Aug 27, 2001 — The Office referred appellant to a second opinion physician, Dr. Irving L. Breakstone, a. Board-certified psychiatrist and neurologist. On the
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U. S. DEPARTMENT OF LABOR Employees™ Compensation Appeals Board ____________ In the Matter of RICHARD M. WOLFF and U.S. POSTAL SERVICE, POST OFFICE, Miami, FL Docket No. 00-338; Submitted on the Record; Issued August 27, 2001 ____________ DECISION and ORDER Before MICHAEL J. WALSH, DAVID S. GERSON, WILLIE T.C. THOMAS The issue is whether the Office of Work ers™ Compensation Progr ams properly denied appellant™s request for reconsideration under 5 U.S.C § 8128(a). On July 18, 1990 the Office accepted appellant™s claim for depression and appellant was placed on the periodic rolls effective January 13, 1991. In a report dated March 1, 1995, appellant™s treating physician, Dr. Linda G. Hirsch, a psychologist, stated that appellant fimust be returned to his usual jobfl but should be restricted to working from 3:00 p.m. to 6:00 p.m. four days a week. In a report dated April 19, 1995, Dr. Hirsch em phasized that appellan t must return to the exact position he had when he stopped working due to the circumstances of his injury. By letter dated August 14, 1995, the Office explai ned that it might not always be possible for the employing establishment to restore appellant to his date-of-injury position. The Office referred appellant to a second opi nion physician, Dr. Irving L. Breakstone, a Board-certified psychiatrist a nd neurologist. On the Office™s undated question form, he opined that, although appellant presented no physical signs as in slow movements, slow speech and depressed thoughts, he had dysthymia and could work without restriction. A work capacity evaluation form dated November 6, 1995 from Dr. Breakstone also stated that appellant could work without restriction. In response to the Office™s request for an e xplanation of his diagnosis of dysthymia in a report dated December 19, 1995, Dr. Breakstone stated that dysthymia, or fiminor depressionfl is fia sometimes lifelong aff liction, in which recurrent depression is the major, usually the sole, symptom.fl He stated that, si nce there was no evidence of active depression, Dr. Breakstone depended on appellant™s own description and th e reports of the therapists and based on
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2appellant™s description of how he felt at the time of the examination, he believed appellant could work full time. In a report dated January 11, 1995, Dr. Breakst one stated that a person suffering from fiminor depressionfl shows no criteria of the diagnos is unless he is depressed at the time of the examination. He stated that, sinc e there was no reason to doubt appe llant™s credibility or that of the two therapists, fia physician must be guided by what the patient says.fl Dr. Breakstone suggested that appellant have more visits to the previous therapis ts to ascertain that appellant fidoes, indeed, suffer from dysthymia (which [he] consider[ed] a lifetime illness) AND STILL SUFFERS MAY BE HELPFUL.fl In a detailed report dated February 29, 1996, Dr. Hirsch cited problems in Dr. Breakstone™s diagnosis, which she believ ed overlooked appellant™s severe emotional symptoms and reiterated her diagnoses of major, recurrent depressive disorder and generalized anxiety disorder. Dr. Hirsch found no basis for a diagnosis of dysthymia and emphasized that appellant needed to return to full-time work gradually. In a report dated March 1, 1996, Dr. Sherwood A. Cantor, a Board-cer tified psychiatrist and neurologist, diagnosed major affective disord er, depressed, recurrent and generalized anxiety disorder. He stated that appellant should be re turned to his previous job description and his hours limited in order to caref ully monitor his status. In a memorandum to the file dated Marc h 18, 1996, the Office st ated that because Dr. Breakstone waffled in his reports as to the nature of appellant™s condition, his opinion was fispeculative, – equivocal, – and useless.fl In a report dated October 24, 1996, Dr. Hirsch stated that, on September 13, 1996, when she called appellant to inform him that the rehab ilitation counselor, Marsha Hajduk, told her that he would not be placed in his usual position, he fireacted extremely negatively to this news and in fact has had a complete relapse.fl Dr. Hirsch stated that, after several therapy sessions, she diagnosed major, recurrent depressive disorder, severe without psychotic features and without full interepisode recovery and generalized anxiet y disorder. She felt that, because the employing establishment never gave appellan t the opportunity to return to hi s preinjury job, she doubted he would ever fully recover. Dr. Hirsch believed that the Office™s long delay in reaching a decision not to place appellant in his usual job, its ac tion of approving and arranging for appellant to return to work and then, suddenl y without explanation or justifi cation, refusing to follow through aggravated appellant™s condition to the extreme. She opined that appellant was unable to work. In a report dated November 20, 1996, Dr. Hirsch stated that appellant would not benefit from rehabilitation efforts and the employing esta blishment was being deceitful in claiming it had no work available for appellant because appellant brought in his documentation, which showed that his exact preinjury pos ition had been posted as a vacancy. In a report dated November 27, 1996, Dr. Hi rsch stated that, since November 21, 1996, she had multiple emergency psychotherapy sessions with appellant and th at he was expressing suicidal thought since his meeting with Ms. Hajduk on November 21, 1996. She emphasized
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3that appellant was not only incapable of a job search at the time but was fipotentially self- destructive.fl In a report dated December 31, 1996, the reha bilitation specialist indicated that the employing establishment was not going to rehire appellant and, therefore, the Office asked him to perform a labor market survey fo r entry level jobs in the open ma rket with low levels of stress. By letter dated January 10, 1997, the Office e xplained to Dr. Hirsch that the employing establishment had no work available for appellant and, therefore, the Office must assist him with finding employment outside the employing establishm ent. The Office informed her that, since she found appellant was unable to work and Dr. Breakstone opined that appellant could work, the case was being referred to an impartial medical specialist. In a report dated February 7, 1997, Dr. Hirsch stated that she had documented appellant™s relapse on September 13, 1996 in her October 24, 1996 letter to the Office. She challenged the Office™s reliance on Dr. Breakstone™s opinion because Dr. Breakstone did not know of appellant™s relapse. To resolve the conflict between Drs. Hirsch and Breakstone™s opinions as to the nature of appellant™s emotional condition and whether appella nt could work, the Office referred appellant to an impartial medical specialist, Dr. Joel V. Klass, a Board-certified psychiatrist and neurologist. In his report da ted March 6, 1997, Dr. Klass st ated that, although appellant appeared to be experiencing a chronic mild to moderate depression and had complaints of anxiety, he had signific ant traits of a paranoid personality di sorder. He stated that appellant could return to his usual job but appeared to be unmotivated to do so. Dr. Klass stated that appellant, whose mental status examination showed, inter alia , good powers of calculation, intellect and organization, could perform the job in the private sector. He believed appellant™s crucial problem was that he had difficulty in hand ling fiperceived injustices and in working with supervisory personnel.fl On the work capac ity evaluation dated March 6, 1997, Dr. Klass indicated that appellant could wo rk without restriction although he might have difficulty with certain people. On July 10, 1997 the Office identified the pos ition of accounting clerk as one appellant could perform. The job was described as sedentary with lifting up to 20 pounds. On July 14, 1997 the Office issued a noti ce of proposed reduction of compensation, stating that the evidence of record established th at the position of an accounting clerk represented appellant™s wage-earning capacity. In the at tached memorandum, the Office found that the opinion of Dr. Klass, as the impartial medical sp ecialist, constituted the weight of the medical evidence. The Office found that the position of a ccounting clerk was suitable for appellant, both medically and vocationally. By letter dated August 12, 1997, appellant™s repr esentative, Joseph J. Colligan, stated that appellant suffered a complete relapse as of September 13, 1996, as documented by Dr. Hirsch and was unable to participate in rehabilitation effo rts. Mr. Colligan stated that until that relapse appellant had cooperated in every way with th e Office™s rehabilitation efforts. Further, Mr. Colligan contended that the Office erroneousl y referred appellant to an impartial medical
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4specialist because Dr. Breakston e did not know about appellant™s relapse, which occurred 15 months (actually 20 months) after he gave his opinion and the Office relied on Dr. Hirsch™s opinion, not Dr. Breakstone™s, in attempting to place a ppellant in a job. Mr. Colligan, therefore, contended that Dr. Klass™ opini on should have the status of a second opinion physician and the Office should refer appellant to an impartial medi cal specialist to reso lve the conflict between Drs. Klass and Hirsch™s opinions. Mr. Colligan c ontended that the Office violated appellant™s due process rights by ignoring his June 2, 1997 reque sts he made for a copy of appellant™s file and for information from the rehabilitation specialist failing to correct errors in fact and judgement he and Dr. Hirsch pointed out and i gnoring his complaint that Dr. Klass has been improperly classified as an impartial medical specialist. By letter dated June 19, 1997, the Office a ddressed the issue of the conflict between Drs. Breakstone and Hirsch, statin g that it was appropriate to fi nd there was a conflict between the two physicians and refer the case to an imp artial medical specialist. The rehabilitation specialist responded to appellant™s June 2, 1997 inquiries by letter dated June 6, 1997. By decision dated December 8, 1997, the Office finalized the proposed notice of reduction of compensation, stating that it found th at the position of accounting clerk was within appellant™s physical restrictions and vocational experience and represen ted appellant™s wage-earning capacity. In the attached memorandum, the Office noted that Mr. Colligan stated that appellant had a complete relapse as of Sept ember 13, 1996, which was supported by Dr. Hirsch. The Office stated that the information fiwas prev iously reviewedfl and it was determined that Dr. Klass™ opinion constituted the weight of th e evidence. The Office found that appellant did not submit new or additional information which would change the notice of proposed decision. By letter dated June 14, 1999, appellant requested reconsideration of the Office™s decision and submitted 14 exhibits. These in cluded the Office™s March 18, 1996 memorandum to the file stating that Dr. Breakstone™s opin ion was useless the Decem ber 11, 1995 letter from the Office to Dr. Breakstone requesting clarif ication of his opinion and Dr. Breakstone™s December 19, 1995 and January 11, 1996 reports. Appe llant also submitted Dr. Hirsch™s reports dated February 29, 1996, February 7, 1997 and a por tion of Dr. Hirsch™s October 24, 1996 report and he submitted Dr. Cantor™s report dated Ma rch 1, 1996. Further, appellant submitted the December 2, 1996 letter from Mr. Colligan doc umenting a telephone conference between him, Dr. Hirsch and the rehabilitation counselor, Ms. Hajduk. All of th is evidence was previously in the record. Appellant additionally submitte d excerpts from the Federal Employees™ Compensation Act procedure manual addressing th e procedure for obtaining medical reports and the criteria for evaluating an impa rtialist medical sp ecialist™s opinion. In his request for reconsideration, appellant reiterated some arguments he had previously made, stating that Dr. Klass™ opinion should not have been given the status of an impartial medical specialist because Dr. Breakstone™s report, which was written 15 months prior to appellant™s relapse on September 13, 1996, was in complete and, therefore, his opinion as a second opinion physician was invalid. Appellant reiterated that he had cooperated in rehabilitation efforts until he had his relapse. Appellant additionally contended that Dr. Breakstone™s opinion was not probative because, as stated in the Office™s own words in the March 18, 1996 memorandum to the file, his report was equivocal and speculative and, therefore, useless. Appellant noted how in Dr. Breakstone™s January 11, 1996 letter, he stated that it was
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5necessary for appellant to have more visits to therapists to ascertain whether he suffers from dysthymia. Appellant contended that, since Dr. Breakstone™s opinion was not entitled to any weight, the case should not have been referred to an impartial medical specialist and, therefore, Drs. Breakstone™s and Klass™ opinions are invali d. Appellant also contended that the statement of accepted facts was not complete or accurate, in part, because it did not contain any recent medical history as it had not b een updated since April 1, 1991, that it did not men tion appellant™s relapses and appellant™s fiown subjective evidence about anything.fl By decision dated June 21, 1999, the O ffice denied appellant™s request for reconsideration. The Board finds that the Office did not abus e its discretion in denying appellant™s request for reconsideration under 5 U.S.C. § 8128(a). To require the Office to reopen a case for me rit review under section 8128(a) of Act, the Office™s regulations provide that the application for reconsider ation, including all supporting documents, must set forth arguments and contain ev idence that either (1) shows that the Office erroneously applied or interprete d a specific point of law; (2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes releva nt and pertinent new evidence not previously considered by the Office. 1 A timely request for reconsideration may be granted if the Office determines that the employee has presented evidence and/or arguments that meets at least one of the standards described in section 10.606(b)(2).2 All the evidence appellant submitted with his request for reconsideration, with the exception of the excerpts from the procedur e manual had been previously submitted and, therefore, does not constitute relevant and pertinent new evidence. The procedure manual excerpts do not add any new argument to appellant™ s claim and, therefore, they do not meet any of the above-mentioned criteria. Further, the Office previously considered the legal arguments appellant made. Appellant argued that the Offi ce erred in finding that a conflict existed in the medical evidence and in referring him to an im partial medical specialist because the referral physician™s opinion, Dr. Breakstone ™s, was incomplete, vague a nd speculative. Appellant™s argument is not a new legal argument, however, because the Office, in determining that a conflict in the medical evidence existed, previ ously considered the weight to be given Dr. Breakstone™s opinion. Inasmuch as appellant did not show that th e Office erroneously applied or interpreted a specific point of law, did not advance a relevant legal argument or present relevant and pertinent new evidence not previously considered by the O ffice, he has failed to show that the Office abused its discretion in denying his request for reconsideration. 1 Section 10.606(b)(2)(i-iii). 2 Section 10.608(a).
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