Miller v. US Postal Service, IP 91-748-C.

Decision Date09 March 1993
Docket NumberNo. IP 91-748-C.,IP 91-748-C.
Citation815 F. Supp. 1195
PartiesCarolyn S. MILLER, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
CourtU.S. District Court — Southern District of Indiana

Philip H. Hayes, Robert J. Tornatta, Evansville, IN, for plaintiff.

Jill E. Zengler, Asst. U.S. Atty., Office of U.S. Atty., Indianapolis, IN, Vanessa A. Miree, U.S. Postal Service, Birmingham, MI, for defendant.

ENTRY DISCUSSING DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

TINDER, District Judge.

This matter comes before the court on the United States Postal Service's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim for relief, pursuant to Fed.R.Civ.P. 12(b)(1) and (6) respectively. The court, having considered the motion and the supporting and opposing briefs, finds that the motion to dismiss should be GRANTED.

I. Factual Background

The Plaintiff, Carolyn S. Miller, began employment with the United States Postal Service (the Postal Service) on March 17, 1972. On August 12, 1987, Miller injured her back lifting a bag of boxes while performing her duties as a distribution clerk.

Dr. Robert Collins examined Miller on August 13, 1987, and diagnosed her injuries as back strain. Dr. Collins determined that Miller was totally disabled for all work through August 23, 1987. Dr. Collins indicated that Miller could resume her regular duties on August 24, 1987 with no restrictions.

At the Postal Service's request, Dr. Lee Cattell gave Miller a fitness-for-duty examination on August 19, 1987. Dr. Cattell found that Miller was physically able to return to limited work, with a 15-pound lifting restriction, and with no repetitive bending or twisting for three to four weeks. Dr. Cattell diagnosed Miller's condition as "probable lumbosacral sprain/strain and obesity."

Based upon Dr. Cattell's diagnosis, Miller reported for work on August 20, 1987, but was unable to perform her duties.

The next day, August 21, 1987, Miller's family physician, Dr. Melvin Baird, examined her and diagnosed her as having lumbar strain which should heal in 10 to 14 days. Dr. Baird advised Miller not to work for 10 to 14 days. However, Dr. Baird subsequently issued a report dated October 22, 1987 which indicated that Miller was totally disabled for all work due to her August 12 injuries.

As a result of her injury, Miller applied for and received total disability benefits from the Department of Labor Office of Workers' Compensation Programs (OWCP) beginning approximately August 24, 1987. Accordingly, the Postal Service placed her in a leave-without-pay status.

At the Postal Service's request, Dr. Arthur Lorber gave Miller a fitness-for duty examination on October 22, 1987. Dr. Lorber found no muscle spasm, and indicated that Miller could return to limited duties, with a 10-pound lifting restriction and diminished bending and stooping.

Based on Dr. Lorber's examination, the OWCP office medical advisor specializing in orthopedics determined that Miller's lumbar strain should have been resolved in six to eight weeks, and her disability should have ceased by October 23, 1987. The medical advisor concluded that Miller should return to work with a 20-pound lifting restriction.

On the other hand, at approximately this same time, Miller's family doctor, Dr. Baird, informed Miller that she was still totally disabled, and that her disability was likely to continue for at least 90 days. Dr. Baird referred Miller to Dr. Robert Silbert, a physical medicine and rehabilitation specialist, for additional therapy.

Dr. Silbert's November 16, 1987 examination of Miller revealed normal neurological findings. However, Dr. Silbert recommended that Miller undergo a physical therapy program. Apparently, Dr. Silbert considered Miller to be partially disabled for work.

To resolve the conflict of opinion among the physicians, the OWCP requested an impartial orthopedic evaluation by Dr. John Beghin, a board-certified orthopedist.

Before Dr. Beghin examined Miller, Patricia Hayes, a postal inspector, contacted Dr. Beghin and provided him with a copy of an investigative report.

On January 11, 1988, Dr. Beghin examined Miller, and found that Miller experienced limited motion of the back due to subjective complaints of pain. Dr. Begin indicated that Miller was probably limited due to "secondary gain."1 Dr. Beghin noted that Miller complained of tenderness upon palpation of the posterior iliac crest region, which usually signifies "pain exaggeration." He believed she could return to work with no restrictions, but recommended a "functional capacities assessment exam" to more accurately ascertain her level of capability.

Based on the medical evidence on file, the OWCP determined that Miller had no remaining disability due to her August 12, 1987 injury. Therefore, the OWCP proposed terminating Miller's compensation.

In a letter dated February 3, 1988, the Postal Service instructed Miller to return to work at the Lawrence Branch Post Office February 6, 1988. However, Miller failed to return to work as directed. The manager of the Lawrence Branch sent Miller a letter dated February 9, 1988, instructing her to submit medical evidence justifying her absence from work. In response, Miller submitted medical documentation from Dr. Robert Silbert which indicated that she was unable to return to work.

In a February 19, 1988 letter, the Postal Service manager of Safety and Health Services advised Miller that Dr. Silbert's medical documentation was unacceptable because it did not show that Miller was unable to return to work on February 6, 1988, and instructed Miller to report for duty at the Lawrence Branch. The letter further advised that if Miller failed to report for duty, she would be considered "A.W.O.L." (absent without official leave).

In a letter dated February 29, 1988, the OWCP advised Miller that it intended to terminate her compensation benefits because the medical documentation on file indicated that she no longer suffered from a work-related injury. The OWCP gave Miller 30 days to submit additional evidence or argument to support her claim.

In response, Miller submitted medical reports from Dr. Silbert and Dr. Raymond Pierce.2 Drs. Silbert and Pierce diagnosed Miller as being totally disabled for work. However, on May 27, 1988, the OWCP found that the documentation submitted by Drs. Pierce and Silbert was inadequate to justify continuing Miller's compensation benefits.

In its June 1, 1988 decision, the OWCP advised Miller that the weight of the medical evidence established that Miller's work-related disability ceased June 5, 1988, and accordingly it would terminate her workers' compensation benefits June 5, 1988.

Miller filed an application of review by the OWCP director on June 16, 1988. However, on September 14, 1988, the OWCP denied Miller's application because the evidence submitted in support of the application was repetitive and lacked relevance.

On November 23, 1988, the Postal Service issued a "notice of removal," advising that Miller would be terminated from her employment effective December 30, 1988 because she had been in a leave-without-pay status for more than a year.

Based upon the evaluations of Drs. Pierce and Lorber, Miller requested a light-duty assignment consisting of a four-hour workday, no standing, no bending, no reaching, and a five-pound weight restriction. However, the Postal Service determined on December 14, 1988 that no such work was available.

The American Postal Workers Union, AFL-CIO (APWU) filed a grievance, challenging the Postal Service's removal action. On or about December 29, 1988, the Postal Service and the APWU entered into a written grievance resolution at Step 1 of the grievance process. The agreement provided that the Postal Service would (1) rescind its removal action until Miller could be examined by Dr. Patel, the postal medical officer for the Indianapolis post office; (2) schedule Miller for a fitness-for-duty examination by Dr. Lorber; and (3) request a complete diagnosis and prognosis from Miller's treating physician, Dr. Pierce.

Dr. Patel, the Postal Service physician, was unable to examine Miller due to scheduling complications.

On January 24, 1989, Dr. Lorber conducted a fitness-for-duty examination of Miller. In his January 25, 1989 report, Dr. Lorber indicated that Miller could return to her full-time job, but recommended diminished bending and stooping and a 35-pound lifting restriction.

On January 27, 1989, Dr. Pierce issued a report which, although ambiguous, appeared to indicate that Miller could return to work on four-hour-per-day basis with no bending, stooping, reaching, or lifting more than five pounds.3

On April 24, 1989, the OWCP appeals board determined that Dr. Beghin's opinion that Miller could return to work without restriction was controlling.

On June 15, 1989, the Postal Service issued its "notice of removal" indicating that Miller would be removed from Postal Service employment on July 20, 1989 because she had been on a leave-without-pay status for over a year.

Miller, through the APWU, filed another grievance on June 23, 1989, challenging the Postal Service's removal action, arguing that she was ready and willing to work within her physician's recommended restrictions.

On July 20, 1989, the Postal Service removed Miller from her employment because she had been on a leave-without-pay status for more than a year.

Miller's grievance was denied at Steps 1, 2, and 3 of the grievance process. The APWU filed an appeal with the Chicago Regional Office of the Merit Systems Protection Board, which was dismissed April 24, 1989 because Miller was not entitled to appeal rights under 5 U.S.C. § 7511.

Miller then filed a claim for unemployment benefits with the Indiana Department of Employment and Training Services. The claim initially was disapproved. However, on September 26, 1989, the initial decision was reversed, and Miller...

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