United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.O., Appellant

and,

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Brooklyn, NY, Employer

__________________________________________

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Docket No. 18-0980

Issued: January 2, 2019

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 13, 2018 appellant, through counsel, filed a timely appeal from a March 19, 2018

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 OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective March 20, 2018.

FACTUAL HISTORY

On October 29, 2015 appellant, then a 56-year-old nurse, filed an occupational disease 

claim (Form CA-2) alleging that exposure to airborne irritants in the emergency department on the 

ground floor of the employing establishment on or before May 22, 2015 caused bilateral vocal 

cord paresis. She described the onset of vocal hoarseness and shortness of breath on May 22, 

2015, during construction in isolation rooms. Appellant was treated in the emergency department 

and released. She initially stopped work on May 22, 2015 and thereafter intermittently returned 

to work until October 19, 2015, when she stopped work and did not return. On April 28, 2016

OWCP accepted that she sustained vocal cord paralysis in the performance of duty.3

In a report dated October 6, 2015, Dr. Radu Lucian Sulica, an attending Board-certified 

otolaryngologist, performed a strobovideolaryngoscopy on October 6, 2015 which demonstrated

unilateral partial paralysis of the vocal cords.4

In a report dated November 16, 2015, Dr. John Meyer, an attending physician Boardcertified in occupational medicine, public health and general preventative medicine, provided a 

history of shortness of breath with vocal cord paralysis following exposure to airborne irritants at 

work on May 22, 2015. He diagnosed vocal cord palsy caused by occupational exposure to 

airborne contaminants.

On April 1, 2016 Dr. Sulica performed a left medialization laryngoplasty to address left

vocal cord paresis.

In a report dated April 14, 2016, Dr. Meyer opined that exposure to fumes from irritating 

agents such as disinfectants, alcohol, formaldehyde, bleach, and sterilants was often misdiagnosed 

as bronchial asthma, as in appellant’s case. He explained that appellant’s occupational exposure 

in the emergency department to “germicides, biocides, and materials such as alcohol, quaternary 

ammonium compounds, and other substantial respiratory irritants such as bleach,” were competent 

to cause the diagnosed vocal cord paralysis. Dr. Meyer noted that medical literature documented 

 

3 Appellant was initially followed for respiratory complaints by Dr. Louis Sasso, an attending physician Boardcertified in pulmonary disease, internal medicine, geriatric medicine, and critical care medicine. Dr. Sasso diagnosed 

asthma on May 27, 2015. In a report dated June 2, 2015, Dr. Foad Ghavami, an attending Board-certified cardiologist, 

diagnosed a reactive airway disorder after viral bronchitis. In a report dated August 28, 2015, Dr. Shawn C. Ciecko, 

an attending physician Board-certified in otolaryngology and head and neck surgery, diagnosed bilateral vocal cord

paresis, slightly worse on the right, and dysphonia. Dr. Farhad Reza Chowdhury, an attending osteopathic physician 

Board-certified in otolaryngology, diagnosed bilateral vocal cord paresis on August 28, 2015.

4

In an October 15, 2015 emergency department report, Dr. Richard Salazar Casiano, an attending internist, noted 

that appellant had been prescribed corticosteroid medication and bronchodilators. He diagnosed chronic vocal cord 

paralysis. Appellant again sought emergency treatment on October 19, 2015 for shortness of breath. Dr. Konstantin 

Tarashansky, an attending physician Board-certified in otolaryngology and facial and plastic surgery, noted a normal 

examination of her head and neck. He diagnosed a possible allergy “based on recurrence in specific location.” 
3

that nurses were a “group with a high incidence or predisposition for VCD [vocal cord dysfunction] 

because of” occupational exposures to the specified substances. He opined that appellant’s history 

and presentation was commensurate with those of nurses cited in medical literature.

In reports dated August 2, 2016, Dr. Meyer opined that appellant remained totally disabled 

from work as she could not vocally communicate and experienced ongoing shortness of breath and 

vocal cord spasms. He explained that appellant’s physicians had misinterpreted her initial 

presenting symptoms as bronchitis and that OWCP should ignore the diagnosis.

In a report dated September 6, 2016, Dr. Frank Scafuri, III, an attending osteopathic 

physician Board-certified in internal medicine, opined that appellant was initially misdiagnosed 

with bronchitis, but had sustained vocal cord paralysis. He asked that OWCP “remove bronchitis 

from [appellant’s] reason for inability to work and replace it with vocal cord paralysis.”

5

In a report dated September 20, 2016, Dr. Chowdhury diagnosed vocal cord paresis. He 

opined that there was “nothing in [appellant’s] history to suggest bronchitis as the cause of her 

symptoms.”

On October 15, 2016 OWCP obtained a second opinion report from Dr. Gerald E. Pflum, 

a Board-certified otolaryngologist, of his October 12, 2016 examination of appellant. Dr. Pflum 

reviewed the medical record and a statement of accepted facts (SOAF). He related appellant’s 

symptoms of hoarseness, dyspnea on exertion, and an inability to speak loudly. On laryngoscopic 

examination, Dr. Pflum noted “a few small dilated submucosal vessels” on the left cord that the 

vocal cords met in midline on phonation, and a normal airway. He opined that there was “no 

indication of [appellant] having a surgical procedure to medicalize her left vocal cord as the left 

cord was fully functional and moved normally medially and laterally. [Appellant] had a fivecentimeter horizontal scar of the mid-neck.” Dr. Pflum diagnosed mild erythema of the left vocal 

cord. He reasoned that appellant had a “left vocal cord paralysis probably due to a viral infection 

when she initially presented with bronchitis.” Dr. Pflum found that “vocal cord paralysis was not 

caused by any toxic exposure since this is not a known or accepted cause of vocal cord paralysis.”

He opined that there was “no relationship between the condition and the employment-related 

exposure” and that appellant had no current disability.”

In a report dated January 3, 2017, Dr. Meyer noted that appellant continued to experience 

shortness of breath, worsened by exertion, and that her voice remained hoarse. There was no 

evidence of asthma or pulmonary disease. Dr. Meyer diagnosed vocal cord palsy and paresis, 

symptomatic dyspnea, and occupational exposure to air contaminants. He noted that there were 

“numerous reports in the medical literature of vocal cord dysfunction in nurses exposed to 

inhalation of irritating agents,” often misdiagnosed as bronchitis or asthma. Dr. Meyer found that 

appellant remained totally disabled from work.

OWCP found a conflict of medical opinion between Dr. Meyer, for appellant, and

Dr. Pflum, for the government, regarding “whether a causal relationship exists between 

 

5

In a report dated February 13, 2017, Dr. Scafuri noted that following a bout of mycoplasma pneumonia in 

July 2015, appellant developed a “hoarse and raspy voice,” diagnosed as vocal cord paralysis. He attributed her vocal 

cord paralysis to occupational exposures to airborne irritants.
4

[appellant’s] condition and the accepted work injury.” To resolve the conflict, it appointed

Dr. Henry de Blasi, a Board-certified otolaryngologist, as impartial medical examiner in the case. 

The SOAF provided for his review specified that OWCP had accepted vocal cord paralysis as 

occupationally related. OWCP instructed Dr. de Blasi to rely on the SOAF as the frame of 

reference for his report. The list of questions provided to Dr. de Blasi notes that the conflict of 

medical opinion concerned whether appellant’s left vocal cord paralysis was causally related to 

occupational exposures or to a viral infection. If he found no causal relationship between her

condition and the claimed work-related exposures, he was to provide a well-reasoned medical 

explanation as to why.

Dr. de Blasi submitted a report dated May 1, 2017 in which he noted his review of the 

medical record and SOAF. He noted that appellant’s voice sounded quite good with no evidence 

of shortness of breath. However, [appellant] still complained of occasional choking with eating.

Dr. de Blasi explained that the April 1, 2016 laryngeal surgery performed by Dr. Sulica to bring 

the left vocal cord toward midline may improve the voice, but can make shortness of breath worse 

by pushing the vocal cord toward midline. He performed a fiber optic laryngoscopy which 

demonstrated a normal larynx, hypopharynx, and vocal cords, with good mobility and symmetry. 

The vocal cords appeared to vibrate normally. Dr. de Blasi noted that there was no vocal cord 

paralysis present. He opined that the choking sensation appellant experienced when eating could 

be due to laryngopharyngeal reflux or possibly aspiration due to a change in sensation in the larynx. 

Dr. de Blasi opined that there was “no proof for why idiopathic vocal paralysis occurs,” but could 

be caused by a viral infection. He opined that appellant did not have vocal paralysis due to toxic 

inhalants at the workplace, and that he had never read anywhere in the literature that toxic irritants 

can cause vocal paralysis. He explained that they can cause irritation to the airway including 

cough, dyspnea, and hoarseness, but he had never heard of vocal cord paralysis. Dr. de Blasi 

therefore did not believe that there was a relationship between the condition and employmentrelated exposure. He elaborated that there was a “reasonable degree of medical certainty that there 

is no relationship between the diagnostic conditions and employment factors.” Dr. de Blasi found 

that appellant had no disability from work.

By notice dated February 14, 2018, OWCP notified appellant of its proposal to terminate 

her wage-loss compensation and medical benefits as Dr. de Blasi’s report indicated that the 

accepted vocal cord paralysis had ceased without residuals. It afforded her 30 days to submit 

additional evidence or argument.

In response, counsel provided a February 19, 2018 letter contending that an enclosed 

November 6, 2017 report from Dr. Meyer refuted Dr. de Blasi’s opinion. Dr. Meyer reiterated that 

appellant’s assigned duties as an emergency department nurse exposed her to disinfectant and 

sterilant agents known to cause vocal cord dysfunction. He cited medical literature which 

proposed that vocal cord dysfunction may result from the effect of intrinsic or extrinsic irritants 

on a hyperresponsive larynx, such as cleaners, dusts, machining fluids, and xerographic toner.

Dr. Meyer questioned Dr. de Blasi’s characterization of appellant’s voice as normal, as her voice 

had been hoarse and husky consistent with vocal cord dysfunction at all examinations with her 

otolaryngologists and himself. He submitted periodic reports holding her off from work.
5

By decision dated March 19, 2018, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective March 20, 2018 as the accepted vocal cord paralysis had ceased 

without residuals. It accorded Dr. de Blasi the special weight of the medical evidence.

LEGAL PRECEDENT

Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to 

justify modification or termination of benefits.6 Having determined that an employee has a 

disability causally related to his or her federal employment, OWCP may not terminate 

compensation without establishing either that the disability has ceased or that it is no longer related 

to the employment.7 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.8 

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement for disability.9 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.10 

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

making the examination for the United States and the physician of the employee, a third physician 

shall be appointed to make an examination to resolve the conflict.11 When there are opposing 

medical reports of virtually equal weight and rationale, the case must be referred to an impartial 

medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical evidence.12 

In situations where there are 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 on a proper factual 

background, must be given special weight.13

ANALYSIS

The Board finds that OWCP did not meet its burden of proof to justify termination of 

appellant’s wage-loss compensation and medical benefits.

 

6 Y.D., Docket No. 17-0461 (issued July 11, 2017); Bernadine P. Taylor, 54 ECAB 342 (2003).

7 V.A., Docket No. 14-0722 (issued May 8, 2014).

8

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

9 See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

10 Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

11 5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

12 Delphia Y. Jackson, 55 ECAB 373 (2004).

13 Anna M. Delaney, 53 ECAB 384 (2002).
6

Dr. Meyer an attending physician Board-certified in occupational medicine, and public 

health and general preventative medicine, opined that the accepted left vocal cord paralysis was 

caused by occupational exposures to airborne irritants such as disinfectants and sterilants used in 

hospital emergency departments. He opined in his August 2, 2016 report that appellant remained 

totally disabled from work as she could not communicate vocally and experienced ongoing 

shortness of breath. Dr. Pflum, a Board-certified otolaryngologist and second opinion physician, 

opined that the diagnosed left vocal cord paralysis was probably due to a bacterial infection and 

that there was no support in the medical literature for a causal relationship between vocal cord 

paralysis and airborne irritants. He concluded that appellant had no current disability.

OWCP determined that a conflict of medical opinion arose between Dr. Meyer and

Dr. Pflum on the causal relationship of the diagnosed condition and the accepted employment 

injury. It referred appellant to Dr. de Blasi, a Board-certified otolaryngologist, for an impartial 

medical examination.

Where there exists a conflict in medical opinion 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 OWCP provided Dr. de Blasi with a SOAF stating that it accepted vocal cord paralysis. 

In a report dated May 1, 2017, Dr. de Blasi opined that appellant could not have sustained vocal 

cord paralysis in the performance of duty as there was no support in the medical literature that 

airborne irritants caused vocal cord dysfunction.

By decision dated March 19, 2018, OWCP terminated appellant’s entitlement to wage-loss 

compensation and medical benefits, effective March 20, 2018, based on Dr. de Blasi’s opinion as 

the special weight of the medical evidence. The Board finds, however, that the termination was 

improper.

OWCP did not indicate whether it was attempting to rescind acceptance of appellant’s 

vocal cord paralysis based on Dr. de Blasi’s report. It did not notify appellant, or counsel, that it 

was contemplating rescission or actually rescinding acceptance of the vocal cord paralysis in its 

termination decision. OWCP must inform a claimant correctly and accurately of the grounds on 

which a rejection rests so as to afford the claimant an opportunity to meet, if possible, any defect 

appearing therein.15 It may not find that residuals of an employment injury have ceased by a 

particular date when the evidence upon which the decision rests tends to support that, in fact, the 

injury never occurred.16 Accordingly, the Board finds that OWCP did not meet its burden of proof 

to terminate appellant’s wage-loss compensation and medical benefits.17

 

14 See R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

15 V.A., supra note 7; see John M. Pittman, 7 ECAB 514 (1955).

16 V.A., supra note 7; see T.F., Docket No. 12-0209 (issued June 8, 2012).

17 V.A., supra note 7.
7

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 20, 2018.

ORDER

IT IS HEREBY ORDERED THAT the March 19, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: January 2, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board