United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.E., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTIONAL 

INSTITUTION, Fort Worth, TX, Employer

__________________________________________

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Docket No. 23-0193

Issued: September 25, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 22, 2022 appellant, through counsel, filed a timely appeal from a 

November 10, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction to consider the merits of this case.3

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 authoritie s for investigation.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that,following the issuanceof the November 10, 2022 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

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than one 

percent permanent impairment of his right lower extremity, for which he previously received a 

schedule award.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant 

facts are as follows.

On June 2, 1986 appellant, then a 24-year-old correctional officer, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained a left knee injury on that date when he lost his 

footing and landed on his left knee while in the performance of duty.5 On July 11, 2013 OWCP 

accepted the claim for closed fracture of the right upper end tibia and fibula, and right injury to 

the peroneal nerve.

On September 5, 2013 appellant filed a claim for compensation (Form CA-7) for a 

schedule award. In support of his claim, he submitted a May 1, 2013 medical report from

Dr. John W. Ellis, a Board-certified emergency and family medicine specialist, who diagnosed 

fractured right fibula, and internal derangement, traumatic arthritis and chondromalacia, and 

laxity of the medial collateral ligament of the right knee. Dr. Ellis opined that appellant’s June 2, 

1986 employment injury contributed to, aggravated, or caused the diagnosed conditions. He

noted that factors of appellant’s federal employment had aggravated his accepted employment 

injury as he continued to work until 2004. Thus, Dr. Ellis recommended that appellant file a new 

claim for a consequential right knee injury as of 2004 due to his accepted employment injury.

By decision dated September 9, 2013, OWCP denied appellant’s schedule award claim,

finding that he had not reached maximum medical improvement (MMI).

On February 11, 2015 appellant requested reconsideration. 

OWCP, by decision dated April 1, 2016, affirmed in part and modified in part the 

September 9, 2013 decision,finding that additional medical evidence submitted established that 

appellant had reached MMI. However, it denied his schedule award claim, finding that the 

weight of the medical evidence rested with the February 5, 2016 report of Dr. Mysore S. 

Shivaram, a Board-certified orthopedic surgeon, serving as an OWCP second opinion physician, 

and March 23, 2016 report of Dr. Eric M. Orenstein, a Board-certified orthopedic surgeon,

serving as an OWCP district medical adviser (DMA), who concluded that appellant had zero

percent permanent impairment of the right lower extremity.

4 Docket No. 16-1216 (issued December 2, 2016); Docket No. 19-0452 (issued July 22, 2019).

5 OWCP assigned the present claim OWCP File No. xxxxxx926. Appellant has a prior claim for a February 19, 

1993 traumatic injury, assigned OWCP File No. xxxxxx722, accepted for lumbar disc displacement. OWCP has 

administratively combined these claims, with OWCP File No. xxxxxx926 designated as the master file. Appellant 

retired from the employing establishment on April 15, 2007.
3

On May 23, 2016 appellant, through counsel, appealed to the Board. By decision dated

December 2, 2016,6the Board affirmed the April 1, 2016 decision, finding that the weight of the 

medical evidence of record established that appellant had no ratable permanent impairment of his 

right leg, causally related to his accepted employment-related conditions.

OWCP continued to receive medical evidence in 2017.

By decision dated April 3, 2018, OWCP continued to deny appellant’s schedule award

claim. It found that the medical evidence submitted was insufficient to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule awa rd.

On April 12, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

September 17, 2018.

By decision dated November 30, 2018, an OWCP hearing representative affirmed the 

April 3, 2018 decision, finding that the medical evidence of record was insufficient to establish 

appellant’s entitlement to a schedule award for his right lower extremity. 

On December 26, 2018 counsel, on behalf of appellant, appealed to the Board. By 

decision dated July 22, 2019,7the Board set aside the November 30, 2018 decision. The Board 

determined that a conflict existed in the medical opinion evidence between Dr. Neil Allen, an 

attending Board-certified internist and neurologist, and Dr. Orenstein, OWCP’s DMA, regarding 

the extent, if any, of appellant’s right lower extremity permanent impairment. The Board 

remanded the case to OWCP for referral of appellant to an impartial medical examiner (IME),

pursuant to 5 U.S.C. § 8123(a), to resolve the conflict in medical opinion evidence.

OWCP, by decision dated March 5, 2020, denied appellant’s schedule award claim, 

finding that the special weight of the medical evidence rested with the February 5, 2020 report of

Dr. Larry R. Lett, a Board-certified neurologist, selected as the IME, who determined that 

appellant had no permanent impairment of a scheduled member or function of the body 

warranting a schedule award.

On March 10, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

By decision dated June 2, 2020, after preliminary review, an OWCP hearing 

representative vacated the March 5, 2020 decision, finding that the February 5, 2020 report of

Dr. Lett, the IME, was insufficient to resolve the conflict in medical opinion. The hearing 

representative remanded the case for OWCP to refer appellant to a new IME.

On February 25, 2021 OWCP cancelled the impartial medical examination, and instead 

referred appellant to a second opinion examination, because it determined that the medical 

opinion evidence forming the basis for the conflict was more than a year old, thereby warranting 

further medical development.

6 Docket No. 16-1216 (issued December 2, 2016).

7 Docket No. 19-0452 (issued July 22, 2019).
4

On June 11, 2021 OWCP referred appellant, a statement of accepted facts (SOAF), a 

copy of the case record, and a series of questions, to Dr. John L. Stanton, an orthopedic surgeon, 

for a second opinion evaluation regarding his right lower extremity permanent impairment for 

schedule award purposes.

In a July 28, 2021 report, Dr. Stanton noted a history of the accepted June 2, 1986 

employment injury and appellant’s medical treatment. He diagnosed a treated, improved, and 

healed right proximal fibula fracture, and no residuals as of December 1986; and mild-tomoderate peroneal nerve sensory involvement with diminished sensation on the right small toe 

and lateral side of the fourth toe. Dr. Stanton utilized the diagnosis-based impairment (DBI) 

rating method of the sixth edition of the American Medical Association, Guides the Evaluation 

of Permanent Impairment (A.M.A., Guides),8 and referred to Table 16-3. He identified a 

diagnosis of proximal tibia shaft fracture, the closest diagnosis for a nondisplaced fracture with 

no significant objective abnormal findings at MMI, which resulted in a class of diagnosis (CDX) 

of Class 0 impairment and zero percent right lower extremity permanent impairment. 

Dr. Stanton explained that appellant had normal motion, no ligament instability on diagnostic 

testing or on physical examination, and no tenderness in the fracture area. Utilizing Table 16-12, 

he identified the diagnosis of superficial peroneal and sensory nerve deficits as a Class 1

impairment. Dr. Stanton assigned a grade modifier for functional history (GMFH) of 0 under 

Table 16-6 as there was no abnormal gait. He assigned a grade modifier for clinical studies 

(GMCS) of 0 under Table 16-8 due to normal nerve electrodiagnostic studies. Dr. Stanton did 

not assign a grade modifier for physical examination findings (GMPE) in accordance with 

section 16.4c(3)(b) on page 533 of the A.M.A., Guides. He determined that appellant had a 

grade A or one percent permanent impairment of the right lower extremity due only to peroneal 

nerve sensory deficit without motor involvement. Dr. Stanton advised that his abnormal 

sensation at the lateral aspect of the right lower extremity was inconsistent with peroneal nerve 

involvement but, it had been seen on several occasions in patients with spinal stenosis. He

determined that appellant had reached MMI on December 2, 1986.

On September 2, 2021 OWCP routed Dr. Stanton’s July 28, 2021 report, a statement of 

accepted facts (SOAF), and the case record to Dr. James W. Butler, a Board-certified orthopedic 

surgeon, serving as a DMA, for review and determination regarding appellant’s right lower

extremity permanent impairment in accordance with the sixth edition of the A.M.A., Guides and 

the date of MMI.

In his October 5, 2021 report, Dr. Butler reviewed the SOAF and medical evidence of 

record, including Dr. Stanton’s July 28, 2021 report. He found that MMI occurred on 

December 2, 1986. The DMA concurred with Dr. Stanton’s one percent right lower extremity

impairment rating.

By decision dated January 28, 2022, OWCP granted appellant a schedule award for one 

percent permanent impairment of the right lower extremity. The award ran for 2.88 weeks from 

December 2 through 22, 1986 and was based on the opinions of Dr. Stanton, OWCP’s second 

opinion physician, and Dr. Butler, the DMA.

8 A.M.A., Guides (6th ed. 2009).
5

On February 3, 2022 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

May 18, 2022.

By decision dated July 21, 2022, an OWCP hearing representative affirmed the

January 28, 2022 decision. The hearing representative found that the weight of the medical 

evidence rested with the opinion of OWCP’s second opinion physician, Dr. Stanton, as supported 

by the opinion of the DMA, Dr. Butler.

On October 14, 2022 appellant, through counsel, requested reconsideration of the July 21, 

2022 decision before OWCP. In support of the request, counsel submitted a June 22, 2022 report 

by Dr. Ellis, his attending family practitioner. Dr. Ellis noted a history of appellant’s accepted

June 2, 1986, February 19, 1993, and September 6, 2003 employment injuries. He also reviewed 

the medical record. Dr. Ellis noted the accepted conditions of peroneal nerve injury at the lower 

right leg level, initial encounter; and unspecified closed fracture of the right upper tibia, initial 

encounter. He provided range of motion (ROM) measurements of 50 degrees for flexion and full 

extension of the right knee. Utilizing the DBI rating method of the sixth edition of the A.M.A., 

Guides, at Table 16-3, page 510, Dr. Ellis identified a CDX of mild laxity of the medial 

collateral ligament of the right knee, which resulted in Class 1 impairment. He assigned a grade 

modifier for GMFH of 2, a GMPE of 3, and a GMCS of 0. Dr. Ellis utilized the net adjustment 

formula, (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (2 - 1) + (3 - 1) + (0-1) = 2, 

which resulted in a grade E or 13 percent permanent impairment of the right knee. Utilizing 

Table 16-12 (Peripheral Nerve Impairment), page 535, he identified a CDX of common peroneal 

nerve as a Class 1 sensory impairment. Dr. Ellis assigned a GMFH of 2, a GMPE of 1, and a 

GMCS of 2. Utilizing the net adjustment formula, (GMFH - CDX) + (GMPE - CDX) + (GMCS 

- CDX) = (1 - 1) + (3 - 1) + (2-1) = 3, resulted in a grade D or 4 percent permanent impairment 

of the right knee. Dr. Ellis also identified a CDX of common peroneal nerve as a Class 3 motor 

impairment under Table 16-12, page 535. He assigned a GMFH of 2 due to a moderate deficit 

under Table 16-5, page 515, a GMPE of 3 based on severe instability of mild laxity of the MCL 

of the right knee under Table 16-7, page 517, and a GMCS of 0 as there were no clinical studies 

available under Table 16-8, pages 519-20. Dr. Ellis applied the net adjustment formula, (GMFH 

- CDX) + (GMPE - CDX) + (GMCS - CDX) = (1 - 1) + (3 - 1) + (2-1) = 3, which resulted in a

grade A or 26 percent permanent impairment of the right knee. He then combined these

impairment ratings which yielded 29 percent right lower extremity permanent impairment. 

Dr. Ellis combined the 13 percent impairment rating for the diagnosis of mild laxity of the 

medial collateral ligament of the right knee and the 29 percent combined nerve impairment rating

which yielded 38 percent right lower extremity permanent impairment based on the DBI method. 

Additionally, he utilized the ROM method at Table 16-26, page 549, to find 35 percent 

permanent impairment of the right lower extremity. Dr. Ellis opined that appellant had 38 

percent permanent impairment of the right lower extremity as the DBI impairment rating was 

greater than the 35 percent permanent impairment rating based on the ROM method. He advised 

that MMI was reached on the date of his impairment evaluation.

On October 18, 2022 OWCP routed Dr. Ellis’ June 22, 2022 report, a SOAF, and the case 

record to Dr. Herbert White, Jr., a Board-certified occupational medicine specialist, serving as a 

DMA, for review and determination regarding appellant’s right lower extremity permanent 

impairment in accordance with the sixth edition of the A.M.A., Guides and the date of MMI.
6

In an October 29, 2022 report, Dr. White, the DMA, reviewed the SOAF and medical 

record, including the June 22, 2022 report of Dr. Ellis. Utilizing the DBI rating method, he 

identified appellant’s CDX of medial collateral cruciate ligament injury of the right knee as a 

Class 0 impairment under Table 16-3, page 510. The DMA noted that laxity could not be used to 

rate impairment due to inconsistent findings of Dr. Stanton and Dr. Ellis. He noted that

Dr. Stanton’s July 28, 2021 report found no ligament instability, while Dr. Ellis’ June 22, 2022 

report found moderate medial collateral ligament and mild anterior cruciate ligament (ACL) 

laxity. The DMA determined that appellant had zero percent permanent impairment of the right 

knee based on his medial collateral cruciate ligament injury. He also noted that the ROM 

method could not be used, referring to page 552 of the A.M.A., Guides, which stated that the 

ROM method was only to be used if no other approach was available for rating. The DMA

related that the DBI method was clearly available to rate appellant’s permanent impairment. He 

further identified a CDX for common peroneal nerve sensory deficit as a Class 0 impairment 

based on Table 16-12, page 535. The DMA noted that sensation could not be used to rate 

appellant’s impairment based on page 517 due to the inconsistent findings of Dr. Stanton who 

found mildly decreased sensation while Dr. Ellis found absent sensation which was very severe. 

He determined that appellant had zero percent permanent sensory impairment of the right lower 

extremity. The DMA again referred to Table 16-12 and identified a CDX of common peroneal 

nerve as a Class 0 for motor impairment. Referring to page 517, he advised that motor findings 

could not be used to rate appellant’s impairment due to inconsistent findings of Dr. Stanton who 

found normal strength and Dr. Ellis who found no movement against gravity. The DMA 

determined that appellant had zero percent right lower extremity motor impairment. He 

explained that the ROM method could not be used to rate appellant’s CDX of common peroneal 

nerve because the peripheral nerve impairment grid did not contain an asterisk. The DMA

concluded that MMI was reached on June 22, 2022, the date of Dr. Ellis’ impairment evaluation.

By decision dated November 10, 2022, OWCP denied modification of the July 21, 2022 

decision, finding that Dr. Ellis’ June 22, 2022 report was insufficient to establish greater 

permanent impairment of appellant’s right lower extremity.

LEGAL PRECEDENT

The schedule award provisions of FECA9 and its implementing regulations10 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

loss or loss of use of scheduled members or functions of the body. However, FECA does not 

specify the manner in which the percentage of loss shall be determined. For consistent results 

and to ensure equal justice under the law to all claimants, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform standards applicable to 

all claimants. Through its implementing regulations, OWCP adopted the A.M.A., Guides as the 

appropriate standard for evaluating schedule losses.11 As of May 1, 2009, schedule awards are 

9

Id. at § 8107.

10 20 C.F.R. § 10.404.

11 Id. See also, Ronald R. Kraynak, 53 ECAB 130 (2001).
7

determined in accordance with the sixth edition of the A.M.A., Guides (2009).12 The Board has 

approved the use by OWCP of the A.M.A., Guides for the purpose of determining the percentage 

loss of use of a member of the body for schedule award purposes. 13

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing 

the World Health Organization’s International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement.

14

 In determining impairment for the 

lower extremities under the sixth edition of the A.M.A., Guides, an evaluator must establish the 

appropriate diagnosis for each part of the lower extremity to be rated. With respect to the knee, 

the relevant portion of the leg for the present case, reference is made to Table 16-3 (Knee 

Regional Grid) beginning on page 509.15 After the CDX is determined from the Knee Regional 

Grid (including identification of a default grade value), the net adjustment formula is applied 

using the GMFH, GMPE, and GMCS. The net adjustment formula is (GMFH - CDX) + (GMPE 

- CDX) + (GMCS - CDX).16 Under Chapter 2.3, evaluators are directed to provide reasons for 

their impairment rating choices, including choices of diagnoses from regional grids and 

calculations of modifier scores.17

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to a DMA for an opinion concerning the nature and percentage of impairment 

in accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

impairment specified.18

Section 8123(a) of FECA provides that, if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary 

shall appoint a third physician (known as a referee physician or impartial medical 

examiner/specialist) who shall make an examination.19 In situations where the case is properly 

referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of 

12 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January2010); see also, Part 2 --Claims, Schedule Awards andPermanent Disability Claims, Chapter 2.808.5a 

(March 2017).

13 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

14 A.M.A., Guides 3, section 1.3.

15 See id. at 509-11.

16 Id. at 494-531.

17 Id. at 23-28.

18 See supra note 12at Chapter 2.808.6(f) (March 2017). See also P.W., Docket No. 19-1493 (issued August 12, 

2020); Frantz Ghassan, 57 ECAB 349 (2006).

19 5 U.S.C. § 8123(a);see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued 

May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
8

such specialist, if sufficiently well rationalized and based upon a proper factual background, 

must be given special weight.20

ANALYSIS

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

Preliminarily, the Board notes that findings made in prior Board decisions are 

res judicata absent further review by OWCP under section 8128 of FECA. It is, therefore, 

unnecessary for the Board to consider the evidence appellant submitted prior to the issuance o f 

OWCP’s November 30, 2018 decision as the Board considered that evidence in its July 22, 2019

decision.21

OWCP referred appellant for a second opinion evaluation with Dr. Stanton on 

July 28, 2021. Dr. Stanton provided findings on examination of appellant’s right knee and found 

that he had reached MMI. He determined that, under the DBI method for rating impairment 

appellant had zero percent permanent impairment for a CDX of proximal tibia shaft fracture, 

resulting in a Class 0 impairment, which was the closest diagnosis for a nondisplaced fracture 

with no significant objective abnormal findings at MMI, in accordance with Table 16-3. 

Dr. Stanton also determined that appellant had a grade A one percent permanent impairment of 

the right lower extremity for a CDX of superficial peroneal sensory nerve deficit, for a Class 1 

impairment in accordance with Table 16-12. He concluded that appellant had one percent right 

lower extremity permanent impairment due to the accepted peroneal nerve sensory loss.

In accordance with its procedures,22 OWCP properly routed the case record to its DMA,

Dr. Butler. In his October 5, 2021 report, Dr. Butler concurred with Dr. Stanton’s one percent 

right lower extremity permanent impairment rating.

OWCP also received a June 22, 2022 report from Dr. Ellis, appellant’s treating physician,

who determined that appellant had 38 percent right lower extremity permanent impairment based 

on the DBI method. Dr. Ellis referred to Table 16-3, page 510, and found that a CDX for mild 

laxity of the medial collateral ligament of the right knee resulted in a Class 1 impairment. He

assigned a GMFH of 2, a GMPE of 3, and a GMCS of 0. Dr. Ellis applied the net adjustment 

formula, which resulted in a net adjustment of 2, and found that appellant had 13 percent 

permanent impairment of the right knee due to laxity of the medial collateral ligament. He 

referred to Table 16-12, page 535, and found that a CDX for sensory impairment of the common 

peroneal nerve resulted in a Class 1 impairment. Dr. Ellis assigned a GMFH of 2, a GMPE of 1, 

and a GMCS of 2. Utilizing the net adjustment formula, he found that appellant had four percent 

permanent sensory impairment of the right knee. Dr. Ellis again utilized Table 16-12 for a CDX 

common peroneal nerve motor deficit, which resulted in a Class 3 impairment. He assigned a 

GMFH of 2 due to a moderate deficit under Table 16-5, page 515, a GMPE of 3 based on severe 

20 See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 

ECAB 1010 (1980).

21 M.S., Docket No. 20-1095 (issued March 29, 2022); C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., 

Docket No. 20-0007 (issued May 13, 2020); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998).

22 Id.
9

instability of mild laxity of the MCL of the right knee Table 16-7, page 517, and a GMCS of 0.

Dr. Ellis applied the net adjustment formula, which resulted in a net adjustment of 3, and found 

26 percent permanent motor impairment of the right knee. He then combined the peroneal nerve

impairment ratings which yielded 29 percent right lower extremity permanent impairment. 

Dr. Ellis combined the 13 percent impairment rating for the medial collateral ligament 

impairment of the right knee, and the 29 percent combined nerve impairment which yielded 38 

percent right lower extremity permanent impairment based on the DBI method. 

In an October 29, 2022 report, the DMA explained that in accordance with the DBI 

method, laxity could not be used to rate impairment of appellant’s medial collateral cruciate 

ligament of the right knee due to inconsistent findings of Dr. Stanton, who found no ligament 

instability, and Dr. Ellis who found moderate medial collateral ligament and mild ACL laxity.

Additionally, the DMA explained that sensory and motor findings could not be used to rate 

impairment of appellant’s common peroneal nerve, again based on inconsistent findings of

Dr. Stanton, and Dr. Ellis who found absent sensation which was very severe. 

The Board finds that as noted by the DMA, Dr. Stanton and Dr. Ellis provided conflicting 

physical examination findings. These conflicting physical examination findings resulted in a 

conflict as to appellant’s right lower extremity permanent impairment rating. As a conflict exists 

in the medical opinion evidence between OWCP’s second opinion physician, and appellant’s 

treating physician, OWCP should have referred appellant for an impartial medical evaluation .

23

Therefore, to resolve the conflict in the medical opinion evidence regarding appellant’s 

right lower extremity permanent impairment, the case will be remanded to OWCP for referral of 

appellant, the case record, and a statement of accepted facts, to a specialist in the appropriate

field of medicine for an impartial medical examination. After this and other such further 

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

CONCLUSION

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

23 Supra note 20. 
10

ORDER

IT IS HEREBY ORDERED THAT the November 10, 2022 decision of the Office of 

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

proceedings consistent with this decision of the Board.

Issued: September 25, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board