D.H. and Department of the Army, Corps of Engineers, Pittsburgh, PA (Board decision, August 22, 2014)

ECAB remand decision. The Board set aside OWCP’s July 3, 2013 schedule award decision and directed an impartial medical examination. The correct left leg impairment rating remains unresolved. 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 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.H. appealed a schedule award based on 17 percent permanent impairment of his left leg. In an earlier appeal, the Board had directed OWCP to use an impartial examiner to resolve a disagreement between his treating physician and OWCP’s medical adviser. OWCP obtained another second opinion instead, leaving the conflict between the 32 percent and 17 percent ratings unresolved. The Board set aside OWCP’s new award decision and again ordered an impartial examination before OWCP decides the rating anew.

Decision snapshot

• Authority: FECA schedule award review, 5 U.S.C. § 8101 et seq.
• Outcome: July 3, 2013 award decision set aside and remanded for impartial medical examination.
• Key point: A second opinion did not carry out the Board’s earlier direction to resolve the medical conflict impartially.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.H., Appellant
)
)
and ) Docket No. 13-1789
) Issued: August 22, 2014
DEPARTMENT OF THE ARMY, CORPS OF
)
ENGINEERS, Pittsburgh, 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:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On July 24, 2013 appellant, through his attorney, filed a timely appeal from an Office of Workers’ Compensation Programs’ (OWCP) decision dated July 3, 2013 finding that appellant established a 17 percent permanent impairment of the left lower extremity for which he received a schedule award. On appeal, counsel contended that OWCP erred in failing to send appellant for an impartial medical examination. He also contends that the new second opinion physician was biased. The Board docketed this appeal as No. 13-1789.

This case has previously been before the Board. In a decision dated February 26, 2013, the Board remanded the case as it found an unresolved conflict in medical opinion between appellant’s treating physician, Dr. Michael J. Platto, Board-certified physiatrist, and OWCP’s medical adviser. The Board instructed OWCP to refer appellant for an impartial medical examination to resolve the conflict between Dr. Platto and the medical adviser and to calculate appellant’s impairment rating. The facts as set forth in the Board’s prior decision are hereby incorporated by reference.1

OWCP failed to follow the Board’s instructions on remand. Instead of referring appellant to an impartial medical examiner as instructed by the Board, it referred him to Dr. Victoria

1
Docket No. 12-1907 (issued May 13, 2013).
Langa, a Board-certified orthopedic surgeon, who conducted an additional second opinion examination, following which OWCP asked a new medical adviser to further evaluate the impairment. OWCP did not refer appellant to an impartial medical examiner as instructed by the Board to resolve the conflict in medical opinion evidence.2

Accordingly, their remains an unresolved conflict between appellant’s treating physician, Dr. Platto, who after applying the American Medical Association, Guides to the Evaluation of Permanent Impairment, determined that appellant had a 32 percent impairment of the left lower extremity and the opinion of the first OWCP medical adviser, who calculated an impairment rating of 17 percent of the left lower extremity.

Therefore, the Board again remands the case to OWCP to refer appellant for an impartial medical examination in order to resolve the conflict in the medical evidence. Following any necessary further development, OWCP shall issue a de novo decision.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated July 3, 2013 is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: August 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

2
See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Referee Examinations, Chapter 3.500.4 (July 2003).

2