V.H. and U.S. Postal Service, Post Office, Trenton, NJ (Board decision, April 2, 2020)

ECAB remand decision. The Board set aside OWCP’s January 14, 2019 schedule award decision and ordered further review using a complete statement of accepted facts. The returned issue remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A postal worker sought a schedule award for permanent impairment of both legs after accepted knee injuries and replacement surgeries. OWCP relied on an impartial medical examiner who reviewed an outdated statement of accepted facts. That statement omitted later accepted knee conditions and surgeries. The Board held that the examiner’s opinion had limited value and sent the award issue back for further development.

Decision snapshot

• Authority: FECA procedure requiring an accurate statement of accepted facts for an impartial medical evaluation.
• Outcome: January 14, 2019 schedule award decision set aside and remanded.
• Key point: The impairment opinion rested on an incomplete account of accepted knee conditions.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
V.H., Appellant
)
)
and ) Docket No. 19-1135
) Issued: April 2, 2020
U.S. POSTAL SERVICE, POST OFFICE,
)
Trenton, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On April 25, 2019 appellant, through counsel, filed a timely appeal from a January 14, 2019 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 19-1135.

This case has previously been before the Board. 2 The facts and circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

OWCP accepted that on July 27, 2002 appellant, then a 54-year-old city letter carrier, sustained a temporary aggravation of degenerative joint disease of both knees through July 23, 2003. It further accepted that on July 3, 2006 she sustained a sprain of the right hand,

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 Docket No. 10-0960 (issued May 3, 2010); Docket No. 09-1725 (issued May 4, 2010). contusion of the lip, and right thumb sprain. On May 25, 2010 OWCP expanded acceptance of appellant’s July 3, 2006 claim to include bilateral knee contusions and a broken tooth. On July 11, 2012 it authorized left total knee arthroplasty which was performed on March 13, 2015. On May 1, 2014 OWCP authorized right knee total arthroplasty, which was performed on July 18, 2014. On January 9, 2015 it expanded acceptance of appellant’s July 3, 2006 traumatic injury claim to include permanent aggravation of bilateral knee degenerative joint disease.

On July 8, 2016 appellant filed a schedule award claim (Form CA-7) in her July 27, 2002 traumatic injury claim. On October 12, 2016 she filed a schedule award claim (Form CA-7) in her July 3, 2006 traumatic injury claim.

By decision dated July 14, 2017, OWCP granted appellant a schedule award for 25 percent permanent impairment of each lower extremity. On July 24, 2017 appellant, through counsel, requested an oral hearing, held on November 15, 2017. By decision dated January 30, 2018, OWCP’s hearing representative found a conflict of medical opinion evidence between appellant’s physician and OWCP’s district medical adviser (DMA) regarding the extent of appellant’s bilateral lower extremity permanent impairment. She set aside the July 14, 2017 decision and remanded the case for OWCP to make a referral to an impartial medical examiner (IME) to resolve the existing conflict of medical opinion evidence.

On February 27, 2018 OWCP referred appellant, a statement of accepted facts (SOAF) which it indicated was dated May 15, 2015,3 and a list of specific questions, for an IME with Dr. Robert Elkins, a Board-certified orthopedic surgeon, for review and determination of the extent of permanent impairment for the purposes of a schedule award. In a supplemental letter to Dr. Elkins, dated March 9, 2018, it confirmed the date and time of the scheduled examination and again noted that it had attached a SOAF and list of questions prepared by the claims examiner. In his report dated May 23, 2018, Dr. Elkins noted that he examined appellant and had reviewed medical records and a SOAF dated June 15, 2012.

The Board, having duly considered the matter, finds that this case is not in posture for decision.4

The June 15, 2012 SOAF did not reflect the most recent accepted condition of permanent aggravation of degenerative joint disease in bilateral knees, which was accepted on January 9, 2015. It also did not reflect appellant’s accepted bilateral total knee replacement surgeries, which occurred on July 18, 2014 and March 13, 2015. OWCP’s procedures provide that, when a DMA, second opinion specialist, or IME renders a medical opinion based on a SOAF, which is incomplete or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the probative value of the opinion is seriously diminished or negated altogether. 5

3
The Board notes that the record transmitted to the Board does not contain a SOAF dated May 15, 2015. The only SOAF of record is dated June 15, 2012. 4 D.S., Docket No. 19-0025 (issued September 3, 2019).
5
Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.5 (September 2009); A.C., Docket No. 07-2423 (issued May 15, 2008).

2
While Dr. Elkins agreed with the impairment rating provided in the DMA’s March 26, 2017 report, the Board finds that he was not provided a complete and accurate framework, rendering his opinion of limited probative value. 6

The Board therefore finds that further development is required. On remand OWCP should prepare an updated SOAF and refer the case file and relevant reports to Dr. Elkins for a reasoned opinion regarding the extent of appellant’s permanent impairment of the bilateral lower extremities. Following such further development as deemed necessary, it shall issue a de novo decision.7 Accordingly,

IT IS HEREBY ORDERED THAT the January 14, 2019 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further development consistent with this order of the Board.

Issued: April 2, 2020
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

6
F.R., Docket No. 17-1711 (issued September 6, 2018); L.J., Docket No. 14-1682 (issued December 11, 2015).
7
D.D., Docket No. 16-0558 (issued August 5, 2016).

3