United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.S., Appellant 

and 

U.S. POSTAL SERVICE, VEHICLE 

MAINTENANCE FACILITY, Bellmawr, NJ, 

Employer 

__________________________________________ 

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Docket No. 15-1018 

Issued: September 10, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

On April 2, 2015 appellant filed a timely appeal of a December 5, 2014 decision of the 

Office of Workers’ Compensation Programs (OWCP), denying a claim for an additional 

schedule award.1 The appeal was docketed as No. 15-1018. 

The record indicates that OWCP selected Dr. Alfred Dawson, a Board-certified 

orthopedic surgeon, to resolve a conflict in the medical evidence with respect to permanent 

impairment to the extremities. Dr. Dawson submitted a September 23, 2010 report. By decision 

dated June 18, 2011, OWCP found that he did not resolve the conflict. A memorandum of 

telephone call dated August 31, 2011 indicated that OWCP spoke to Dr. Dawson regarding 

diagnostic testing and medical report requirements. Dr. Dawson submitted a March 21, 2012 

report on April 9, 2012. OWCP again spoke with him on the telephone on April 11, 2012, again 

 1

 The hearing representative found that referee physician, Dr. Timothy Wagner, a Board-certified orthopedic 

surgeon, represented the weight of the evidence. Appellant had received a June 28, 2004 schedule award decision 

for a five percent left arm impairment, and a January 31, 2013 decision for a five percent right arm permanent 

impairment. By decision dated June 14, 2006, the Board had remanded the case for further development regarding 

the left arm permanent impairment. Docket No. 06-0154 (issued June 14, 2006). In an earlier appeal, the Board 

reversed a December 29, 2000 termination of compensation decision. Docket No. 02-0802 (issued 

August 27, 2002). 
2

discussing the medical report requirements for the issue presented. Dr. Dawson submitted an 

additional report dated April 12, 2012. 

An OWCP hearing representative, in a decision dated August 15, 2013, found that the 

telephone communication with Dr. Dawson was improper and the supplemental reports from 

Dr. Dawson must be excluded from the record. This is consistent with long-standing Board 

precedent regarding improper contact between OWCP and a referee physician.2

 

OWCP procedures have specific requirements for medical reports that must be excluded 

from consideration. A memorandum is written explaining why the reports are excluded.3

 The 

referee report and any clarification reports are then combined with the exclusion memorandum, 

and the combined document is entered into the record as “MISC/memo to file” rather than 

medical evidence. The author date and received date is the date of the memorandum.4

 Letters to 

a physician who is sent medical evidence should instruct the physician to disregard the excluded 

report.5

 

OWCP did not follow any of its procedures with respect to excluded medical reports in 

this case. No memorandum was prepared, the reports were untouched in the record, and no 

reference was made to the excluded reports in a statement of accepted facts or other document. 

It is not clear whether the reports were provided to the new referee physician, Dr. Wagner. The 

purpose of the procedures regarding exclusion of medical reports is to make it clear to physicians 

and others that certain medical evidence is not to be considered in rendering a decision. 

The case will be remanded for OWCP to properly follow its procedures regarding 

exclusion of medical reports. After excluding the medical evidence that was improperly 

obtained, OWCP should select a new referee physician and resolve the conflict in the medical 

evidence. After such further development as is deemed necessary, it should issue an appropriate 

decision. 

 2 See J.F., Docket No. 08-1182 (issued June 18, 2009); Carlton L. Owens, 36 ECAB 608 (1985). 

3

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.12(b) (September 2010). 

4 Id. 

5 Id. 
3

IT IS HEREBY ORDERED THAT the December 5, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further action 

consistent with this order of the Board. 

Issued: September 10, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board