United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.T, Appellant 

and 

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, Deer Lodge, MT, 

Employer 

__________________________________________ 

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Docket No. 16-0374 

Issued: November 2, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 28, 2015 appellant, through counsel, filed a timely appeal from an 

August 11, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2

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

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

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 

20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. 

Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, 

subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of 

fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether appellant has established chemical encephalopathy causally related 

to exposure to chemicals on July 8 and 10, 2009 in the performance of duty. 

FACTUAL HISTORY 

On July 15, 2009 appellant, then a 36-year-old seasonal maintenance worker, filed an 

occupational disease claim (Form CA-2) alleging that on July 11 and 12, 2009 he experienced 

tingling, nerve spasms, loss of muscle control, numbness, rapid and heavy breathing, tightness in 

chest, sweating, panic, and fear after he cleaned out hazmat sheds on July 8 and 10, 2009. He 

continued to work full duty and stopped work on July 31, 2009. 

An incident investigation report prepared by Robert Glover, an accident investigator, 

indicated that on July 8 and 10, 2009 appellant and three other Youth Conservation Crew (YCC) 

members cleaned out a building spill in a hazardous materials (hazmat) storage shed. He noted 

that the shed contained a 55-gallon barrel of boiled linseed oil, which was 80 percent of the 

contents of the spill reservoir, and the other 20 percent of the spill were unknown organic and 

nonorganic solvents. Mr. Glover reported that the workers used rubber gloves, latex gloves, 

wide putty knives, paint stripper, Grez-Off, and N95 respirators. 

The employing establishment provided various statements from appellant’s supervisors. 

In a July 13, 2009 statement, James W. Perkins, a project manager, related that on July 8, 2009 

he directed YCC members to clean out excess material that had collected in the bottom of a 

hazmat storage shed. Appellant assisted the other YCC members on July 8 and 10, 2009. On 

July 13, 2009 he informed Mr. Perkins that on July 11 and 12, 2009 he experienced episodes 

where he felt like he could barely breathe or feel his extremities. Appellant believed that it could 

be related to the chemicals he cleaned. In an August 14, 2009 statement, Laura Rotegard, the 

superintendent, related that appellant informed his supervisor of symptoms that he suffered over 

the weekend, which he attributed to exposure at work. Appellant was instructed to file an 

occupational disease claim. Ms. Rotegard noted that she requested that her zone-safety manager, 

Mr. Glover, conduct an investigation. The employing establishment also submitted notes from a 

July 27, 2009 conference call regarding actions to take following the July 8 and 10, 2009 

employment exposure incidents. 

On July 22, 2009 appellant was initially examined by Dr. Patrick J. McGree, a Boardcertified surgeon, for toxic exposure to multiple chemicals at his workplace. Dr. McGree 

recounted that on July 8 and 10, 2009 appellant cleaned out a building where multiple chemicals 

were stored and that on July 11 and 12, 2009 appellant experienced episodes of cramps and 

numbness. He reviewed appellant’s history and reported an essentially normal physical 

examination. Dr. McGree opined that appellant had chemical exposure, multiple spasms and 

contractures, and a history of Hepatitis C. He continued to treat appellant and provided progress 

notes dated July 23 to August 21, 2009 regarding his treatment of and communication with 

appellant for complaints of tremors, chest pain, and difficulty breathing. In an August 7, 2009 

progress note, Dr. McGree informed appellant that his drug screen was positive for marijuana 

and opiates. Appellant explained that he had been treated for chronic pain and had a medical 

card to smoke marijuana. 
3

Appellant also underwent diagnostic examinations. A July 24, 2009 chest examination 

by Dr. Dennis Palmer, a Board-certified diagnostic radiologist with a subspecialty in vascular 

and interventional radiology, revealed clear lungs and no evidence of acute cardiopulmonary 

disease. A July 30, 2009 pulmonary function examination by Dr. K.J. Popovich, a Boardcertified internist with subspecialties in pulmonary disease and sleep medicine, demonstrated no 

significant changes in measured airflow parameters. 

Dr. Carlos P. Sullivan, a neurologist, also treated appellant. In an August 12, 2009 

neurology consult report, he described the July 8 and 10, 2009 exposure incidents at work and 

the symptoms appellant experienced after the exposure, including the July 11 and 12, 2009 panic 

episodes. Dr. Sullivan identified linseed oil and acetone as two of the chemical agents to which 

appellant was exposed in the storage shed. He reviewed appellant’s history and reported 

essentially normal physical and neurological examination findings. Dr. Sullivan diagnosed 

probable carpal pedal spasm related to stresses. He opined that toxic chemical effects could not 

be ruled out completely as it was unknown to which chemicals appellant had been exposed. 

In progress notes dated August 13 to September 15, 2009, Vincent P. Matule, a licensed 

social worker, noted that appellant sought therapy after assisting in a clean-up at work. He 

explained that appellant still experienced body twitches, seizure-type activity, drooling, slow and 

heavy breathing, and anxiety. Mr. Matule reported that it was obvious that appellant had a great 

deal of fear, anxiety, depression, and anger as a result of his participation in clean-up activity in 

2009. 

By letter dated August 17, 2009, OWCP advised appellant that the evidence submitted 

was insufficient to establish his occupational disease claim. It requested that appellant submit 

additional factual information regarding the July 8 and 10, 2009 employment exposure incidents 

and medical evidence to establish that he sustained a diagnosed medical condition as a result of 

the alleged exposure at work. A similar letter was sent to the employing establishment. 

In a letter dated September 17, 2009, Judy Schnittker, an employee relations specialist for 

the employing establishment, recounted that during an interview after the clean-up on July 8 

and 10, 2009, appellant complained of feeling “light-headed” and having to “spit junk out of his 

throat.” She indicated that he did not take any time-off work until July 22, 2009 and that the 

other staff members did not notice anything unusual with appellant at work. 

The employing establishment provided an inventory list dated May 15, 2009 of the 62 

materials stored in the hazmat shed, which included ortho, indoor insect fogger (pyrethrum, 

permethrin). It also submitted a position description for a maintenance worker, the results of the 

analysis screening of the spilled material, and an August 25, 2009 investigative activity report. 

Several material safety data sheets (MSDS) were also provided by the employing 

establishment for the materials o-xylene, m-xylene, p-xylene, toluene, ethylaminoethanol, black 

toner type L1, stripping gel, weatherseal, multipurpose grease, petroleum oil, prestone anti-freeze 

coolant, motor oil, butatone, dioctylphthalate, tetrachloroethylene, ethyl benzene, isopropyl, 

nonchlorinated brake parts cleaner, super heavy duty radiator cleaner, insect fogger, klean-strip 

kerosene, neatsfoot oil, Pyroil regular starting fluid, weitron-134a, super concentrated lead 

substitute, multi-surface waterproofer, premium starting fluid, and methyl ethyl ketone. The 
4

MSDS indicated that aspiration and inhalation of these hazards could cause severe eye and skin 

irritation and that inhalation may cause central nervous system effects such as nausea, headache, 

dizziness, unconsciousness, drowsiness, and depression. The employing establishment also 

included MSDS for the chemicals linseed oil, motor oil, aquatic weed and brush herbicide, 

Hi-Light blue liquid, windshield deicer, Valvoline crimson #2 grease, safety solvent 5115, 

petroleum-based lubricating oil, tractor fluid, supreme engine oil, Valvoline oil, antifreezecoolant, brake fluid, steering fluid, rust dissolver, mineral oil, transmission fluid, benzo perylene, 

thread cutting oil, WD-40, engine oil, hy-gard low viscosity, nondetergent motor oil, 

transmission fluid, and hydraulic jack oil. The MSDS indicated that these chemicals were 

slightly toxic and harmful and mildly irritant. 

On December 31, 2009 appellant responded to OWCP’s development letter. In an 

undated statement, he reported that when he arrived at work on July 8, 2009 he was assigned to 

assist the YCC members to clean the hazmat shed. Appellant noted that they used Citrus Clean, 

a paint remover, and Grez-off, a heavy duty degreaser, to clean up the floor and had to scrape up 

the sludge with a metal scraper. He indicated that he worked for eight hours on Wednesday and 

for five hours on Friday. On Saturday and Sunday afternoon, appellant experienced episodes of 

tingling and numbness in his fingers, arms, and face, heavy breathing, confusion, and panic. He 

also submitted an EPA fact sheet about the chemical methyl ethyl kerone (MEK), a print-out 

about the type of injuries that exposure to MEK could cause, and various medical reports with 

his personal, handwritten notes in the margins. 

In a September 23, 2009 consultation report, Dr. Dana Headapoh, Board-certified in 

occupational medicine, noted that appellant was a short-term employee at the employing 

establishment in 2009. She described the July 8 and 10, 2009 clean-up incident at work and the 

symptoms that appellant developed in the two days after the incidents. Dr. Headapoh related 

appellant’s current complaints of memory lapses of approximately 10 minutes, increased anger, 

hand cramps, and pins-and-needles sensation on the top of his head. She reviewed his medical 

records and reported an essentially normal physical examination. Dr. Headapoh opined that 

appellant had occupational exposures to various solvents in semi-solid state and aerosolized 

state. She indicated that his symptoms were consistent with inhaled solvent exposure at levels 

causing temporary symptoms, but she could not then conclude today whether his symptoms 

could be causally linked to his occupational exposures of July 8 and 10, 2009. Dr. Headapoh 

recommended a chest x-ray, pulmonary function tests, heavy metal screen, complete blood count 

(CBC), and chemistry panel. 

On December 3, 2009 appellant was examined in the emergency room by Dr. Richard 

Thorne, a Board-certified family practitioner, for complaints of anxiety, behavioral changes, 

depression, and anxiety. He indicated that appellant was exposed to toxins at work five months 

ago and his symptoms had worsened since the exposure. Dr. Thorne reported essentially normal 

findings on examination and opined that appellant suffered from changed mental status, anxiety, 

and depression. 

In a December 3, 2009 magnetic resonance imaging (MRI) scan report of the brain, 

Dr. Keith Edwards, a Board-certified diagnostic radiologist with a subspecialty in vascular and 

interventional radiology, noted an unremarkable, noncontrast MRI scan of the brain. 
5

Appellant was also examined by Dr. Shawn M. Smith, a Board-certified family 

practitioner, who provided December 3 and 4, 2009 records that described the July 8 and 10, 

2009 incidents at work and the symptoms appellant experienced on July 11 and 12, 2009. 

Dr. Smith related that appellant continued to experience twitching movements involving his face 

and upper extremities and mood swings. He reviewed appellant’s history and conducted an 

examination. Dr. Smith observed chronic lower back pain with no swelling, pain, or heat. He 

indicated that he had reviewed the MRI scans and agreed that the scans were normal. Dr. Smith 

reported that appellant had atypical episodic twitching and jerking movements that were 

distractible, without stereotypy, and nonphysiologic, and a normal MRI scan. He related that 

appellant attributed his symptoms to chemical exposure at work. 

Dr. McGree examined appellant again on December 10 and 28, 2009. In a December 10, 

2009 note, he indicated that he spoke with appellant’s mother because she was concerned about 

appellant’s behavior. Dr. McGree reported a history of injury of exposure to chemicals on 

July 8, 2009 and provided essentially normal examination findings. He diagnosed no specific 

neurologic changes. 

In a decision dated February 4, 2010, OWCP denied appellant’s occupational disease 

claim. It accepted that on July 8 and 10, 2009 he was exposed to various chemicals at work, but 

denied his claim finding insufficient medical evidence to establish that he sustained a diagnosed 

condition causally related to the accepted employment factors. 

Appellant filed multiple requests for further review by OWCP. On March 9, 2010,3

February 17, 2011,4

 and May 15, 20125 OWCP received his requests for a telephone hearing 

before a Branch of Hearings and Review hearing representative. By decisions dated July 29, 

2010, September 1, 2011, and June 29, 2012 OWCP’s hearing representative vacated the denial 

decisions and remanded the case for further medical development. 

Appellant submitted various articles regarding exposure to pyrethroid and pyrethroid 

intoxication. He also resubmitted the MSDS, the inventory list of the chemicals stored in the 

hazmat shed dated May 15, 2009, and the laboratory analytical reports of the chemicals. 

Appellant also submitted various medical reports with personal, handwritten notes in the 

margin in support of his requests for further review. In a March 1, 2010 report, Dr. McGree 

noted that he had examined appellant on multiple occasions relative to exposure at work. He 

could not find a specific cause-effect correlation between the chemical exposures of July 8 

 3

 A telephone hearing was held on June 8, 2010. Appellant stated that he was not able to provide a wellrationalized medical report because the physicians in his town were not familiar with chemical exposure cases. He 

explained that he was currently seeing a physician in California who believed that he suffered from dystonia. 

4

 Appellant was appealing a January 21, 2011 decision, which denied appellant’s occupational disease claim 

based on a December 17, 2010 second-opinion report. A telephone hearing was held on June 9, 2011. Counsel 

represented appellant and Dr. Kaye H. Kilburn, appellant’s treating physician, was a witness. Dr. Kilburn testified 

that appellant had chemical encephalopathy as a result of exposure to chemicals, specifically pyrethroids, on July 8 

and 10, 2009 at work. He also noted the differences between specialties in neurotoxicology and toxicology. 

5

 Appellant was appealing a May 7, 2012 OWCP denial decision. On May 15, 2012 OWCP received his request 

for a telephone hearing. 
6

and 10, 2009 and appellant’s symptoms, but he opined that it was certainly possible that they 

were connected. In reports dated April 19 and May 17, 2010, Dr. Smith related that appellant 

continued to experience symptoms. He discussed his concern with appellant that these abnormal 

movements were not related to his occupational exposure in a physiologic sense. Dr. Smith 

indicated that there was some somatization secondary to increased psychosocial stressors about 

the event. 

On April 29, 2010 appellant was also examined in the emergency room by Eric Leber, a 

certified physician assistant, for complaints of right wrist pain and upper extremity spasms. He 

reported that x-rays and CBC testing were normal. Mr. Leber diagnosed upper extremity pain 

involving the right wrist and left wrist tenosynovitis. 

Dr. Kilburn, Board-certified in internal and occupational medicine, began to treat 

appellant in June 2010. In a February 17, 2010 letter, he noted that appellant had an appointment 

at his clinic for evaluation of effects of June 8 and 9, 2009 chemical exposure. Dr. Kilburn also 

provided his credentials and the experience he had evaluating and providing therapy for 

neurotoxicological conditions. Appellant provided Dr. Kilburn’s curriculum vitae and résumé. 

In a June 9, 2010 report, Dr. Kilburn noted appellant’s description of his exposure to 

hazardous materials and fumes on July 8 and 10, 2009 and his complaints of nausea, confusion, 

seizures, convulsions, headache, repeated body electric muscle contractions, numbness, hands 

locking up, freezing contractures, muscle contractions, and twitching in the face after the 

incident. He reviewed appellant’s history and noted that appellant used to be a marijuana user, 

but had not used marijuana since May 20, 2010. Dr. Kilburn indicated essentially normal 

findings on physical and neurological examination. He reported that cerebellar signs 

demonstrated unsteady gait, ataxic normal dysmetria, and slowed rapid alternating movements. 

Neurophysiological tests demonstrated abnormal balance measured by sway speed with eyes 

open and closed. Blink reflex latency was abnormal on the right and normal on the left. 

Vibration was also abnormal in the lower extremities. Dr. Kilburn further indicated that 

appellant’s affective status was elevated, particularly in anger, and depression. He diagnosed 

chemical encephalopathy, peripheral neuropathy, and chemical intolerance due to exposure to 

pyrethroids and similar chemicals. Dr. Kilburn explained that testing showed 12.5 total 

abnormalities, which exceeded the 0 to 2 abnormalities in people unexposed to chemicals. He 

opined that appellant suffered multiple chemical exposure at his workplace in July 2009, 

resulting in lack of concentration, recent and long term memory loss, instability of mood, loss of 

balance, extreme fatigue, shortness of breath, headache, nausea, and insomnia. Dr. Kilburn 

indicated that there was probably a single causal factor for these manifestations, which was 

pyrethroid exposure. He noted that pyrethroids were included in the inventory list of 64 

chemicals in the hazmat shed. 

On August 2, 2010 Dr. Kilburn provided an addendum disability statement to his June 9, 

2010 report and reported that appellant was disabled from employment because of a chemical 

brain injury, also called chemical encephalopathy. He explained that the “hours of exposure to 

cleaning, sorting, and disposing of stored chemicals and waste in the storage shed on July 8 

and 10, 2009, were the major exposure to pyrethroids (pesticides) that caused the impairment 

and symptoms.” Dr. Kilburn also noted that appellant used hydrocarbon solvents to clean the 
7

hazmat shed, which caused lightheadedness, dizziness, loss of concentration and memory, and 

muscle twitching. 

In reports dated January 24, 2011 to June 25, 2012, Dr. Kilburn indicated that the 30 

objective tests that he performed on appellant revealed brain impairment. He related that 

appellant had been under his care since June 8, 2010 for pyrethroid exposure. Dr. Kilburn 

indicated that exposure to pyrethroid, which was found in indoor insect foggers, adequately 

explained all of appellant’s movement disorders, disturbance balance, deficient memory, slowed 

blink reflex, diminished grip strength, and blind spots. He noted that he published a paper about 

the effects of insecticide on airline flight attendants and explained that appellant’s impairment 

was similar to the flight attendant exposure in crew quarters. In a July 15, 2011 report, 

Dr. Kilburn explained that appellant was physically and neurologically normal prior to the 

hazmat clean-up job on July 8 and 10, 2009, but experienced nausea, confusion, seizures, 

headaches, strong unexpected muscle contractions, numbness, hands locking up and freezing, 

and twitching of the face, neck, lips, eyelids, and eyes. In a June 25, 2012 letter, he explained 

that neurotoxicology was a specialty in neurology and toxicology, which used many quantitative 

measurements of brain function, but toxicology was a poison control function of physicians in 

emergency medicine without special training in neurology. 

Following the hearing representative’s July 29, 2010 decision, which vacated OWCP’s 

February 4, 2010 denial decision and remanded the case to the district office, OWCP referred 

appellant’s claim, along with a statement of accepted facts (SOAF) and the medical record, to 

Dr. Edward Cetaruk, Board-certified in emergency medicine with a subspecialty in medical 

toxicology, for a second-opinion examination to determine whether appellant sustained a 

condition causally related to alleged chemical exposure on July 8 and 10, 2009 while at work. 

In a December 17, 2010 report, Dr. Cetaruk accurately described the July 8 and 10, 2009 

employment incidents and the symptoms that he experienced following the incident. Dr. Cetaruk 

reviewed the medical treatment that he received and his social and family history. He indicated 

that appellant had preexisting disability, hepatitis C, and polysubstance abuse. Dr. Cetaruk 

reported essentially normal physical and neurological examination. He reported that he had no 

current diagnoses to be made from a toxicological perspective, but appellant could be considered 

to have had exposure to fumes on the dates of July 8 and 10, 2009. Dr. Cetaruk opined that he 

did not believe that appellant’s exposure while cleaning out the hazardous materials shed were 

related to his current complaints. He explained that he reviewed the inventory list of materials in 

the hazmat shed and asked about the condition of the containers in which the pyrethrin 

insecticides had been found and was told that they were on a shelf in a container with no 

evidence of spillage. Dr. Cetaruk found that none of the compounds would be expected to cause 

the episodes appellant experienced on July 11 and 12, 2009 or his continued symptoms. 

Following the September 1, 2011 OWCP hearing representative decision, OWCP 

requested that Dr. Cetaruk provide clarification of his December 17, 2010 second-opinion report. 

It advised him to review the lab results of the testing performed on the materials contained in the 

hazmat shed and the MSDS sheets of the substances and provide an opinion on whether the 

nature and extent of appellant’s exposure in the hazmat shed contributed to chemical 

encephalopathy condition as suggested by Dr. Kilburn. OWCP also requested that Dr. Cetaruk 

discuss the medical literature cited by Dr. Kilburn. 
8

In an April 19, 2012 supplemental report, Dr. Cetaruk indicated that he reviewed the 

medical record and the new, additional documentation forwarded to him since his December 17, 

2010 report. He opined that based on the toxicology of all compounds in the matter and the 

history obtained by appellant, he found no demonstration of an exposure pathway or 

documentation of toxicological chemical exposure to pyrethroid compounds. Dr. Cetaruk also 

reported that none of the pesticides listed on the May 15, 2009 inventory list was known to cause 

the history of appellant’s complaints. He disagreed with Dr. Kilburn’s medical opinion and 

asserted that nothing on the record supported that appellant was exposed to over 60 compounds. 

Dr. Cetaruk further noted that the case study that Dr. Kilburn cited lacked adequate controls and 

included significant selection bias. He opined that there was no epidemiological data to support 

a valid causal relationship between appellant’s current complaints and his potential exposure to 

pyrethroids and/or the other compounds in the hazmat shed. 

Following OWCP’s June 29, 2012 hearing representative decision remanding the case, 

OWCP referred appellant’s case, along with an updated SOAF, to Dr. Scott D. Phillips, Boardcertified in internal and emergency medicine with a subspecialty in medical toxicology, for an 

impartial medical examination to resolve the conflict of medical opinion between Dr. Kilburn, 

appellant’s treating physician, and Dr. Cetaruk, an OWCP referral physician, regarding whether 

appellant’s exposure to chemicals or substances on July 8 and 10, 2009 caused or contributed to 

a medical condition. 

In a September 26, 2012 report, Dr. Phillips related that on July 8 and 10, 2009 appellant 

cleaned up spilled linseed oil in a hazmat shed that contained several containers of various 

substances. He noted the immediate symptoms appellant experienced and described the two 

episodes appellant experienced on July 11 and 12, 2009. Dr. Phillips reported that since the 

employment incident appellant complained of muscle spasms in his face, difficulty talking, and 

spasms of his arms, primarily on the right side. He reviewed appellant’s history and noted that 

appellant used methamphetamine intravenously and by smoking in the 1990s. Appellant denied 

any significant drug use since that time other than medical marijuana. Dr. Phillips reviewed 

appellant’s medical records, including Dr. Cetaruk’s December 17, 2010 and April 19, 2012 

reports and Dr. Kilburn’s various reports. He noted that Dr. Kilburn opined that appellant 

suffered from pyrethroid poisoning, but he noted that pyrethroids did not cause this cluster of 

symptoms as described by appellant. 

Upon examination, Dr. Phillips observed some intermittent twitching movements 

primarily involving the right side of appellant’s face and his right upper extremity. He noted that 

these were transient symptoms that lasted only a few seconds. Dr. Phillips listed normal findings 

on physical and neurological examination of the head, ears, nose, throat, chest, abdomen, 

extremities, and skin. Mental status was described as grossly normal with some pressured 

speech at times. Dr. Phillips indicated that appellant did not have signs or symptoms after 

leaving the office. He diagnosed other and unspecified factitious illness, episodic mood disorder, 

and hepatitis C without coma. Dr. Phillips reported that, based on his evaluation of the exposure 

history and consideration of the chemicals being provided, he did not believe that there was “a 

causal nexus between the work in the hazardous materials shed and the complaints proffered by 

[appellant] and supported by Dr. Kilburn.” He explained that this opinion was supported by the 

focality of the symptoms, signs displayed by appellant, his training and experience in medical 

toxicology, and peer-reviewed scientific literature. Dr. Phillips recounted that the chemicals 
9

listed were not known to cause the types of symptoms claimed by appellant and supported by 

Dr. Kilburn and that there was no evidence of pesticide poisoning, particularly pyrethroid 

poisoning. He did not believe that the alleged exposures on July 8 and 10, 2009 caused or 

contributed to any medical condition in this claimant. Dr. Phillips opined that appellant was not 

totally disabled and was able to perform full duty. 

By decision dated October 10, 2012, OWCP denied appellant’s claim. It found that the 

special weight of medical evidence rested with the impartial medical opinion of Dr. Phillips, who 

determined that appellant’s exposure to chemicals on July 8 and 10, 2009 did not cause or 

contribute to any medical conditions. 

On October 17, 2012 OWCP received appellant’s request for a telephone hearing before a 

Branch of Hearings and Review hearing representative. He indicated that he was including a 

report from Dr. Michael Gray, Board-certified in occupational medicine, who also diagnosed 

encephalopathy. In an August 23, 2012 report, Dr. Gray related appellant’s complaints of 

experiencing almost-daily confusion, spaciness, inability to concentrate, memory problems, 

tremor or shakiness, low energy, unusual fatigue, poor appetite, muscle and joint discomfort and 

pain, and frequent jerking. He reviewed appellant’s history and reported an essentially 

unremarkable physical and neurological examination. Dr. Gray opined that appellant had mixed 

solvent and aromatic hydrocarbon, which induced toxic encephalopathy, toxic effect of 

nonmedicinal substance NEC, balance disorder, color blindness, memory loss, decreased 

perceptual motor speed, and decreased long term memory. He recommended that appellant 

undergo neuro-test battery and pulmonary function testing. 

Appellant submitted November 15, 2012 and February 25, 2013 letters from Bradley 

Fimrite, an employee of Mountain States Environmental Services, Inc., which confirmed that 

their company was contacted by the employing establishment to sample a cleanup of spilled 

waste material and noted that they did not test the samples for pesticides. 

In a December 6, 2012 report, Dr. Kilburn indicated that he reviewed Dr. Phillip’s 

September 26, 2012 report. He pointed out that Dr. Phillips was a poison control clinic director 

and associate professor, but he did not demonstrate an understanding of the neurotoxic effects of 

pesticides, particularly pyrethrins, and the solvents used to remove residue from the floor of a 

storage building. Dr. Kilburn reported that there were “many brain damaging chemicals on the 

exposure list” and opined that appellant’s problems “suggest pyrethrins” but it was a multichemical exposure. 

On February 11, 2013 a hearing was held. Appellant pointed out that prior to July 11, 

2009 he never had any episodes or symptoms prior to July 8 and 10, 2009. He described the 

employment exposure incidents and the symptoms he experienced shortly after he cleaned out 

the hazmat shed. Appellant noted that both physicians to whom he was referred by OWCP were 

toxicologists instead of neurotoxicologists. He indicated that he sought treatment from two 

neurotoxicologists, Dr. Gray in Arizona and Dr. Raymond Singer, a Board-certified 

neuropsychologist, in New Mexico. 

In a February 27, 2013 report, Dr. Singer, a clinical neuropsychologist, described the 

July 8 and 10, 2009 exposure incidents at work and the onset of appellant’s symptoms. He noted 
10

that he had reviewed OWCP’s October 10, 2012 denial decision, Dr. Kilburn’s June 25 and 

December 6, 2012 reports, and Dr. Phillips’ September 26, 2012 report. Dr. Singer asserted that 

Dr. Phillips’ qualifications in poison control, internal medicine, and medical toxicology were not 

the type of credentials needed to diagnose mental health disorders such as “factitious illness” and 

“episodic mood disorder.” He also pointed out that Dr. Phillips had not described the 

methodology that he used to diagnose these conditions nor did he explain possible causes for 

these illnesses. Dr. Singer asserted that Dr. Kilburn’s opinion carried more weight since he had 

used objective testing to identify neurobehavior deficits and has experience in detailing 

neurotoxicity cases. He noted that the hazmat shed included ortho indoor insect fogger, which 

contained permethrin, and explained that common symptoms of permethrin exposure included 

paresthesias, headaches, and dizziness and excessive exposure could cause hyperexcitability, 

panic, and fear, such as what happened to appellant. Dr. Singer opined that based on his review 

of the hazardous materials and his experience in neurotoxicology, Dr. Kilburn’s explanation of 

appellant’s illness was more probative than that of Dr. Phillips. 

By decision dated April 26, 2013, OWCP affirmed OWCP’s October 10, 2012 denial 

decision. It determined that the additional medical evidence was insufficient to overcome the 

special weight of evidence attributed to Dr. Phillips’ September 26, 2012 referee medical report. 

On July 18, 2013 OWCP received appellant’s request, through counsel, for 

reconsideration. Counsel submitted a July 10, 2013 report by Dr. Kilburn who reiterated that 

appellant’s symptoms were caused by pyrethroid exposure at his workplace in July 2009 and 

opined that he was totally disabled. 

In a decision dated August 20, 2013, OWCP denied appellant’s reconsideration request 

finding that the evidence submitted was insufficient to warrant further merit review. 

On October 30, 2013 OWCP received appellant’s request, through counsel, for 

reconsideration. 

In an October 3, 2013 report, Dr. Kilburn related that appellant was exposed to at least 64 

hazmat chemicals on July 8 and 10, 2009 while at work. He noted that he picked pyrethroids as 

the best fit to appellant’s impaired brain function, as evidenced by measurements for balance, 

color, vision, peg placement, memory verbal recall, and long term memory. Dr. Kilburn 

reviewed Dr. Cetaruk and Dr. Phillips’ reports and noted his disagreements with their opinions. 

He related that he had practiced in neurotoxicology for over 30 years and published 70 peer 

reviewed papers on the subject. Dr. Kilburn alleged that his credentials and examination of 

appellant, based on objective testing, treatments, and follow up, should be accepted as the 

definitive medical opinion. 

By decision dated November 14, 2013, OWCP denied modification of the April 26, 2013 

decision. 

Appellant filed an appeal before the Board, but later withdrew the appeal.6

 

 6

 Docket No. 14-0517 (issued October 23, 2014). 
11

On September 16, 2014 OWCP received appellant’s request, through counsel, for 

reconsideration of the November 14, 2013 denial decision. Counsel submitted an April 3, 2014 

report by Dr. Singer who recounted his disagreements with OWCP’s denial decisions, which 

granted the special weight of medical opinion to Dr. Phillips. Dr. Singer alleged that appellant 

should be evaluated by a neuropsychologist experienced in neurotoxicology in order to 

determine whether he suffered from a mental health disorder due to a mental health issue or a 

neurotoxic cause. 

By decision dated August 11, 2015, OWCP denied modification of the November 14, 

2013 decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence7

 including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.8 In an occupational disease claim, appellant’s burden requires 

submission of the following: (1) a factual statement identifying employment factors alleged to 

have caused or contributed to the presence or occurrence of the disease or condition; (2) medical 

evidence establishing the presence or existence of the disease or condition for which 

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is 

causally related to the employment factors identified by the employee.9

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

establish causal relationship is rationalized medical opinion evidence.10 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 condition and the specific employment factors 

identified by the employee.11 

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary 

shall appoint a third physician (known as a referee physician or impartial medical specialist) who 

shall make an examination.12 This is called a referee examination and OWCP will select a 

 7 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968). 

8 M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 

ECAB 1143, 1145 (1989). 

9 R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000). 

10 I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007). 

11 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 

12 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009). 
12

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.13 When there exists 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.14 

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

resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or 

elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in 

his original report.15

ANALYSIS 

Due to a conflict in medical opinion evidence between Dr. Kilburn, appellant’s treating 

physician, and Dr. Cetaruk, an OWCP referral physician, OWCP referred appellant to 

Dr. Phillips for an impartial medical examination to determine whether he sustained any medical 

conditions as a result of exposure to chemicals at work on July 8 and 10, 2009. In a 

September 26, 2012 report, he concluded that appellant’s exposures on July 8 and 10, 2009 did 

not cause or contribute to any medical condition. The Board finds that Dr. Phillips’ report is 

insufficient to resolve the conflict in medical opinion evidence. 

Dr. Phillips provided an accurate history of the July 8 and 10, 2009 exposure at work and 

noted appellant’s immediate and current symptoms. He reviewed appellant’s records and 

reported normal findings on physical and neurological examination of the head, ears, nose, 

throat, chest, abdomen, extremities, and skin. Dr. Phillips observed some intermittent twitching 

movements primarily involving the right side of appellant’s face and right upper extremity. He 

reported that appellant’s mental status was grossly normal with some pressured speech at times. 

Dr. Phillips diagnosed other and unspecified factitious illness, episodic mood disorder, and 

hepatitis C without coma. He opined that there was not a “causal nexus” between appellant’s 

exposure while working in the hazardous materials shed and his current complaints. Dr. Phillips 

explained that this opinion was supported by the exposure history, consideration of the chemicals 

being provided, focality of the symptoms, signs displayed by appellant, his training and 

experience in medical toxicology, and peer-reviewed scientific literature. He further reported 

that the chemicals listed were not known to cause the types of symptoms claimed by appellant 

and supported by Dr. Kilburn and that there was no evidence of pesticide poisoning, particularly 

pyrethroid poisoning. Dr. Phillips concluded that the alleged exposures on July 8 and 10, 2009 

could not have caused or contributed to any medical condition in appellant. 

Dr. Phillips report is deficient because it is not sufficiently well rationalized. His opinion 

is simply a composite of conclusory statements and there is no rationale provided for any of 

 13 20 C.F.R. § 10.321. 

14 Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001). 

15 Raymond A. Fondots, 53 ECAB 637 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988); 

Ramon K. Ferrin, Jr., 39 ECAB 736 (1988). 
13

these statements. Dr. Phillips does not cite to clinical findings to substantiate his assertion, he 

provided no comparative analysis of appellant’s condition prior to or after the exposure, and 

made no references to the case record to demonstrate that he was drawing his conclusion from 

medical facts.16 While he noted that his opinion was based on “the focality of symptoms and 

signs displayed by appellant” he did not further elaborate on how these symptoms and signs 

formed his opinion on causal relationship. Nor did Dr. Phillips point to the scientific literature 

that supported his conclusory opinion. An opinion based on conclusory statements without 

further rationale cannot serve the basis for resolution of the conflict in medical evidence.17

The task of an impartial medical specialist is to review the reports that were the source of 

the conflict and provide a sound rationale for the resolution of the conflict. While he does note 

having read the previous medical reports which set up the conflict, he fails to address them in 

any way. The impartial medical specialist’s only reference to Dr. Kilburn’s report was his 

concern that the protocol being used by Dr. Kilburn in treating appellant for alleged pyrethroid 

poisoning was experimental with no FDA approval and no institutional review board approval 

and expressed great concern for appellant about the validity of such treatment. While those 

certainly should be a cause of concern for appellant, it does not provide the rationale expected 

from an impartial medical specialist to resolve the conflict of medical opinion on whether 

appellant is suffering from any condition due to a possible exposure to chemical substances at 

the employing establishment. 

Under section 8123(a), the report of an impartial medical specialist will be accorded the 

special weight of the evidence when it is sufficiently well rationalized, based on an accurate 

factual basis, thoroughness of examination performed, accuracy and completeness of the 

physician’s knowledge of the facts and medical history, the care of analysis manifested, and the 

medical rationale expressed by the physician.18 In this particular case, Dr. Phillips’ report does 

meet the criteria to be accorded the special weight and should be provided an opportunity to 

clarify his report. As a conflict in medical opinion still exists, the case will be returned to OWCP 

for further medical development. 

On remand, OWCP should obtain a supplemental report from Dr. Phillips that provides a 

well-rationalized medical opinion regarding whether appellant sustained a medical condition 

causally related to the accepted work exposure. The Board notes that, following Dr. Phillips’ 

September 26, 2012 report, additional medical evidence was received. On remand, Dr. Phillips 

should be provided an opportunity to review any new medical evidence. Following any 

necessary further development, OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds that this case is not in posture for a decision as the conflict in medical 

opinion evidence remains unresolved. 

 16 See Willa M. Frazier, 55 ECAB 379 (2004). 

17 Jack. R. Smith, 41 ECAB 691 (1990). 

18 James T. Johnson, 39 ECAB 1252 (1988). 
14

ORDER 

IT IS HEREBY ORDERED THAT the August 11, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded to OWCP for further 

action consistent with this decision of the Board. 

Issued: November 2, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board