J.S. and U.S. Postal Service, Post Office, Philadelphia, PA (Board decision, September 12, 2012)

ECAB remand decision. The Board set aside OWCP's January 12, 2012 denial of an increased schedule award and again directed it to let J.S. participate in selecting an impartial medical specialist. His claim for additional leg impairment remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

J.S., a Postal Service employee, sought an increased schedule award for impairment of his legs. In an earlier appeal, the Board found a medical conflict and directed OWCP to allow him to participate in choosing an impartial specialist because he had documented concerns about the specialist selected. OWCP did not carry out that direction before denying the claim again. The Board set aside the new denial and ordered OWCP to follow its prior instruction, then decide the impairment claim after further development.

Decision snapshot

• Authority: Board authority to enforce its prior remand and OWCP's impartial specialist selection procedure.
• Outcome: January 12, 2012 denial set aside and remanded for proper specialist selection.
• Key point: OWCP had to comply with the Board's earlier direction to involve J.S. in selecting the impartial specialist.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.S., Appellant
)
)
and ) Docket No. 12-622
) Issued: September 12, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Philadelphia, PA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On January 30, 2012 appellant, through his attorney, filed a timely appeal from a January 12, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for an increased schedule award. The appeal was docketed as No. 12-622.

This case has previously been before the Board. By decision dated March 23, 2010, the Board found the case not in posture for decision as there was a conflict in the medical evidence regarding the extent of permanent impairment to appellant’s lower extremities.1 By decision dated July 26, 2011, the Board found the case not in posture for decision.2 The Board found the medical conflict regarding the extent of appellant’s permanent impairment of each leg remained unresolved. The Board found that appellant provided evidence of “documented bias” or “unprofessional conduct” by the selected impartial medical specialist, Dr. Menachem M. Meller, was sufficient to allow his participation in the selection of the impartial medical specialist. As OWCP did not allow appellant to participate in the selection of the impartial medical specialist, the Board set aside the decision and remanded for such participation. It was further directed to update its statement of accepted facts and the questions provided to the impartial medical

1
Docket No. 09-1338 (issued March 23, 2010).
2
Docket No. 10-2198 (issued July 26, 2011). specialist to reflect whether appellant’s bilateral knee and hip conditions preexisted his accepted employment injury.

The Board, having reviewed the case record, finds that the case is not in posture for a decision. Justice and equity require that the action proposed by the Board be fulfilled as the Board has intrinsic authority to ensure the orderly processing of appeals docketed for review.3 In its July 26, 2011 decision, the Board specifically found that appellant had provided sufficient evidence to allow his participation in the selection of the impartial medical specialist. Thus, OWCP should have prepared a list of three specialists available to act as an impartial medical examiner from which appellant could choose one to perform the impartial examination.4

Accordingly, as OWCP failed to follow the Board’s directive as enunciated in its July 26, 2011 decision regarding appellant’s participation in the selection of the impartial medical specialist, the Board concludes that the case must be remanded to OWCP for the action specifically described in its July 26, 2011 decision.5 Following this and any further development deemed necessary, OWCP should issue a decision concerning permanent impairment of appellant’s legs, including any preexisting condition to the bilateral knees and hip conditions.6

3
See Frank W. White, 42 ECAB 693 (1991).
4
See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.4(f)(2) (July 2011).
5
The Board has final authority to determine questions of law and fact. Its determinations are binding upon OWCP and must, of necessity, be so accepted and acted upon by the Director of OWCP. Otherwise, there could be no finality of decisions and the whole appeals procedure would be nullified and questions would remain moot. See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84, 85 (1949). 6 Appellant’s counsel, on appeal, asserts that OWCP did not update its statement of accepted facts. However, the Board notes that OWCP has updated the statement of accepted facts.

2
 IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated January 12, 2012 be set aside and the case remanded for further action consistent with this order of the Board.

Issued: September 12, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3