OWCP’s Call to Nix a Schedule Award Runs into 2nd Opinion Troubles Before ECAB

Case File

How important can a second opinion report be in a federal workers' compensation case? A recent decision, the full text of which is available to Simply Research subscribers, spells it out.

Case

B.C. and Department of Health & Human Services, No. 23-1018 (ECAB 10/07/24).

What Happened

A registered nurse for the Department of Health & Human Services alleged that she sustained a left wrist injury while stocking IV bags in the performance of duty. The Office of Workers' Compensation Programs accepted the claim for aggravation of left wrist tendinitis and authorized left first dorsal release surgery. OWCP later accepted the nurse's claim to include major depression, pneumonia organism unspecified, and dental carries. OWCP paid the nurse wage-loss compensation.

Later, the nurse filed a claim for an additional schedule award, which OWCP denied. The nurse appealed to the Employees' Compensation Appeals Board, which sent her case back to OWCP to determine whether the nurse had greater than 25% permanent impairment of her right upper extremity, greater than 75% permanent impairment of the left upper extremity, and any permanent impairment of her lower extremities.

Eventually, OWCP granted the nurse a schedule award for an additional 1% impairment of the right upper extremity, and 23% permanent impairment of the left upper extremity. The period of the award was for 74.88 weeks. Later, OWCP rescinded the award for an additional 1% permanent impairment of the right upper extremity, prompting the nurse to appeal to ECAB.

Rule of Law

OWCP bears the burden of proof to justify rescission of acceptance based on new evidence, legal argument, or rationale. Probative and substantial positive evidence or sufficient legal argument must establish that the original determination was erroneous. OWCP must also provide a clear explanation of the rationale for rescission.

What ECAB Said

According to the board, OWCP didn't meet its burden of proof to rescind the nurse's schedule award for an additional 1% permanent impairment of her right upper extremity.

Specifically, ECAB pointed out that once OWCP undertook development of the evidence, it was required to obtain a proper evaluation and report regarding the issue in the case, which it did not do because it did not obtain what it needed to from the second opinion physician in the case. Instead, despite referring the nurse to a second opinion physician who was to complete a physical examination of the nurse's right upper extremity and rating of the nurse's permanent impairment, OWCP issued the decision to rescind the nurse's schedule award without obtaining the second physician's supplemental report.

"As OWCP did not obtain a supplemental report from [the] second opinion physician ... , prior to rescinding the schedule award for an additional 1% permanent impairment right upper extremity, the Board finds that OWCP failed to meet its burden of proof," ECAB wrote.

Thus, ECAB reversed OWCP's decision.

Takeaway

The lack of a second opinion physician's report sunk OWCP's decision to rescind an award.

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