United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.V., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, TRAVIS 

AIR FORCE BASE, CA, Employer 

__________________________________________ 

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Docket No. 15-402 

Issued: June 9, 2015 

Appearances: Case Submitted on the Record

Daniel Goodkin, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 10, 2014 appellant, through counsel, filed a timely appeal from a 

November 14, 2014 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. 

ISSUE 

The issue is whether appellant has established an employment-related disability on or 

after April 4, 1993. 

FACTUAL HISTORY 

The case has previously been before the Board on prior appeals. Appellant had filed an 

occupational disease claim on June 24, 1988 alleging that she sustained carpal tunnel syndrome 

(CTS) as a result of her secretarial job duties. She stopped working and OWCP accepted the 

 1

 5 U.S.C. § 8101 et seq. 
2

claim for right CTS and a permanent aggravation of CTS secondary to surgical scarring. In a 

decision dated January 9, 2002, the Board found that OWCP had properly terminated 

compensation for wage-loss and medical benefits effective April 4, 1993.2

 The Board also found 

that appellant had submitted sufficient medical evidence to create a conflict under 5 U.S.C. 

§ 8123(a) as to whether she continued to be entitled to compensation after April 4, 1993. The 

case was remanded for referral to a referee physician to resolve the conflict. 

By order dated August 4, 2006, the Board remanded the case to OWCP.3 The Board 

found that the referee physician selected, Dr. Britt Daniel, a Board-certified neurologist, had not 

properly resolved the issue as to whether appellant continued to have an employment-related 

disability after April 4, 1993.4

 The case was remanded to properly resolve the disability issue. 

By decision dated September 8, 2008, the Board again remanded the case.5 The Board 

found that the new referee physician, Dr. Sandy Kimmel, an osteopath Board-certified in 

neurology, had not addressed the issue of whether appellant had a continuing employmentrelated disability from April 4, 1993. The case was remanded again to properly resolve the 

conflict. 

OWCP then selected Dr. Edward Hemphill, a Board-certified orthopedic surgeon, to 

resolve the conflict. In a brief report dated December 1, 2009, Dr. Hemphill provided a history 

but did not include results on examination. He opined that, while appellant had residual CTS 

bilaterally, she was not disabled on or after April 4, 1993. 

On February 10, 2013 OWCP advised appellant that Dr. John Sampson, a Board-certified 

neurosurgeon, had been selected as a referee physician. Appellant, along with a January 10, 

2013 statement of accepted facts (SOAF) and medical evidence, was referred to Dr. Sampson for 

examination. In a report dated March 5, 2013, Dr. Sampson provided a history and results on 

physical and neurological examination. He indicated that appellant did not have a documented 

CTS until August 1989, although he noted that it was possible to have CTS in the setting of a 

normal diagnostic study. Dr. Sampson noted that appellant had normal nerve conduction studies 

in January 1993.6

 In response to a question as to any period of disability since April 1993, he 

stated, “[Appellant] had normal studies in January 1993. According to [her], she had also ceased 

working since 1988. Therefore, I do not believe [that appellant] had any further disability related 

to work duties or related treatment.” 

 2

 Docket No. 00-1942 (issued January 9, 2002). 

3

 Docket No. 06-529 (issued August 4, 2006). 

4

 The Board noted that, in a May 10, 2002 letter, OWCP indicated that appellant continued to be entitled to 

medical benefits. 

5

 Docket No. 07-2123 (issued September 8, 2008). 

6

 The record contains a January 5, 1993 report from Dr. William Curtin, a Board-certified neurologist, who 

provided results of nerve conduction testing and opined that there was no dysfunction or disease involving the 

peripheral nervous system or muscles. 
3

By decision dated December 3, 2013, OWCP denied the claim for wage-loss 

compensation commencing April 4, 1993. It found that the weight of the medical evidence 

rested with Dr. Sampson. 

Appellant, through counsel, requested a review of the written record by an OWCP 

hearing representative. By decision dated November 14, 2014, the hearing representative 

affirmed the December 3, 2013 decision. The hearing representative found that the weight of the 

evidence was represented by Dr. Sampson. 

LEGAL PRECEDENT 

After termination or modification of compensation benefits, clearly warranted on the 

basis of the evidence, the burden for reinstating compensation shifts to the claimant. To prevail, 

the claimant must establish by the weight of the reliable, probative, and substantial evidence that 

he or she had an employment-related disability, which continued after the termination of 

benefits.7

It is well established that when a case is referred to a referee medical specialist for the 

purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and 

based on a proper factual and medical background, must be given special weight.8 Medical 

rationale is a medically sound explanation for the opinion offered.9

 

ANALYSIS 

In its January 9, 2002 decision, the Board affirmed OWCP’s termination of appellant’s 

compensation benefits. The Board also found that there was an unresolved conflict under 5 

U.S.C. § 8123(a) with respect to whether appellant continued to have an employment-related 

disability from April 4, 1993.10 Following the Board’s September 8, 2008 decision, remanding 

the case to properly resolve the conflict, Dr. Hemphill was selected as the referee physician, but 

his December 1, 2009 report was merely a brief report that did not provide results on 

examination or other relevant detail. This report was of limited probative value and was not 

sufficient to resolve the conflict.11 OWCP ultimately selected Dr. Sampson, as the referee 

 7 See I.J., 59 ECAB 408 (2008). 

8 Harrison Combs, Jr., 45 ECAB 716, 727 (1994). 

9 See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641 

(1983) (the evidence must convince the adjudicator the conclusion drawn is rational, sound and logical). 

10 FECA provides that, if there is a 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 the 

examination. 5 U.S.C. § 8123(a). The implementing regulations state that if a conflict exists between the medical 

opinion of the employee’s physician and the medical opinion of either a second opinion physician or OWCP medical 

adviser, OWCP shall appoint a third physician to make an examination. This is called a referee or impartial 

examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case. 20 C.F.R. § 10.321. 

11 See John E. Lemker, 45 ECAB 258 (1993) (a report lacking results on examination, other detail, and medical 

rationale is of little probative value). 
4

physician, to resolve the conflict. As noted above, a rationalized opinion from a referee 

physician is entitled to special weight. 

The Board finds that Dr. Sampson’s opinion represents the weight of the medical 

evidence in this case. Dr. Sampson was provided a complete factual and medical background 

with a SOAF and medical records. He provided a history and detailed results on examination. 

Dr. Sampson opined that appellant did not have an employment-related disability on or after 

April 4, 1993. To support this opinion, he noted that she had not worked since 1988 and 

diagnostic studies in January 1993 were normal. Dr. Sampson offered a rationalized medical 

opinion based on a complete background. The Board finds that his opinion is entitled to special 

weight and resolves the conflict in the medical evidence. 

On appeal counsel contends that Dr. Sampson’s report is not sufficient to constitute the 

weight of the medical evidence. He argues that his report was not based on a complete 

background, as he questioned the permanency of the aggravation of CTS. As noted above, 

Dr. Sampson was provided with an accurate background and he provided a history and detailed 

findings. He indicated that any continuing aggravation after April 4, 1993 would not be 

disabling. 

Counsel also argues that Dr. Sampson’s report was internally inconsistent with respect to 

diagnostic studies. He argues that Dr. Sampson admitted that it was possible to have both CTS 

and normal studies, but then relied on January 1993 normal diagnostic studies to support his 

opinion. The reference to the possibility of CTS with normal studies was made with respect to 

appellant’s condition prior to August 1989. Dr. Sampson was referring to a possibility that she 

may have had CTS prior to the initial evidence of CTS found in diagnostic studies from 

August 1989. It is not inconsistent for Dr. Sampson to find no employment-related disability on 

or after April 1993 based on the specific results of a January 1993 study. 

The Board accordingly finds that OWCP properly denied appellant’s claim for 

compensation commencing April 4, 1993. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not established an employment-related disability on or 

after April 4, 1993. 
5

ORDER 

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

Compensation Programs dated November 14, 2014 is affirmed. 

Issued: June 9, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board