In the federal workers compensation claim of Anderson v. Department of Air Force (ECAB 98-726) the government sent the claimant out to three different hired doctors to review the claimant's injury claim.  All three of the government's own hired doctors wrote reports that the claimant was indeed injured on the job and in need of ongoing medical care.  Not giving up, the government sent the claimant out to a fourth doctor they hired, changed the actual facts of the case, and asked that doctor to issue a report for pay as to whether the claimant was injured.  That doctor wrote a report finding in favor of the government and against the claimant.  The claimant appealed that decision to terminate his compensation benefits. 

 

On appeal the Employees Compensation Appeals Board, in a rare case, did not directly fault the government for repeatedly sending out the claimant to one doctor after another.  Instead the Board held that the determination of the need for an examination, the type of examination, the choice of locale, and the choice of medical examiners are matters within the province and discretion of the government. The only limitation on this government authority is that of "reasonableness" which of course the government itself will decide. 

 

On April 29, 2003 appellant, then a 49-year-old letter carrier, sustained injury to his left knee while exiting a mail truck in the performance of duty. The Office accepted his claim for sprain of the left knee. It also accepted the claim for closed dislocation of the lumbar vertebra. Appellant returned to work.

The OWCP sent the claimant to an IME, Dr. Soren. He noted that there were no current findings pertaining to the knee and found that the accepted left knee sprain had resolved. Regarding the back, Dr. Soren explained that the findings were minimal and opined that there were no residuals related to the employment injury. He found that appellant could return to his regular duties as a letter carrier on a full-time basis and had reached maximum medical improvement in terms of the left knee and the low back. The Office terminated appellant's compensation benefits.

The ECAB overruled the OWCP on appeal.

Regarding the accepted subluxation of the lumbar vertebra, the Board notes that Dr. Soren reported that an x-ray report of the lumbar spine revealed a minor wedging of the T12 vertebral body and opined that this condition was not causally related. He stated that there were minimal findings pertaining to appellant's back and opined that there were no residuals of the April 29, 2003 work injury. The Board finds that Dr. Soren's report is not sufficient to resolve the conflict regarding whether appellant's accepted lumbar subluxation had resolved. In noting the wedging of the T12 vertebral body, Dr. Soren advised that the condition was not work related; however, the Office accepted a vertebral dislocation or subluxation. The question posed to Dr. Soren was whether the work-related condition had resolved, not whether appellant had sustained a work-related vertebral dislocation. The Board has held that a medical expert should only determine the medical question certified to him. Dr. Soren improperly engaged in an analysis of the legal issues of the case when he stated that the wedging of the vertebral body at T12 was not work related where the Office had accepted a dislocation. He did not otherwise address the accepted dislocation of the lumbar vertebra in the portion of his report addressing whether appellant's accepted conditions had resolved. Dr. Soren did not offer any explanation or rationale regarding why appellant's accepted back condition had resolved.

The Board finds that Dr. Soren's opinion is not based upon a proper factual background and is not fully rationalized. Consequently, his report does not resolve the medical conflict with regard to appellant's accepted back condition. Therefore, the Office did not meet its burden of proof to terminate compensation benefits
DV v. USPS ECAB 09-1011