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Sunday, September 18, 2011

ECAB recognizes appearance of bias and throws out referee report

If OWCP tries to send you to Menachem Meller, M.D., be sure to object prior to the examination that the Employees Compensation Appeals Board has found that Dr. Meller's conduct gives rise to the appearance of bias and you are entitled to select your referee from a list of three physicians. In a recent ECAB decision, J.S., docket no. 10-2198, issued July 26, 2011, the Board recognized and accepted my objections to the selection of Philadelphia area physician Menachem Meller, M.D. A Pennsylvania court held Dr. Meller's "testimony as a whole preposterous throughout, offensive at times, ill willed and entirely not credible and ill prepared." The Board held in J.S. that this gives rise to the appearance of bias and that OWCP should have recognized this appearance of bias and provided us with a list of three physicians from which J.S. should have been allowed to select his referee. The failure of OWCP to do this meant that the office could not rely upon the report from Dr. Meller and that OWCP must now send us a list of three physicians and schedule a new referee examination. Interestingly, it has now been almost two months and OWCP still has not acknowledged or acted upon the remand order from the Board. The Board also noted that OWCP's argument that I had only cited one court decision criticizing Meller was unpersuasive. If OWCP attempts to refer you to this physician, you must object PRIOR to attending the examination and request that because of the appearance of bias you are entitled to be given a list of three physicians from which you can select your referee.