United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.J., Appellant

and

DEPARTMENT OF THE ARMY, MONTCRIEF 

ARMY HOSPITAL, Fort Jackson, SC, Employer

__________________________________________

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Docket No. 18-1230

Issued: June 8, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 1, 2018 appellant filed a timely appeal from an April 10, 2018 merit decision of 

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

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of 

Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before 

OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first 

time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for the first time 

on appeal. Id. 
2

ISSUE

The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective April 10, 2018, as she no longer had residuals or

disability causally related to her accepted employment injury. 

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the prior Board decision are incorporated herein by reference. The relevant facts are as follows. 

On May 20, 2002 appellant, then a 40-year-old medical records clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on May 14, 2002 she experienced burning in her nasal 

passages after inhaling fumes from a stained door and perfume from coworkers while in the 

performance of duty. OWCP accepted the claim for a temporary aggravation of chronic chemical 

irritant contact dermatitis. It subsequently expanded acceptance of the claim to include an 

aggravation of allergic rhinitis. Appellant stopped work on May 14, 2002 and returned to work on 

May 16, 2002. On August 9, 2002 she stopped work.

By decision dated February 5, 2010, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective February 13, 2010.

By decision dated July 1, 2011, the Board reversed OWCP’s February 5, 2010 decision.4 

The Board found that OWCP had not met its burden of proof to terminate appellant’s compensation 

benefits effective February 13, 2010 as a conflict in medical opinion existed between Dr. David 

Amrol, a Board-certified pulmonologist and OWCP referral physician, who found that she could 

resume successful employment in an environment in which there were no excessive irritant 

exposures, and Dr. Billy J. Lance, Board-certified in family medicine and her treating physician, 

who opined that she continued to have significant residuals of her work-related injury and was 

totally disabled. 

Commencing November 20, 2011, OWCP paid appellant wage-loss compensation on the 

periodic rolls. 

On February 24, 2016 OWCP referred appellant to Dr. Gregg J. Colle, a Board-certified 

dermatologist, for a second opinion examination regarding the status of her employment-related 

conditions.5

 

3 Docket No. 10-2012 (issued July 1, 2011).

4

Id.

5

In a report dated June 1, 2012, Dr. James Atkinson, a Board-certified dermatologist and OWCP referral physician, 

diagnosed chronic rhinitis, pruritus. He indicated that he found no specific objective findings to support disabling 

residuals; however, by history he believed that this condition had not resolved as appellant was sensitive to skin 

contacts and her rash is likely to recur upon reexposure. Dr. Atkinson advised that she was likely to be exposed to 

cleaning agents, colognes, perfumes, and other odors beyond the employing establishment’s control. He opined that 

appellant was totally disabled from her date-of-injury position.
3

In a March 14, 2016 report, Dr. Colle reviewed appellant’s history of injury and noted that 

she had experienced periodic pruritus over the prior 10 years that she attributed to exposure at 

work to photographic developing chemicals and other scents. He noted that she was currently 

asymptomatic with no rashes or pruritus. Dr. Colle found no current employment-related 

pathology based on appellant’s lack of symptoms or clinical findings. In a work capacity 

evaluation for cardiovascular and pulmonary conditions (Form OWCP-5b) of even date, he 

indicated that appellant was able to perform her usual job without restriction. In a supplemental 

report dated June 4, 2016, Dr. Colle opined that her skin condition had resolved and that she could 

resume her usual employment.

In a report dated September 19, 2016, Dr. Lance discussed appellant’s history of 

employment exposure to chemicals used to develop x-rays as well as other chemicals and cleaning 

agents. He noted that “[Appellant] was chronically exposed by inhalation and dermal contact; 

[appellant] continues to have bronchospasms and respiratory inflammations when exposed to 

chemicals.” Dr. Lance found that she had “chronic sinusitis, tinnitus, vertigo, allergic rhinitis, 

non-allergic rhinitis,” and gastroesophageal reflex disease. He opined that appellant’s residual 

symptoms resulted from exposure to chemicals in the workplace. Dr. Lance noted that she had 

attempted to perform clerical work, but was unsuccessful as she continued to be exposed to dust, 

fumes, and other environmental irritants. He advised that a prior physician had diagnosed chronic 

rhinitis and pruritus and indicated that there was no treatment for contact dermatitis “other than 

avoidance or treatment as it occurs.” Dr. Lance opined that she had been treated by various 

professionals and that her diagnoses were chronic rhinitis, chronic sinusitis, vertigo, tinnitus, 

gastroesophageal reflux disease, pruritus, and joint pain. He further opined that appellant was 

totally disabled from work due to workplace exposure to chemicals that “significantly inhibit[ed] 

her ability to perform daily activities.”

On February 9, 2017 OWCP determined that a conflict in medical opinion existed between

Dr. Lance and Dr. Colle and referred appellant to Dr. James Seward, a Board-certified 

dermatologist, for an impartial medical examination. It prepared a statement of accepted facts

(SOAF), noting that she had five established employment-related exposures to flumes, odors, 

and/or chemicals from May 2001 to May 2002.6

In a report dated March 1, 2017, Dr. Seward reviewed appellant’s history of injury and her 

current complaints of pain in her joints, dry eyes, weakness, and gastrointestinal issues. On 

examination he found mild dry skin on the hands, face, and body, but no dermatitis. Dr. Seward 

diagnosed contact dermatitis by history with no current evidence of the disease. 

In a report dated March 15, 2017, Dr. Seward opined that appellant had mild dry skin on 

examination due to low humidity without any dermatitis or skin disease. He concluded that she 

had no objective findings of an active skin disease requiring further treatment and that any past 

 

6

In the SOAF, OWCP noted that appellant had five documented chemical exposure incidents: from May to 

June 2001 she was exposed to paint fumes, which caused the condition of paint fume inhalation. On May 22, 2001 

appellant was exposed to noxious odors while the mammography room was painted, on December 13, 2001 she was 

exposed to chloroform from a spill in the employees work area, on April 2, 2002 she was exposed to odors related to 

the draining of a sprinkler system, on April 22, 2002 she was exposed to perfume fumes in her work area, and on 

May 14, 2002 she was exposed to fumes from paint stain applied to a door in the medical records area.
4

contact dermatitis had resolved. Dr. Seward opined that appellant could work without limitations 

from a dermatologic standpoint.

On April 4, 2017 OWCP referred appellant to Dr. Emeka M. Eziri, a Board-certified 

pulmonologist, for a second opinion examination. 

In an April 25, 2017 report, Dr. Eziri reviewed appellant’s history of injury and discussed 

her current complaints of “progressive fatigue and weakness....” On examination he found no 

rales, rhonchi, or wheezing, and normal respiratory effort. Dr. Eziri performed a pulmonary 

function test (PFT) which demonstrated moderate restrictive lung disease. He diagnosed 

bronchitis and pneumonitis as a result of exposure to chemicals, gas, fumes, and vapors, as well 

as occupational exposure to toxic agents in other industries, Sicca syndrome with lung 

involvement, and an abnormal PFT revealing moderate restrictive lung disease. Dr. Eziri noted 

that appellant had a “paucity of pulmonary complaints” and recommended a gastrointestinal and 

rhematological evaluation. In a Form OWCP-5b of even date, he indicated that appellant was

unable to perform her usual job.

On July 24, 2017 OWCP requested that Dr. Eziri address whether appellant was capable 

of performing her regular job and describe the physical limitations, if any, resulting from the 

accepted employment-related exposure. It also requested that he discuss whether appellant’s 

gastrointestinal or rheumatological conditions were related to the work event of May 14, 2002.

In a supplemental report dated August 9, 2017, Dr. Eziri summarized his April 25, 2017 

report, noting that since that there was a scarcity of pulmonary complaints he had recommended a 

gastrointestinal and rheumatological workup. He opined that appellant’s gastrointestinal and 

rhematological complaints were unrelated to her accepted employment injury. In an 

accompanying OWCP-5b, Dr. Eziri found that she could perform her usual job without 

restrictions.

On September 29, 2017 Dr. Lance noted that appellant had a history of exposure at work 

to darkroom chemicals and other chemicals and cleaning agents and that she “continued to have 

bronchospasms and respiratory inflammations when exposed to chemicals.” He diagnosed 

connective tissue disease, chronic sinusitis, tinnitus, vertigo, allergic rhinitis, and nonallergic 

rhinitis and opined that the residual symptoms were the result of exposure to chemicals in the 

workplace. Dr. Lance found that appellant was totally disabled from work.

In an October 25, 2017 letter, OWCP advised appellant that it proposal to terminate her 

wage-loss compensation and medical benefits because she no longer had residuals of her accepted

employment injury. It afforded her 30 days to submit additional evidence and argument if she 

disagreed with the proposed termination. 

In response, appellant resubmitted reports previously of record and the results of diagnostic 

testing dated November 12, 2006 and March 22, 2011.

On May 27, 2016 and January 20, 2017 Dr. Lance treated appellant for coughing, chest 

congestion, and wheezing. He diagnosed allergic rhinitis, cough, and maxillary sinusitis. In 

reports dated March 28 and May 12, 2017, Dr. Lance diagnosed conjunctivitis in the right eye, 

back pain, and fatigue. 
5

In an August 7, 2017 report, Dr. Annette W. Lynn, a Board-certified dermatologist, treated 

appellant for bumps on her cheeks, around mouth and chin that was very itchy. She diagnosed 

contact dermatitis.

On November 3, 2017 appellant challenged the proposed termination of her wage-loss 

compensation and medical benefits. She asserted that there were discrepancies and contradictions 

in OWCP’s referral physician reports and these physicians were influenced by OWCP. Appellant 

advised that the opinions of her treating physicians should be given greater weight than the second 

opinion and referee physicians who only saw her one time and provided superficial opinions. She 

provided a summary of her medical care since 2002 and asserted that her accepted injury/illness 

continued and had resulted in systemic connective tissue disorder. 

By decision dated April 10, 2018, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective that date, finding that the opinions of Dr. Seward 

and Dr. Eziri constituted the weight of the medical evidence and established that she had no further 

disability or need for medical treatment causally related to the accepted May 14, 2002 employment 

injury.

LEGAL PRECEDENT

Once OWCP accepts a claim and pays compensation, it bears the burden of proof to justify 

modification or termination of benefits.7 It may not terminate compensation without establishing 

either that the disability has ceased or that it is no longer related to the employment.8 OWCP’s 

burden of proof includes the necessity of furnishing rationalized medical opinion evidence based 

on a proper factual and medical background.9 The right to medical benefits for an accepted 

condition is not limited to the period of entitlement to compensation for disability.10 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.11

Section 8123(a) of FECA12 provides that if there is disagreement between the physician 

making the examination for OWCP and the employee’s physician, the Secretary shall appoint a 

third physician, known as a referee physician or impartial medical specialist, who shall make an 

examination.13 This is called a referee examination and OWCP will select a physician who is 

 

7 M.M., Docket No. 17-1264 (issued December 3, 2018); Curtis Hall, 45 ECAB 316 (1994).

8 E.B., Docket No. 18-1060 (issued November 1, 2018); Jason C. Armstrong, 40 ECAB 907 (1989). 

9 See G.H., Docket No. 18-0414 (issued November 1, 2018); Del K. Rykert, 40 ECAB 294-96 (1988). 

10 L.W., Docket No. 18-1372 (issued February 27, 2019); Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas 

Olivarez, Jr., 32 ECAB 1019 (1981). 

11 R.P., Docket No. 18-0900 (issued February 5, 2019); Calvin S. Mays, 39 ECAB 993 (1988). 

12 5 U.S.C. § 8123(a). 

13 Id. at 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994). 
6

qualified in the appropriate specialty and who has no prior connection with the case.14 Where 

there exist opposing medical reports of virtually equal weight and rationale and the case is referred 

to an impartial specialist for the purpose of resolving conflict, the opinion of such specialist, if 

sufficiently well rationalized and based upon a proper factual background, must be given special 

weight.15

ANALYSIS

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to medical benefits effective April 10, 2018 for the accepted 

condition of contact dermatitis. The Board further finds, however, that it has not met its burden 

of proof to terminate her wage-loss compensation for the accepted condition of an aggravation of 

allergic rhinitis. 

Regarding the accepted condition of contact dermatitis, on prior appeal, the Board found 

that OWCP had not met its burden of proof to terminate appellant’s wage-loss compensation and 

medical benefits effective February 13, 2010. It found that a conflict in medical opinion existed 

between Dr. Amrol, an OWCP referral physician, and Dr. Lance, her attending physician, 

regarding whether she had continuing disability and residuals of her accepted employment injury.

Following the Board’s reversal, OWCP referred appellant to Dr. Colle for a second opinion 

examination. On March 14, 2016 Dr. Colle determined that she had no further employmentrelated skin condition based on her lack of symptoms or clinical findings. On September 19, 2016

Dr. Lance found that appellant had residual symptoms and disability. OWCP properly found a 

conflict between Dr. Colle and Dr. Lance and referred her to Dr. Seward, a Board-certified 

dermatologist, for an impartial medical examination.

In situations where there exists a conflict in the medical evidence and the case is referred 

to an impartial medical examiner (IME) for the purpose of resolving the conflict, the opinion of 

the IME, if sufficiently well rationalized and based upon a proper factual background, must be 

given special weight.16

The Board finds that Dr. Seward’s opinion is entitled to the special weight of the evidence 

regarding the accepted condition of a temporary aggravation of chronic chemical irritant contact 

dermatitis. On March 1, 2017 Dr. Seward noted that appellant complained of dry eyes, weakness, 

and gastrointestinal problems. He found mild dry skin without dermatitis on examination. On 

March 15, 2017 Dr. Seward attributed appellant’s dry skin to low humidity and opined that she 

had no residuals of her accepted condition of contact dermatitis. He provided rationale for his 

opinion by explaining that she had no objective findings demonstrating an active skin condition or 

dermatitis. The Board finds that Dr. Seward’s opinion, which is well rationalized and based upon 

a proper factual and medical history, constitutes the special weight of the medical evidence on the 

 

14 20 C.F.R. § 10.321. 

15 D.G., Docket No. 19-1259 (issued January 29, 2020); D.W., Docket No. 18-0123 (issued October 4, 2018); 

Gloria J. Godfrey, 52 ECAB 486 (2001); Gary R. Sieber, 46 ECAB 215, 225 (1994). 

16 Id.
7

issue of whether appellant has continuing residuals or disability causally related to her temporary 

aggravation of chronic chemical irritant contact dermatitis.17 

On August 7, 2017 Dr. Lynn evaluated appellant for itchy skin and bumps on her cheeks, 

around her mouth and on her chin. She diagnosed contact dermatitis, but did not note any residuals 

or disability due to this condition. Therefore, Dr. Lynn’s opinion is of no probative value and is 

insufficient to overcome the special weight afforded to the opinion of Dr. Seward.

18

Regarding the accepted condition of an aggravation of allergic rhinitis, the Board finds that 

OWCP has not met its burden of proof to terminate appellant’s wage-loss compensation and 

authorization for medical benefits.

OWCP referred appellant to Dr. Eziri, a Board-certified pulmonologist, for a second 

opinion regarding whether she had disability or residuals of her aggravation of allergic rhinitis. In 

an April 25, 2017 report, Dr. Eziri found that objective testing showed moderate restrictive lung 

disease with variable upper airway obstructive physiology. He diagnosed bronchitis and 

pneumonitis as a result of exposure to chemicals, gas, fumes, and vapors, occupational exposure 

to toxic agents in other industries, Sicca syndrome with lung involvement, and moderate restrictive 

lung disease. In a supplemental report dated August 9, 2017, Dr. Eziri indicated that appellant’s 

current complaints, which were gastrointestinal and rheumatological in nature, were unrelated to 

the accepted employment injury and opined that she could resume her usual employment.

In a report dated September 29, 2017, Dr. Lance discussed appellant’s history of exposure 

to chemicals and cleaning agents at work. He diagnosed connective tissue disease, chronic 

sinusitis, tinnitus, vertigo, allergic rhinitis, and nonallergic rhinitis. Dr. Lance opined that 

appellant had residuals of her accepted workplace exposure to chemicals and remained totally 

disabled from work.

The Board finds that a conflict in medical opinion exists between Dr. Eziri, an OWCP 

referral physician, and Dr. Lance, appellant’s physician, regarding whether she has continuing

disability or residuals of the accepted condition of an aggravation of allergic rhinitis. Section 8123 

of FECA provides that, if there is a disagreement between the physician making the examination 

for the United States and the employee’s physician, OWCP shall appoint a third physician who 

shall make an examination.19 OWCP should have resolved the conflict in medical opinion before 

terminating her wage-loss compensation and medical benefits.

20

 As OWCP failed to resolve the 

conflict in medical opinion evidence, the Board finds that it has not met its burden of proof to 

terminate appellant’s wage-loss compensation and authorization for medical treatment for the 

accepted condition of an aggravation of allergic rhinitis.

 

17 See L.C., Docket No. 18-1759 (issued June 26, 2019); D.M., Docket No. 17-1052 (issued January 24, 2019).

18 L.S., Docket No. 19-0959 (issued September 24, 2019).

19 5 U.S.C. § 8123(a).

20 R.C., Docket No. 18-0463 (issued February 7, 2020); A.E., Docket No. 18-0891 (issued January 22, 2019).
8

CONCLUSION

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits effective April 10, 2018 for the accepted condition of a 

temporary aggravation of chronic chemical irritant contact dermatitis. The Board further finds that 

OWCP has not met its burden of proof to terminate her entitlement to wage-loss compensation and 

medical benefits for the accepted condition of an aggravation of allergic rhinitis. 

ORDER

IT IS HEREBY ORDERED THAT the April 10, 2018 decision of the Office of Workers’

Compensation Programs is affirmed in part and reversed in part. 

Issued: June 8, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board