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United States Department of Labor
Employees’ Compensation Appeals Board
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R.M., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL CENTER, Kansas City, MO, Employer
__________________________________________
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Docket No. 08-528
Issued: June 23,
2008
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Appearances: Case
Submitted on the Record
Houston Ford, Jr., for the appellant
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
ALEC J. KOROMILAS,
Chief Judge
COLLEEN DUFFY KIKO,
Judge
MICHAEL E. GROOM,
Alternate Judge
JURISDICTION
On December 13, 2007 appellant,
through his representative, filed a timely appeal of the Office of Workers’
Compensation Programs’ May 1 and November 16, 2007 merit decisions finding
that his compensation benefits should be suspended. 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 met its burden of proof to suspend appellant’s compensation benefits under
section 8113(b) of the Federal Employees’ Compensation Act on the grounds that
he refused to cooperate with his assigned field nurse.
FACTUAL HISTORY
This case has previously been
on appeal before the Board.
On November 24, 2004 appellant, then a 47-year-old mail handler, filed a
traumatic injury claim alleging that he tripped and fell off of a forklift
injuring his feet, left knee, head, neck, right shoulder and low back. The
Office accepted appellant’s claim for neck strain, right shoulder contusion, head
contusion and sprained right ankle.
The Office referred appellant
to Diane McCarthy for medical management services and directed her to provide
professional services for contact with the employee, employer and attending
physician and to develop an appropriate medical management plan. On
February 22 and 24, 2005 appellant telephoned the Office to request that a
different field nurse be assigned. He noted that Ms. McCarthy had been
assigned as his field nurse in his previous claim and contended that she was dishonest,
racially prejudiced and unethical. In a letter dated March 1, 2005,
Ms. McCarthy stated that she had been unable to reach appellant by
telephone and informed him that she had scheduled a medical appointment for
him. In a letter dated March 10, 2005, the Office informed appellant that
his refusal without good cause to meet with the field nurse would be seen as a
refusal to undergo vocational rehabilitation and could result in reduction of
his compensation benefits to zero. The Office allowed appellant 30 days for a
response. Appellant responded on March 24, 2005 and repeated his charges
against Ms. McCarthy.”
By decision dated May 18,
2005, the Office suspended appellant’s compensation benefits effective
May 18, 2005 under section 8113(b) of the Act and section 10.519 of the implementing
federal regulations. The Office found that as appellant did not cooperated
with his field nurse, he had not cooperated with vocational rehabilitation
efforts.
Appellant requested an oral
hearing on November 20, 2005. By decision dated June 15, 2006,
the Branch of Hearings and Review denied his request for an oral hearing as
untimely.
Appellant requested
reconsideration on July 7, 2006. By decision dated August 24,
2006, the Office declined to reopen his claim for consideration of the merits
on the grounds that his request for reconsideration was not timely and did not
contain clear evidence of error. Appellant appealed this decision to the Board.
By decision dated March 14, 2007, the Board remanded the case for the
Office to review the merits of appellant’s claim as the Branch of Hearings and
Review had delayed action on his untimely request for an oral hearing for more
than six months. The facts and the circumstances of the case as set out in the
Board’s prior decision are adopted herein by reference.
By decision dated May 1,
2007, the Office reviewed the merits of appellant’s claim and found that he had
failed to cooperate with the field nurse and denied modification of its
May 18, 2005 decision.
Appellant, through his
representative, requested reconsideration on August 22, 2007 and submitted
evidence that he was willing to cooperate with nursing services. By decision
dated November 16, 2007, the Office reviewed the merits of appellant’s
claim and found that he had not submitted sufficient evidence to warrant
modification of the May 18, 2005 decision.
LEGAL PRECEDENT
Once the Office
has accepted a claim, it has the burden to support that the disability has
ceased or lessened before it may terminate or modify compensation benefits.
Section 8104(a) of the Act
pertains to vocational rehabilitation and provides: “The Secretary of Labor
may direct a permanently disabled individual whose disability is compensable
under this subchapter to undergo vocational rehabilitation. The Secretary
shall provide for furnishing the vocational rehabilitation services.” Under
this section of the Act, the Office has developed procedures by which an
emphasis is placed on returning partially disabled employees to suitable
employment and/or determining their wage-earning capacity.
If it is determined that the injured employee is prevented from returning to
the date-of-injury job, vocational rehabilitation services may be provided to
assist returning the employee to suitable employment.
Such efforts will be initially directed at returning the partially disabled
employee to work with the employing establishment.
Where reemployment at the employing establishment is not possible, the Office
will assist the claimant to find work with a new employer and sponsor necessary
vocational training.
Section 8113(b) of the Act
provides: “If an individual without good cause fails to apply for and undergo
vocational rehabilitation when so directed under section 8104 of this title, the
Secretary, on review under section 8128 of this title and after finding that in
the absence of the failure the wage-earning capacity of the individual would
probably have substantially increased, may reduce prospectively the monetary
compensation of the individual in accordance with what would probably have been
her wage-earning capacity in the absence of the failure, until the individual
in good faith complies with the direction of the Secretary.”
The Office’s regulations
address failure to undergo vocational rehabilitation, stating:
“If an employee without
good cause fails or refuses to apply for, undergo, participate in, or continue
to participate in a vocational rehabilitation effort when so directed, [the
Office] will act as follows--
“(a) Where a suitable job
has been identified, [the Office] will reduce the employee’s future monetary
compensation based on the amount which would likely have been his or her
wage-earning capacity had he or she undergone vocational rehabilitation. [The
Office] will determine this amount in accordance with the job identified
through the vocational rehabilitation planning process which includes meetings
with [the Office] nurse and the employer. The reduction will remain in effect
until such time as the employee acts in good faith to comply with the direction
of the [the Office].
“(b) Where a suitable job
has not been identified, because the failure or refusal occurred in the early
but necessary stages of a vocational rehabilitation effort, (that is, meetings
with the [Office] nurse, interviews, testing counseling, functional capacity
evaluations and work evaluations), [the Office] cannot determine what would
have been the employee’s wage-earning capacity.
“(c) Under the
circumstance identified in paragraph (b) of this section, in the absence of
evidence to the contrary, [the Office] will assume that the vocational
rehabilitation effort would have resulted in a return to work with no loss of
wage-earning capacity and [the Office] will reduce the employee’s monetary compensation
accordingly (that is, to zero). The reduction will remain in effect until such
time as the employee acts in good faith to comply with the directions of [the
Office].”
ANALYSIS
The Office accepted appellant’s
claim for neck strain, right shoulder contusion, head contusion and sprained
right ankle. By letter dated February 16, 2005, the Office advised
appellant that Ms. McCarthy was assigned to him for medical management
services. The Board finds that the record does not establish that the Office’s
field nurse was involved in a vocational rehabilitation effort. As the Board
noted in Ozine J. Hagan,
the regulations do not equate the assignment of an Office nurse with vocational
rehabilitation. While the regulations state that the vocational rehabilitation
planning process may include meetings with a nurse,
a meeting with a nurse may concern matters unrelated to vocational
rehabilitation, such as medical management. When there is no evidence of
vocational rehabilitation services, such as referral to a rehabilitation
counselor, discussion of a rehabilitation plan, assessment of vocational
skills, retraining or assistance in finding work, then it is improper for the
Office to reduce appellant’s compensation under 5 U.S.C. § 8113(b).
The February 16, 2005 letter
was not a referral for vocational rehabilitation; rather, it was a referral for
nurse intervention to work with appellant on medical management to facilitate his
return to work. By letter dated March 10, 2005, the Office advised that
appellant’s refusal to cooperate with the field nurse was seen as a refusal to
undergo vocational rehabilitation. However, there is no evidence to support a
finding that the referral to nurse management was pursuant to a vocational
rehabilitation plan. In the February 16, 2005 letter to the nurse, the
Office emphasized that her function was to provide medical management services.
There is no mention of any plan to assess appellant’s vocational skills,
retrain him for a different position and assist him in finding work.
The Board finds that the field
nurse’s activities were limited to the role set forth in the Office’s
procedures, i.e., of attempting to return appellant to work at the
employing establishment and providing medical management services, a preliminary
reemployment effort which does not constitute vocational rehabilitation as
contemplated under the Act, the implementing regulations or the Office’s
procedures.
Appellant’s refusal to cooperate with the nurse intervention program does not
constitute a failure or refusal to cooperate with the early or necessary stages
of vocational rehabilitation under section 8113 of the Act. The Office’s
application of section 8113 to suspend appellant’s monetary compensation was in
error. Consequently, it did not meet its burden of proof in reducing appellant’s
monetary compensation benefits.
CONCLUSION
The Board finds that the
Office failed to meet its burden of proof in reducing appellant’s monetary
compensation to zero on the grounds that he did not cooperate with vocational
rehabilitation. Appellant is entitled to reinstatement of his compensation
retroactive to the date of suspension on May 18, 2005.
ORDER
IT
IS HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation
Programs dated November 16 and May 1, 2007 are reversed.
Issued: June 23, 2008
Washington, DC
Alec J.
Koromilas, Chief Judge
Employees’
Compensation Appeals Board
Colleen
Duffy Kiko, Judge
Employees’
Compensation Appeals Board
Michael E.
Groom, Alternate Judge
Employees’
Compensation Appeals Board