J.B., claiming as widow of T.B., and Department of the Navy, Puget Sound Naval Shipyard, Bremerton, WA (Board decision, May 12, 2011)

ECAB final decision. The Board set aside OWCP’s April 29, 2010 denial of T.B.’s occupational disease claim and remanded for further medical development. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

T.B., a naval shipyard employee, claimed that workplace chemical exposure caused renal cancer. An OWCP hearing representative directed the agency to obtain a second opinion from an appropriate specialist. OWCP instead sought a file review from its medical adviser, who also recommended a specialist opinion, then denied the claim without obtaining one. T.B. died after that decision, and his widow pursued the appeal. The Board held that OWCP had not completed the ordered medical development and remanded for a reasoned opinion from an occupational disease specialist.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.; OWCP’s duty to complete medical development it undertakes.
• Outcome: April 29, 2010 claim denial set aside; case remanded.
• Key point: OWCP had to obtain the specialist opinion directed by its hearing representative.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.B., claiming as widow of T.B., Appellant ) )
and ) Docket No. 10-1555
) Issued: May 12, 2011
DEPARTMENT OF THE NAVY, PUGET
)
SOUND NAVAL SHIPYARD, Bremerton, WA,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
John Goodwin Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On May 25, 2010 appellant, through her representative, filed an application for review of an April 29, 2010 decision of the Office of Workers’ Compensation Programs denying his occupational disease claim. The appeal was docketed as No. 10-1555. The Board has duly considered this matter and finds that this case is not in posture for a decision.1

On April 21, 2009 the employee filed an occupational disease claim alleging that he developed renal cancer as a result of employment-related chemical exposure. The employing establishment acknowledged that the employee may have been exposed to hazardous levels of cadmium and other agents, but contested that the exposure caused his cancer.

By decision dated July 1, 2009, the Office denied the employee’s claim due to insufficient medical evidence. The employee requested an oral hearing and submitted medical evidence from his treating physician, Dr. Diana Velikova, a Board-certified internist. 1 The Board notes that appellant requested oral argument. Counsel indicated that oral argument was necessary to present his argument. As discussed infra, the Board agrees with his argument that the case should be remanded for further development. Appellant’s brief was sufficiently persuasive such that oral argument is unnecessary in this instance. Consequently, the Board, in its discretion, denies the request for oral argument. See 20 C.F.R. § 501.5(a), (b) (2009).” By decision dated January 14, 2010, an Office hearing representative set aside the July 1, 2009 decision and remanded the case for further development, including preparation of a statement of accepted facts, referral for a second opinion examination with appropriate specialists and additional testing as necessary. The hearing representative found that Dr. Velikova’s report was well reasoned and supported a causal relationship.

On remand, the Office forwarded the case file to a district medical adviser (DMA) for review and an opinion as to whether employment-related chemical exposure caused or contributed to appellant’s renal cancer. In an April 20, 2010 report, the DMA stated that the medical reports of record were insufficient to make a determination as to whether a causal relationship existed. He recommended that the Office obtain a report from a specialist in occupational diseases, as well as updated records from the treating physician.

By decision dated April 29, 2010, the Office denied the employee’s claim based on the DMA’s April 20, 2010 report.2

The Board finds this case is not in posture for a decision and must be remanded for further development of the medical evidence. On January 14, 2010 an Office hearing representative remanded the case to the Office with specific instructions to obtain a second opinion from an appropriate specialist. Instead, the Office sent the case to a medical adviser for review. The Office medical adviser recommended that the Office obtain a report from a specialist in occupational diseases, as well as updated records from the treating physician. There is no evidence, however, that the Office made any attempt to obtain such reports or to further develop the medical evidence in any way. The Board finds that the Office improperly relied on the DMA’s April 20, 2010 report in its April 29, 2010 decision denying the employee’s claim.

Proceedings under the Federal Employees’ Compensation Act are not adversarial in nature, nor is the Office a disinterested arbiter. While the claimant has the burden to establish entitlement to compensation, the Office shares responsibility in the development of the evidence and has the obligation to see that justice is done.3 Accordingly, once the Office undertakes to develop the medical evidence further, it has the responsibility to do so in a manner that will resolve the relevant issues in the case.4 As the Office undertook development of the medical evidence, it has an obligation to secure a report adequately addressing the relevant issues.5 Moreover, the Office did not comply with the hearing representative’s directive to obtain an opinion from an appropriate specialist as to whether the employee’s renal cancer was causally related to chemical exposure in the workplace.

2
The employee passed away sometime after the April 29, 2010 decision of the Office.
3
Russell F. Polhemus, 32 ECAB 1066 (1981).
4
Melvin James, 55 ECAB 406 (2004).
5
See id. (once the Office undertakes to develop the medical evidence further, it has the responsibility to do so in the proper manner).

2
 The Board notes that the employee died sometime after the April 29, 2010 decision of the Office. The fact that the employee died before his case could be decided, does not obviate the Office’s obligation to develop the case record.6

On remand, the Office shall obtain a rationalized opinion from a specialist in occupational diseases in accordance with the instructions of the hearing representative’s January 14, 2010 decision. After this and such other development of the medical evidence as it deems necessary, the Office shall issue an appropriate decision.

IT IS HEREBY ORDERED THAT the appeal docketed as No. 10-1555 be set aside and the case remanded to the Office of Workers’ Compensation Programs for action consistent with the terms of this order.

Issued: May 12, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6
Once the Office has begun an investigation of a claim, it must pursue the evidence as far as reasonably possible. Edward Schoening, 41 ECAB 277, 282 (1989).

3