J.W. and U.S. Postal Service, Post Office, Philadelphia, PA (Board decision, May 16, 2016)

ECAB remand decision. The Board set aside OWCP’s February 5, 2015 denial and remanded the disability claim for an impartial medical examination. OWCP must issue a new merits decision. 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

J.W., a Postal Service letter carrier, sought disability benefits for an accepted aggravation of lumbar and left hip conditions. In an earlier decision, the Board had directed OWCP to obtain an impartial medical opinion on whether those conditions disabled her beginning September 10, 2008. OWCP instead denied the claim without that examination because it lacked some earlier treatment records. The Board found that OWCP had not complied with its remand instruction. It set aside the denial and again directed a referee examination followed by a new decision.

Decision snapshot

• Authority: 5 U.S.C. § 8123(a).
• Outcome: February 5, 2015 disability denial set aside and remanded.
• Key point: OWCP had to obtain the impartial opinion previously ordered to resolve conflicting medical evidence.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.W., Appellant
)
)
and ) Docket No. 16-0112
) Issued: May 16, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
Philadelphia, PA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Richard Daniels, 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 July 22, 2015 appellant, through counsel, filed a timely appeal from a February 5, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. The appeal was docketed as No. 16-0112.

This case was previously before the Board.2 In a November 15, 2013 decision, the Board affirmed the July 27, 2012 OWCP decision in part finding that OWCP had not abused its discretion in denying appellant’s request for surgery. The Board also determined that a conflict in medical opinion existed between Dr. Walter Dearolf, III, a Board-certified orthopedic surgeon and OWCP referral physician, and Dr. David L. Mattingly, an osteopath and appellant’s treating physician, regarding whether appellant was unable to work beginning September 10, 2008 as a result of her accepted lumbar and left hip conditions. The case was remanded to OWCP for

1
5 U.S.C. § 8101 et seq.
2
Docket No. 13-606 (issued November 15, 2013). On November 20, 2008 appellant, a letter carrier, filed an occupational disease claim (Form CA-2) alleging that she first became aware of low back and left hip pain on January 15, 2008, which was caused by her mail delivery duties. On November 18, 2010 OWCP accepted that she sustained temporary aggravation of her preexisting lumbar degenerative disc disease and left hip degenerative osteoarthritis as a result of her employment duties. Appellant stopped work on September 10, 2008. referral to an impartial medical examiner in order to resolve the conflict pursuant to section 8123(a) of FECA. The facts of the case as set forth in the prior decision are incorporated herein by reference.

Subsequent to the Board’s decision, OWCP informed appellant in letters dated March 11 and December 4, 2014 that the record suggested that she sought medical treatment from Dr. Thomas Corcoran, a Board-certified orthopedic surgeon, in January 2008 when she first began to experience lower back and left hip pain, but the record did not contain any medical reports from Dr. Corcoran. OWCP requested that appellant provide any medical reports from Dr. Corcoran because such medical records were relevant to the determination of whether appellant was unable to work beginning September 12, 2008.

On December 9, 2014 appellant’s attorney, Richard Daniels, noted that he would make every effort to obtain the records from Dr. Corcoran as requested. No additional medical evidence was received.

In decisions dated April 17, 20143 and February 5, 2015, OWCP denied appellant’s claim. It determined that it would not refer appellant’s case for a referee medical examination as the record did not contain all relevant medical records, specifically Dr. Corcoran’s 2008 medical reports. OWCP denied appellant’s claim finding insufficient medical evidence to establish that appellant was unable to work beginning September 10, 2008 causally related to appellant’s accepted conditions.

The Board has duly considered the matter and finds this case is not in posture for decision as OWCP did not comply with the Board’s November 15, 2013 decision. The Board found that a conflict in medical opinion existed regarding whether appellant’s disability beginning September 10, 2008 was causally related to her accepted conditions and remanded the case for referral for a referee medical examination. OWCP, however, did not comply with the Board’s decision to obtain a report by a referee medical examiner as to whether appellant was disabled from work beginning September 10, 2008.4 As a conflict in medical evidence still exists, the case will be remanded to OWCP to prepare a statement of accepted facts based upon the evidence available in the record and refer appellant’s case to an appropriate physician to examine her and evaluate the evidence in order to resolve the conflict in medical opinion evidence pursuant to section 8123(a) of FECA. Following this and any other development deemed necessary, OWCP will issue a de novo decision on the merits.

3
On April 28, 2014 OWCP received appellant’s request, through her attorney, for a hearing. In a decision dated October 8, 2014, an OWCP hearing representative set aside the April 17, 2014 denial decision and remanded the case for referral to a referee medical examiner as directed by the Board in its November 15, 2013 decision. 4 See A.C., Docket No. 12-402 (issued June 26, 2012).

2
 IT IS HEREBY ORDERED THAT the February 5, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further development consistent with this order of the Board.

Issued: May 16, 2016
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