F.S. and U.S. Postal Service, Vehicle Maintenance Facility, Bellmawr, NJ (Board decision, September 10, 2015)

ECAB remand decision. The Board set aside OWCP’s December 5, 2014 denial of an additional schedule award and remanded for OWCP to exclude improperly obtained medical reports, select a new referee physician, and decide the impairment issue again. The amount of any additional award remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. 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).

Plain-English summary

F.S. sought an additional schedule award for arm impairment. OWCP had used a referee physician to resolve conflicting medical evidence, but an OWCP hearing representative later found that telephone contacts with that physician made his supplemental reports improper. The Board found that OWCP left those reports in the record without the required exclusion memorandum, making it unclear whether a later referee physician saw them. It set aside the award denial and directed OWCP to exclude the reports properly, select a new referee, and issue another decision.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Additional schedule award denial set aside and remanded for a new OWCP decision.
• Key point: Improperly obtained referee reports had to be clearly excluded before another physician assessed permanent impairment.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
F.S., Appellant
)
)
and ) Docket No. 15-1018
) Issued: September 10, 2015
U.S. POSTAL SERVICE, VEHICLE
)
MAINTENANCE FACILITY, Bellmawr, NJ,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge

On April 2, 2015 appellant filed a timely appeal of a December 5, 2014 decision of the Office of Workers’ Compensation Programs (OWCP), denying a claim for an additional schedule award.1 The appeal was docketed as No. 15-1018.

The record indicates that OWCP selected Dr. Alfred Dawson, a Board-certified orthopedic surgeon, to resolve a conflict in the medical evidence with respect to permanent impairment to the extremities. Dr. Dawson submitted a September 23, 2010 report. By decision dated June 18, 2011, OWCP found that he did not resolve the conflict. A memorandum of telephone call dated August 31, 2011 indicated that OWCP spoke to Dr. Dawson regarding diagnostic testing and medical report requirements. Dr. Dawson submitted a March 21, 2012 report on April 9, 2012. OWCP again spoke with him on the telephone on April 11, 2012, again

1
The hearing representative found that referee physician, Dr. Timothy Wagner, a Board-certified orthopedic surgeon, represented the weight of the evidence. Appellant had received a June 28, 2004 schedule award decision for a five percent left arm impairment, and a January 31, 2013 decision for a five percent right arm permanent impairment. By decision dated June 14, 2006, the Board had remanded the case for further development regarding the left arm permanent impairment. Docket No. 06-0154 (issued June 14, 2006). In an earlier appeal, the Board reversed a December 29, 2000 termination of compensation decision.
Docket No. 02-0802 (issued August 27, 2002). discussing the medical report requirements for the issue presented. Dr. Dawson submitted an additional report dated April 12, 2012.

An OWCP hearing representative, in a decision dated August 15, 2013, found that the telephone communication with Dr. Dawson was improper and the supplemental reports from Dr. Dawson must be excluded from the record. This is consistent with long-standing Board precedent regarding improper contact between OWCP and a referee physician.2

OWCP procedures have specific requirements for medical reports that must be excluded from consideration. A memorandum is written explaining why the reports are excluded.3 The referee report and any clarification reports are then combined with the exclusion memorandum, and the combined document is entered into the record as “MISC/memo to file” rather than medical evidence. The author date and received date is the date of the memorandum.4 Letters to a physician who is sent medical evidence should instruct the physician to disregard the excluded report.5

OWCP did not follow any of its procedures with respect to excluded medical reports in this case. No memorandum was prepared, the reports were untouched in the record, and no reference was made to the excluded reports in a statement of accepted facts or other document. It is not clear whether the reports were provided to the new referee physician, Dr. Wagner. The purpose of the procedures regarding exclusion of medical reports is to make it clear to physicians and others that certain medical evidence is not to be considered in rendering a decision.

The case will be remanded for OWCP to properly follow its procedures regarding exclusion of medical reports. After excluding the medical evidence that was improperly obtained, OWCP should select a new referee physician and resolve the conflict in the medical evidence. After such further development as is deemed necessary, it should issue an appropriate decision.

2
See J.F., Docket No. 08-1182 (issued June 18, 2009); Carlton L. Owens, 36 ECAB 608 (1985).
3
Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.12(b) (September 2010).
4
Id.
5
Id.

2
 IT IS HEREBY ORDERED THAT the December 5, 2014 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action consistent with this order of the Board.

Issued: September 10, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3