H.W. and U.S. Postal Service, Processing & Distribution Center, Macon, GA (Board decision, May 19, 2011)

ECAB final decision. The Board set aside OWCP’s July 15, 2010 denial of another chest x-ray and remanded for medical review. 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

H.W., a mail handler with an accepted workplace tuberculosis exposure, requested another annual chest x-ray on his physician’s advice. OWCP denied it using an unsupported statement about the timing of disease risk and did not seek a medical adviser’s opinion. The Board found the denial unreasonable without contrary medical evidence. It returned the request for development of the medical evidence and a new decision.

Decision snapshot

• Authority: Medical services under 5 U.S.C. § 8103(a).
• Outcome: July 15, 2010 chest x-ray authorization denial set aside and remanded.
• Key point: OWCP needed medical support before rejecting the physician’s monitoring recommendation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
H.W., Appellant
)
)
and ) Docket No. 10-2047
) Issued: May 19, 2011
U.S. POSTAL SERVICE, PROCESSING &
)
DISTRIBUTION CENTER, Macon, GA,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On August 4, 2010 appellant filed a timely appeal from the July 15, 2010 merit decision of the Office of Workers’ Compensation Programs, which denied authorization for a chest x-ray. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUE

The issue is whether the Office properly denied authorization for a chest x-ray.

FACTUAL HISTORY

On January 25, 2000 appellant, then a 50-year-old mail handler, filed a claim for compensation benefits alleging that a coworker with tuberculosis had exposed him to the disease. When he saw his family physician, Dr. Samuel E. Palmer, appellant denied any symptoms.

1
5 U.S.C. § 8101 et seq.
Appellant’s examination was negative. A January 17, 2000 chest x-ray showed no evidence of tuberculosis. Noting a positive skin test, Dr. Palmer recommended a yearly chest x-ray.

The Office accepted appellant’s claim for exposure to tuberculosis.

Chest x-rays on January 15 and June 4, 2003 were normal, as were chest x-rays on January 15, 2004. A February 24, 2006 chest x-ray showed no evidence of acute pulmonary pathology.

In 2010 the Office received a request to authorize another chest x-ray.

In a decision dated July 15, 2010, the Office denied the request. It noted that the file did not support that appellant had anything beyond an exposure to tuberculosis. Regular diagnostic tests continued to be negative for any pulmonary diagnosis. As the risk for developing active disease was highest in the first two years after exposure and a positive skin test, and as it had been more than 10 years since appellant’s exposure with no diagnosis of tuberculosis, the Office found that he had no ongoing need for medical treatment for the accepted condition, “which was simple exposure and which never developed into tuberculosis.” It closed appellant’s case.

On appeal, appellant argues that the Office overrode Dr. Palmer’s recommendation and closed his case without medical input.

LEGAL PRECEDENT

The United States shall furnish to an employee who is injured while in the performance of duty the services, appliances and supplies prescribed or recommended by a qualified physician that the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of any disability or aid in lessening the amount of any monthly compensation.2 The Office must therefore exercise discretion in determining whether the particular service, appliance or supply is likely to effect the purposes specified in the Act.3 The only limitation on the Office’s authority is that of reasonableness.4

ANALYSIS

The Office denied authorization for another chest x-ray on the grounds that the risk for developing active disease is the highest in the first two years after exposure and development of a positive skin test, and that it had been 10 years in appellant’s case without a diagnosis of tuberculosis. It, however, did not identify the source of this information. The issue is a medical one, and it does not appear that the Office sought the advice of its district medical adviser. Appellant’s family physician, Dr. Palmer, recommended a yearly chest x-ray. The Board finds,

2
Id. at § 8103(a).
3
See Marjorie S. Geer, 39 ECAB 1099 (1988) (the Office has broad discretionary authority in the administration of the Act and must exercise that discretion to achieve the objectives of section 8103). 4 Daniel J. Perea, 42 ECAB 214 (1990).

2 as appellant argues on appeal, that it was unreasonable for the Office to deny authorization for an annual chest x-ray in the absence of medical opinion to the contrary.

The Board will set aside the July 15, 2010 decision and remand the case for further development of the medical opinion evidence and a proper exercise of discretion under section 8103 of the Act. After such further development as may be necessary, the Office shall issue an appropriate final decision on whether to authorize another chest x-ray for appellant’s accepted exposure to tuberculosis.

CONCLUSION

The Board finds that this case is not in posture for decision. Further development of the medical opinion evidence is warranted.

ORDER

IT IS HEREBY ORDERED THAT the July 15, 2010 decision of the Office of Workers’ Compensation Programs is set aside. The case is remanded for further action consistent with this opinion.

Issued: May 19, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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