United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.W., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Jacksonville, FL, Employer 

__________________________________________ 

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Docket No. 16-1890 

Issued: June 5, 2017 

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 27, 2016 appellant, through counsel, filed a timely appeal from a June 3, 

2016 merit decision2

 of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act3

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction to consider the merits of the 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

 Counsel did not appeal the September 15, 2016 decision of OWCP and, therefore, the Board will not review that 

OWCP decision. 20 C.F.R. § 501.3. 

3

 5 U.S.C. § 8101 et seq.
2

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits effective March 19, 2015 due to his accepted 

conditions of toxic effect of other hydrocarbon gas and central sensitization syndrome; and 

(2) whether appellant met his burden of proof to establish continuing disability or residuals on or 

after March 19, 2015 due to his accepted conditions. 

On appeal counsel contends that the factual and medical evidence was not fully 

considered by OWCP. He further contends that the statement of accepted facts (SOAF) was 

deficient and his report is of diminished probative value. 

FACTUAL HISTORY 

On March 13, 2007 appellant, then a 43-year-old air traffic controller, filed a traumatic 

injury claim (Form CA-1) alleging that he developed symptoms of disorientation, watering eyes, 

running nose, burning throat, dizziness, nausea, and headache after exposure to fumes from a 

roofing repair at the employing establishment on March 8, 2007. OWCP accepted his claim on 

May 23, 2007 for toxic effect of other hydrocarbon gas. 

On March 3, 2009 appellant underwent a neurotoxicological evaluation by Dr. Josef G. 

Thundiyil, a physician Board-certified in emergency medicine, medical toxicology, and 

occupational medicine. This testing found that appellant was exposed to volatile organic 

compounds, solvents, hydrocarbons, isocyanates, petroleum distillates, polyurethane polymer, 

asphalt, toluene, benzoic acid, phenol, Stoddard solvent, butyl benzyl phthalate, methylene bis 

phenylisocynate, diphenylmethane disocyanate, polycyclic aromatic hydrocarbons, aluminum, 

trimethylbenzene, xylene, nonane, naphthalene, ethylbenzene, and n-propylbenzene. 

Dr. Thundiyil noted that appellant’s work exposure occurred over an approximately two-week 

period of time spent in an enclosed building with poor ventilation. He found that there had been 

no credible environmental air sampling done during the period of highest exposure. 

Dr. Thundiyil correlated appellant’s chemical exposures to his symptoms noting that pulmonary 

sequelae of bronchospasm, asthma, and reactive airway disease (RAD) were consistent with 

exposure to isocyanates. He also determined that development of cognitive changes, neuropathy, 

and memory loss were consistent with exposure to solvents, hydrocarbons, and to a lesser extent 

isocyanates. 

Appellant returned to work on April 1, 2010 performing special projects for the 

employing establishment as he was medically disqualified for his date-of-injury position. 

In a May 29, 2012 note, appellant’s attending physician, Dr. Terry W. Kuhlwein, a 

Board-certified family practitioner, noted appellant’s history of chemical fume exposure at work 

and diagnosed RAD status post hydrocarbon exposure, stable; paresthesias of uncertain etiology; 

and fatigue. He provided work restrictions including avoiding hydrocarbon fume exposure and 

excessive stress. Dr. Kuhlwein indicated that he was uncertain if appellant could “handle the 

added stress of the air traffic controller.” He recommended an updated neuropsychiatric 

evaluation before appellant’s return to his date-of-injury position. 
3

Dr. Kuhlwein completed a note on March 12, 2013 and indicated that appellant had right 

shoulder arthroscopic rotator cuff repair on November 17, 2012 which was not work related. 

Appellant’s breathing was normal with no dyspnea or wheezing. Dr. Kuhlwein noted that 

appellant worked 40 hours a week as a quality insurance agent/instructor. He diagnosed RAD, 

status post hydrocarbon exposure, stable; paresthesias, well controlled on medication; and 

chronic fatigue/fibromyalgia-like symptoms improved on medication. Appellant expressed 

interest in reducing medication dosages. Dr. Kuhlwein provided no work restrictions, but noted 

that appellant was aware that it was wise to avoid hydrocarbon fume exposure. 

On July 9, 2013 OWCP expanded appellant’s claim to include the additional condition of 

central sensitization syndrome as well as toxic effect of other hydrocarbon gas. 

In a note dated October 24, 2013, Dr. Kuhlwein reported that appellant was experiencing 

“a flare-up of polyarthralgias.” He noted that appellant had a long history of periodic flares of 

polyarthralgias since his toxic exposure at work. Appellant reported extreme fatigue, severe 

headaches, a rash, increased blurriness of his vision, and increased difficulty breathing. 

Dr. Kuhlwein again diagnosed chronic effects from toxic exposure, central sensitization 

syndrome, paresthesias, chronic intermittent fatigue, and RAD after hydrocarbon exposure. He 

also diagnosed elevated C-reactive protein and polyarthralgias of an uncertain etiology. 

Dr. Kuhlwein suggested that this could have an auto-immune etiology or could be related to 

appellant’s toxic exposure. He repeated these findings on March 10, 2014. 

On November 7, 2013 Dr. Jorge M. Pascual, a Board-certified pulmonologist, noted 

appellant’s history of hyperactive airway disease following chemical exposure and reported that 

about one month prior to examination appellant developed increased wheezing and cough with 

clear mucus. Appellant utilized medication with a return to baseline. Dr. Pascual found that 

appellant’s pulmonary function tests were within normal limits and stable. 

Dr. Benjamin Wang, a Board-certified rheumatologist, examined appellant on 

February 18, 2014 and diagnosed central sensitization syndrome with fibromyalgia features and 

possible inflammatory disease. 

Dr. Kuhlwein noted that appellant’s symptoms of fibromyalgia and depression had 

worsened on April 7, 2014. He reported that appellant was upset as he was medically 

disqualified as an air traffic controller. Appellant’s supervisor informed him that his 

employment may be terminated. 

In an April 15, 2014 memorandum, the employing establishment’s flight surgeon, 

Dr. Susan E. Northrup, Board-certified in occupational and aerospace medicine, determined that 

appellant was medically disqualified for air traffic control duties. She determined that 

appellant’s symptoms of recurrent headaches, intermittent dizziness, neuralgia, myalgia, 

arthralgia, and fatigue and his diagnoses of central sensitization syndrome and fibromyalgia were 

treated with restricted medications for performing the duties of his date-of-injury position. 

On April 30, 2014 Dr. Kuhlwein reported that appellant had increased symptoms of 

fibromyalgia and chronic pain. He opined that stress from his decertification as an air traffic 

controller with a resulting potential for him to be terminated was increasing his anxiety level and 

aggravating his fibromyalgia and chronic pain syndromes. Dr. Kuhlwein found that appellant 
4

was totally disabled. He continued to support appellant’s total disability from May 9 through 15, 

2014 due to an acute severe flare of symptoms from his work-related condition. In a May 9, 

2014 treatment note, Dr. Kuhlwein reported that appellant’s symptoms had improved since 

April 30, 2014 as he was not working. He opined, “The stress with his decertification from the 

[employing establishment] with a resulting potential for him to be terminated is increasing his 

anxiety level and aggravating his fibromyalgia and chronic pain syndrome symptoms.” 

Dr. Kuhlwein recommended that appellant remain off work while his medications were titrated. 

Dr. James M. Lance, an osteopath, completed a work status report on May 14, 2014 and opined 

that appellant was totally disabled due to a temporary flare-up of his work-related conditions 

from May 14 through June 14, 2014. 

Dr. Kuhlwein completed a note on May 30, 2014 and reviewed appellant’s medications. 

He opined that stress contributed to appellant’s increased fibromyalgia symptoms. Dr. Kuhlwein 

diagnosed fibromyalgia, acute flare, central sensitization syndrome, paresthesias, and major 

depression. He found appellant totally disabled for a month. 

Dr. Wang completed a report on May 30, 2014 and indicated that appellant experienced a 

high level of work-related stress which worsened his symptoms. He diagnosed central 

sensitization syndrome with fibromyalgia manifestations, and depression. Dr. Wang opined, “I 

believe that the patient’s work environment was crucial in initiating and perpetuating his central 

sensitization syndrome with a chemical exposure likely being an inciting factor, followed by 

repeated work-related stress, which served to perpetuate his condition.” 

Appellant claimed wage-loss compensation (Form CA-7) from May 1 to 16, 2014. In a 

letter dated June 9, 2014, OWCP requested additional factual and medical evidence in support of 

appellant’s claim for recurrence of total disability on May 1, 2014. 

By decision dated July 14, 2014, OWCP denied appellant’s claim for a recurrence of 

disability finding that the medical evidence did not establish a spontaneous change in the nature 

and extent of his accepted injury-related conditions. Appellant requested reconsideration of this 

decision on August 18, 2014. He submitted a July 25, 2014 report from Dr. Kuhlwein 

supporting that his ongoing conditions and disability were due to his accepted employment 

injuries. 

By claim (Form CA-2a), appellant requested that the accepted conditions be expanded to 

include an emotional condition. 

In a September 12, 2014 report, Dr. Kuhlwein listed the objective findings consistent 

with toxic exposures at work including intermittent hematuria, intermittent renal insufficiency, 

intermittent highly elevated C-reaction protein, and audible wheezing. He opined that 

appellant’s exposure to hydrocarbon gas had not resolved and that he needed ongoing evaluation 

and treatment. Dr. Kuhlwein opined that central sensitization was an amplification of neural 

signaling within the central nervous system that elicits pain hypersensitivity and that appellant 

met the criteria of this condition. He concluded that, based on appellant’s clinical history, his 

symptoms were consistent with the compounds of exposure on March 8, 2007. Dr. Kuhlwein 

listed those symptoms as extreme fatigue, lethargy, numbness in hands and feet, abnormal 

vibrating sensations in thighs, forearms, hips, genitals, and stomach, as well as shortness of 

breath, breathing spasms, coughing, choking, and extreme congestion in his upper airways and 
5

throat. He also noted that appellant experienced joint pains, headaches, blurry vision, low back 

pain, nausea, irritability, temperature sensitivity, noise sensitivity, as well as feelings of dread 

and hopelessness, worry and anger. Dr. Kuhlwein opined that he had increased symptoms in the 

summer which necessitated stopping work. He further noted that appellant was diagnosed with 

post-traumatic stress disorder (PTSD) and that stress could increase many of his symptoms. 

Dr. Kuhlwein concluded that appellant’s current symptoms were “a flare of previous symptoms 

that are sequelae from his work-related exposure to hydrocarbons and other products.” 

By decision dated September 30, 2014, OWCP denied modification of the July 14, 2014 

recurrence decision and found that Dr. Kuhlwein’s report did not sufficiently explain the increase 

in appellant’s symptoms which resulted in his claimed recurrence of disability. 

On October 9, 2014 OWCP referred appellant and a SOAF, for a second opinion 

evaluation with Dr. Lance I. Chodosh, Board-certified in occupational medicine. The August 6, 

2014 SOAF indicated that appellant attributed his condition to “fumes from roofing repair” that 

had been in the building for days. The SOAF listed appellant’s accepted conditions, his work 

duties, and physical requirements of the position. The SOAF indicated that appellant stopped 

work on November 27, 2009, returned to limited-duty work on April 1, 2010, and stopped work 

again on May 1, 2014. 

In an October 23, 2014 report, Dr. Chodosh reviewed appellant’s history of injury as “a 

brief, but intense exposure” to hydrocarbon gas, isocyanate gas, and other gases. He noted that 

appellant’s current symptoms were somewhat diffuse and nonspecific. Dr. Chodosh reported 

that he was not provided with test results, and noted “it is safe to assume the extensive testing 

has been done and that it has been essentially normal.” He found no current, relevant objective 

findings on physical examination and noted that fibromyalgia and central sensitization syndrome 

were diagnoses of exclusion. Dr. Chodosh opined that the diagnosis of toxic effect of other 

hydrocarbon gas was a generic category and that he was unable to accept the diagnosis. He 

found that appellant was highly symptomatic, but without objective signs of illness or disease, 

and opined that the accepted condition of toxic effect of other hydrocarbon gas never existed. 

Dr. Chodosh also discounted the accepted diagnosis of central sensitization syndrome opining 

that this was a theoretical construct and an umbrella term used to explain various chronic pain 

syndromes including fibromyalgia, myofascial pain syndrome, and chronic fatigue syndrome. 

He conceded that appellant had symptoms compatible with a diagnosis of central sensitization 

syndrome, that the condition persisted, and that there were no objective findings based on the 

nature of the syndrome. Dr. Chodosh further opined, “I am unable to conclude that there was an 

actual work injury despite the individual’s perception that he was injured. There is no evidence 

presented of actual physical exposure.” He concluded that appellant was physically capable of 

sedentary work for eight hours a day, but that he may have psychological limitations. 

Dr. Chodosh opined that appellant’s treatment for chronic pain syndrome should continue. 

Appellant filed a request for reconsideration. 

On October 28, 2014 OWCP repeated its denial of modification of appellant’s claim for 

recurrence of disability and included the appropriate appeal rights. 

By decision dated October 30, 2014, OWCP denied appellant’s emotional condition 

claim. 
6

In a note dated October 2, 2014, Dr. Kuhlwein continued to support appellant’s ongoing 

symptoms and disability due to his conditions of chronic effects from toxic exposure, RADS 

status post hydrocarbon exposure, polyarthralgia, fibromyalgia, and central sensitization 

syndrome. On November 6, 2014 Dr. Pascual noted appellant’s hyperreactive airway disease 

following chemical exposure at work. He reported that appellant continued to use inhaled 

steroids for periods of increased respiratory symptoms. Dr. Pascual opined that appellant’s 

condition of RAD was permanent and clearly related to the exposure at work. In his 

November 13, 2014 note, Dr. Kuhlwein repeated his diagnoses and found dermatitis on 

appellant’s forearms. He again opined that appellant’s ongoing conditions were directly and 

causally related to an acute exacerbation of work-related diagnoses. 

On November 4, 2014 OWCP advised appellant that there was a conflict in the medical 

evidence between Drs. Kuhlwein and Chodosh regarding whether he had residuals of his 

accepted conditions. In a November 24, 2014 decision, it denied appellant’s request to 

participate in the selection of the impartial medical examiner. 

In a letter dated December 9, 2014, OWCP referred appellant, a newly dated, but 

otherwise duplicated SOAF, dated September 10, 2014, and a list of questions for an impartial 

medical examination with Dr. Stuart M. Brooks, a Board-certified internist also Board-certified 

in occupational medicine and pulmonology, to resolve the medical conflict regarding whether 

appellant had residuals of the March 8, 2007 work injury. 

On December 9, 2014 Dr. Kuhlwein reported that appellant had requested to return to 

work on December 10, 2014. He consulted with Dr. Majorie J. McMaster, a Board-certified 

psychiatrist, and released appellant to return to work four hours a day with a reevaluation after 

two weeks. Dr. Kuhlwein completed a narrative report on December 23, 2014 and listed his 

disagreements with Dr. Chodosh. He noted that Dr. Chodosh was not provided and did not 

review appellant’s testing including his medical toxicology evaluation, abnormal pulmonary 

function tests, and elevated C-reactive protein. Dr. Kuhlwein opined that due to these 

deficiencies, Dr. Chodosh’s report was not based on a complete medical history. In a separate 

note dated December 23, 2014, Dr. Kuhlwein indicated that appellant could work six hours a 

day. 

On January 8, 2015 OWCP requested a copy of appellant’s March 3, 2009 toxicology 

report from Dr. Thundiyil. Appellant resubmitted this report. 

In a February 9, 2015 report, Dr. Brooks reviewed the SOAF and appellant’s description 

of the work injury. He listed appellant’s current symptoms of headaches, dizziness, and 

imbalance, as well as sensitivity to trigger irritants, noise, and light. Dr. Brooks noted his 

“claimed” exposure to volatile organic compounds, various solvents and hydrocarbons, 

isocyanates, petroleum distillates, polyurethane polymers, asphalt, toluene, benzoate acid, 

phenol, Stoddard solvent, butyl benzyl phthalate, methylene phenol isocyanate, diphenylmethane 

disocyanate, tri-methyl benzene and “presumably other agents/chemicals.” He reviewed 

appellant’s medications and his treatment including appellant’s denial of any preemployment 

history of asthma. Dr. Brooks described the accepted employment injury as a ‘“toxic exposure” 

and determined that appellant had no current objective examination findings. He described 

appellant’s ongoing symptoms of headaches, noting “Supposedly, [appellant’s] last headache 

occurred in December 2014.” He reported appellant’s claimed dizziness, imbalance, wavy 
7

vision, and feeling “fuzzy headed.” Dr. Brooks noted that appellant claimed persistent and 

greater sensitivity to various trigger irritant and odorant products. Appellant also reported noise 

and light sensitivity, irritable bowels, and joint, muscle, and body aches. He reported 

intermittent finger numbness, vibrating feelings of the muscles in the legs, pain on the bottoms of 

both feet, chronic fatigue, fibromyalgia, and respiratory complaints as well as rashes, depression, 

PTSD, and allergies to plants and agents. Dr. Brooks noted, “It is my medical opinion that there 

are no objective findings substantiating the designation ‘toxic effect of other hydrocarbon gas’... 

as the cause (or aggravation) of [appellant’s] current or past symptomatology/complaints.” He 

opined that central sensitization syndrome was not a medically accepted diagnosis and did not 

offer any definitive criteria. Dr. Brooks noted that this term afforded a theoretical explanation 

for the development of augmented pain perception. He opined that using central sensitization 

syndrome to explain appellant’s symptoms was “biologically implausible and borders on 

quackery.” Dr. Brooks determined that none of appellant’s current symptoms and complaints 

were related to the 2007 workplace exposure. He reviewed appellant’s respiratory symptoms 

and concluded that it was not mechanistically possible for appellant to have any of the four types 

of occupational asthma as he did not meet the clinical criteria of allergic-type, acute irritantinduced asthma or RAD, low intensity chronic exposure dysfunction syndrome, or aggravation 

of preexisting asthma. Dr. Brooks opined that appellant’s condition was irritable larynx 

syndrome with possible psychological complaints which were not triggered, caused or 

aggravated by work exposures. He found that appellant could work eight hours a day in a 

sedentary capacity. Dr. Brooks recommended continuing current medical treatment. 

In a letter dated February 13, 2015, OWCP proposed to terminate appellant’s medical 

benefits and wage-loss compensation based on Dr. Brooks’ report. It afforded him 30 days for a 

response if he disagreed with the proposed decision. 

Appellant responded to OWCP’s proposed termination in a March 16, 2015 letter 

received by OWCP on March 19, 2015. Counsel argued, in his response, that as Dr. Chodosh 

had not accepted as factual the diagnosed condition found by OWCP his report was not based on 

a proper factual background and could not create a medical conflict. He contended that the 

SOAF was insufficient such that Dr. Brooks’ opinion was not the weight of the medical 

evidence. 

By decision dated March 19, 2015, OWCP terminated appellant’s medical benefits and 

wage-loss compensation effective March 19, 2015. 

OWCP received additional evidence. Appellant also had requested his claim to be 

expanded to include an emotional condition.4

In a March 22, 2007 memorandum of conference, OWCP noted that 33 claims were filed 

for symptoms associated with exposure to roofing remodeling at the employing establishment 

from February 28 through March 9, 2007. After contacting the Occupational Safety and Health 

Administration (OSHA) the employing establishment was no longer challenging these claims. 

 4

 By decision dated May 12, 2015, an OWCP hearing representative set aside the earlier denial dated October 30, 

2014 and remanded the claim for further development. 
8

In a memorandum dated August 13, 2015, the employing establishment described the 

leakage of an industrial grade contact adhesive from a roofing replacement project into the air 

traffic services portion of the building. The contaminated areas were the radar room, break 

room, kitchen, main hallway, and administrative offices. The adhesive actually dripped from the 

ceiling tiles in the break room onto an employee’s clothing as well as furniture. On March 11, 

2007 emergency services were called for employees who were overcome by the fumes. The 

employing establishment began mitigation the next day on March 12, 2007. It noted, “The 

contamination was so bad that all of the ceiling tiles, carpet, and most of the furniture in these 

areas had to be replaced.” Controllers had to work in the bubble for several weeks until the 

cleanup was complete. Due to confusion regarding the chemicals and venting of the building 

there was no way to tell the extent of the chemical exposure. A status report from the employing 

establishment described the exposure to roofing fumes beginning on February 28, 2007 and 

ongoing through March 11, 2007 when the offices were relocated. 

In an October 31, 2014 report, Dr. Thundiyil opined that appellant had an extensive 

chemical exposure from March 2 through 16, 2007, and that appellant had objective respiratory 

findings consistent with RAD and neurologic symptoms “which are most probably directly 

related to his high dose exposure to these chemicals at work.” He found that appellant was 

totally disabled. 

In a report dated May 1, 2015, Dr. Kuhlwein opined that appellant’s current condition 

was due to an acute exacerbation of appellant’s previous work-related diagnoses for which he 

had been under continuous treatment. On June 12, 2015 he repeated his findings and 

conclusions. Dr. Wang completed a report on July 30, 2015 and noted that appellant was 

experiencing profound levels of fatigue. 

The employing establishment provided a list of the chemicals to which appellant was 

possibly exposed and the known hazards. This list included Fas N Free Adhesive, D.D. 

Aluminum LV, and Rock-It Adhesive. Fas N Free Adhesive was noted to cause allergic 

respiratory sensitization, but was considered a slight health concern. The latter two noted 

moderate health concerns including moderate irritation to the respiratory system, nausea, 

headaches, and dizziness as well as drowsiness, weakness, and fatigue. 

OWCP developed an additional SOAF including this information on July 21, 2015. 

In an August 13, 2015 memorandum, the employing establishment described appellant’s 

2007 exposure to chemicals after its roofing replacement project leaked an industrial grade 

contact adhesive into the air traffic services area. The initial spill occurred on February 27, 2007 

and was discovered because adhesive dripped from the ceiling tiles in the break room onto an 

employee’s clothing. The fumes continued to worsen and on March 11, 2007 rescue services 

were called to aid employees who were overcome by fumes. The employing establishment 

evacuated some employees on March 12, 2007 and appellant’s workstation was placed in a 

plastic bubble with fresh air piped into it. The contamination was such that all of the ceiling 

tiles, carpet, and most of the furniture had to be replaced in the radar room, controller’s break 

room, kitchen, main hallway, and administrative offices. The air traffic controllers had to work 

in the bubble for several weeks until cleaning was completed. Initially, the roofers provided the 

wrong safety information and the employing establishment was unaware of the actual chemicals 

involved. The building was vented before any air samples were taken and there was no way to 
9

discover the actual extent of exposure. The employing establishment’s industrial hygienist 

informed workers of the possibility of renal and respiratory issues as a result of the exposure to 

isocyanates and other chemicals. 

Following OWCP’s remand of May 12, 2015, appellant was referred to a second opinion 

examination with Dr. Anjali Pathak, Board-certified in adolescent medicine and psychiatry. She 

provided a report dated august 27, 2015. 

Counsel requested reconsideration of the September 30, 2014 recurrence decision on 

September 30, 2015. He noted that appellant had returned to work on December 10, 2015. 

On October 5, 2015 based on the report of Dr. Pathak, OWCP accepted additional 

conditions of PTSD and major depressive disorder based on a second opinion evaluation on that 

matter. 

Appellant submitted additional medical evidence including an October 22, 2015 report 

from Dr. Sara Filmalter, a sports medicine specialist. She noted symptoms of body pain, 

exhaustion, headaches, and rash. Dr. Filmalter diagnosed chronic effects from toxic exposure, 

RAD after hydrocarbon exposure, polyarthralgia, central sensitization syndrome, paresthesias, 

chronic fatigue, and intermittent elevated C-reactive protein, PTSD, major depressive disorder, 

generalized anxiety disorder, and dermatitis. Appellant had fibromyalgia treatment with 

Barbara K. Bruce, a licensed psychologist on September 23 and 24, 2015. 

Dr. Kuhlwein completed a report on December 18, 2015. He noted appellant’s accepted 

conditions and indicated that appellant’s symptoms had been stable since April 2014. On 

April 30, 2014 appellant’s symptoms of daily headaches, painful muscle knots in his back, 

extreme fatigue, and excessive sleepiness became so severe that he was totally disabled. 

Dr. Kuhlwein concluded, “His absence from work during the period May 1 through December 9, 

2014 was medically necessary and caused by sequelae resulting from his on-the-job injury. This 

episode was an acute exacerbation (temporary worsening) of his previous work-related 

conditions.” 

In a decision dated January 20, 2016, OWCP modified the September 30, 2014 decision 

to reflect that appellant had established a recurrence of disability and authorized compensation 

benefits from the period May 1 through December 9, 2014. 

Dr. Kuhlwein completed a note on February 23, 2016 and continued to support that 

appellant had symptoms of all-over body pain and fatigue. He repeated his diagnoses of chronic 

effects from toxic exposure, polyarthralgia, fibromyalgia, central sensitization syndrome, 

paresthesias, chronic intermittent fatigue, intermittent elevated C-reactive protein, major 

depressive disorder, PTSD, generalized anxiety disorder, and dermatitis. 

Counsel requested reconsideration of the March 19, 2015 termination decision on 

March 18, 2016. He argued that, as OWCP’s hearing representative had found the SOAF 

inadequate to address appellant’s emotional conditions claims, (in the May 12, 2015 decision) 

the reports from Dr. Chodosh and Dr. Brooks could not be considered to have been based on a 
10

proper factual background.5

 He contended that the SOAF provided these OWCP physicians did 

not include a comprehensive list of appellant’s specific chemical exposures, medical treatment, 

and diagnostic tests. Counsel cited OWCP’s procedures regarding SOAF. 

Dr. Kuhlwein completed notes on May 6 and 27, 2016 as well as June 1, 2016 repeating 

his diagnoses. Dr. Pascual examined appellant on May 6, 2016 and diagnosed hyperreactive 

airways disease following chemical exposure. Dr. McMaster examined appellant on May 9 

and 17, 2016 and continued to diagnose PTSD and major depressive disorder, partially treated. 

In a June 3, 2016 decision, OWCP denied modification of the March 19, 2015 

termination decision. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened in order to justify termination or modification of compensation benefits.6

 After it has 

determined that an employee has disability causally related to his or her federal employment, 

OWCP may not terminate compensation without establishing that the disability has ceased or 

that it is no longer related to the employment.7

 Furthermore, the right to medical benefits for an 

accepted condition is not limited to the period of entitlement for disability.8

 To terminate 

authorization for medical treatment, OWCP must establish that appellant no longer has residuals 

of an employment-related condition which require further medical treatment.9

 

When there are opposing reports of virtually equal weight and rationale, the case will be 

referred to an impartial medical specialist pursuant to section 8123(a) of FECA which 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 and resolve the conflict of medical evidence.10 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.11

It is OWCP’s responsibility to provide a complete and proper frame of reference for a 

physician by preparing a SOAF.12 OWCP procedures dictate that when an OWCP medical 

 5

 Counsel referenced a May 12, 2015 hearing representative’s decision with regard to the emotional condition 

aspect of the present claim wherein she had directed OWCP to further develop the factual and medical evidence. 

6 Mohamed Yunis, 42 ECAB 325, 334 (1991). 

7 Id.

8 Furman G. Peake, 41 ECAB 361, 364 (1990). 

9 Id.

10 5 U.S.C. § 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007). 

11 R.C., 58 ECAB 238 (2006). 

12 K.V., Docket No. 15-0960 (issued March 9, 2016); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 

677 (2005). 
11

adviser, second opinion specialist, or referee physician renders a medical opinion based on a 

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.13

ANALYSIS -- ISSUE 1 

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits effective March 18, 2015 due to his accepted 

conditions of toxic effect of other hydrocarbon gas and central sensitization syndrome. 

OWCP accepted appellant’s claim for the physical conditions of toxic effect of other 

hydrocarbon gas and central sensitization syndrome. In its termination decision, it determined 

that the special weight of the medical evidence rested with Dr. Brooks, designated as the 

impartial medical specialist. The Board finds that Dr. Brooks was not properly designated as the 

impartial medical specialist and that his report is of little probative weight. 

Appellant’s attending physicians supported his ongoing disability and medical residuals 

due to his accepted conditions. OWCP referred appellant for a second opinion with 

Dr. Chodosh, to address ongoing disability and medical residuals. The Board finds that 

Dr. Chodosh’s opinion was based on a deficient 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.14 OWCP’s procedures require that the SOAF include appellant’s 

diagnostic tests and a specific description of the exposure factors,15 such as the period and length 

of exposure, and the concentration of noxious substances in the air.16 The Board notes that the 

August 6, 2014 SOAF did not describe appellant’s employment exposures in any detail. The 

SOAF also failed to include neurotoxicological testing by Dr. Thundiyil. Due to these 

deficiencies, Dr. Chodosh reported that he was not provided with test results, and noted “it is 

safe to assume the extensive testing has been done and that it has been essentially normal.” He 

further opined, “I am unable to conclude that there was an actual work injury despite the 

individual’s perception that he was injured. There is no evidence presented of actual physical 

exposure.” His report, therefore, was not based on a proper history or background. The Board 

has found that when an OWCP referral physician renders a medical opinion based on a SOAF 

which is incomplete or inaccurate, the probative value of the opinion is seriously diminished or 

negated altogether.17 As Dr. Chodosh’s report was based on an inadequate SOAF, his report 

lacks the probative value to create a conflict with the reports of appellant’s attending physicians. 

Since there was no existing conflict of medical opinion evidence at the time of the referral to 

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

(September 1995); see L.J., Docket No. 14-1682 (issued December 11, 2015). 

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

15 Id. 

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.4(a)(4) 

(September 2009). 

17 Supra note 12. 
12

Dr. Brooks, he cannot be properly designated as an impartial medical examiner and his report is 

not entitled to special weight.18 

As there is no medical evidence based on a complete and accurate SOAF establishing that 

appellant’s disability and medical residuals due to his accepted conditions of toxic effect of other 

hydrocarbon gas and central sensitization syndrome had ended, OWCP failed to meet its burden 

of proof to terminate appellant’s wage-loss and medical benefits effective March 19, 2015. 

CONCLUSION 

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits effective March 19, 2015 due to his accepted 

conditions of toxic effect of other hydrocarbon gas and central sensitization syndrome. 

ORDER 

IT IS HEREBY ORDERED THAT June 3, 2016 decision of the Office of Workers’ 

Compensation Programs is reversed.19

Issued: June 5, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 18 D.J., Docket No. 06-0792 (issued November 6, 2006); Cleopatra McDougal-Saddler, 47 ECAB 480, 

489 (1996).

19 In light of the disposition of the first issue, the second issue is moot.