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United States Department of Labor

Employees’ Compensation Appeals Board





A.C., Appellant




















Docket No. 09-900

Issued: December 4, 2009

Appearances:                                                                          Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant

Office of Solicitor, for the Director








JAMES A. HAYNES, Alternate Judge





On February 23, 2009 appellant filed a timely appeal from the Office of Workers’ Compensation Programs’ merit decision dated November 24, 2008, denying modification of a termination of compensation decision.  Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this case.



The issue is whether the Office met its burden of proof to terminate compensation for wage-loss and medical benefits effective April 12, 2005.



The case was before the Board on a prior appeal.[1]  In a decision dated November 20, 2007, the Board remanded the case to the Office for a proper determination as to appellant’s subpoena request.  The history of the case as provided in the Board’s prior decision is incorporated herein by reference.

In a letter dated June 16, 2008, the Department of Labor Solicitor’s Office advised appellant’s counsel that, pursuant to his request under the Freedom of Information Act, it was providing eight pages of information regarding the Physicians Directory System (PDS) for specified zip codes.  By decision dated August 4, 2008, an Office hearing representative affirmed the April 12, 2005 termination decision.  She found that the weight of the evidence was represented by the referee physician, Dr. Stanley Askin, a Board-certified orthopedic surgeon.  With respect to a subpoena request, the hearing representative found the issue was moot as the requested information had been provided to appellant.  She also found there was no evidence that Dr. Askin had been improperly selected, as appellant did not request to participate in the selection process and did not object until after the scheduled examination.

Appellant requested reconsideration of his claim.  By decision dated November 24, 2008, the Office denied modification.  It stated that there were 29 physicians contacted as part of the selection process and Dr. Askin was the first to agree to perform the examination.



Once the Office accepts a claim, it has the burden of justifying termination or modification of compensation.  After it has been determined that an employee has disability causally related to his employment, the Office may not terminate compensation without establishing that the disability had ceased or that it was no longer related to the employment.[2]



On appeal, appellant’s counsel argues that Dr. Askin was improperly selected as a referee physician as the Office improperly bypassed physicians before selecting Dr. Askin.  Appellant makes a specific argument on the issue:  the PDS information shows that on January 20, 2004 approximately 30 physicians were bypassed as “too busy for exam” based on telephone calls occurring over a period of less than six minutes.  He had raised an issue regarding the selection of Dr. Askin in a November 22, 2004 letter to the Office, and the PDS information was submitted to the record on February 9, 2005.[3]

The Office has not addressed the specific argument raised regarding the application of the PDS in this case.  The August 4, 2008 Office decision states that appellant did not raise objections until after the scheduled examination.  In this case, the evidence on which appellant relies on was not in the record prior to the scheduled examination on January 30, 2004.  The November 24, 2008 Office decision lists the bypassed physicians and states Dr. Askin was the first to agree to the examination and, therefore, the PDS selection process was proper.  The Office did not respond to the specific argument and address the information provided in the bypass documents and explain how this comported with the referee selection procedure.  The Board finds that the Office has an obligation to verify that it selected Dr. Askin in a fair and unbiased manner.[4]  Appellant is entitled to a decision with findings of fact and a statement of reasons,[5] and the Office failed to provide a proper decision in this case.



The Board finds that the Office did not issue an appropriate decision that addressed the specific arguments by appellant regarding the selection of the referee physician.



IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation Programs dated November 24 and August 4, 2008 are reversed.

Issued: December 4, 2009

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

[1] Docket No. 07-289 (issued November 20, 2007).

[2] Patricia A. Keller, 45 ECAB 278 (1993).

[3] Appellant’s counsel sought additional information regarding the selection of Dr. Askin in his November 22, 2004 letter.  In a March 7, 2006 letter, counsel stated that information provided at a February 23, 2006 hearing showed only 6 physicians had been bypassed, but he had received a copy of the file showing 29 physicians were bypassed.

[4] See M.A., 59 ECAB ___ (Docket No. 07-1344, issued February 19, 2008).  The Office procedures for selecting a referee physician are at Federal (FECA) Procedure Manual, Part 3 -- Claims, Medical Examinations, Chapter 3.500.4(b)(4) (May 2003). 

[5] 20 C.F.R. § 10.126.