D.B. and U.S. Postal Service, Post Office, Fort Collins, CO (Board decision, May 9, 2012)

ECAB remand decision. The Board set aside OWCP's March 10 and June 22, 2011 decisions and remanded for a new impartial medical specialist and a new decision. Whether D.B.'s knee replacement and impairment were work related remains unresolved in this order. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.B., a postal letter carrier, had an accepted temporary aggravation of right knee osteoarthritis and later underwent knee replacement. OWCP relied on an impartial medical specialist to find that the replacement and impairment resulted from the natural progression of preexisting disease. The Board found that the case file did not document how the specialist had been selected under OWCP's required rotation procedure. It set aside OWCP's decisions and directed OWCP to select another specialist and issue a new decision.

Decision snapshot

• Authority: Impartial medical specialist selection under 5 U.S.C. § 8123(a).
• Outcome: March 10 and June 22, 2011 decisions set aside; case remanded.
• Key point: The selection record did not support giving the specialist's opinion special weight.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.B., Appellant
)
)
and ) Docket No. 11-2046
) Issued: May 9, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Fort Collins, CO, Employer
)
__________ )

Appearances: Case Submitted on the Record
John S. Evangelisti, 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 September 2, 2011 appellant, through his representative, filed a timely appeal from the March 101 and June 22, 2011 merit decisions of the Office of Workers’ Compensation Programs (OWCP). OWCP found that the weight of the medical evidence, as represented by the opinion of Dr. Stephen Dinenberg, a Board-certified orthopedic surgeon selected as an impartial medical specialist under 5 U.S.C. § 8123(a), established that appellant’s total right knee replacement and impairment were causally related to the natural progression of his preexisting osteoarthritis and not to his federal employment.2 Appellant’s representative argues, among other things, that OWCP did not properly select the impartial medical specialist.

1
Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s initial merit decision was issued on March 10, 2011, the 180-day computation begins, to determine the timeliness of the appeal from that decision, March 11, 2011. 180 days from March 11, 2011 was September 7, 2011. Since using September 13, 2011, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights as to the appeal from the March 10, 2011 decision, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is September 2, 2011, which renders the appeal timely filed from both the March 10 and June 22, 2011 decisions. See 20 C.F.R. § 501.3(f)(1). 2 Appellant, a letter carrier, sustained a temporary aggravation of preexisting right knee osteoarthritis in the performance of duty. He later underwent a total knee replacement, which OWCP did not approve.
The Board finds that this case is not in posture for decision. OWCP has not established that it properly selected the impartial medical specialist.

A physician selected by OWCP to serve as an impartial medical specialist should be one wholly free to make a completely independent evaluation and judgment. In order to achieve this, OWCP has developed specific procedures for the selection of the impartial medical specialist designed to provide adequate safeguards against any possible appearance that the selected physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial medical specialist will be selected on a strict rotating basis in order to negate any appearance that preferential treatment exists between a particular physician and OWCP.3

OWCP has an obligation to verify that it selected the impartial medical specialist in a fair and unbiased manner. It maintains records for this very purpose.4 The case file includes an undated ME023 iFECS report, which indicates that appellant’s referee appointment was scheduled with Dr. Dinenberg. The record, however, contains no screenshots that substantiate the proper selection of Dr. Dinenberg. Thus, the Board cannot ascertain whether Dr. Dinenberg was properly selected under OWCP selection procedures.

The Board has placed great importance on the appearance as well as the fact of impartiality, and only if the selection procedures that were designed to achieve this result are scrupulously followed, may the selected physician carry the special weight accorded to an impartial specialist. OWCP has not met its affirmative obligation to establish that it properly followed its selection procedures.5

The Board will remand the case to OWCP for selection of another impartial medical specialist. After such further development as necessary, OWCP shall issue a de novo decision.6

3
Raymond J. Brown, 52 ECAB 192 (2001).
4
M.A., Docket No. 07-1344 (issued February 19, 2008).
5
H.W., Docket No. 10-404 (issued September 28, 2011).
6
Appellant has requested oral argument before the Board. Given the disposition of this appeal, however, oral argument is unnecessary. 20 C.F.R. § 501.5(a) (oral argument may be held in the discretion of the Board).

2
IT IS HEREBY ORDERED THAT the June 22 and March 10, 2011 decisions of the Office of Workers’ Compensation Programs are set aside and the case remanded for proceedings consistent with this order of the Board.

Issued: May 9, 2012
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

3