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AVEDIS v. HERMAN

November 18, 1998

RUSSELL E. AVEDIS, Plaintiff, against ALEXIS M. HERMAN, Secretary of Department of Labor, in her official capacity, and the UNITED STATES DEPARTMENT OF LABOR OFFICE OF WORKERS COMPENSATION PROGRAMS, Defendants.


The opinion of the court was delivered by: SWEET

Sweet, D.J.

 The defendant Alexis M. Herman, Secretary, United States Department of Labor (the "Secretary"), has moved under Rule 12(b)(1), Fed. R. Civ. P. to dismiss the complaint of plaintiff Russell E. Avedis ("Avedis"). For the reasons set forth below, the motion will be treated as a motion for summary judgment and as such granted with leave to the parties to make any further submissions within twenty (20) days or such other period as may be agreed upon by the parties.

 Prior Proceedings

 Avedis pro se filed his complaint in forma pauperis on February 4, 1998, alleging statutory and constitutional violations by the Secretary.

 Avedis is a former Labor Department economist who received disability benefits stemming from injuries he sustained in an automobile accident in 1988, but whose benefits were terminated by the Secretary based upon a 1992 examination and conclusions of a medical expert who found that Avedis no longer was disabled. Avedis has challenged the termination of his compensation under the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. § 8101 et. seq, contending that the Secretary violated the FECA by terminating his benefits based on one physician's findings without sending him to a referee medical examination in violation of 5 U.S.C. § 8123(a) and that the Secretary's actions unconstitutionally deprived him of "administrative due process."

 The Secretary has moved to dismiss on the grounds of subject matter jurisdiction, the preclusion-of-review provision within 5 U.S.C. § 8128(b), and because Avedis has not alleged a cognizable claims of a constitutional violation. According to the Secretary, Avedis' allegation that the Secretary violated 5 U.S.C. § 8123(a) does not provide the Court with jurisdiction because § 8128's preclusion provision bars even a claim that the Secretary violated a clear statutory mandate. Finally, the Secretary maintains that interpretation of § 8123(a), applied in Avedis' case, is clearly reasonable and thus deprives the Court of jurisdiction.

 The Secretary filed the instant motion to dismiss the complaint on July 28, 1998, which was considered fully submitted on the call of the calendar on September 2, 1998.

 The Issue

 The precipitating event in this litigation is a somewhat routine termination in 1993 of compensation for a work-related injury on the grounds that the disability from a work-related accident in 1988 was no longer present. However, Avedis, apparently a law school student at the time of termination (decision of the Hearing Representative, December 1, 1993), has raised significant issues of statutory construction and separation of powers. The Congressional attempt to preclude court review is met by the allegation of the complaint that the Secretary committed a clear violation of a statutory mandate raising the issue as to whether an agency determination of what constitutes a "disagreement" under § 8123 requiring a third physician referee raises to constitutional dimensions. If jurisdiction does exist an issue is presented as to whether the interpretation of the statute allegedly violated, which resulted in the termination, was plausible on the entire record, and the appropriate method to resolve the question.

 The final issue is whether an agency determination of what constitutes a "disagreement" under § 8123 requiring a third physician referee rises to constitutional dimensions.

 The FECA Statutory Scheme

 The FECA establishes a comprehensive and exclusive workers' compensation scheme for federal employees. The Act provides that, "the United States shall pay compensation for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty . . . ." 5 U.S.C. § 8102(a). A wide range of benefits are provided for work-related injuries covered by the FECA, including payment of wage loss compensation, schedule awards for permanent loss or loss of use of specified members of the body, related medical costs and vocational rehabilitation.

 Under the FECA statutory scheme, the Secretary of Labor has the authority to administer and to decide all questions arising under the Act. 5 U.S.C. § 8145. The FECA further authorized the Secretary to prescribe rules and regulations necessary for the administration and enforcement of the Act. 5 U.S.C. § 8149. The Secretary has delegated the authority provided by §§ 8145 and 8149 to the Director of the Office of Workers' Compensation Programs ("OWCP"), who administers and implements the FECA. 20 C.F.R. § 10.2. Congress directed the Secretary to create, within the rules and regulations promulgated to implement the FECA, an Employees' Compensation appeals Board ("ECAB"), with the authority to hear and, subject to applicable law and the rules and regulations of the Secretary, to make final decisions on appeals taken from determinations and awards with respect to claims of employees. 5 U.S.C. § 8149; 20 C.F.R. § 10.301.

 The applicable regulations provide that "once OWCP has accepted a claim and paid compensation, it has the burden, before terminating . . . compensation, of establishing by the weight of the evidence that the disability for which compensation was paid has ceased." 20 C.F.R. § 10.110. In evaluating medical evidence during the administration of a claim, § 8123(a) of the FECA provides, in pertinent part, that "if there is a disagreement between the physician making the examination for the United States and the physician of the employee, the Secretary shall appoint a third physician who shall resolve the conflict." 5 U.S.C. § 8123(a). The Secretary's regulations mirror the statutory language of § 8123(a), adding the requirement that the third physician be qualified in the appropriate specialty. 20 C.F.R. § 10.408.

 If a claimant considers himself or herself aggrieved by OWCP's final determination, the FECA provides avenues for administrative review. From the date of the decision, the claimant may: 1) within 30 days, request a hearing before an OWCP hearing representative or request that such representative review the written record, 5 U.S.C. § 8124, 20 C.F.R. § 10.131; 2) within one year, request reconsideration, 5 U.S.C. § 8128, 20 C.F.R. § 10.128; or 3) within one year, file an appeal with ECAB. 20 C.F.R. § 10.139.

 The Act expressly precludes judicial review of administrative determinations under FECA. 5 U.S.C. §§ 8116(c), 8128(b).

 The FECA statute provides:

 
The action of the Secretary or her designee in allowing or denying a payment under this subchapter 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) (emphasis ...


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