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U. S. DEPARTMENT OF
LABOR
Employees’ Compensation Appeals Board
____________
In the Matter of
RHODA L. TILLER and DEPARTMENT OF THE AIR FORCE,
TINKER AIR FORCE
BASE, Okla.
Docket No. 99-118;
Submitted on the Record;
Issued June 25,
1999
____________
DECISION and ORDER
Before MICHAEL J.
WALSH, DAVID S. GERSON,
MICHAEL E. GROOM
The issue is whether the Office of
Workers’ Compensation Programs met its burden of proof to terminate appellant’s
compensation benefits on the grounds that she abandoned suitable work.
In the present case, the Office accepted
that appellant, an instrument mechanic, sustained bilateral carpal tunnel
syndrome on or about November 18, 1987 in the performance of her federal
employment. She underwent several surgical procedures for treatment of the
accepted condition. Appellant worked intermittently in light-duty positions
until May 17, 1989, when she stopped work. Based upon the reports of her
treating physicians, Dr. Houshang Seradge, a Board-certified hand
surgeon, dated January 19, 1994 and Dr. Stephen W. Mihalsky, a
hand surgeon, dated May 18, 1994 the Office offered appellant a position
as a supply clerk. On July 28, 1994 appellant accepted the temporary
supply clerk position. Appellant returned to work in this position on August 8,
1994. On September 2, 1994 the Office determined appellant’s loss of
wage-earning capacity based upon her actual earnings in the supply clerk
position.
On September 27, 1994 Dr. Grover
Harrison, a Board-certified general practitioner, reported that due to
appellant’s chronic pain, he recommended that appellant work only six hours a
day. On September 28, 1994 appellant commenced working six hours a day.
On November 30, 1994 the Office
advised appellant that the supply clerk position, eight hours a day, had been
determined to be suitable and that the position remained available. She was
advised that she would have 30 days to accept the position or advise why she
would not accept the position, for eight hours a day. The Office also advised
appellant that pursuant to 5 U.S.C. § 8106(c)(2) if a claimant refused
suitable work, compensation for wage loss and schedule award would be
terminated.
On May 10, 1995 the Office terminated
appellant’s compensation benefits, effective May 28, 1995, on the grounds
that appellant neglected to work eight hours a day after suitable work was
offered to her. An Office hearing representative affirmed the Office’s
March 28, 1995 decision on April 18, 1997. The Office denied
modification of the prior decision, after merit review, on October 3,
1997.
Once the Office accepts a claim, it has
the burden of justifying termination or modification of compensation benefits.
Pursuant to section 8106(c)(2) of the Act,
the Office may terminate the compensation of a partially disabled employee who
refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee.
To justify termination, the Office must show that the work offered was suitable
and must inform appellant of the consequences of refusal to perform such
employment and must provide appellant a reasonable opportunity to respond.
In the present case, appellant did accept
the suitable work position and worked in the position for eight hours a day
until September 27, 1994. On September 28, 1994 appellant commenced
working six hours a day, as of February 1995 she worked four hours a day. The
record indicates that appellant retired in March 1995. The issue in the case
is not whether appellant refused the suitable work position, but rather whether
appellant abandoned the position once she commenced working less then eight
hours a day.
The Board finds that the Office did not
meet its burden of proof to terminate appellant’s compensation benefits for
abandonment of suitable work.
In the present case, the Office found that
a supply clerk position, eight hours a day, was suitable based upon the report
of the impartial medical specialist, Dr. Ghazi M. Rayan, a
Board-certified hand surgeon, dated November 1, 1994. While the Office
referred to Dr. Rayan as an impartial medical specialist and found that
his report was entitled to special weight, the Board finds that Dr. Rayan
was not an impartial medical specialist in this case. The issue in this case
is whether appellant abandoned suitable work as of September 28, 1994 when
she reduced her hours from eight hours of work a day, to six. Appellant
submitted reports from Dr. Harrison and Dr. Seradge which stated that
appellant had attempted to work eight hours a day, but could not, and that
therefore as of September 28, 1994 she was only to work six hours a day.
Dr. Rayan, however, was the first physician to whom the Office referred
appellant after she returned to the suitable work position in August 1994 and
after she reduced her work hours in September 1994. At the time that the
Office referred appellant to Dr. Rayan, there was no conflict in the
medical opinion evidence regarding appellant’s ability to work eight hours a
day as Dr. Rayan was the first physician to whom appellant was referred
after she returned to work in August 1994 and attempted to work in the position
for eight hours a day. The Board also notes that in referring appellant to
Dr. Rayan and in advising Dr. Rayan of appellant’s evaluation, the
Office stated that he was to provide a second opinion evaluation, not an
impartial medical evaluation. Therefore as there was no conflict in the
medical opinion evidence at the time the Office referred appellant to
Dr. Rayan, and as Dr. Rayan was selected as a second opinion
physician, the Board finds that Dr. Rayan was a second opinion physician,
not an impartial medical specialist and that his report was not entitled to
special weight.
In his report dated November 1, 1994,
Dr. Rayan concluded that appellant had residual symptoms and weakness from
bilateral carpal tunnel release, but that she had no evidence of cubital tunnel
syndrome. He also indicated that appellant may have irritation of the ulnar
nerves to the elbow, but with no neurological deficits. Dr. Rayan
concluded that appellant could continue performing the supply clerk position,
for eight hours a day.
On October 12, 1994 Dr. Seradge
reported that when he last examined appellant on August 1, 1994 her
condition had stabilized. However, on current examination, appellant had
informed him that she had attempted to return to work, but was unable to
perform the work assigned to her. Dr. Seradge stated that on clinical
examination appellant had some evidence of her carpal tunnel syndrome, and that
upon his review of appellant’s medical file, it was documented that appellant
also had thoracic outlet syndrome. He opined that appellant’s syndromes at the
thoracic outlet and at the wrist were such that appellant may not be suited for
gainful employment. Dr. Seradge also completed a work status report on
October 12, 1994 wherein he indicated that appellant could work six hours
a day, with restrictions. On November 14, 1994 appellant was examined by
Gary L. Massad, a treating physician. Dr. Massad concluded that
appellant remained symptomatic and had continued to be symptomatic from 1988
through 1994, as documented by various objective studies. He related that he
had reviewed the duties of the supply clerk position, and opined that appellant
would need restrictions to medically manage her condition and would probably
not be able to inventory equipment in a timely manner due to her bilateral
upper extremity problems.
A conflict therefore existed in the
medical opinion evidence as of November 30, 1994, the date upon which the
Office advised appellant that the supply clerk position was suitable, as to
whether appellant could perform the supply clerk position, for eight hours a
day.
Dr. Seradge continued to submit
reports to the record wherein he indicated that appellant had undergone a
functional capacity evaluation in December 1994, during which appellant
exhibited symptom exaggeration, and inappropriate illness behavior, but that
appellant should be considered for medical retirement as she “may not be suited
for gainful employment” due to her long-term medical problems and residual
problems of her upper extremities. The Office never requested that
Dr. Seradge clarify whether appellant could return to work in the supply
clerk position, for eight hours a day, before terminating her compensation
benefits. The Office therefore never resolved the conflict in the medical
opinion evidence regarding appellant’s ability to work eight hours a day in the
supply clerk position.
The Board also finds that the Office did
not provide appellant due process prior to terminating her compensation
benefits.
The Board has clarified that in cases
where compensation is terminated pursuant to 5 U.S.C. § 8106(c), the
essential requirements of due process “notice and an opportunity to respond,”
apply not only where an employee refuses suitable work, but also apply in the
same force to those cases where an employee abandons suitable work.
In the present case, the Office advised appellant on November 30, 1994
that the position to which she returned was “suitable work.” The Office
granted appellant 30 days in which to advise why she was not working in the
position eight hours a day. On May 10, 1995 the Office terminated
appellant’s compensation benefits for neglect of suitable work. The Board has
explained in Maggie Moore, that the Office must not only inform each
claimant of the provisions of section 8106(c)(2), but also that a specific
position is suitable; the consequences of refusal of the position; and allow
the claimant a reasonable period to accept or reject the position or submit
evidence or reasons why the position is not suitable and cannot be accepted.
The Board clarified that if the claimant submits evidence or reasons or both,
the Office must evaluate the new evidence or reasons submitted and must inform
the claimant as to whether the evidence or reasons submitted were accepted or
rejected. The Office must also inform the claimant at that time of its final
intentions, and the Office must give a reasonable period of time for the
claimant to make a decision as to whether to accept or reject the position.
In the present case, the Office did not provide appellant the required due
process. After the Office advised appellant that the position was suitable at
eight hours a day, appellant submitted additional medical evidence to the
Office. The Office did not, however, advise appellant that it had considered
the additional evidence, did not advise appellant of its intentions, and did
not provide appellant a final opportunity to return to the position for eight
hours a day, before termination of her compensation benefits on May 10,
1995.
As the Office did not establish that
appellant abandoned suitable work and as the Office did not provide appellant
due process prior to termination of her compensation benefits, the Office did
not meet its burden of proof in this case.
The decision of the Office of Workers’ Compensation
Programs dated October 3, 1997 is hereby reversed.
Dated, Washington, D.C.
June 25, 1999
Michael
J. Walsh
Chairman
David
S. Gerson
Member
Michael
E. Groom
Alternate
Member