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United States Department of Labor
Employees’ Compensation Appeals Board
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M.M., Appellant
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DEPARTMENT OF
VETERANS AFFAIRS, VETERANS ADMINISTRATION MEDICAL CENTER, Alexandria, LA, Employer
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Docket No. 07-2103
Issued: August 26,
2008
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Appearances: Case
Submitted on the Record
Daniel E. Broussard, Jr., Esq., for the appellant
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
ALEC J. KOROMILAS,
Chief Judge
DAVID S. GERSON,
Judge
JAMES A. HAYNES,
Alternate Judge
JURISDICTION
On August 14, 2007
appellant, through her attorney, filed a timely appeal from the Office of
Workers’ Compensation Programs’ May 21, 2007 merit decision terminating
her compensation and schedule award benefits on the grounds that she refused an
offer of suitable work. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office
properly terminated appellant’s compensation benefits effective May 21,
2007 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On
September 4, 2003 appellant, a 50-year-old licensed practical nurse, filed
a traumatic injury claim alleging that she injured her neck while lifting a
patient. The Office accepted her claim for cervical and lumbar strain,
aggravation of degenerative disc disease of the cervical and lumbar spine and
lumbar radiculopathy. Appellant stopped working on August 21, 2003, the
date of injury, and the Office placed her on the periodic rolls.
Appellant
was treated by Dr. Luke Corsten, a Board-certified neurosurgeon, and
Dr. Michael Burdine, a treating physician. On March 11, 2004
Dr. Corsten opined that appellant was disabled from employment. On
October 6, 2004 Dr. Burdine stated that she was unable to work due to
significant pain in her back and leg. In a September 28, 2004 second
opinion report, Dr. John Sandifer, a Board-certified orthopedic surgeon,
diagnosed cervical strain, and multiple disc disease of the cervical and lumbar
spine with radiculopathy. He opined that appellant was able to work part time,
provided that she be restricted from pushing, pulling or lifting more than five
pounds, and that she be precluded from twisting, bending, stooping or reaching
above shoulder level. The record also includes reports of electromyogram (EMG)
and nerve conduction studies dated December 6, 2004 and March 14,
2005 from Dr. Charles Kaufman, a Board-certified neurologist.
The
Office found a conflict in medical opinion and referred appellant to Dr. Martin
Bloom, a Board-certified orthopedic surgeon, to resolve the conflict. In a
February 22, 2005 report, Dr. Bloom opined that appellant continued
to experience residuals from her accepted employment injury, but that she was
capable of performing sedentary work on a full-time basis.
He stated that he had reviewed a January 30, 2004 report of a magnetic
resonance imaging (MRI) scan.
On April 22,
2005 the employing establishment offered appellant a limited-duty position as a
medical support assistant, which encompassed Dr. Bloom’s restrictions. On
April 27, 2005 appellant rejected the April 22, 2005 job offer,
stating that her doctors had not yet released her to work.
By letter
dated May 4, 2005, the Office notified appellant that it found the medical
support assistant position to be suitable, based on Dr. Bloom’s
February 22, 2005 report. The Office advised appellant that she had 30
days to accept the offer or provide reasons why she believed the position was
not suitable. Appellant did not accept the offer within the 30-day period.
By letter
dated June 8, 2005, the Office advised appellant that she had failed to
provide valid reasons for refusing to accept the limited-duty job and that, if she
had not accepted the position and arranged for a report date within 15 days of
the date of the letter, her entitlement to wage-loss and schedule award
benefits would be terminated. The Office stated that no additional reasons for
refusal would be accepted.
In response
to the Office’s June 8, 2005 letter, appellant submitted a June 20,
2005 report of an examination, EMG testing and nerve conduction studies of the
upper and lower extremities from Dr. Kaufman; a report of a January 31,
2005 MRI scan of the lumbar spine; and a report of a January 31, 2005 MRI scan
of the cervical spine.
By decision dated June 29, 2005,
the Office terminated appellant’s wage-loss and schedule award benefits,
effective that date, on the grounds that he had refused an offer
of suitable work. It did not address the medical evidence submitted
subsequent to its June 8, 2005 letter.
On July 17, 2005 appellant,
through her attorney, requested an oral hearing. She submitted additional
medical evidence, including reports from Dr. Burdine, Dr. Kaufman and
Dr. Anthony Ioppolo, a Board-certified neurosurgeon.
At the April 9, 2007 hearing,
appellant contended that she was unable to perform the functions required by
the proposed medical support assistant job, and that
the medical evidence submitted established her position. Her representative
argued that the impartial medical examiner had not reviewed the January 31,
2005 MRI scan reports submitted following the Office’s June 8, 2005 “15-day”
letter. The hearing representative informed appellant and her representative
that, in its June 29, 2005 decision, the Office had properly disregarded
the medical evidence submitted following its “15-day letter” of June 8,
2005, stating: “Even if the medical evidence is convincing and overwhelming
after [the June 8, 2005 letter] that initial 30-day period, the Office [is
not required to consider] any additional medical evidence at that time.”
By decision dated May 21, 2007,
the Office hearing representative affirmed the June 29, 2005 decision
terminating appellant’s entitlement to compensation benefits, based on her
refusal to accept an offer of suitable employment pursuant to 5 U.S.C. § 8106(c)(2) of
the Federal Employees’ Compensation Act. The representative found that the
Office had followed all procedural requirements in terminating appellant’s
benefits. He stated that a review of the record established that Dr. Bloom
had reviewed the January 31, 2005 MRI scan reports prior to submitting his
report. The representative acknowledged that the Office had disregarded all
medical evidence submitted after June 8, 2005.
LEGAL PRECEDENT
Once the Office accepts a claim, it
has the burden of justifying termination or modification of compensation
benefits. It has authority under
section 8106(c)(2) of the Act to terminate compensation for any partially
disabled employee who refuses or neglects to work after suitable work is
offered. To justify termination, the
Office must show that the work offered was suitable, that the employee was
informed of the consequences of her refusal to accept such employment and that she
was allowed a reasonable period to accept or reject the position or submit
evidence or reasons why the position is not suitable and cannot be accepted.
Office
regulations provide that, in determining what constitutes “suitable work” for a
particular disabled employee, the Office considers the employee’s current
physical limitations, whether the work is available within the employee’s
demonstrated commuting area, the employee’s qualifications to perform such work
and other relevant factors.
The issue of whether an employee has the physical ability to perform a modified
position offered by the employing establishment is primarily a medical question
that must be resolved by medical evidence.
Once the Office has demonstrated that
the job offered is suitable, the burden shifts to the employee to show that his
or her refusal to work is reasonable or justified.
ANALYSIS
The Office terminated appellant’s entitlement
to compensation benefits, based on her refusal to accept an offer of suitable
employment pursuant to 5 U.S.C. § 8106(c)(2) of the Act. The
representative found that the Office had followed all procedural requirements
in terminating appellant’s benefits. The Board disagrees and finds that the Office did not properly determine that appellant
refused an offer of suitable work.
On May 4,
2005 the Office notified appellant that it found the medical support assistant
position to be suitable and properly advised her that she had 30 days to accept
the offer or provide reasons why she believed the position was not suitable.
When appellant did not accept the offer within the 30-day period, the Office
advised appellant, by letter dated June 8, 2005, that she had failed to
provide valid reasons for refusing to accept the limited-duty job and that, if
she had not accepted the position and arranged for a report date within 15 days
of the date of the letter, her entitlement to wage-loss and schedule award benefits
would be terminated. The Office stated that no additional reasons for refusal
would be accepted. It again advised appellant of the penalty provisions of
section 8106(c)(2).
Appellant
then submitted new medical evidence, including: a June 20, 2005 report of
an examination, EMG testing and nerve conduction studies of the upper and lower
extremities from Dr. Kaufman. Appellant also submitted a report of a
January 31, 2005 MRI scan of the lumbar spine and a report of a
January 31, 2005 MRI scan of the cervical spine. Although the new medical
evidence was received by the Office prior to the issuance of the June 29,
2005 decision terminating appellant’s benefits, the record demonstrates that
the Office did not review it prior to rendering its decision. Further, the
Board is unable to determine whether the hearing representative considered
Dr. Kaufman’s report in rendering his May 21, 2007 decision. In
affirming the June 29, 2005 termination decision, the hearing
representative acknowledged that the Office had disregarded all medical
evidence submitted after June 8, 2005, and the May 21, 2007 decision
does not contain a finding that the Office erred in so doing. The Board notes
that, at the April 9, 2007 hearing, the hearing representative informed appellant and her
representative that the Office had properly disregarded the medical evidence
submitted following its “15-day letter” of June 8, 2005, and that, even if
the medical evidence is convincing and overwhelming after the initial 30-day
period, the Office is not required to consider any additional medical evidence
at that time. Thus, the record strongly suggests that the hearing
representative also did not consider Dr. Kaufman’s report. The fact that
he referred to reports by Dr. Kaufman in the course of his discussion of
the medical evidence is not determinative, as the record contains other reports
from Dr. Kaufman which were previously received and considered by the
Office.
The hearing
representative’s decision also suggests that he did not review or consider the
January 31, 2005 MRI scan reports. He stated that a review of the record
indicated that Dr. Bloom had reviewed the reports prior to submitting his
February 22, 2005 report. However, the Board notes that Dr. Bloom’s report
refers only to a January 30, 2004 MRI scan report. There is nothing in the
May 21, 2007 decision, in the form of discussion, suggesting that the
hearing representative reviewed or considered the January 31, 2005 MRI
scan reports.
The Board finds that the Office acted
improperly in not considering all of the medical evidence submitted by
appellant before terminating appellant’s compensation for refusing suitable
work. The Office must review all evidence submitted by a claimant and received
by the Office prior to issuance of its final decision.
Once the Office advises a claimant that his or her reasons for refusing an
offered position are unacceptable and that he or she has 15 days to accept the
position or have compensation terminated, the claimant submits further reasons
and supporting evidence at his or her own risk. Nevertheless, the Office must
consider the reasons and evidence and can then concurrently reject them as
unacceptable and terminate compensation. As the record does not
establish that the Office has reviewed Dr. Kaufman’s June 20, 2005 report
or the January 31, 2005 MRI scan reports, the May 21, 2007 decision
terminating appellant’s wage-loss compensation on the grounds that she refused
or neglected an offer of suitable work must be reversed.
CONCLUSION
As
the Office failed to review all evidence submitted by appellant prior to
issuance of its final decision, the Board finds that the Office
improperly terminated appellant’s compensation benefits effective May 21,
2007 on the grounds that she refused an offer of suitable work.
ORDER
IT
IS HEREBY ORDERED THAT the May 21, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 26, 2008
Washington, DC
Alec J.
Koromilas, Chief Judge
Employees’
Compensation Appeals Board
David S.
Gerson, Judge
Employees’
Compensation Appeals Board
James A.
Haynes, Alternate Judge
Employees’
Compensation Appeals Board