Opposition Brief — McDougal-Saddler v. Herman

a oe

Supreme Court, U.S.

| FILED

7 MART Oonnn |

No. 99-1144

Jn the Supreme Court of the hited’ States |

a)

CLEOPATRA MCDOUGAL-SADDLER, PETITIONER

Vv.

ALEXIS M. HERMAN, SECRETARY OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

HENRY L. SOLANO

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

EDWARD D. SIEGER

Attorney

Department of Labor

Washington, D.C. 20210

seein

QUESTIONS PRESENTED

Section 8128(b) of Title 5, United States Code, pro-

vides that a decision of the Secretary of Labor in allow-

ing or denying a payment under the Federal Employ-

ees’ Compensation Act (FECA) “is (1) final and conclu-

sive for all purposes and with respect to all questions of

law and fact; and (2) not subject to review by another

official of the United States or by a court by mandamus

or otherwise.” The questions presented are:

1. Whether Section 8128(b) precludes a district court

from reviewing a decision of the Secretary denying

payment under FECA where the claimant alleges that

the Secretary violated a clear statutory mandate.

2. Whether the Secretary violated a clear statutory

mandate by declining to appoint an additional physician

to examine petitioner.

(I)

TABLE OF CONTENTS

INI stiheslscihacbatacbsscschtiephinsndioheiedadiondameaitecdicc.s.

Jurisdiction .. shaabnnnlniintesiatichinnbtsiasiahihiliihanedaita

SITTIN sesvsieationnessirvsesticotindiinsistisesetinesicisiniobigsiocesoc..

TABLE OF AUTHORITIES

Cases:

Avedis v. Herman, 25 F. Supp. 2d 256 (S.D.N.Y.

1998), appeal withdrawn, No. 99-6053 (2d Cir.

IN A I Shlain sittsbencacosnsdesinconinericssnmmmeneee..

EN MEY telah dSintienle hepasiinshdeceasccince ee

Dismuke v. United States, 297 U.S. 167 (1986) ..............

Hanauer v. Reich, 82 F.3d 1304 (4th Cir. 1996) .............

Mason, In re, 4 E.C.A.B. 96 (1950) .

Owens v. Brock, 860 F.2d 1363 (6th Cir. 1988) ...............

Phares, In re, 15 E.C.A.B. 146 (1963) ..

(III)

IV

Cases—Continued: Page

Paluca v. Secretary of Labor, 813 F.2d 524 (Ist

Cir.), cert. denied, 484 U.S. 943 (1987) ........cccccsessessesees 10, 17

Soderman v. Civil Serv. Comm’n, 313 F.2d 694

(9th Cir. 1962), cert. denied, 372 U.S. 968 (1963) ............. 16

Soeken v. Herman, 35 F. Supp. 2d 99 (D.D.C.

1999), aff’d mem., No. 99-511, 1999 WL 1215942

GEE EP, BU. Bis MIO visiatincsiitieninecseniiicsetinecntniinnnnnteiininnitin 11

Southwest Marine, Inc. v. Gizoni, 502 U.S. 81

CRIED ccicninscvscsssesssiteiigietptciatahieieicabldnihidesbainaniiestiasabaieniesds 9

Staacke v. Secretary of Labor, 841 F.2d 278 (9th

CO TI ahs acithencaiicinsgectin eieciantntadaeahadaeeiehle 9,10, 11

Thunder Basin Coal Co. v. Reich, 510 U.S. 200

CREED cssiciisinctsninescincinctaiteabnscieieahsiicicbapiaiibbedtithdaiaiainintciitenitabteoainbinn 15

Traynor v. Turnage, 485 U.S. 535 (1988) ........s-esrereees 16, 17

United States v. Fausto, 484 U.S. 439 (1988) ..........0000 15, 16

White v. United States, 143 F.3d 232 (5th Cir.

SUID sicesacpitaiindasiscctiditeeseieaantehesiindeabiadiaiassalinasanciibaliaiatiatinasibeain 9

Pe, OD Uh, is ee ED ciiiececeieencicensececenentstntencennee 13

Woodruff v. Department of Labor, 954 F.2d 634

CE Ce ee eases eikiheecsiaceencccsigeininisicahinicaiecnes 9-10

Statutes and regulations:

Rehabilitation Act of 1973, 29 U.S.C. 794 ...........cccccsssseeeeseees 17

Federal Employees’ Compensation Act (FECA),

5 U.S.C. 8101 et seq.:

EF aera: III whisstensinisienacctiiciecniestinitjuateicnieniiiapisinaitdneianpeia 2

DUET: EEE ‘cictsstatecsicsninisccesniesnutmatannennsiniitanaiinnaiay 2

DUE, RIOD serrireesesnsieccoriceees 3, 4, 5, 6, 7, 8, 12, 14, 17

Eee I ceceiicshcareeiesisocitinasdichaitencetngsninemeinaaintitiaiaiaeians 3,8

BE a Se teieersciiinasesteercteninanectientinenniinntintnanntiais 12

© Ree Bae ietoricdicteetesecresninensincaninstinicneninsisicnanasutiioenctean 3

Bs SD setnittrinanssirseneinmnceamees seuatiiensepnlinenunie 9

5 U.S.C. 8128(b) . passim

DCRR ITD sctecsenicansasscninaninsncimentininitasnieniiemainiint 6

TE eaa MOU saeesichsiscininesintapnnittenssicinntiinintaraeestinhaaiiatitns 2, 8,12

© RA GOD ccciemnntsccretsecncnennmennnnnmnenninecimnnsiutenvion 2,9

V

Statute and regulations—Continued:

Ue ns UN se

PR ie Oe IO cticacisicednietinuicctterge es

eect rg ogg NEIET At E A E ORCI Soe NAIR

spice ce, SEDAN SRL OORT

ct ne oe A NAS ORE EOD BONG

“ee tet cee a EE OTT AONE ET

ete eee ecco, SE I TED TET PEE OA

wet RoI eee

rte erie bps se kc

Miscellaneous:

63 Fed. Reg. (1998):

aS petsinteiinctslaicasssiccepeiiecnstil edi OSS

—

In the Supreme Court of the Anited States

No. 99-1144

CLEOPATRA MCDOUGAL-SADDLER, PETITIONER

Vv.

ALEXIS M. HERMAN, SECRETARY CF LABOR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

LLY OGRE III GILLI ILOILO IS Oe

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals on panel rehearing

(Pet. App. la-17a) is reported at 184 F.3d 207. The

court of appeals’ initial opinion (Pet. App. 18a-37a) is

reported at 161 F.3d 198, and the order vacating that

opinion (App., infra, 20a) is reported at 169 F.3d 178.

The district court’s memorandum and order (Pet. App.

38a-47a) is not yet reported, but can be found at 1997

WL 835414. The decision and order of the Department

of Labor Employees’ Compensation Appeals Board

(App., infra, 1a-17a) is reported at 47 E.C.A.B. 480, and

the Board’s order denying reconsideration (App., infra,

18a-19a) is unreported.

(1)

2

JURISDICTION

The court of appeals issued its decision on panel

rehearing on July 2, 1999, and denied rehearing on

October 6, 1999 (Pet. App. 48a). The petition for a writ

of certiorari was filed on January 4, 2000. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Federal Employees’ Compensation Act

(FECA) provides workers’ compensation benefits to

employees of the United States who become disabled or

die from work-related injuries. 5 U.S.C. 8102(a). The

Secretary of Labor is authorized to “administer, and

decide all questions arising under” FECA, and to make

rules and regulations necessary for the administration

and enforcement of the statute. 5 U.S.C. 8145, 8149.

The Secretary has delegated her authority to adminis-

ter and enforce the statute to the Director, Office of

Workers’ Compensation Programs (OWCP). 20 C.F.R.

10.2.’ As required by statute, 5 U.S.C. 8149, the Secre-

tary has also created an Employees’ Compensation

Appeals Board (ECAB) to hear and make final deci-

sions on appeals from OWCP determinations, 20 C.F.R.

10.301.

When a claim is filed, OWCP investigates and obtains

necessary medical evidence. 5 U.S.C. 8121; 20 C.F.R.

10.130. An employee must submit to examination by a

medical officer of the United States, or by a physician

designated and approved by the Secretary, and may

1 Uniess otherwise stated, this brief, like the petition, cites the

regulations in effect at the time the decisions in this case were

issued. See 20 C.F.R. Pt. 10 (1998). The current regulations be-

came effective January 4, 1999, but do not apply to any issue

decided for the first time before their effective date. See 63 Fed.

Reg. 65,284 (1998).

"ee

3

have a physician designated by the employee present to

participate in the examination. 5 U.S.C. 8123(a). The

statute further provides that, “[i]f there is disagree-

ment between the physician making the examination

for the United States and the physician of the em-

ployee, the Secretary shall appoint a third physieian

who shall make an examination.” 5 U.S.C. 8123(a).

When OWCP makes a decision adverse to a claimant,

| the claimant can either request a hearing before an

OWCP hearing representative, request reconsideration

before OWCP, or appeal to the ECAB. 5 U.S.C. 8124,

8128; 20 C.F.R. 10.131, 10.188, 10.139. Section 8128(b)

of Title 5, United States Code, makes those mechanisms

for administrative review exclusive, and specifically

precludes judicial review of the Secretary’s decisions

under FECA:

The action of che Secretary or [her] designee in

allowing or denying a payment under [FECA] is—

(1) final and conclusive for all purposes and with

respect to all questions of law and fact; and (2) not

subject to review by another official of the United

States or by a court by mandamus or otherwise.

5 U.S.C. 8128(b).

. 2 In May 1982 and in April 1985, petitioner injured

her back, neck and shoulder while working for the

United States Postal Service. Pet. App. 2a-3a, 39a. She

received FECA benefits for temporary total disability

on both occasions. Ibid. In 1987, her treating physician,

Dr. Schwartz, reported that she was totally disabled

“for the near indefinite future.” Jd. at 3a; App., infra,

la, 3a-4a. OWCP referred petitioner to an orthopedic

surgeon, Dr. Simon, who concluded that petitioner had

a slowly developing degenerative condition that was

not due to any specific incidents of trauma occurring at

7 OeTASS 2

SEER oe

4

work. App., infra, 4a; see Pet. App. 3a. OWCP termi-

nated petitioner’s benefits in November 1988, but rein-

stated them in February 1989 on the ground that peti-

tioner had not received a copy of Dr. Simon’s report.

Pet. App. 4a; App., infra, 5a. Because Dr. Simon’s

evaluation was by then almost two years old, OWCP

also asked him to do a reevaluation. App., infra, 5a;

Pet. App. 4a.

In October 1989, Dr. Simon again concluded that

petitioner had a degenerative condition that was not

caused by her workplace injuries. App., infra, 6a-7a;

Pet. App. 39a. After obtaining further testing and a

report from a radiologist, however, Dr. Simon con-

cluded that petitioner had abnormalities beyond degen-

erative changes. App., infra, 7a; Pet. App. 4a, 39a-40a.

Dr. Simon did not state whether, in his view, those

abnormalities were caused by a workplace injury. He

did state, however, that the abnormalities were only

partially disabling and that petitioner could return to

some form of work. App., infra, 8a; Pet. App. 22a.

Based on all the submitted reports, OWCP found a

conflict in medical opinion and in 1991 referred peti-

tioner to another orthopedic surgeon, Dr. Williams, pur-

suant to 5 U.S.C. 8123(a). Pet. App. 4a-5a, 40a; App.,

infra, 8a. Section 8123(a) provides that, “(i]f there is

disagreement between the physician making the

examination for the United States and the physician of

the employee, the Secretary shall appoint a third phy-

sician who shall make an examination.” In 1992, after

examining petitioner, her medical records—including x-

ray reports and findings from 1982, 1984, and 1987, as

well as a 1989 CT scan—and the reports of the other

physicians who examined her, Dr. Williams reported

that petitioner had no work-related disability. App.,

infra, 9a-lia; see Pet. App. 5a, 40a. Based on Dr.

5

Williams’ report, OWCP decided to terminate peti-

tioner’s compensation. After affording petitioner a

hearing and opportunities to present additional evi-

dence, OWCP adhered to that decision. See Pet. App.

5a-6a; App., infra, 11la- 12a.

Petitioner appealed to the ECAB. She argued that

Dr. Williams was not a third physician under 5 U.S.C.

8123(a) because there was no conflict between her

physician and the orthopedic surgeon, Dr. Simon,

to whom OWCP had previously referred her. App.,

infra, 13a. The ECAB agreed with petitioner on that

point, App., infra, 15a-16a, but nevertheless affirmed

OWCP’s termination of benefits. The ECAB reasoned

that, although Dr. Williams’ reports were not entitled

to the “special weight” that the ECAB gives to the

opinion of an impartial medical specialist appointed in

response to a conflict of medical opinion under 5 U.S.C.

8123(a), the reports could “still be considered for their

own intrinsic value and can still constitute the weight of

the medical evidence.” App., infra, 16a-17a. Weighing

the medical evidence, the ECAB concluded that Dr.

Williams’ reports were the most reliable and probative

evidence and were sufficient to establish that any

disability related to petitioner’s 1982 and 1985 injuries

had ended by September 1992. Ibid. The report of Dr.

Schwartz, in contrast, was conclusory in nature and

failed to justify the conclusion that petitioner’s dis-

ability was causually related to her employment. App.,

infra, 15a. The ECAB subsequently denied petitioner’s

request for reconsideration. App., infra, 18a-19a.

3. In March 1997, petitioner filed a district court

action alleging, among other things, that the ECAB

violated a clear statutory mandate in 5 U.S.C. 8123(a).

In particular, she argued that Section 8123(a) required

the Secretary to appoint a third physician to resolve the

6

disagreement between her physician and Dr. Williams,

and that the Secretary had failed to do so. Pet. App.

4ia. In particular, she argued that any inconsistency in

medical opinions was sufficient to trigger Section

8123(a), and she challenged the Secretary’s policy of

weighing the evidence to determine whether appoint-

ment of a third physician is necessary.”

The Secretary filed a motion to “ismiss, which the

district court granted. Pet. App. 38a-47a. The district

court noted that 5 U.S.C. 8128(b)(2) declares that the

Secretary’s decisions respecting FECA claims are “not

subject to review by another official of the United

States or by a court by mandamus or otherwise.”

Nevertheless, the court assumed for the sake of argu-

ment that it would have jurisdiction to hear the suit

(notwithstanding 5 U.S.C. 8128(b)) if petitioner could

show that the Secretary had violated a clear statutory

command. Pet. App. 45a-46a. Petitioner, however, had

failed to show such a violation. Ibid. Section 8123(a),

the district court reasoned, does require the appoint-

ment of a third physician to resolve a “disagreement”

between the employee’s physician and the physician for

the government. But it does not set forth the quantum

of proof or credibility an opinion must have before it is

sufficient to create a genuine “disagreement” within the

meaning of the statute. As a result, the district court

concluded, Section 8123(a) can plausibly be read to

permit some weighing of medical evidence, under speci-

fied criteria, to ensure that a material disagreement

exists, which is what the Secretary did here. Id. at 43a.

2 Petitioner also alleged that the Secretary’s termination of her

benefits violated due process. Pet. App. 42a. The district court re-

jected that argument, id. at 42a-45a, and petitioner neither raised

it on appeal, id. at 9a, 12a, nor raises it in this Court.

7

Because the ECAB did not violate a clear statutory

mandate, the district court held judicial review was not

available—even if one were to recognize a “clear statu-

tory mandate” exception to the preclusion provided by

5 U.S.C. 8128(b). Pet. App. 46a.

4. The court of appeals initially affirmed on the

ground that petitioner lacked standing to claim a

violation of 5 U.S.C. 8123(a). Pet. App. 18a-37a. The

court reasoned that, although petitioner raised a “plau-

sible” challenge to the Secretary’s policy of weighing

evidence before appointing a third physician in re-

sponse to conflicting medical opinions, in this case a

third physician (Dr. Williams) had been appointed, and

petitioner had received the examination provided by

Section 8123(a). Pet. App. 31a-38a. Accordingly, the

court held that petitioner had suffered no legal harm as

a consequence of the policy she sought to challenge. Jd.

at 35a-37a.

In response to petitioner’s request for rehearing, the

panel vacated its decision and affirmed the district

court on different grounds. In particular, it held that 5

U.S.C. 8128(b) deprived the district court of subject

matter jurisdiction. Pet. App. 1a-17a.> Initially, the

court stated that it was “difficult to square” the

Secretary’s policy, under which the Secretary would

weigh medical reports when determining whether to

appoint a third physician, with the statutory mandate

to appoint a third physician “if there is disagreement”

between the government’s and the employee’s physi-

cians. Id. at 8a (quoting 5 U.S.C. 8123(a)). The court

* The Secretary supported rehearing on the ground that the

panel’s initial decision had improperly reviewed the Secretary’s

action in terminating petitioner’s benefits instead of dismissing the

appeal for lack of subject matter jurisdiction.

8

reasoned, however, that Congress was “absolutely free”

to limit the extent to which it consents to suit against

the United States or its instrumentalities and that

Section 8128(b) could “hardly be plainer” in barring

judicial review altogether. Pet. App. lla. The court

concluded that nothing in FECA’s legislative history

permitted an exception that would allow judicial review

of an asserted violation of a clear statutory mandate.

Id. at 12a. The language of 5 U.S.C. 8128(b), the court

of appeals explained, provides “clear and convincing

evidence that Congress intended to deny district courts

jurisdiction to review decisions of the [Secretary],” and

“is broad enough to include both policy or rule making

decisions of the Secretary as well as individual benefit

determinations.” Pet. App. 16a.

ARGUMENT

Petitioner argues (Pet. 4-7) that the Secretary

violated the clear statutory mandate of 5 U.S.C. 8123(a)

by failing to appoint another physician to resolve an

alleged disagreement between her physician (Dr.

Schwartz) and Dr. Williams. Review is warranted,

petitioner asserts, to resolve a conflict in the courts of

appeals on whether FECA allows judicial review of

Secretarial action that violates a clear statutory man-

date. This case, however, would have been resolved the

same way regardless of the circuit in which it arose, and

it is far from clear that the alleged conflict petitioner

identifies is meaningful and genuine. As a result,

further review is not warranted.

1. Congress gave the Secretary the authority to

“administer, and decide all questions arising under”

FECA. 5 U.S.C. 8145. Consistent with that grant of

authority, Congress provided for hearings, review, and

appeal within the Department of Labor. 5 U.S.C. 8124,

9

8128(a), 8149. See also 20 C.F.R. 10.131, 10.138, 10.139.

At the same time, Congress declined to provide for

judicial review of the Secretary’s actions on such

claims. In particular, 5 U.S.C. 8128(b) declares:

The action of the Secretary * * * in allowing or

denying a payment * * * is (1) final and conclusive

for all purposes and with respect to all questions of

law and fact; and (2) not subject to review * * * by

a court by mandamus or otherwise.

This Court has twice recognized that FECA’s prohibi-

tion against judicial review uses the kind of “unambigu-

ous and comprehensive” language that Congress “typi-

cally employs” when it “intends to bar judicial review

altogether.” Lindahl v. Office of Personnel Manage-

ment, 470 U.S. 768, 779-780 & n.13 (1985); see South-

west Marine, Inc. v. Gizoni, 502 U.S. 81, 90 (1991). See

also White v. United States, 148 F.3d 232, 237 (5th Cir.

1998) (explaining that the preclusion of review provi-

sion effectuates Congress’s intent to establish a uniform

system of compensation, administered by the Secre-

tary, without generating the costs and delays associ-

ated with litigation); Blanc v. United States, 244 F.2d

708, 710 (2d Cir.) (similar), cert. denied, 355 U.S. 874

(1957). In this case, the court of appeals applied the

plain terms of Section 8128(b) to conclude that peti-

tioner’s challenge to the Secretary’s actions was not ju-

dicially cognizable.

Petitioner contends (Pet. 6-9) that the court of

appeals’ decision conflicts with Hanauer v. Reich, 82

F.3d 1304 (4th Cir. 1996), and Staacke v. Secretary of

Labor, 841 F.2d 278 (9th Cir. 1988).* In this case, the

* Petitioner errs in contending (Pet. 6) that the decision below

also conflicts with Woodruff v. Department of Labor, 954 F.2d 634

10

court of appeals concluded that Section 8128(b) de-

prives district courts of jurisdiction to review the

Secretary’s actions, even if the Secretary violates a

clear statutory mandate. Pet. App. 12a. See also

Paluca v. Secretary of Labor, 813 F.2d 524, 527, 528 (1st

Cir.), cert. denied, 484 U.S. 943 (1987). In contrast, in

Hanauer and in Staacke, the courts of appeals stated

that, if the Secretary violated a clear statutory man-

date, Section 8128(b) would not deprive district courts

of jurisdiction., Hanauer, 82 F.3d at 1309 (district

courts have jurisdiction unless “a cursory review of the

merits reveals that the Secretary did not violate a clear

statutory mandate”); Staacke, 841 F.2d at 280-282

(finding no violation of a clear statutory mandate).

Despite the inconsistent language in those cases, it is

not clear that a genuine circuit conflict exists. As peti-

tioner recognizes (Pet. 6), no court of appeals has ever

actually held the Secretary’s action to be reviewable

notwithstanding Section 8128(b). To the contrary, in

both Hanauer and Staacke, the courts concluded that,

(11th Cir. 1992), and Brumley v. Department of Labor, 28 F.3d 746

(8th Cir. 1994), cert. denied, 513 U.S. 1082 (1995). Neither Wood-

ruff nor Brumley takes a position on whether district courts can

review Secretarial action alleged to conflict with a “clear statutory

mandate” notwithstanding Section 8128(b). Woodruff specifically

found it unnecessary to decide that question. 954 F.2d at 640-641

n.14. And, while Brumley (inaccurately) characterizes Woodruff

as having held such review to be permissible, Brumley itself did

not state whether or not it was inclined to follow that characteriza-

tion of Woodruff. 28 F.3d at 747. See also Owens v. Brock, 860

F.2d 1363, 1367 (6th Cir. 1988) (stating that courts have unani-

mously held that FECA prohibits judicial review of FECA benefit

determinations “[e]xcept for cases alleging that the Secretary vio-

lated a claimant’s constitutional rights or exceeded the scope of his

congressional mandate”).

11

because the Secretary had not violated a clear statutory

mandate, Section 8128(b) barred judicial review.

Hanauer, 82 F.3d at 1309-1311 (Secretary may decide

not to pay benefits in a lump sum for a class of cases

instead of adjudicating individual requests for lump

sum payments); Staacke, 841 F.2d at 281 (Secretary

may interpret statutory requirement to pay a sched-

uled award “in addition to” temporary partial disability

benefits to mean pay the award subsequent to such

benefits). For that reason, the Third Circuit in this case

characterized the language on which petitioner relies

from Hanauer and Staacke as dictum. Pet. App. 17a

n.2.

Moreover, Staacke and Hanauer are not inconsistent

with complete foreclosure of judicial review, even

where the plaintiff alleges violation of a clear statutory

mandate. In Staacke, the Ninth Circuit held that, be-

cause the Secretary has “virtually limitless” discretion

to make policy choices under FECA, “there can be no

review based on a violation of a clear statutory man-

date.” Staacke, 841 F.2d at 282. At least one court has

therefore read Staacke as declaring that, while a “clear

statutory mandate” exception to Section 8128(b)’s pre-

clusive scope may exist in theory, in practice the

Secretary’s expansive discretion under the statute

precludes that “clear statutory mandate” standard from

ever being met. Soeken v. Herman, 35 F. Supp. 2d 99,

103 (D.D.C. 1999) (Staacke “rejected the ‘statutory

mandate’ exception”), aff’d mem., No. 99-511, 1999 WL

1215942 (D.C. Cir. Nov. 23, 1999). The Fourth Circuit,

which has recognized the possibility of review where a

clear statutory mandate is violated, Hanauer, 82 F.3d

at 1309, may yet reach the same conclusion. Thus,

while there is language in Staacke and Hanauer that

appears inconsistent with language in the opinion

12

below, the inconsistency may be of just that—

language—and not of substance or results.

In ary event, if the decision below is in tension with

Hanauer and Staacke, this case is not an appropriate

vehicle for resolving that tension. As the district court

recognized, the “clear statutory mandate” exception to

Section 8128(b)’s preclusive scope would not result in

jurisdiction over this case even if that exception were

recognized. See Pet. App. 45a-46a (finding no jurisdic-

tion even assuming, arguendo, that a clear statutory

mandate exception exists). Simply put, the Secretary’s

policy of “weighing” the evidence to ensure that any

dispute genuinely constitutes a “disagreement” war-

ranting the appointment of another physician does not

violate a clear statutory mandate.

While Section 8123(a) explicitly requires the Secre-

tary to appoint a third physician to make an examina-

tion “[i]f there is disagreement between the physician

making the examination for the United States and the

physician of the employee,” 5 U.S.C. 8123(a),° it does

not define what constitutes a “disagreement” within the

meaning of that provision. Pursuant to her authority to

“administer, and decide all questions arising under, this

subchapter,” 5 U.S.C. 8145, the Secretary has concluded

that a “disagreement” between physicians warranting a

further examination does not exist, for example, where

the two allegedly conflicting opinions are not both so

well-supported that a factfinder could reasonably credit

either one. Thus, where one of the two reports or

5 Contrary to petitioner’s assertions (Pet 3, 5), that Section

does not give the “third physician” the authority to act as a fact-

finder. Instead, 5 U.S.C. 8124(a) expressly provides that “(t]he

Secretary of Labor shall determine and make a finding of facts

** *

13

opinions is insufficient to support a judgment—because

it is shown to be based on faulty assumptions, unsup-

ported by objective evidence, unreasoned, or otherwise

lacks the persuasiveness necessary to support an award

or denial of benefits—there is no material “disagree-

ment” within the meaning of the statute and no further

examination is required. Under petitioner’s construc-

tion of “disagreement,” by contrast, the Secretary

would have to send a claimant for further medical

evaluation based on conclusory medical opinions that

are insufficient to support an award of benefits—

increasing costs and delays without producing benefits.

Avedis v. Herman, 25 F. Supp. 2d 256, 264-265

(S.D.N.Y. 1998) (broader view of “disagreement” would

find a “conflict’ between a Board-certified specialist

providing a well-rationalized opinion and a non-special-

ist who may have merely checked a box on a form

indicating the presence of causal relationship or dis-

ability without providing any explanation”), appeal

withdrawn, No. 99-6053 (2d Cir. May 3, 1999); Pet. App.

32a (Secretary’s reasoning). See Pet. App. 48a (citing

FECA PM 2-810).° Because the Secretary’s construc-

6 Petitioner incorrectly asserts (Pet. 5) that the Secretary’s

weighing process was instituted in 1983. Before 1983, the ECAB

often resolved conflicting evidence based on the weight of the evi-

dence, see, ¢.g., In re Wallace E. Mason, 4 E.C.A.B. 96, 97-98

(1950); In re William D. Wise, 4 E.C.A.B. 87, 89 (1950), and recog-

nized that, in cases involving a conflict in medical opinion, whether

an independent expert’s opinion is necessary “depends on the

nature of the particular conflict.” In re Ruth L. Becker, 31

E.C.A.B. 441, 445 (1980). See also In re Madge V. Phares, 15

E.C.A.B. 146, 149 (1963). The Secretary’s views on referrals and

weighing have recently been codified. See 20 C.F.R. 10.321, 10.502

(1999); 63 Fed. Reg. 65,284, 65,294 (1998). Similarly, because the

Secretary permissibly interprets the term “disagreement” to mean

a disagreement from the perspective of the claims examiner (i.e.,

l4

tion is manifestly reasonable, it would not be review-

able under a “clear statutory mandate” exception to 5

U.S.C. 8128(b), even if one were recognized. See

Hanauer, 82 F.3d at 1309 (“If a cursory review of the

merits reveals that the Secretary did not violate a clear

statutory mandate,” i.e., if the Secretary’s construction

is “plausible,” then “the case must be dismissed for lack

of subject matter jurisdiction.”).’

differing medical views of sufficient weight to be material to the

claims adjudication so that the claims examiner cannot resolve the

claim on the existing record), it is not relevant that FECA, before

its 1966 codification, required referrals to a third physician for

“any disagreement.” See Pet. 2-3 n.1. The term “any” does not

expand the term “disagreement” to include matters that are either

irrelevant or resolvable by the claims examiner.

7 Indeed, even under a much more modest standard of what

constitutes a “disagreement” within the meaning of Section

8123(a), the evidence and opinions petitioner relies on would not be

sufficient to establish a conflict. Dr. Williams explained that:

(1) the type of injury petitioner incurred in 1982 and that flared up

in 1985 was a soft tissue (strain) injury that is generally self-re-

solving, App., infra, 9a; (2) the pain petitioner was suffering ter

years later in 1992 was caused by abnormalities/degeneration of

the cervical and lumbar spine (bones), not soft-tissue problems,

ibid.; and (3) the abnormalities and degeneration were not caused

by a work-related incident, but were rather the product of genetic

predisposition, age, and obesity, id. at 9a-10a. Moreover, Dr.

Williams pointed out, the abnormalities did not appear in x-rays

taken in 1982 and 1985 (shortly after petitioner’s injury) but first

appeared instead in 1987, after petitioner had been out of work for

years. Because petitioner “had not been working during this

interval,” he explained, “there is no work-related trauma that

produced the findings noted on x-rays in 1987.” Id. at 1la, 14a. Dr.

Williams’ opinion was confirmed by the independent review

conducted by another Board-certified orthopedic surgeon, Dr.

Glazer, id. at 14a, and was consistent with the opinion of Dr.

Simon, the other orthopedic surgeon who examined petitioner.

See id. at 4a, 15a-l6a (citing “genetic predisposition to

15

2. Alternatively, petitioner argues (Pet. 7-10) that

the court of appeals’ decision is inconsistent with

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1993),

and Block v. Community Nutrition Institute, 467 U.S.

340 (1984). According to petitioner, those cases permit

judicial review to be precluded only where “five ele-

ments combine to demonstrate Congress’ desire to cut

off review: the reviewability statutory language, the

structure of the statutory scheme, the statute’s objec-

tives, the legislative history, and the nature of the

administrative action involved.” Pet. 7. In fact, this

Court has recognized that the general presumption

favoring judicial review may be overcome by specific

statutory language or by other reliable indicia of

congressional intent. Block, 467 U.S. at 349. Thus, in

Block, 467 U.S. at 345-349, and Thunder Basin, 510

U.S. at 207-216, the Court relied on implication rather

than express statutory language to find that certain

agency actions were not judicially reviewable. See also

United States v. Fausto, 484 U.S. 439 (1988) (inferring

degenerative disc disease” that is not “due to any specific incidents

of trauma occurring at work.”). To establish a conflict in medical

opinions, petitioner relies on a statement by Dr. Schwartz—a phy-

sician not qualified in the relevant area of specialty—that the

disability should be considered work-related because petitioner

began suffering pain at the time of her injury in 1982, and the

matter had not been resolved by 1992. Id. at 15a. But the Board

consistently and sensibly has held that the mere fact that symp-

toms first occur at the time of an injury is not sufficient, without a

supporting rationale, to demonstrate that symptoms occurring a

decade later are causally related to the prior injury. Ibid. Nor

does Dr. Simon’s November, 1989, report create a genuine dis-

agreement; while he noted that petitioner had “cervical discogenic

abnormalities beyond degenerative changes,” he nowhere sug-

gested that those abnormalities were the result of a 1982 or 1985

soft-tissue strain. See App., infra, 16a.

16

an intent to preclude review from the statutory struc-

ture). This Court has never suggested that express

statutory language is itself insufficient to preclude

judicial review, and in fact has recognized the opposite.

See Board of Governors of the Fed. Reserve Sys. v.

MCorp Fin., Inc., 502 U.S. 32, 44 (1991) (statute pro-

viding that “[nJo court shall have jurisdiction to affect

by injunction or otherwise the issuance or enforcement

of any [Board] notice or order under this section”

provides the “clear and convincing evidence” of con-

gressional intent sufficient to preclude judicial review).®

8 Petitioner argues (Pet. 11) that when this Court “has shut off

review, it has been careful to note that alternative remedies

existed for judicial relief.” That is incorrect. See, e.g., Fausto, 484

U.S. at 455 (no judicial action for backpay for federal employee

who has no remedy under Civil Service Reform Act). It is well

established that “(t]he United States is not, by the creation of

claims against itself, bound to provide a remedy in the courts. It

may withhold all remedy or it may provide an administrative

remedy and make it exclusive, however mistaken its exercise.”

Dismuke v. United States, 297 U.S. 167, 171-172 (1936) (citation

omitted). Accordingly, the courts of appeals have uniformly recog-

nized that Congress has authority to preclude judicial review of

FECA claims. See Soderman v. Civil Serv. Comm’n, 313 F.2d 694,

695 (9th Cir. 1962) (citing additional cases), cert. denied, 372 U.S.

968 (1963); cf. Czerkies v. Department of Labor, 73 F.3d 1435 (7th

Cir. 1996) (en banc) (courts of appeals and government have

construed FECA not to prohibit review of substantial claims of

constitutional violations); note 2, swpra (noting that petitioner does

not assert a constitutional violation before this Court). For similar

reasons, petitioner’s reliance (Pet. 9) on Johnson v. Robison, 415

U.S. 361 (1974), and Traynor v. Turnage, 485 U.S. 535 (1988), is

misplaced. In those cases, the Court concluded that a statute

barring judicial review of administrative decisions “on any ques-

tion of law or fact under any law administered by the Veterans’

Administration,” 38 U.S.C. 211(a) (1970) (emphasis added), does

not prohibit review of the constitutionality of the statute itself,

Johnson, 415 U.S. at 373, or a claim that agency rules violate

17

Petitioner also argues that FECA’s prohibition

against judicial review of “[tJhe action of the Secretary

or [her] designee in allowing or denying a payment,”

5 U.S.C. 8128(b), does not prohibit review of the Secre-

tary’s “actions in issuing rules and policies that funda-

mentally change the meaning and effect of statutory

provisions.” Pet. 8. Here, however, petitioner is not

asking for mere review of a rule or policy statement.

She seeks a declaration that the Secretary’s action in

terminating her benefits is not permitted by FECA and

an injunction requiring the Secretary to restore

benefits. See Pet. App. 36a. In other words, she seeks

review of the application of the Secretary’s policy to her

claim for benefits, conduct that clearly qualifies as an

“action of the Secretary * * * in allowing or denying a

payment” within the meaning of 5 U.S.C. 8128(b).°

3. Petitioner also asks this Court to consider

whether the Secretary’s construction of 5 U.S.C.

8123(a) violates a clear statutory mandate. There is no

division in circuit authority on the meaning of Section

8123(a); the court of appeals did not address that

question; and the Secretary’s construction of that

another statute, such as the Rehabilitation Act of 1973, 29 U.S.C.

794, that is not “administered by the Veteran’s Administration,”

see Traynor, 485 U.S. at 541, 543-544. Petitioner here does not

challenge the constitutionality of FECA, but rather claims that the

Secretary misconstrued FECA, the very statute the Secretary is

charged with administering.

_ % Moreover, the premise of petitioner’s argument would “dis-

tort[{] the statute” by creating “the absurd result of permitting a

court to strike down a policy statement of the Secretary, notwith-

standing the court’s inabiiity to review any subsequent individual

adjudications for conformance with its policy decision.” Paluca,

813 F.2d at 527.

18

provision is in any event correct (see pp. 12-14, supra).

Accordingly, further review is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

HENRY L. SOLANO

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

EDWARD D. SIEGER

Attorney

Department of Labor

MARCH 2000

7»

«

4

|

i

APPENDIX A

U.S. DEPARTMENT OF LABOR

Employees’ Compensation Appeals Board

IN THE MATTER OF CLEOPATRA MCDOUGAL-SADDLER

AND U.S. POSTAL SERVICE, Post OFFICE,

PHILADELPHIA, PA.

Docket No. 95-2634; Submitted on the Record;

Issued March 20, 1996

DECISION AND ORDER

Before DAVID S. GERSON, WILLIE T.C. THOMAS,

MICHAEL E. GROOM

The issue is whether appellant’s disability related to

her May 8, 1982 and April 5, 1985 employment injuries

ended by September 20, 1992.

On May 14, 1982 appellant, then a 39-year-old distri-

bution clerk, filed a claim for an injury to her back,

upper neck, and shoulders sustained on May 8, 1982 by

handling trays of mail. Appellant stopped work on May

11, 1982 and received continuation of pay from that date

until June 24, 1982, after which the Office of Workers’

Compensation Programs began payment of compen-

sation for temporary total disability.

Beginning August 1982, appellant was treated by Dr.

David S. Schwartz, a Board-certified internist and car-

diologist, who diagnosed cervical and lumbosacral

strains and indicated that she was totally disabled. X-

(la)

2a

rays of the cervical and lumbosacral spine and the right

shoulder on June 14, 1982 showed no bony traumatic

changes. In a report of a fitness-for-duty examination

done on November 3, 1982, Dr. Henry S. Wieder, Jr., a

Board-certified orthopedic surgeon, stated that appel-

lant’s cervical and lumbosacral strain were precipitated

by her May 8, 1982 injury but were perpetuated by her

obesity, faulty posture and body mechanics.

In a report dated December 14, 1983, Dr. Schwartz

stated that appellant had experienced persistent and

incapacitating neck and low back pain since her May

1982 injury. The Office referred appellant to the Pain

Control Center of Temple University, where Dr.

Edward J. Resnick, a Board-certified orthopedic sur-

geon, stated in a March 9, 1984 report that her objective

findings were insufficient to correlate with her ap-

parent degree of disablement, and diagnosed strains of

the neck and back from history, exogenous obesity with

possible postural musculo-ligamentous back strain and

probable chronic pain syndrome. Upon appellant’s

discharge from this inpatient program from August 6 to

24, 1984, Dr. Resnick stated that appellant’s level of

pain had not changed but that she was much better able

to control it and function with it.

After a fitness-for-duty evaluation on February 21,

1985 by Dr. Eugene L. Thomas of the employing estab-

lishment, the employing establishment offered and ap-

pellant accepted a reemployment offer as a distribution

clerk with use of a high-back chair, no reaching above

the shoulder, and no lifting, pushing, or pulling over 15

pounds. Appellant returned to work on March 31, 1985.

Appellant again stopped work on April 5, 1985. On

April 8, 1985 she filed a claim for a recurrence of dis-

3a

ability due to her May 8, 1982 employment injury.

Appellant stated that on April 5, 1985, after casing mail

for two hours, she began to feel sharp pain in the right

side of her neck, which extended to her right shoulder

and arm and to her entire back as she continued to

work.

Dr. Schwartz examined appellant on April 6, 1985,

diagnosed cervical and lumbar strain, and indicated

that appellant was totally disabled.

By letter dated April 29, 1985, the Office advised

appellant that the April 5, 1985 incident constituted a

new injury, for which she should file a claim. On May 7,

1985 appellant filed a claim for a traumatic injury to her

neck, shoulders, and upper and lower back sustained on

April 5, 1985 by casing mail. Appellant received con-

tinuation of pay from April 6 to May 20, 1985, after

which the Office again began payment of compensation

for temporary total disability.

In a report dated June 17, 1985, Dr. Schwartz diag-

nosed cervical radiculopathy. In a report dated May 22,

1986, Dr. Schwartz diagnosed chronic pain syndrome

including chronic lumbosacral strain and chronic cer-

vical strain. In a report dated April 10, 1987, Dr.

Schwartz stated:

“The diagnosis is chronic cervical strain and chronic

lumbosacral strain, with occasional radiculopathies.

The clinical course over the last several months has

been of intermittent worsening, whereby the pa-

tient finds herself mostly needing to be at complete

bed rest. . . . [Appellant’s] symptoms first started

on May 8, 1982, and though I did not see her then,

her history includes the pain in her low back and

4a

neck starting while at work pulling heavy mail

through a chute and tossing it in a bin. At this

point, so many years later, we have to assume that

she has chronic pain syndrome secondary to her

initial work injury. Because of chronic debilitating

pain and limited range of motion due to muscle

stiffness and spasm, despite intensive physical ther-

apy and medication, [appellant] is totally disabled

from work at this time and for the near indefinite

future.”

In a report dated May 4, 1987, Dr. William H. Simon,

a Board-certified orthopedic surgeon to whom the

Office referred appellant for a second opinion, diag-

nosed cervical and lumbar discogenic syndrome with

cervical and lumbar nerve root irritation. Dr. Simon

concluded:

“Her present findings are those of cervical and

lumbar discogenic syndrome due to early degenera-

tive disc disease in the cervical and lumbar spine.

This is indicative of a genetic predisposition to

degenerative disc disease and is not in my opinion

due to any specific incidents of trauma occurring at

work.”

* * *

“There is no evidence that she sustained any acute

injury that is responsible for this but that she has a

slowly developing degenerative condition which

limits the amount of work that she can do. She will

have to decide whether she wishes to bear with the

pain and continue her work or whether she wishes

to retire from the work force.”

5a

On December 31, 1987 the Office notified appellant of

the proposed termination of her compensation on the

basis that her disability resulting from her employment

injuries had ceased. Appellant submitted a report

dated February 16, 1988 from Dr. Schwartz stating that

her symptoms were “specifically due” to her May 8,

1982 injury, and that her April 5, 1985 injury “added to

her previous cervical and lumbosacral strain.” In a

report dated April 28, 1988, Dr. Robert M. Glazer, a

Board-certified orthopedic surgeon to whom Dr.

Schwartz referred appellant, diagnosed chronic mus-

culoskeletal pain syndrome, and stated that appellant’s

“extensive areas of pain complaint would be inconsis-

tent with any of the discogenic or nerve root problems

with which I am familiar,” and that “{aJny usual strain

or sprain or soft tissue injury should have healed long

ago. Therefore, it is my opinion that the present symp-

toms are most likely nonorganic in origin. Whether this

is a conscious or unconscious situation, I am not able to

Say.”

By decision dated December 19, 1988, the Office ter-

minated appellant’s compensation on November 20,

1988 on the basis that the weight of the medical evi-

dence established that her disability from her employ-

ment injuries ceased by that date.

Appellant requested a hearing, and an Office hearing

representative, by decision dated February 21, 1989,

found that appellant was not afforded due process, as

she was not provided with a copy of Dr. Simon’s May 4,

1987 report, despite her request for it. The Office hear-

ing representative remanded the case for reinstatement

of compensation, and, as Dr. Simon’s evaluation was

almost two years old, for a reevaluation by Dr. Simon.

6a

In a report dated October 25, 1989, Dr. Simon noted

that appellant continued to complain of pain in the neck,

shoulder, back, leg and hip “even without working.”

After describing his findings on physical examination

and x-rays, Dr. Simon diagnosed mild degenerative

joint disease and intervertebral disc disease of the

cervical spine, moderate degenerative joint disease and

intervertebral disc disease of the lumbosacral spine,

and possible spondylolysis of the lumbosacral spine. Dr.

Simon concluded:

“This patient has had no objective studies to

determine an organic basis for her symptoms since

1982. By that I mean none of the records that I

have reviewed indicate that she underwent EMG

[electromyogram], MRI [magnetic resonance imag-

ing], CAT [computerized axial tomography] scan,

myelogram studies. The patient herself states that

she has not undergone any of these studies. I do

think it is time for us to try and determine if she has

any problems that can be identified as cause for her

symptoms other than her degenerative changes.

“The only report that I have concerning her con-

dition since I saw her is a report from David

Schwartz, M.D. from Philadelphia Health Associates

dated April 10, 1987 which gives the diagnosis as

‘chronic cervical strain and chronic lumbosacral

strain with occasional radiculopathies.’

“This obviously is not an adequate diagnosis to ex-

plain what the patient says is continued symptoms

since 1982.”

Ta

“At the present time, the only findings are those of

progressive degenerative changes in her neck and

back and these certainly would not be causally

related to one episode of trauma occurring in 1982 or

in 1985.

“On a subjective basis, the patient says she cannot

do her work. I can not find any objective reasons

why she could not return to work. The degenera-

tive changes in her neck and back may be causing

her symptoms but there is no evidence that she has

a disc herniation or fracture or dislocation or serious

lumbar stenosis problem that would functionally

incapacitate her.”

At Dr. Simon’s request, Dr. Michael L. Brooks, a

Board-certified radiologist, performed a computerized

tomography (CT) scan of appellant’s lumbosacral and

cervical spine on November 13, 1989. Dr. Brooks stated

that this study showed “Broad-based central, with

superimposed focal, right-sided mild herniation L5- $1,”

“Facet degenerative changes without stenosis at L3

through S1,” “Small central dise protrusion C4-5,” and

“Mild left-sided neural foraminal narrowing secondary

to small osteophyte C5-6.”

In a report dated November 15, 1989, Dr. Simon

stated that he agreed with Dr. Brooks’ interpretation of

the CT scan. Dr. Simon then stated:

“Therefore, we now have objective evidence that

this patient has cervical discogenic abnormalities

beyond degenerative changes both in her neck and

back. These would now allow us to first of all ex-

plain some of her subjective symptoms and second,

tailor a work program for her which would not put

8a

extra strain on her neck and back. Any such work

program would be one in which she would have to

do sedentary work without lifting beyond 10 pounds

and she would be allowed to stand and sit as her

comfort desired.”

* * *

“I do think her discogenic abnormalities in her neck

and back are enough to partially disable her but

certainly not to totally disable her from returning to

some form of work presuming that she is con-

ditioned properly.”

An Office medical adviser reviewed the medical

evidence on December 19, 1989 and stated that she

concurred with Dr. Simon that appellant’s continuing

complaints were entirely due to preexisting progressive

degenerative changes rather than to her employment

injuries. In a report dated April 4, 1990, Dr. Schwartz

diagnosed chronic cervical strain and chronic lumbosac-

ral strain, and concluded: “Due to the severe pain in

the low back and neck with any activity including pro-

longed standing, walking, minimal lifting, carrying or

pushing, [appellant] is totally disabled from work.”

The Office found that there was a conflict of medical

opinion, and on October 22, 1991 referred appellant, the

case record and a statement of accepted facts to Dr.

John T. Williams, a Board-certified orthopedic surgeon,

to resolve the conflict. In a report dated January 21,

1992, Dr. Williams extensively described appellant’s

complaints and her findings on physical examination.

Dr. Williams then concluded:

9a

“The patient presents to the office today stating

that she incurred injury during the course of her

employment approximately nine years ago, in 1982.

She states that she was working over head dis-

patching mail in what she called a ‘speed element.’

She states that she began to experience discomfort

in her back and neck. This type of injury is a pull-

plus stress fatiguing soft tissue injury which is self-

resolving. She stated that she returned to work

approximately three years later in a light-duty

capacity and she states that she has 2 recurrence of

her discomfort and she has been out of work ever

since.

“She states that she had diagnostic studies per-

formed in November 1989 and we obtained faxed

reports of the CT scan of the cervical and lumbar

spine. These findings are on the basis of degenera-

tive pathology in her neck and back. The patient is

a 48-year-old female and these changes are compati-

ble with degenerative pathology: i.e., a broad based

central, with superimposed focal right-sided mild

herniation at L5, S1 with facet changes all the way

from L3 through S2. In the cervical spine there is

evidence of a small central disc protrusion at C4, C5

and mild left-sided neural foraminal narrowing

secondary to small osteophytes.

“These changes are compatible with the patient’s

age and with degenerative pathology and they were

not caused by a work-related injury of 1982 or

aggravated by the incident in 1985. The mechanism

of injury does not correlate to the findings on the CT

scans. The mechanism of injury was a soft tissue

10a

self-resolving type of muscle sprain strain or

ligamentous sprain.

“On my physical examination today there are no

positive objective findings to correlate to her com-

plaints. I see no residual pathology as it relates to

the injury of 1982 or 1985. I feel that she has

recovered to the extent that she is able to be

gainfully employed. She has degenerative changes

in her cervical and lumbar spine which are compati-

ble with her age and her type of body build. She is

obese.

“T feel that she is able to resume her normal duties

without any restrictions. If I were to place any

restrictions on this patient they would be on the

basis of the degenerative pathology which obviously

preexisted the work-related injury of 1982. The

restrictions would be related to the degenerative

changes in her cervical and lumbar spine.”

In a report dated March 4, 1992, Dr. Williams stated

that he had now reviewed the medical records the

Office provided to him. Dr. Williams stated:

“(T]his degenerative pathology [in appellant’s

lumbar and cervical spine] is part and parcel of the

normal aging process and has been aggravated by

the patient’s weight. Since the day of her accident

she has been carried with a diagnosis of a cervical

and lumbosacral sprain. These types of sprain

strains are of a temporary and transitory nature and

are self-resolving. The work-related incident may

have aggravated the preexistent pathology but

again on a temporary and transitory nature which

Ee ey ay ee ee eee oN oe eon

ae gee ee ee ee ae ae Se oe epee, Fe ee ee - al meee -

lla

resolved leaving her with her preexistent pathol-

ogy.”

After reviewing reports of x-ray findings from 1982,

1984 and 1987, Dr. Williams stated:

“These studies were normal in 1982 and in 1984.

Three years later in 1987 we see changes.

“The patient had not been working during this

interval so there is no work-related trauma that

produced the findings noted on x-rays in 1987. So it

was on the basis of the normal wear and tear that

she began to show signs of degenerative pathology

in 1987.”

Dr. Williams then reviewed the findings of the 1989

CT scan and stated:

“So what we are seeing here is the progression of

degenerative joint and degenerative disc disease

over a period of approximately seven years secon-

dary to the normal wear and tear on the body and

the aging process.

“The work-related injury did not cause the de-

generative pathology first noted in 1987.”

On July 10, 1992 the Office notified appellant of the

proposed termination of her compensation on the basis

that the medical evidence indicated no continuing dis-

ability as a result of her work injuries. Appellant sub-

mitted a report dated May 28, 1992 from Dr. Schwartz,

who described her symptoms and findings on physical

examination, and stated: “[Appellant’s] medical condi-

tion was a work-related injury and, since she has

12a

essentially never recovered after that injury, this still

must be considered a work-related disability.”

By decision dated September 2, 1992, the Office

terminated appellant’s compensation on September 20,

1992 on the basis that the weight of the medical evi-

dence, represented by the reports of Dr. Williams, the

impartial medical specialist resolving a conflict of

medical opinion, established that the effects of appel-

lant’s April 5, 1985 and May 11, 1982 injuries had

ceased.

Appellant requested a hearing before an Office

hearing representative, which was held on September

23, 1998. Appellant described her two employment

injuries and their sequelae, and testified that her back

pain had never stopped since these injuries and that she

was unable to work due to pain.

By decision dated November 24, 1993, an Office

hearing representative found that the opinion of Dr.

Williams, the impartial medical specialist resolving a

conflict of medical opinion, established that the effects

of appellant’s May 11, 1982 and April 5, 1985 injuries

had ceased by September 20, 1992.

Appellant requested reconsideration, and submitted

an October 13, 1993 report from Dr. Philip J. Spinuzza,

an osteopath, diagnosing chronic pain syndrome, decon-

ditioning and obesity. Dr. Spinuzza stated, “Typically

her pain is aggravated by mechanical activity and

relieved by recumbency.”

By decision dated March 25, 1994, the Office found

that the additional evidence was not sufficient to war-

rant modification of its prior decisions.

13a

By letter dated February 27, 1995 appellant, through

her attorney, requested reconsideration, contending

that Dr. Williams was not an impartial medical special-

ist entitled to special weight, as Dr. Simon’s November

15, 1989 report did not conflict with the conclusions of

Dr. Schwartz but rather agreed with them. Appellant

also contended that Dr. Williams’ report was “based

upon what are now improper leading questions in that

there was never a conflict of medical opinion,” that Dr.

Williams did not review the results of the November 13,

1989 CT scan, and that it was improper for Dr. Williams

to review appellant’s medical records after his examina-

tion and initial report.

By decision dated June 6, 1995, the Office found that

the argument submitted was insufficient to warrant

modification of its prior decisions.

The Board finds that the weight of the medical

evidence establishes that appellant’s disability related

to her May 8, 1982 and April 5, 1985 employment in-

juries ended by September 20, 1992.

The Board has stated that the weight of medical

evidence is determined by its reliability, its probative

value, its convincing quality. The opportunity for and

thoroughness of examination, the accuracy and com-

pleteness of the doctor’s knowledge of the facts and

medical history, the care of analysis manifested and the

medical rationale expressed in support of the doctor’s

opinion are factors which enter into such evaluation.’

1 Melvina Jackson, 38 ECAB 443 (1987); Naomi A. Lilly, 10

ECAB 560 (1959).

itd lintel scammer eae

14a

In the present case, the reports from Dr. Williams, a

Board-certified orthopedic surgeon to whom the Office

referred appellant, constitute the most reliable and

probative evidence on the question of whether appel-

lant’s disability in 1992 continued to be related to her

May 8, 1982 and April 5, 1985 employment injuries. Dr.

Williams reviewed the prior medical evidence, reported

findings of an extensive examination of appellant, and,

most importantly, provided convincing rationale that

appellant’s continuing disability was not related to her

employment injuries. Noting that x-ray studies in 1982

and 1984 were normal but that 1987 x-rays showed

degenerative changes, Dr. Williams stated, “The pa-

tient had not been working during this interval so there

is no work-related trauma that produced the findings

noted on x-rays in 1987. So it was on the basis of the

normal wear and tear that she began to show signs of

degenerative pathology in 1987.” Additional rationale

by Dr. Williams includes: “The mechanism of injury

does not correlate to the findings on the CT scans,”

that the “degenerative changes in her cervical and

lumbar spine . . . are compatible with her age and her

type of body build,” and that the “degenerative

pathology . . . obviously preexisted the work-related

injury of 1982.” Dr. Williams’ opinion is bolstered by

that of another Board-certified orthopedic surgeon, Dr.

Glazer, who concluded that appellant’s strain or sprain,

the condition accepted by the Office, resolved long ago.

In contrast with the reports of Dr. Williams, the

reports from appellant’s attending physician, Dr.

Schwartz, are not based on a complete history, as they

2 Earlier in his January 21, 1992 report, Dr. Williams makes it

clear that he reviewed the November 1989 CT scans.

‘e + ln ON tat dg os i ee i

15a

do not show any awareness of the results of the

November 13, 1989 CT scan.’ Unlike Dr. Williams, Dr.

Schwartz, a Board-certified internist and cardiologist, is

not a specialist in the appropriate field of medicine.‘

The only rationale that Dr. Schwartz provided for his

opinion that appellant had not recovered from her

employment injuries by 1992 was that her pain began at

the time of her May 8, 1982 employment injury and had

not resolved. The Board has held that an opinion that a

condition is causally related to an employment injury

because the employee was asymptomatic before the

injury but symptomatic after it is insufficient, without

supporting rationale, to establish causal relation.’ For

these reasons, the reports of Dr. Schwartz are entitled

to less probative value than those of Dr. Williams.

Appellant is correct in arguing that Dr. Williams was

not an impartial medical specialist because there was no

conflict of medical opinion at the time of the Office’s

referral to Dr. Williams.® The reports of Dr. Simon, the

Board-certified orthopedic surgeon whose second

opinion was the basis of the Office’s declaration of a

conflict of medical opinion, were not sufficient to create

such a conflict. In his report dated October 25, 1989,

Dr. Simon stated that appellant’s “only findings are

3 Reports based on an incomplete or inaccurate history are of

reduced probative value. James A. Wyrich, 31 ECAB 1805 (1980).

* The opinions of physicians who have training and knowledge

in a specialized field have greater probative value concerning

medical questions peculiar to that field than the opinions of other

physicians. Elmer L. Fields, 20 ECAB 250 (1969).

5 Thomas D. Petrylak, 39 ECAB 276 (1987).

6 There is, however, no evidence in the case record to support

appellant’s contention that the Office asked Dr. Williams leading

questions.

16a

those of progressive degenerative changes in her neck

and back and these certainly would not be causally

related to one episode of trauma occurring in 1982 or in

1985” and that “there is no evidence that she has a disc

herniation or fracture or dislocation or serious lumbar

stenosis problem that would functionally incapacitate

her.” In his report dated November 15, 1989, Dr. Simon

stated that a CT scan done on November 13, 1989

showed “objective evidence that this patient has

cervical discogenic abnormalities beyond degenerative

changes both in her neck and back.” While Dr. Simon

did not attribute these “discogenic abnormalities be-

yond degenerative changes” to appellant’s employment

injuries, his November 15, 1989 report casts serious

doubt on the conclusion in his October 25, 1989 report

that appellant had only progressive degenerative

changes.

Even though the reports of Dr. Williams are thus not

entitled to the special weight afforded to the opinion of

an impartial medical specialist resolving a conflict of

medical opinion,’ his reports can still be considered for

their own intrinsic value® and can still constitute the

7 In situations where there are opposing medical reports of

virtually equal weight and rationale, and the case is referred to an

impartial medical specialist for the purpose of resolving the con-

flict, the opinion of such specialist, if sufficiently well rationalized

and based on a proper factual background, must be given special

weight. James P. Roberts, 31 ECAB 1010 (1980).

8 See Myrtle C. Pittman, on petition for recon., 40 ECAB 880

(1989) for a discussion of the use or exclusion of reports of pur-

ported impartial medical specialists where a conflict of medical

opinion was mistakenly identified by the Office.

17a

weight of the medical evidence.’ For the reasons stated

above, the Board finds that the reports of Dr. Williams

constitute the weight of the medical evidence and are

sufficient to establish that appellant’s disability related

to her May 8, 1982 and April 5, 1985 employment

injuries ended by September 20, 1992.

The decision of the Office of Workers’ Compensation

Programs dated June 6, 1995 is affirmed.

Dated, Washington, D.C.

March 20, 1996

David S. Gerson

Member

Willie T.C. Thomas

Alternate Member

Michael E. Groom

Alternate Member

® See Leanne E. Maynard, 43 ECAB 482 (1992) (The Board

found that a physician’s “opinion is probative even though he was

not an impartial medical examiner” and that the opinion of this

physician and another physician were sufficient to establish causal

relation.); Rosa Whitfield Swain, 38 ECAB 368 (1987) (The Board

found that a physician was improperly designated as an impartial

medical specialist, but that his opinion nonetheless constituted the

weight of the medical evidence).

18a

APPENDIX B

U.S. DEPARTMENT OF LABOR

Employees’ Compensation Appeals Board

Docket No. 95-2634

IN THE MATTER OF CLEOPATRA MCDOUGAL-SADDLER

AND U.S. POSTAL SERVICE, POST OFFICE,

PHILADELPHIA, PA

ORDER DENYING PETITION FOR

RECONSIDERATION

The Board issued its decision and order in the above-

entitled matter on March 20, 1996. The Board found

that the weight of the medical evidence established that

appellant’s disability related to her May 8, 1982 and

April 5, 1985 employment injuries ended by September

20, 1992.

Appellant filed a petition for reconsideration. The

Director of the Office of Workers’ Compensation Pro-

grams was served with a copy of appellant’s petition,

and, in reply, requested that it be denied on the ground

that no error of fact or law had been cited. Appellant

was served with a copy of the Director’s reply, but did

not respond within the time allotted.

The Board, having duly considered appellant’s peti-

tion for reconsideration, finds that it fails to establish

any error of fact or law in the Board’s March 20, 1996

decision and order warranting further consideration.’

1 See Virginia Faye Gabbert, 21 ECAB 149 (1969).

ee a

19a

Accordingly, IT Is ORDERED that the petition for

reconsideration be and it hereby is denied.

Dated, Washington, D.C.

JUN 18, 1996

/s/ DAVID S. GERSON

DAVID S. GERSON

Member

/s/ WILLIE T.C. THOMAS

WILLIE T.C. THOMAS

Alternate Member

/s/ MICHAEL E, GROOM

MICHAEL E. GROOM

Alternate Member

20a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-1068

CLEOPATRA MCDOUGAL-SADDLER, APPELLANT

v.

ALEXIS M. HERMAN, SECRETARY,

U.S. DEPARTMENT OF LABOR, APPELLEE

PRESENT: MCKEE, RENDELL, CIRCUIT JUDGES AND

DEBEVOISE, SENIOR DISTRICT JUDGE"

ORDER

It is hereby ORDERED that the slip opinion filed in

this case on November 17, 1998 be vacated.

By the Court,

/s/ signature illegible

Circuit Judge

Hon. Theodore A. McKee

Dated: FEB 24 1999

DR/CC: JP2, NMO, KBK

Honorable Dickinson R. Debevoise, United States District

Judge for the District of New Jersey, sitting by designation.