United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.F., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

PRIMARY CARE CLINIC, Anchorage, AK, 

Employer 

__________________________________________ 

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Docket No. 13-971 

Issued: May 16, 2014 

Appearances: Case Submitted on the Record

John Eiler Goodwin, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On March 15, 2913 appellant, through counsel, filed a timely appeal from a 

September 20, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.2

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant’s counsel timely requested oral argument before the Board. By an order dated July 30, 2013, the 

Board denied the request on the grounds that, as the matter required an evaluation of the medical evidence, any 

arguments on appeal could be adequately addressed based on a review of the case record. Thus, the Board 

concluded that an oral argument would serve no useful purpose. See Order Denying Request for Oral Argument, 

Docket No. 13-971 (issued July 30, 2013). 
2

ISSUE 

The issue is whether appellant sustained an occupational disease in the performance of 

duty. On appeal appellant’s counsel argues that the case should be remanded for review by a 

rheumatologist as OWCP failed to adequately develop the medical evidence. 

FACTUAL HISTORY 

This case has previously been before the Board. On August 9, 2011 the Board set aside a 

May 18, 2010 OWCP hearing representative’s decision affirming an October 1, 2009 decision 

denying appellant’s occupational disease claim.3 The Board remanded the case for further 

development of the medical evidence to determine whether appellant’s neck and bilateral 

shoulder injuries were the result of established employment activities in her capacity as a patient 

services assistant. The facts and circumstances of the Board’s prior decision are incorporated by 

reference.4

Following the Board’s remand instructions, OWCP referred appellant for a second 

opinion evaluation with Dr. Thomas Gritzka, a Board-certified orthopedic surgeon. In a 

January 17, 2012 report, Dr. Gritzka, based upon a review of the medical evidence and statement 

of accepted facts and physical examination, concluded that there was no orthopedic diagnosis 

due to the identified employment factors. A physical examination revealed a normal orthopedic 

examination of appellant’s shoulders, cervical and lumbar spines. There were no cervical 

paravertebral muscle spasms, no tenderness on palpation over the medial right scapula border 

and normal lumbar paravertebral muscle tone. Dr. Gritzka reported that appellant had normal 

lumbar, cervical and bilateral shoulder range of motion. He deferred to a rheumatologist on the 

question of whether there was an underlying rheumatological condition and whether it had been 

aggravated by her employment. Dr. Gritzka also noted that musculoskeletal conditions were not 

due to a traumatic or occupational disease. 

By decision dated March 13, 2012, OWCP denied appellant’s claim, finding there was no 

causal relationship between the accepted employment activities and the claimed condition. 

On March 28, 2012 appellant requested an oral hearing before an OWCP hearing 

representative. On July 17, 2012 a telephonic hearing was held before an OWCP hearing 

representative. 

By decision dated September 20, 2012, an OWCP hearing representative affirmed the 

March 13, 2012 denial of appellant’s claim. He found that Dr. Gritzka’s recommendation for a 

referral was speculative and the record contained no evidence supporting a rheumatologic 

diagnosis. 

 3

 Docket No. 10-2282 (issued August 9, 2011). 

4

 On July 8, 2009 appellant, then a 50-year-old patient services assistant, filed an occupational disease claim 

alleging that her debilitating neck, shoulders, back, ribs, hands and wrist pain were due to her repetitive use of 

substandard equipment and workstations. She stated that she first became aware of this condition on November 21, 

2007, but did not realize that it was employment related until December 14, 2007. Appellant stopped work on 

July 9, 2009 and resigned from the employing establishment effective March 11, 2011. 
3

LEGAL PRECEDENT 

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, an employee must submit the following: (1) medical evidence establishing the 

presence or existence of a condition for which compensation is claimed; (2) a factual statement 

identifying employment factors alleged to have caused or contributed to the condition; and 

(3) medical evidence establishing that the employment factors identified by the employee were 

the proximate cause of the condition or illness, for which compensation is claimed or stated 

differently, medical evidence establishing that the diagnosed condition is causally related to the 

employment factors identified by the employee.5 

Causal relationship is a medical issue and the medical evidence required to establish 

causal relationship is rationalized medical evidence.6

 Rationalized medical evidence is medical 

evidence which includes a physician’s rationalized medical opinion on the issue of whether there 

is a causal relationship between an employee’s diagnosed conditions and the implicated 

employment factors.7

 The opinion of the physician must be based on a complete factual and 

medical background of the employee, must be one of reasonable medical certainty and must be 

supported by medical rationale explaining the nature of the relationship between the diagnosed 

conditions and the specific employment factors identified by the employee. 

ANALYSIS 

The Board finds that this case is not in posture for a decision. 

Based on the Board’s instructions on remand, OWCP referred appellant for a second 

opinion evaluation with Dr. Gritzka, who opined that appellant had no orthopedic condition as a 

result of the accepted work factors, but noted there might be an underlying rheumatologic 

disorder. Dr. Gritzka recommended that OWCP refer appellant for an evaluation by a 

rheumatologist to determine whether there was an undiagnosed underlying rheumatologic 

condition and any relationship to the accepted work factors. In its March 13, 2012 decision, 

however, OWCP did not address Dr. Gritzka’s recommendation and failed to follow his 

recommendation for a rheumatological examination. In a September 20, 2012 decision, an 

OWCP hearing representative affirmed the denial of appellant’s claim and rejected the argument 

that OWCP erred in failing to refer appellant for a rheumatologic examination as recommended 

by Dr. Gritzka. 

Appellant bears the burden to establish that a condition is causally related to employment 

factors. However, when OWCP undertakes development of the medical evidence, it has the 

responsibility to do so in a proper manner.8

 In this case, it undertook the development of 

medical evidence when it referred appellant to Dr. Gritzka for a second opinion evaluation. 

 5 D.D., 57 ECAB 734 (2006); Donna L. Mims, 53 ECAB 730 (2002). 

6 I.R., Docket No. 09-1229 (issued February 24, 2010); David Apgar, 57 ECAB 137 (2005). 

7 G.G., 58 ECAB 389 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). 

8 P.K., Docket No. 08-2551 (issued June 2, 2009). 
4

OWCP requested that Dr. Gritzka diagnose the condition and discuss any causal relationship of 

those conditions to work activities at the employing establishment. Dr. Gritzka recommended an 

evaluation by a rheumatologist for a determination of whether appellant had any rheumatologic 

condition and whether that condition had been aggravated by the employment factors. OWCP 

did not follow Dr. Gritzka’s recommendation. Although the burden of proof does not revert to 

OWCP to disprove a claim, OWCP had an obligation to follow its second opinion as to whether 

any condition was caused or aggravated by the accepted employment factors. The Board 

therefore sets aside the September 20, 2012 OWCP decision and remands for OWCP to refer the 

case to a rheumatologist to determine whether appellant’s rheumatologic condition may have 

been aggravated by work factors. After such further development of the record as it deems 

necessary, it shall issue a de novo decision 

CONCLUSION 

The Board finds that this case is not in posture for a decision as further development of 

the medical evidence is necessary. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 20, 2012 is set aside and the case remanded for further 

proceedings consistent with the above opinion.

Issued: May 16, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board