Tenth Circuit Gives Labor Sec. Another Shot

     DENVER (CN) — The 10th Circuit on Tuesday granted the Secretary of Labor’s request for a panel rehearing because the court admitted it had made a mistake in its ruling on a workers’ compensation conspiracy.
     Eight former government workers accused the Secretary and its Office of Workers’ Compensation of using biased physicians to make workers’ compensation decisions.
     Blake Brown et al. sued in July 2013, saying the Office of Workers’ Compensation hired “referee” physicians who were sympathetic to OWC goals. Referee physicians are typically tapped when an injured worker’s physician and the OWC’s physicians do not agree on the worker’s condition.
     Brown et al. said the defendants called preferred physicians even when other doctors in the appropriate specialty were available, and closer to the worker’s location.
     To ensure impartiality in referee physicians, the OWC keeps a rotation of board-certified physicians that a software program uses to schedule the referee appointment.
     The repeated use of favored physicians led the plaintiffs to suspect that the software, and OWC, might not be impartial.
     The plaintiffs said they “suspect that the OWC does not adhere to its official policy, but instead always hires the same ‘select few’ referee physicians, who are accordingly financially beholden — and presumably sympathetic — to the agency,” the 10th Circuit wrote in its Tuesday order, citing its original opinion. “Plaintiffs point to evidence that a certain orthopedic physician has repeatedly been selected to evaluate workers in distant ZIP codes, despite the presence of closer physicians of the same specialty.”
     The plaintiffs’ complaint included FOIA request for screenshots to show how the OWC’s scheduling software worked.
     In the 10th Circuit’s first ruling, on Aug. 29, it reversed a ruling that the screenshots were not recoverable and would have to be recreated to be exhibited for the court.
     But on Tuesday, the 10th Circuit determined that its August decision was flawed due to a “mistaken impression” that the screenshots could be retrieved.
     “On reconsideration, however, we conclude that plaintiffs’ FOIA request actually requires the agency to recreate images that do not exist in storage for electronic recovery,” the updated opinion says.
     “(F)or the government to produce the requested printouts, it would have to open the software, input the relevant data, and recreate a screen image that could be captured and produced. Because FOIA does not require an agency to create records, the agency need not undertake that process. Accordingly, summary judgment on the request for screen printouts was proper, so we affirm on that issue.
     “For the foregoing reasons, we reverse in part, and affirm in part, the district court’s grant of summary judgment and remand this case for proceedings consistent with this opinion.
     The panel consisted of Chief Judge Timothy Tymkovich, and Circuit Judges David Ebel and Gregory Phillips.

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