award claim. 

On September 3, 2021 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. Following a preliminary review, by 

decision dated November 18, 2021, OWCP’s hearing representative set aside the August 31, 2021

decision and remanded the case for further medical development.

2

OWCP undertook further medical development of the instant claim and, by decision dated 

March 9, 2022, again denied appellant’s schedule award claim. 

On March 16, 2022 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. Following a preliminary review, by 

decision dated May 2, 2022, OWCP’s hearing representative set aside the March 9, 2022 decision 

and remanded the case for further medical development.

On July 15, 2022 OWCP referred appellant, the medical record, including a June 1, 2022

statement of accepted facts (SOAF), to Dr. John J. Koehler, a Board-certified occupational 

medicine specialist, to provide a second opinion regarding her percentage of permanent 

impairment. The Board notes that the SOAF indicated that her claim had been administratively 

combined with OWCP File Nos. xxxxxx357 and xxxxxx185. However, it failed to mention 

appellant’s open reduction and internal fixation of the left fifth metatarsal fracture under OWCP 

File No. xxxxxx357.

In a report dated July 11, 2022, Dr. Neil Allen, a Board-certified neurologist, found that 

appellant had a mild loss in dorsiflexion, which he opined was reasonable given her malleolar 

fracture and subsequent treatment. Applying Table 16-20 and Table 16-22, page 549 of the sixth 

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

(A.M.A., Guides),3 he reaffirmed that she had 10 percent permanent impairment of the left lower

extremity. 

In a report dated August 14, 2022, Dr. Koehler noted his review of the medical record, 

including the SOAF. He opined that appellant had attained maximum medical improvement 

(MMI) as of August 12, 2022, the date of his examination. Dr. Koehlerreferred to the sixth edition 

of the A.M.A., Guides, and utilized the diagnosis-based impairment rating method to find that, 

under Table 16-2 (Foot and Ankle Regional Grid), page 503, the class of diagnosis for her

malleolar fracture resulted in a Class zero impairment with a default value of zero as her fracture 

2 Appellant previously filed a traumatic injury claim for a January20, 2016 left knee condition under OWCP File 

No. xxxxxx185. OWCP has administratively combined OWCP File Nos. xxxxxx185, xxxxxx357, and xxxxxx819, 

with the latter serving as the master file. 

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

had healed without objective deficits. He noted that grade modifiers do not apply to Class zero 

impairments, resulting in zero percent permanent impairment of the left lower extremity. 

On August 29, 2022 OWCP referred the medicalrecord, including the June 1, 2022 SOAF, 

to Dr. Herbert White, a Board-certified orthopedic surgeon serving as an OWCP district medical 

adviser (DMA), to determine appellant’s percentage of permanent impairment. In a report dated 

September 9, 2022, Dr. White noted his review of the medical record, including the SOAF. He 

opined that appellant had attained MMI as of February 3, 2022, the date of an earlier permanent 

impairment evaluation which was reinforced by the evaluation of Dr. Koehler. Dr. White referred 

to the sixth edition of the A.M.A., Guides, and concurred with Dr. Koehler’s approach and 

conclusion that there was a zero percent left lower extremity impairment. 

By decision dated September 19, 2022, OWCP denied appellant’s schedule award claim. 

On December 19, 2022 appellant, through counsel, requested reconsideration. 

By decision dated January 26, 2023, OWCP granted appellant a schedule award for five

percent permanent impairment of her left lower extremity, under OWCP File No. xxxxxx357. 

By decision dated February 8, 2023, OWCP denied modification of its September 19, 2022 

decision under OWCP File No. xxxxxx819. 

The Board finds that this case is not in posture for decision.

On July 15 and August 29, 2022 OWCP provided Dr. Koehler, the second opinion 

physician, and Dr. White, the DMA, respectively, with a SOAF listing appellant’s accepted 

conditions, including left ankle displaced lateral malleolus fracture and left ankle sprain under 

OWCP File No. xxxxxx819, as well as sprain of the left ankle and closed fracture of the left fifth 

metatarsal bone under OWCP File No. xxxxxx357.

It is OWCP’s responsibility to provide a complete and proper frame of reference for a 

physician by preparing a SOAF.4 OWCP’s procedures dictate that, when a DMA, second opinion 

specialist, or referee physician renders a medical opinion based on a SOAF, which is incomplete 

or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the 

probative value of the opinion is seriously diminished or negated altogether. 5 OWCP did not 

provide the second opinion physician or the DMA with an accurate SOAF as it failed to mention 

appellant’s surgery under OWCP File No. xxxxxx357. Thus, the Board finds that reports from the 

second opinion physician and the DMA were not based on an accurate factual framework and 

cannot represent the weight of the medical evidence.

6

4 C.E., Docket No. 19-1923 (issued March 30, 2021); M.B., Docket No. 19-0525 (issued March 20, 2020); J.N., 

Docket No. 19-0215 (issued July 15, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

5 R.W., Docket No. 19-1109 (issued January 2, 2020); Federal (FECA) Procedure Manual, Part 3 -- Medical, 

Requirements for Medical Reports, Chapter 3.600.3 (October 1990). See also id. at Chapter 2.809 (September 2009). 

6

Id. at Chapter 3.600.3.a(6); M.B., supra note 4; G.C., Docket No 18-0842 (issued December 20, 2018).
4

Once OWCP undertakes to develop the medical evidence, it has the responsibility to do so 

in a manner that will resolve the relevant issues in the case.7 Accordingly, the Board finds that the 

case must be remanded to OWCP. On remand, OWCP shall prepare a complete and accurate 

updated SOAF, including the prior surgery and schedule award granted under OWCP File No. 

xxxxxx357, and request that Dr. Koehler, the second opinion physician, and Dr. White, the DMA,

submit clarifying reports regarding appellant’s permanent impairment. Following this and other 

such further development as deemed necessary, OWCP shall issue a de novo decision. 

Accordingly,

IT IS HEREBY ORDERED THAT the February 8, 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: October 25, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy 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 M.B., id.; D.S., Docket No. 19-0292 (issued June 21, 2019); G.C., id.