United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.T., Appellant 

and 

TENNESSEE VALLEY AUTHORITY, 

PARADISE STEAM PLANT, Drakesboro, KY, 

Employer 

__________________________________________ 

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Docket No. 13-1977 

Issued: March 18, 2014 

Appearances: Case Submitted on the Record

Ronald K. Bruce, 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 August 28, 2013 appellant, through his representative, filed a timely appeal from the 

June 3, 2013 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 to review the merits of the case. 

ISSUE 

The issue is whether appellant sustained a pulmonary injury in the performance of duty. 

FACTUAL HISTORY 

In a prior appeal,2

 the Board remanded the case for a second impartial medical evaluation 

to resolve the conflict as to whether appellant sustained a pulmonary injury in the performance of 

 1

 5 U.S.C. § 8101 et seq. 

2

 Docket No. 10-1804 (issued April 15, 2011). 
2

duty. The facts of this case, as set forth in the Board’s prior decision, are hereby incorporated by 

reference.3

OWCP referred appellant, together with the medical record and a statement of accepted 

facts, to Dr. Jack H. Hasson, a Board-certified specialist in pulmonary disease, a former certified 

B Reader, currently a certified A Reader and an assistant professor of medicine, for an impartial 

medical evaluation. 

Dr. Hrudaya P. Nath, a Board-certified diagnostic radiologist and professor of medicine, 

interpreted a chest x-ray obtained for Dr. Hasson. Scattered calcified granulomas were present. 

There were small rounded interstitial opacities with ILO perfusion of approximately 1/2. 

Dr. Nath concluded that there was no acute disease. 

Dr. Jubal R. Watts, Jr., a Board-certified diagnostic radiologist and certified B Reader, 

interpreted the same chest x-ray, the quality of which he found to be grade 1. There were small 

parenchymal opacities consistent with pneumoconiosis, p/q involving the upper, middle and 

lower lung zones bilaterally. The profusion of the small opacities was 1/1. No large opacities or 

pleural abnormalities consistent with pneumoconiosis were evident. A calcified granuloma was 

seen in the left upper lobe with a calcified left hilar node present. Dr. Watts’ impression was p/q 

small opacities with a perfusion of 1/1 compatible with pneumoconiosis. 

Dr. Hasson evaluated appellant on July 21, 2011. He related appellant’s history and 

complaints. Dr. Hasson described his findings on examination and reviewed previous imaging 

studies. He stated that appellant’s current chest x-rays showed lungs free of infiltrates. There 

were no rounded or irregular opacities and no conglomerate nodules. The pleural surfaces were 

free of plaque formation and pleural thickening. 

Dr. Hasson found no evidence of pneumoconiosis. He concluded that appellant’s 

significant pulmonary impairment was related to a number of factors, including chronic 

obstructive pulmonary disease (COPD) with an asthmatic component. Dr. Hasson stated, “I feel 

that [appellant’s] dyspnea and impairment is totally due to his COPD related to tobacco exposure 

along with his cor pulmonale, which may be related to a number of factors, including obstructive 

sleep apnea and pCO2 retention, but I find that pneumoconiosis plays no role in his pulmonary 

impairment and I find no evidence of pneumoconiosis. I do not feel that coal dust plays any role 

in [appellant’s] present impairment.” 

In a decision dated September 2, 2011, OWCP denied appellant’s pulmonary injury 

claim. It found that the weight of the medical evidence rested with the opinion of Dr. Hasson, 

supported by the medical findings of Dr. Watts, the certified B Reader and failed to substantiate 

that appellant’s pulmonary condition was the result of his exposure during federal employment. 

On December 12, 2011 an OWCP hearing representative found that the case was not in 

posture for decision. The hearing representative observed that Dr. Hasson did not mention 

 3

 Appellant, a 58-year-old retired gas and diesel mechanic and machinist, filed an occupational disease claim 

alleging that his pneumoconiosis, chronic obstructive airway disease and chronic bronchitis were a result of 

exposure to coal dust and asbestos in his federal employment from 1976 to 1996. 
3

Dr. Watts’ interpretation of appellant’s chest x-rays, which indicated there was evidence of 

pneumoconiosis. Dr. Hasson also did not mention having reviewed the statement of accepted 

facts or the accepted exposure to gasoline fumes. Further, he provided no medical rationale to 

support his opinion that appellant sustained no impairment related to exposure to coal dust. The 

hearing representative remanded the case for a supplemental report from the impartial medical 

specialist to address specific questions. 

Dr. Hasson provided a supplemental report dated January 4, 2012. He stated that he did 

not believe pneumoconiosis was present based on Dr. Watts’ findings. Dr. Hasson explained 

that he saw no evidence of pneumoconiosis after his own evaluation of the chest x-ray or other 

evaluations of chest x-rays by other physicians, in spite of the fact that there were x-rays felt to 

show pneumoconiosis. Further, he explained that the best evidence for no evidence of 

pneumoconiosis on imaging studies was the computerized tomography (CT) scan, noted in his 

initial report, showing no description of round or irregular opacities or any diagnosis of 

pneumoconiosis. Dr. Hasson considered CT scans to be the gold standard of imaging compared 

to a plain chest x-ray. “It is well known that the CT scan of the chest is a better imaging 

modality as compared to a plain chest x-ray.” 

Dr. Hasson wanted to make perfectly clear that appellant’s pulmonary condition was 

totally related to COPD related to cigarette smoking and that there was no evidence that any 

other exposure, including gasoline or coal dust, had any relation to any damage that was 

demonstrated on appellant’s examination and laboratory studies, including his arterial blood 

gases. Although exposure to irritants and dust can aggravate COPD, there was no evidence of 

any injury from either of those substances. 

Dr. Hasson also explained that there was no evidence, either by clinical practice or in the 

literature, that coal dust causes or aggravates obstructive sleep apnea, nor was there evidence that 

coal dust caused any of appellant’s problems, since he had classic COPD, which explained all of 

his symptoms. There was no evidence of pneumoconiosis on either his chest x-ray or his CT 

scan. In addition, the elevation of pCO2 was classic for COPD and is described well in the 

literature. Dr. Hasson added that he had seen it on numerous occasions frequently in his practice 

over the previous 35 years, “but I [have] never seen a case of elevation of pCO2 related to 

gasoline exposure in all of my years of practice and I know of no literature that documents 

elevation of the pCO2 with exposure to gasoline.” 

In a decision dated February 28, 2012, OWCP denied appellant’s pulmonary injury 

claim. It found that the weight of the medical evidence rested with Dr. Hasson. 

On August 14, 2012 an OWCP hearing representative remanded the case for another 

supplemental report from Dr. Hasson, who had provided some, but not all, of the information 

requested. Dr. Hasson failed to explain why exposure to coal dust had no effect on appellant’s 

pulmonary conditions. Also, previous medical evidence indicated that a negative CT scan was 

meaningless, as it washed out lesions and showed a high percentage of false negatives. The 

hearing representative instructed Dr. Hasson to review the statement of accepted facts and to 

fully explain whether the condition of pneumoconiosis was present in Dr. Watts’ findings. 

Dr. Hasson was also to address the opinion that a negative CT scan was meaningless in the 
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diagnosis of pneumoconiosis. He was also to explain why there was no evidence of injury or 

damage from appellant’s exposure to gasoline or coal dust. 

On November 1, 2012 OWCP received a response from Dr. Hasson, which consisted of a 

handwritten note on OWCP’s request for additional information. With an arrow drawn to the 

request that he review the statement of accepted facts and certain medical reports, the note reads: 

“I have reviewed and my opinion is not changed.” 

In a decision dated November 13, 2012, OWCP denied appellant’s pulmonary injury 

claim. It found that the weight of the medical evidence rested with the opinion of Dr. Hasson. 

On June 3, 2013 an OWCP hearing representative affirmed the denial of appellant’s 

claim on the grounds that there was no rationalized medical evidence in support of appellant’s 

contention that the claimed pulmonary condition was causally related to factors of his federal 

employment. The hearing representative further found that Dr. Hasson’s opinion represented the 

weight of the medical evidence and established that the claimed pulmonary condition was not 

due to appellant’s federal employment. 

Appellant’s representative argues that the finding that the weight of the medical evidence 

rests with Dr. Hasson is not supported by the evidence of record. 

LEGAL PRECEDENT 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of duty.4

 An employee seeking benefits under FECA 

has the burden of proof to establish the essential elements of his or her claim. When an 

employee claims that he or she sustained an injury in the performance of duty, he or she must 

submit sufficient evidence to establish that he or she experienced a specific event, incident or 

exposure occurring at the time, place and in the manner alleged. He or she must also establish 

that such event, incident or exposure caused an injury.5

Causal relationship is a medical issue6

 and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. The opinion of the 

physician must be based on a complete factual and medical background of the claimant,7

 must be 

one of reasonable medical certainty8

 and must be supported by medical rationale explaining the 

 4

 5 U.S.C. § 8102(a). 

5 John J. Carlone, 41 ECAB 354 (1989). 

6 Mary J. Briggs, 37 ECAB 578 (1986). 

7 William Nimitz, Jr., 30 ECAB 567, 570 (1979). 

8 See Morris Scanlon, 11 ECAB 384, 385 (1960) (in which the claimant’s physician concluded that the implicated 

conditions “could have had” a direct bearing upon his sickness). 
5

nature of the relationship between the diagnosed condition and the established incident or factor 

of employment.9

If there is 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 

make an examination.10 When there exist opposing medical reports of virtually equal weight and 

rationale and the case is referred to an impartial medical specialist for the purpose of resolving 

the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a 

proper factual background, must be given special weight.11

When OWCP secures an opinion from an impartial medical specialist for the purpose of 

resolving a conflict in the medical evidence and the opinion from the specialist requires 

clarification or elaboration, OWCP has the responsibility to secure a supplemental report from 

the specialist for the purpose of correcting a defect in the original report. When the impartial 

medical specialist’s statement of clarification or elaboration is not forthcoming or if the specialist 

is unable to clarify or elaborate on the original report or if the specialist’s supplemental report is 

also vague, speculative or lacks rationale, OWCP must submit the case record together with a 

detailed statement of accepted facts to another impartial specialist for a rationalized medical 

opinion on the issue in question.12 Unless OWCP follows this procedure, the intent of section 

8123(a) will be circumvented when the impartial specialist’s medical report is insufficient to 

resolve the conflict of medical evidence.13

ANALYSIS 

In the prior appeal, the Board remanded the case for a second impartial medical 

evaluation to resolve the conflict as to whether appellant sustained a pulmonary injury in the 

performance of duty. OWCP referred him to Dr. Hasson, who is a Board-certified specialist in 

pulmonary disease; however, he is not a certified B Reader. Dr. Hasson was once a certified B 

Reader, but since 2003 he has been recognized as a certified A Reader. Dr. Watts, a Boardcertified diagnostic radiologist, is a certified B Reader. 

Thus, on the question of whether appellant’s chest x-ray shows evidence of 

pneumoconiosis, Dr. Watts’ interpretation carries more weight. It was his opinion that 

appellant’s chest x-ray showed small parenchymal opacities consistent with pneumoconiosis. 

Dr. Hasson’s opinion that pneumoconiosis was not present based on Dr. Watts’ findings 

is not well rationalized. His interpretation of the chest x-ray and of other x-rays felt to show 

 9 See William E. Enright, 31 ECAB 426, 430 (1980) (finding no rationalized medical evidence, addressed to the 

particular circumstances under which the claimant worked, indicating that his disability was causally related to such 

employment factors). 

10 5 U.S.C. § 8123(a). 

11 Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980). 

12 See Nathan L. Harrell, 41 ECAB 402 (1990). 

13 Harold Travis, 30 ECAB 1071 (1979). 
6

pneumoconiosis, is not sufficient to outweigh the opinion of a certified B Reader. When 

challenged on Dr. Hasson’s assertion that a CT scan was a better imaging modality for 

identifying pneumoconiosis, he refused to address the issue. He also failed to provide any 

meaningful response to the questions most recently asked of him. The handwritten note 

indicating that Dr. Hasson had reviewed the statement of accepted facts and certain medical 

reports was inadequate to resolve the questions most recently posed by the hearing 

representative. Medical conclusions unsupported by rationale are of little probative value.14

Despite OWCP’s attempts to obtain clarification from Dr. Hasson, the Board finds that 

his opinion remains insufficient to resolve the outstanding conflict in this case. Referral to 

another impartial medical specialist is therefore necessary. The Board will set aside OWCP’s 

June 3, 2013 decision and will remand the case for referral to a third impartial medical specialist 

to resolve the conflict as to whether appellant’s accepted exposure in federal employment caused 

or aggravated any firmly diagnosed pulmonary condition. After such further development of the 

medical evidence as may become necessary, OWCP shall issue an appropriate de novo decision 

on appellant’s injury claim. 

CONCLUSION 

The Board finds that this case is not in posture for decision. Further, development of the 

medical opinion evidence is required. 

 14 Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954). 
7

ORDER 

IT IS HEREBY ORDERED THAT the June 3, 2013 decision of the Office of Workers’ 

Compensation Programs is set aside and the case remanded for further development consistent 

with this opinion. 

Issued: March 18, 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