United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.B., Appellant 

and 

DEPARTMENT OF AGRICULTURE, FOREST 

SERVICE, Albuquerque, NM, Employer 

__________________________________________ 

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Docket No. 17-0597 

Issued: September 1, 2017 

Appearances: Case Submitted on the Record

Daniel M. Goodkin, 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 January 23, 2017 appellant, through counsel, filed a timely appeal from a July 28, 

2016 merit decision and an October 11, 2016 nonmerit 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 to consider 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

ISSUES 

The issues are: (1) whether appellant has established that her arthritis condition was a 

consequence of her accepted April 21, 2007 employment injury; and (2) whether OWCP 

properly denied appellant’s request for reconsideration of the merits of the claim under 5 U.S.C. 

§ 8128(a). 

FACTUAL HISTORY 

On June 19, 2007 appellant, then a 45-year-old volunteer technical analyst, filed a 

traumatic injury claim (Form CA-1) alleging that on April 21, 2007 she contracted Lyme disease 

from a tick bite while hiking off trail in a forest. She did not immediately stop work. OWCP 

accepted the claim for Lyme disease on May 7, 2008. 

In a letter dated October 15, 2010, appellant requested OWCP expand the acceptance of 

her claim to include inflammatory arthritis. She explained that her early Lyme disease 

symptoms had included joint inflammation. The inflammation had continued through three 

years of treatment and had caused severe joint cartilage erosion which rendered appellant 

crippled and disabled. Due to her arthritis and knee inflammation she was barely able to walk 

and had arthritic joint pain. Appellant also related that using her hands was painful and very 

difficult. Prior to contracting Lyme disease she did not have the arthritic pain she was 

experiencing. 

In a November 17, 2010 report, Dr. Miguel Gonzalez, a treating Board-certified internist 

and pulmonologist, provided a history of injury and examination findings. He noted that review 

of x-rays taken during the time frame of March 25, 2009 to April 14, 2010 showed inflammatory 

arthritis of all joints with the most recent x-ray interpretation also showing erosive damage to 

multiple joints. Dr. Gonzalez attributed appellant’s reactive rheumatic arthritis to her Lyme 

disease. He explained that appellant had pain and inflammation because of her Lyme disease 

treatment process. Dr. Gonzalez also opined that reactive rheumatic arthritis was a known 

complication of Lyme disease. 

In a January 4, 2011 report, Dr. Mitchell Rosenfeld, an OWCP medical adviser, Boardcertified in infectious disease and internal medicine, reviewed appellant’s medical records and 

recommended that she be referred to a second opinion physician. He also recommended a 

complete Lyme (enzyme-linked immunosorbent assay) ELISA and repeat Western blot focusing 

on the IgG chronic phase reactant be conducted. Dr. Rosenfeld noted that appellant’s tick bite 

history, subsequent arthralgias, and arthritis were consistent with Lyme arthritis and Lyme 

disease, although Lyme arthritis typically affected the knees. He further noted that Lyme disease 

was mostly a clinical diagnosis. 

On May 12, 2011 OWCP referred appellant for a second opinion evaluation with 

Dr. Nilesh H. Hingarh, a physician Board-certified in infectious disease and internal medicine, to 

determine whether appellant’s rheumatic arthritis was consequential to her accepted Lyme 

disease and whether Lyme disease had been confirmed by the tests OWCP’s medical adviser 

recommended be conducted. 
3

In a May 25, 2011 report, Dr. Hingarh, based upon a review of the medical opinion 

evidence, statement of accepted facts (SOAF) appellant’s medical history, and physical 

examination, diagnosed inflammatory polyarthritis and obesity. He opined that there was no 

complete definitive evidence establishing that appellant’s arthritis was caused by her Lyme 

disease. In support of this conclusion, Dr. Hingarh explained that the positive September IgM 

WB test might be a false positive and there were no additional rheumatologic studies available 

for review. He noted that there was evidence of physical limitation, but the permanency of her 

limitations depended on her response to physical therapy. 

In a March 18, 2014 report, Dr. Gregory T. Heinen, an examining Board-certified 

orthopedic surgeon and orthopedic sports medicine physician, based upon a review of the 

medical record, injury history, and laboratory results, opined that appellant’s Lyme disease 

caused her arthritis. In support of this conclusion, he noted appellant’s positive IgM test, her 

likelihood of developing rheumatoid arthritis, and her history of Lyme disease and its 

involvement with joints and cardiac conditions. In addition, Dr. Heinen explained that the short 

time frame following the diagnosis of Lyme disease and the very aggressive degenerative 

changes were supportive of a causal relationship between her Lyme disease and arthritis. 

On May 13, 2014 OWCP recommended referral to an impartial medical examiner as 

there was an unresolved conflict in the medical opinion evidence. The SOAF that OWCP 

provided noted the injury date, how the injury occurred, and that the claim had been accepted for 

Lyme disease. It also reported “[p]reexisting or concurrent medical conditions include: Reactive 

Rheumatic Arthritis (nonindustrial).” 

On May 8, 2015 OWCP referred appellant to Dr. Ralph Bennett, a Board-certified 

internist and rheumatologist, to resolve the conflict in the medical opinion evidence between 

Dr. Hingarh and Dr. Heinen on whether her multiple joint conditions and degenerative arthritis 

were caused or aggravated by her accepted Lyme disease. 

In a letter dated June 16, 2015, counsel requested that OWCP correct the SOAF which it 

had provided to Dr. Bennett. He noted the issue at hand was whether appellant’s arthritis had 

been caused or aggravated by her accepted Lyme disease. Thus, it was inappropriate for OWCP 

to list nonindustrial reactive rheumatic arthritis as a preexisting or current medical condition. In 

addition, at the time of her injury, appellant had been working as a volunteer performing trail 

maintenance and was not a technical analyst as set forth in the SOAF. 

In a November 17, 2015 report, Dr. Steven Harris, a treating Board-certified family 

practitioner, noted that appellant continued to have symptoms of her Lyme disease. He related 

that, while her Lyme western blot test was negative, it did show some reactivity and many 

patients at this stage of the disease did not produce antibodies. Dr. Harris explained that a 

western blot negative result did not rule out the diagnosis of Lyme disease especially when there 

was overwhelming clinical support. 

Dr. Harris, in a November 30, 2015 addendum, diagnosed chronic Lyme disease along 

with symptoms. He observed that a September 11, 2007 Lyme western blot test was IgM 

positive, but that her current Lyme western blot test was negative with some reactivity. 

Dr. Harris explained that the diagnosis of Lyme disease was appropriate based on appellant’s 
4

overwhelming clinical presence. In addition, he noted that appellant had a history of muscle 

pain, history of joint stiffness and pain, depression, light sensitivity, cognitive slowing, migrating 

arthritis, fatigue, and hair loss. 

A June 17, 2015 report by Dr. Bennett provided a history of injury, reviewed the medical 

evidence of record, and provided physical examination findings. He thereafter diagnosed 

rheumatoid arthritis and Lyme disease. Dr. Bennett opined that appellant’s arthritis was 

unrelated to her accepted Lyme disease based on appellant’s classic rheumatoid arthritis 

symptoms. He explained that arthritis associated with Lyme disease was oligoarticular or 

monoarticular arthritis, which was occasionally erosive. Dr. Bennett noted that appellant had a 

genetic predisposition to develop seropositive rheumatoid arthritis. In addition, he noted that the 

development of her condition following the tick point was not typical of Lyme arthritis as it 

involved multiple joints and there was no evidence of Lyme arthritis developing into seropositive 

arthritis. Dr. Bennett indicated that a Western blot test complying with Center for Disease 

Control/New York State (CDC/NYS) criteria was required to determine if appellant actually had 

Lyme disease. Next, he opined that if she did have Lyme disease then it would be more difficult 

to dismiss whether the Lyme disease aggravated her rheumatoid arthritis. Dr. Bennett concluded 

that appellant was totally disabled from work and required aggressive physical therapy to treat 

her rheumatoid arthritis. He indicated that, if she had Lyme disease, it could have aggravated her 

condition, which would have ceased when antibiotics were discontinued. While appellant had 

classic rheumatoid arthritis, Dr. Bennett opined that the joint issues appeared unrelated to Lyme 

disease. 

By decision dated March 9, 2016, OWCP denied appellant’s request to expand her claim 

to include a consequential arthritis condition. 

In a March 11, 2016 letter, counsel contended that Dr. Bennett’s opinion was not based 

on an accurate history as he questioned whether appellant had Lyme disease, which OWCP had 

accepted. 

On April 4, 2016 appellant, through counsel, requested reconsideration and argued that 

the impartial medical examiner failed to base his opinion on the SOAF. 

On July 19, 2016 OWCP received a supplemental report from Dr. Bennett. Dr. Bennett 

opined that appellant’s rheumatoid arthritis was unrelated to her Lyme disease. In support of this 

conclusion, he observed that arthritis associated with Lyme disease usually involves several 

joints and has a late manifestation. Appellant had classic rheumatoid arthritis symptoms which 

developed shortly after the tick bite. Dr. Bennett also noted that appellant never had an accepted 

laboratory diagnosis of Lyme disease. 

In a July 28, 2016 decision, OWCP denied modification of the March 9, 2016 decision. 

It found the evidence appellant submitted was insufficient to establish that her degenerative 

arthritis was a consequential injury of her accepted Lyme disease. 

In a letter dated September 15, 2016, appellant requested reconsideration and submitted 

additional evidence. 
5

In a September 12, 2016 report, Dr. Harris noted his disagreement with Dr. Bennett’s 

opinion regarding appellant’s rheumatoid arthritis and causal connection with her Lyme disease. 

He explained that the diagnosis of Lyme disease based on appellant’s symptoms, signs, and 

history was consistent with the CDC definition of Lyme disease. Dr. Harris also referenced 

Dr. Heinen’s opinion explaining the causal relationship between appellant’s rheumatoid arthritis 

and her Lyme disease. 

By decision dated October 11, 2016, OWCP denied reconsideration. It found appellant 

was not entitled to a merit review of the record as she failed to meet any of the requirements 

under 20 C.F.R. § 10.606(b). 

LEGAL PRECEDENT -- ISSUE 1 

The general rule respecting consequential injuries is that, when the primary injury is 

shown to have arisen out of and in the course of employment, every natural consequence that 

flows from the injury is deemed to arise out of the employment, unless it is the result of an 

independent intervening cause, which is attributable to the employee’s own intentional conduct.3 

The subsequent injury is compensable if it is the direct and natural result of a compensable 

primary injury.4 With respect to consequential injuries, the Board has held that, where an injury 

is sustained as a consequence of an impairment residual to an employment injury, the new or 

second injury, even though nonemployment related is deemed, because of the chain of causation, 

to arise out of and in the course of employment and is compensable.5

Section 8123(a) of FECA provides that, 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.6

 The implementing regulations 

provide 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 an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination. This is called a referee examination and 

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

connection with the case.7

 In situations where 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.8

 3 Albert F. Ranieri, 55 ECAB 598 (2004). 

4 S.M., 58 ECAB 166 (2006); Debra L. Dillworth, 57 ECAB 516 (2006); Carlos A. Marrero, 50 ECAB 117 

(1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005). 

5 L.S., Docket No. 08-1270 (issued July 2, 2009); Kathy A. Kelley, 55 ECAB 206 (2004). 

6

 5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006). 

7

 20 C.F.R. § 10.321; S.R., Docket No. 09-2332 (issued August 16, 2010); Elaine Sneed, 56 ECAB 373 (2005). 

8 Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001). 
6

OWCP’s procedures provide as follows: 

“The [claims examiner] is responsible for ensuring that the SOAF is correct, 

complete, unequivocal, and specific. When the [district medical adviser], second 

opinion specialist, or referee physician renders a medical opinion based on an 

SOAF which is incomplete or inaccurate or does not use the SOAF as the 

framework in forming his or her opinion, the probative value of the opinion is 

seriously diminished or negated altogether.9

ANALYSIS -- ISSUE 1 

OWCP properly determined that a conflict existed in the medical opinion evidence 

regarding whether the claim should be expanded to include consequential degenerative arthritis 

conditions. Appellant’s treating physicians, Dr. Gonzalez and Dr. Heine, both opined that 

appellant’s Lyme disease was a cause of her arthritis. Dr. Hingarh opined that there was no 

definitive evidence supporting that appellant’s arthritis was due to her Lyme disease. OWCP 

referred appellant to Dr. Bennett for an impartial medical examination to resolve this conflict. 

The Board finds that Dr. Bennett’s opinion was based on an inaccurate SOAF. To assure 

that the report of a medical specialist is based upon a proper factual background, OWCP 

provides information through the preparation of the SOAF.10 OWCP’s procedures require that 

the SOAF should not include factual issues that need to be determined.11 The Board finds that 

the SOAF sent to Dr. Bennett provided that the condition of rheumatic arthritis was not work 

related and preexisting. The issue of whether the diagnosed rheumatic arthritis was a 

consequential injury of the accepted Lyme disease was the issue to be resolved by Dr. Bennett.12 

The SOAF is therefore improper as it prejudged the issue.13

 9

 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990). 

10 N.G., Docket No. 15-0567 (issued April 27, 2015). 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.7(e) 

(September 2009). 

12 Id. at Chapter 2.809 explains that “the SOAF is one of the most important documents a claims examiner (CE) 

prepares. It is the written summary of the CE’s findings of facts. It serves as a factual frame of reference for the 

medical specialist, the CE or other case reviewer. When it is used by physicians who base their medical opinions 

solely on the information presented in the SOAF, the outcome of a claim may depend on its completeness and 

accuracy. Therefore, the SOAF must clearly and accurately address the relevant information. 

a. The SOAF represents what OWCP in its capacity as fact finder has accepted as factual in a particular case. In 

Leopold J. Gunston, 15 ECAB 83 (1963), the Board stated: 

“A statement of accepted facts is not a counterpart of a ‘stipulation of facts’ between adversarial parties in court 

procedure. In the determination of facts in a claim for compensation, [OWCP] is acting in its adjudicatory 

function as a trier of the facts.” (Emphasis in the original.) 

13 See C.F., Docket No. 10-1461 (issued March 18, 2011). 
7

Dr. Bennett’s report should not be accorded special weight because the SOAF which 

OWCP provided to him prejudged whether the rheumatic arthritis was a consequential injury. 

Once OWCP undertakes development of the record, it has the responsibility to do so in a 

proper manner.

14 Given the error on the SOAF on which Dr. Bennett’s report was based, it 

should not have afforded his opinion special weight on the issue of a consequential injury. 

Accordingly, the Board will remand the case to OWCP for further appropriate medical 

development. On remand, OWCP should prepare a proper statement of accepted facts and refer 

appellant to another impartial medical examiner to resolve the question of whether she has 

sustained rheumatoid arthritis as a consequence of her accepted April 21, 2007 employmentrelated Lyme disease. After such further development as deemed necessary, it shall issue a de 

novo decision on appellant’s claim.15 

CONCLUSION 

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

 14 Melvin James, 55 ECAB 406 (2004). 

15 In view of the Board’s disposition of the first issue, the issue of whether OWCP properly denied appellant’s 

request for reconsideration of the merits of her claim is moot. 
8

ORDER 

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

Compensation Programs dated October 11 and July 28, 2016 are set aside and the case remanded 

for further proceedings consistent with the above opinion. 

Issued: September 1, 2017 

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