ABUSE OF DISCRETION:
97-1178 April 26, 1999
http://www.dol.gov/ecab/decisions/1999/Apr/97-1178.htm
Claim was filed for work-related aggravation of a preexisting emotional condition. Denied on the basis that causal relationship was not established. The Board found that the claimant had submitted new legal arguments with respect to the second opinion physician's report, and had also submitted new, relevant medical evidence. The Board noted that the Office also used an incorrect legal standard when they requested the supplemental report for the second opinion physician, because a claimant is not required to prove that work factors are the sole cause of a claimed condition.
APPORTIONMENT OF CAUSAL FACTORS:
97-2497 July 22, 1999
http://www.dol.gov/ecab/decisions/1999/Jul/97-2497.htm
The Board's decision in this case serves as a reminder that in claims where both work-related and non-work-related factors are contributory, there is no requirement that the degree of disability attributable to each set of factors be delineated. Causal relationship does not denote a single causal factor, and does not preclude aggravation of a preexisting condition by employment factors. If work factors contribute in any way to the development of the condition, the condition would be considered employment-related.
CONSEQUENTIAL INJURIES:
10-0473 October 22, 2010
http://www.dol.gov/ecab/decisions/2010/Oct/10-0473.htm
03-1660 February 24, 2003
http://www.dol.gov/ecab/decisions/2003/Feb/03-1660.htm
03-1261 April 2004
http://www.dol.gov/ecab/decisions/2004/Apr/03-1261.htm
DOCTOR SHOPPING:
98-0726 May 2000
http://dol.gov/ecab/decisions/2000/May/98-0726.htm
Also see: Carlton L. Owens
FECA Manual regarding consequential injuries:
Part 2 at 2-0805-7
Larson's Workers' Compensation Law regarding consequential injuries:
The ECAB has adopted and applied the "direct and natural consequence rule" espoused by Professor Larson in his treatise on Workers' Compensation Law. This rule states;
"When the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of direct and natural results and of claimant's own conduct as an independent intervening cause. The basic rule is that a subsequent injury, whether an aggravation or the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a a compensable primary injury." Larson, supra note 5 at 10.02; Kathy A. Kelley 55 ECAB (Docket No. 03-1660, issued February 24, 2003)."
"The first group, about which there is no legal controversy, comprises the cases in which an initial medical condition itself progresses into complications more serious than the original injury; the added complications are of course compensable. Thus, if an injury results in phlebitis and this in turn leads to a cerebral thrombosis, once the work-connected character of any injury, such as a back injury, has been established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent nonindustrial cause." A. Larson, the Law of Workers' Compensation 10.02 (2000)."
"If a member weakened by an employment injury, contributes to a later fall or other injury, the subsequent injury will be compensable as a consequential injury, if the further medical complication flows from the compensable injury, i.e., so long as it is clear that the real operative factor is the progression of the compensable injury, with an exertion that in itself would not be unreasonable in the circumstances." Larson, supra note 5 at 10.01."
In the case of John R. Knox 42 ECAB 193 (1990) the Board stated:
"It is an accepted principal of workers' compensation law and the Board has so recognized that, when the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury is deemed to arise out of the employment, unless it is the result of an independent intervening cause which is attributable to the employee's own intentional conduct."
**The above Larson's passages may be quoted to OWCP exactly as I've written them.
FUNCTIONAL CAPACITY EVALUATION, (FCE):
02-1730 December 16, 2002
http://www.dol.gov/ecab/decisions/2002/Dec/02-1730.htm
07-0132 April 06, 2007
http://www.dol.gov/ecab/decisions/2007/Apr/07-0132.htm
09-2095P August 04, 2010
http://www.dol.gov/ecab/decisions/2010/Aug/09-2095P.htm
Claimant was placed in the Vocational Rehabilitation program and referred for an FCE which was performed by a physical therapist, (PT). The FCE report indicated claimant did not demonstrate maximal effort, showing self-limiting behaviors throughout the exam with complaints of increased pain but no objective signs of increased pain.
The Office proposed suspension of claimants compensation and scheduled a second FCE with the same PT. Again the PT indicated claimant did not show maximum effort and the exam did not determine functional capacity. The Office suspended claimant's benefits to zero for failure to cooperate in the Rehabilitation program.
The Board found the FCE was performed by a PT and that there was no evidence the PT reviewed any medical reports addressing claimant's medical limitations or capacity, that the PT did not adequately consider the medical evidence and the recommendations of two OWCP physician's and claimant's treating physician.
The Board also stated a PT is not considered a physician as defined by the Act under 5 U.S.C. 8101(2) and a PT's reports cannot be considered as probative medical opinion evidence. The Board also cited; James Robinson, Jr. (2002) and Vickey C. Randall (2000). The Board reversed the Office's decision and reinstated benefits.
**This is a 2010 precedent setting case and in my opinion, by far the best ECAB ruling for anyone having an issue with their FCE report. This case is stating ANY FCE not signed off on by a physician is invalid.
IMPROPER SELECTION OF IME:
09-0900 December 04, 2009
http://www.dol.gov/ecab/decisions/2009/Dec/09-0900.htm
INADEQUATE SECOP/IME REPORT:
05-1560 June 13, 2006
http://www.dol.gov/ecab/decisions/2006/Jun/05-1560.htm
07-2036 March 06, 2008
http://www.dol.gov/ecab/decisions/2008/Mar/07-2036.htm
08-0128 June 04, 2008
http://www.dol.gov/ecab/decisions/2008/Jun/08-0128.htm
09-0898 November 24, 2009
http://www.dol.gov/ecab/decisions/2009/Nov/09-0898.htm
09-1692 August 11, 2010
http://www.dol.gov/ecab/decisions/2010/Aug/09-1692.htm
10-0067 November 09, 2010
http://www.dol.gov/ecab/decisions/2010/Nov/10-0067.htm
10-0851 November 18, 2010
http://www.dol.gov/ecab/decisions/2010/Nov/10-0851.htm
10-0259 November 30, 2010
http://www.dol.gov/ecab/decisions/2010/Nov/10-0259.htm
10-0335 December 17, 2010
http://www/dol.gov/ecab/decisions/2010/Dec/10-0335.htm
JOB OFFERS:
Maggie Moore rights:
04-0344 May 17, 2004
http://www.dol.gov/ecab/decisions/2004/May/04-0344.htm
06-1931 April 11, 2007
http://www.dol.gov/ecab/decisions/2007/Apr/06-1931.htm
Physical requirements:
08-0684 September 11, 2008
http://www.dol.gov/ecab/decisions/2008/Sep/08-0684.htm
Relocation:
04-1707 December 09, 2004
http://www.dol.gov/ecab/decisions/2004/Dec/04-1707.htm
06-0760 July 18, 2006
http://www.dol.gov/ecab/decisions/2006/Jul/06-0760.htm
Suitable work:
98-0799 April 04, 2000
http://www.dol.gov/ecab/decisions/2000/Apr/98-0799.htm
08-2368 July 2009
http://www.dol.gov/ecab/decisions/2009/Jul/08-2368.htm
Temporary position:
08-2334 July 16, 2009
http://www.dol.gov/ecab/decisions/2009/Jul/08-2334/htm
LEADING QUESTIONS:
98-0726 May 24, 2000 97-1178 April 26, 1999
http://www.dol.gov/ecab/decisions/1999/Apr/97-1178.htm
Claim was filed for work-related aggravation of a preexisting emotional condition. Denied on the basis that causal relationship was not established. The Board found that the claimant had submitted new legal arguments with respect to the second opinion physician's report, and had also submitted new, relevant medical evidence. The Board noted that the Office also used an incorrect legal standard when they requested the supplemental report for the second opinion physician, because a claimant is not required to prove that work factors are the sole cause of a claimed condition.
APPORTIONMENT OF CAUSAL FACTORS:
97-2497 July 22, 1999
http://www.dol.gov/ecab/decisions/1999/Jul/97-2497.htm
The Board's decision in this case serves as a reminder that in claims where both work-related and non-work-related factors are contributory, there is no requirement that the degree of disability attributable to each set of factors be delineated. Causal relationship does not denote a single causal factor, and does not preclude aggravation of a preexisting condition by employment factors. If work factors contribute in any way to the development of the condition, the condition would be considered employment-related.
CONSEQUENTIAL INJURIES:
10-0473 October 22, 2010
http://www.dol.gov/ecab/decisions/2010/Oct/10-0473.htm
03-1660 February 24, 2003
http://www.dol.gov/ecab/decisions/2003/Feb/03-1660.htm
03-1261 April 2004
http://www.dol.gov/ecab/decisions/2004/Apr/03-1261.htm
DOCTOR SHOPPING:
98-0726 May 2000
http://dol.gov/ecab/decisions/2000/May/98-0726.htm
Also see: Carlton L. Owens
FECA Manual regarding consequential injuries:
Part 2 at 2-0805-7
Larson's Workers' Compensation Law regarding consequential injuries:
The ECAB has adopted and applied the "direct and natural consequence rule" espoused by Professor Larson in his treatise on Workers' Compensation Law. This rule states;
"When the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of direct and natural results and of claimant's own conduct as an independent intervening cause. The basic rule is that a subsequent injury, whether an aggravation or the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a a compensable primary injury." Larson, supra note 5 at 10.02; Kathy A. Kelley 55 ECAB (Docket No. 03-1660, issued February 24, 2003)."
"The first group, about which there is no legal controversy, comprises the cases in which an initial medical condition itself progresses into complications more serious than the original injury; the added complications are of course compensable. Thus, if an injury results in phlebitis and this in turn leads to a cerebral thrombosis, once the work-connected character of any injury, such as a back injury, has been established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent nonindustrial cause." A. Larson, the Law of Workers' Compensation 10.02 (2000)."
"If a member weakened by an employment injury, contributes to a later fall or other injury, the subsequent injury will be compensable as a consequential injury, if the further medical complication flows from the compensable injury, i.e., so long as it is clear that the real operative factor is the progression of the compensable injury, with an exertion that in itself would not be unreasonable in the circumstances." Larson, supra note 5 at 10.01."
In the case of John R. Knox 42 ECAB 193 (1990) the Board stated:
"It is an accepted principal of workers' compensation law and the Board has so recognized that, when the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury is deemed to arise out of the employment, unless it is the result of an independent intervening cause which is attributable to the employee's own intentional conduct."
**The above Larson's passages may be quoted to OWCP exactly as I've written them.
FUNCTIONAL CAPACITY EVALUATION, (FCE):
02-1730 December 16, 2002
http://www.dol.gov/ecab/decisions/2002/Dec/02-1730.htm
07-0132 April 06, 2007
http://www.dol.gov/ecab/decisions/2007/Apr/07-0132.htm
09-2095P August 04, 2010
http://www.dol.gov/ecab/decisions/2010/Aug/09-2095P.htm
Claimant was placed in the Vocational Rehabilitation program and referred for an FCE which was performed by a physical therapist, (PT). The FCE report indicated claimant did not demonstrate maximal effort, showing self-limiting behaviors throughout the exam with complaints of increased pain but no objective signs of increased pain.
The Office proposed suspension of claimants compensation and scheduled a second FCE with the same PT. Again the PT indicated claimant did not show maximum effort and the exam did not determine functional capacity. The Office suspended claimant's benefits to zero for failure to cooperate in the Rehabilitation program.
The Board found the FCE was performed by a PT and that there was no evidence the PT reviewed any medical reports addressing claimant's medical limitations or capacity, that the PT did not adequately consider the medical evidence and the recommendations of two OWCP physician's and claimant's treating physician.
The Board also stated a PT is not considered a physician as defined by the Act under 5 U.S.C. 8101(2) and a PT's reports cannot be considered as probative medical opinion evidence. The Board also cited; James Robinson, Jr. (2002) and Vickey C. Randall (2000). The Board reversed the Office's decision and reinstated benefits.
**This is a 2010 precedent setting case and in my opinion, by far the best ECAB ruling for anyone having an issue with their FCE report. This case is stating ANY FCE not signed off on by a physician is invalid.
IMPROPER SELECTION OF IME:
09-0900 December 04, 2009
http://www.dol.gov/ecab/decisions/2009/Dec/09-0900.htm
INADEQUATE SECOP/IME REPORT:
05-1560 June 13, 2006
http://www.dol.gov/ecab/decisions/2006/Jun/05-1560.htm
07-2036 March 06, 2008
http://www.dol.gov/ecab/decisions/2008/Mar/07-2036.htm
08-0128 June 04, 2008
http://www.dol.gov/ecab/decisions/2008/Jun/08-0128.htm
09-0898 November 24, 2009
http://www.dol.gov/ecab/decisions/2009/Nov/09-0898.htm
09-1692 August 11, 2010
http://www.dol.gov/ecab/decisions/2010/Aug/09-1692.htm
10-0067 November 09, 2010
http://www.dol.gov/ecab/decisions/2010/Nov/10-0067.htm
10-0851 November 18, 2010
http://www.dol.gov/ecab/decisions/2010/Nov/10-0851.htm
10-0259 November 30, 2010
http://www.dol.gov/ecab/decisions/2010/Nov/10-0259.htm
10-0335 December 17, 2010
http://www/dol.gov/ecab/decisions/2010/Dec/10-0335.htm
JOB OFFERS:
Maggie Moore rights:
04-0344 May 17, 2004
http://www.dol.gov/ecab/decisions/2004/May/04-0344.htm
06-1931 April 11, 2007
http://www.dol.gov/ecab/decisions/2007/Apr/06-1931.htm
Physical requirements:
08-0684 September 11, 2008
http://www.dol.gov/ecab/decisions/2008/Sep/08-0684.htm
Relocation:
04-1707 December 09, 2004
http://www.dol.gov/ecab/decisions/2004/Dec/04-1707.htm
06-0760 July 18, 2006
http://www.dol.gov/ecab/decisions/2006/Jul/06-0760.htm
Suitable work:
98-0799 April 04, 2000
http://www.dol.gov/ecab/decisions/2000/Apr/98-0799.htm
08-2368 July 2009
http://www.dol.gov/ecab/decisions/2009/Jul/08-2368.htm
Temporary position:
08-2334 July 16, 2009
http://www.dol.gov/ecab/decisions/2009/Jul/08-2334/htm
LEADING QUESTIONS:
http://www.dol.gov/ecab/decisions/2000/May/98-0726.htm
03-1725 September 22, 2003
http://www.dol.gov/ecab/decisions/2003/Sep/03-1725.htm
06-0318 July 17, 2006
http://www.dol.gov/ecab/decisions/2006/Jul/06-0318.htm
09-1012 December 14, 2009
http://www.dol.gov/ecab/decisions/2009/Dec/09-1012.htm
10-0378 September 07, 2010
http://www.dol.gov/ecab/decisions/2010/Sep/10-0378.htm
PHYSICIAN BIAS:
FECA Circular 00-08 (2007) Subject: Referee Evaluations-Claims of Bias
"The FECA Procedure Manual describes the processes for responding to various types of complaints relating to medical evaluations and reports. These include: complaints concerning physical examinations (see FECA PM Ch. 3-900-14); the process for excluding medical reports from impartial medical examinations (IME's) (see Ch. 2-0810-13)" "If the claimant or representative objects to the use of a particular IME physician prior to the examination and presents documented evidence of bias or unprofessional conduct on the part of that physician, see the FECA PM at Ch.3-550-4."
"Credible, reliable medical evidence is vital to the claims process and it is particularly important that OWCP-directed medical examinations are not compromised in any way. Where a complaint is received concerning a physician and/or challenging a medical report, the claims examiner should, [g]enerally, address the complaint in the context of the specific FECA case. The CE should first evaluate the charge and supporting evidence to determine how to proceed. In evaluating any corroborating evidence, the CE may take note of such evidence as public statements made about a physician's credibility, but such evidence (such as derogatory newspaper articles or negative statements about a physician's credibility made in other forums) would not by itself be sufficient to conclude that the physician's report cannot be considered by OWCP. The mere fact that a physician's testimony has been discredited or criticized in another forum does not necessarily discredit the report by the same physician in the OWCP claim. Rather, credibility of the physician must be based on all the facts and circumstances, and the action by OWCP must follow the appropriate procedure manual sections cited above."
"If OWCP receives a written complaint concerning a physician's professional conduct (which includes allegations concerning veracity, discrimination or bias) before or following an OWCP-directed medical examination, and that complaint is supported by credible evidence of the type detailed in the procedure manual, the CE may ask the DO manager or district medical director to help develop the evidence."
STATEMENT OF ACCEPTED FACTS:
97-2490 May 13, 1999
http://www.dol.gov/ecab/decisions/1999/May/97-2490.htm
00-0215 August 10, 2001
http://www.dol.gov/ecab/decisions/2001/Aug/00-0215.htm
01-2163 June 12, 2002
http://www.dol.gov/ecab/decisions/2002/Jun/01-2163.htm
08-1266 January 28, 2009
http://www.dol.gov/ecab/decisions/2009/Jan/08-1266.htm
09-2373 September 22, 2010
http://www.dol.gov.ecab/decisions/2010/Sep/09-2373.htm
10-0935 January 26, 2011
http://www.dol.gov/ecab/decisions/2011/Jan/10-0935.htm
VOCATIONAL REHABILITATION:
97-2729 January 14, 2000
http://www.dol.gov/ecab/decisions/2000/Jan/97-2729.htm
04-0416 August 27, 2004
http://www.dol.gov/ecab/decisions/2004/Aug/04-0416.htm
Compensation reduced to zero for non-cooperation with the vocational rehabilitation counselor. The Board found that one missed appointment without any further efforts to schedule additional appointments is not sufficient grounds to reduce claimant's compensation benefits to zero. Claimant indicated a willingness to cooperate at another time and place. The Board finds that claimant was not provided with sufficient opportunity to cooperate with vocational rehabilitation efforts. Further, the Board found the limited duty position offered by the employing establishment was not suitable. Decision set aside.
WAGE EARNING CAPACITY:
10-0684 November 01, 2010
http://www.dol.gov/ecab/decisions/2010/Nov/10-0684.htm
10-0886 November 17, 2010
http://www.dol.gov/ecab/decisions/2010/Nov/10-0886.htm
10-0259 November 30, 2010
http://www.dol.gov/ecab/decisions/2010/Nov/10-0259.htm
10-0024 December 12, 2010
http://www.dol.gov/ecab/decisions/2010/Dec/10-0024.htm
10-0995 December 13, 2010
http://www.dol.gov/ecab/decisions/2010/Dec/10-0995.htm
10-0132 December 20, 2010
http://www.dol.gov/ecab/decisions/2010/Dec/10-0132.htm
10-0801 December 21, 2010
http://www.dol.gov/ecab/decisions/2010/Dec/10-0801.htm
