United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.M., Appellant

and

U.S. POSTAL SERVICE, CHILLUM PLACE 

CARRIER ANNEX, Washington, DC, Employer

__________________________________________

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Docket No. 21-0307

Issued: June 23, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 29, 2020 appellant, through counsel, filed a timely appeal from a 

December 1, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

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

1

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

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

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

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

2

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish disability from work 

for the period June 27, 2016 through August 17, 2018 causally related to her accepted March 30, 

2016 employment injury.

FACTUAL HISTORY

On April 11, 2016 appellant, then a 40-year-old custodian, filed a traumatic injury claim 

(Form CA-1) alleging that on March 30, 2016 she inhaled fumes from foaming bleach causing her 

to experience incontinence, shortness of breath, watery eyes, hoarseness, itchiness, and nausea 

while in the performance of duty.

In a report dated June 23, 2016, Dr. Fitzpatrick C. Wilson, a Board-certified physiatrist, 

evaluated appellant for injuries to her larynx sustained on March 30, 2016. He discussed her 

continued complaints of shortness of breath when talking, hoarseness, and a cough. Dr. Wilson 

diagnosed dysphonia, toxic gas exposure, and a persistent cough. In a disability form of even date, 

he found that appellant was unable to work from June 23 to July 26, 2016.

On July 21, 2016 Dr. Shaum Sridharan, a Board-certified otolaryngologist, discussed 

appellant’s history of coughing, gagging, and throwing up after pouring bleach in a bucket. He 

indicated that she had lost her voice and experienced shortness of breath and chest pain. 

Dr. Sridharan diagnosed hoarseness, noting that appellant had “a great deal of muscle tension 

dysphonia and laryngeal hypersensitivity after her exposure at work.” He recommended voice 

therapy and acid suppression. 

In a July 26, 2016 progress report, Dr. Wilson advised that appellant should avoid 

chemicals at work and be in a well-ventilated room. He noted that the employing establishment 

had told her that she would not be exposed to chemicals, but she was not sure if this was accurate. 

In a disability form, Dr. Wilson found that appellant was unable to work until August 30, 2016. 

He submitted a similar progress report and disability form on August 30, 2016.

Dr. Sridharan, on September 22, 2016, diagnosed hoarseness and noted that appellant was 

status post a “caustic injury to the larynx with resultant hoarseness. I believe that she may have 

hypersensitivity of the larynx and possible mucosal injury to the true vocal folds. ” He 

recommended possible steroid injections. Dr. Sridharan indicated that appellant was “considering 

returning to work with a specialized mask if possible.”

On September 27, 2016 Dr. Wilson discussed appellant’s complaints of continued 

hoarseness that had improved somewhat. He noted that her otolaryngologist had recommended 

surgery and found that she could return to work if she had a special mask. Dr. Wilson diagnosed 

dysphonia, a burn of the larynx and trachea, the toxic effect of chlorine gas resulting from the 

above-mentioned burns, and dysphasia. He opined that appellant should remain off work.

In a report dated November 3, 2016, Dr. Nazaneen Grant, a Board-certified 

otolaryngologist and laryngeal specialist, discussed appellant’s history of an inhalation burn 

causing a severe cough and dyspnea on March 30, 2016 when she poured bleach into a bucket and 
3

it reacted with another chemical. She noted her condition had improved on steroids, but that she 

had to “chew food well” and that swallowing occasionally hurt. Dr. Grant diagnosed other 

diseases of the larynx not otherwise classified. On examination she found a lesion on the vocal 

fold and severe muscle tension. Dr. Grant advised that appellant had a pronounced raspy voice 

that affected her quality of life and recommended surgery to assess scarring and remove a lesion. 

She also diagnosed hoarseness.

Dr. Wilson, on December 20, 2016, released appellant to return to work without restrictions 

except for wearing a mask “at all times while at work,” and not using or being around cleaning 

chemicals. He noted that she could drink without difficulty, but still had to cut her food into “small 

pieces to avoid dysphagia.” Dr. Wilson advised that appellant had decided against surgery. 

On March 23, 2017 Dr. Sridharan discussed appellant’s symptoms of mild dysphagia and 

noted that she was “still battling work regarding finding [a] proper job without exposure to 

chemicals.” He indicated that she was receiving voice therapy. A stroboscopy showed no lesions 

except for a possible small left subepithelial lesion on the posterior vocal fold. 

In a report dated July 5, 2017, Dr. Stephen Bane, a Board-certified otolaryngologist and 

OWCP referral physician, diagnosed hoarseness due to the employment injury as a result of muscle 

tension without physical pathology. He found that appellant could resume her usual employment. 

In an addendum dated August 11, 2017, Dr. Bane advised that appellant’s hoarseness was 

unrelated to the accepted employment injury.

In a September 28, 2017 report, Dr. Sridharan diagnosed hoarseness after inhalation 

exposure and a vocal cord scar. He related that appellant “has a component of muscle tension 

dysphonia, but she also has some evidence of [a] possible vocal fold scar [left] worse than right.”

On December 18, 2017 Dr. Grant noted that appellant’s workplace was unable to “provide 

her a job where she is not exposed to chemicals.” She diagnosed hoarseness and opined that in 

view of the “temporal relationship to work exposure, and evidence of scar/lesion on vocal folds, 

there is nothing else to explain the change in her voice.” Dr. Grant advised that the scar could be 

better characterized during an operation, but that a steroid injection should be the initial treatment. 

On March 22, 2018 OWCP accepted the claim for the accidental (unintentional) toxic 

effect of chlorine gas and dysphonia. On March 30, 2018 it paid appellant wage-loss compensation 

from May 15 to June 26, 2016.

In an e-mail dated April 5, 2018, the employing establishment advised that appellant had 

not returned to work. It asserted that it had attempted to accommodate her restrictions, but that 

the medical evidence indicated that she was unable to work around chemicals.

On August 24, 2018 appellant filed a claim for compensation (Form CA-7) for disability 

for the period from June 27, 2016 through August 17, 2018.

In a report dated August 28, 2018, Dr. Grant noted that appellant had a history of inhaling 

chemicals at work resulting in hoarseness, muscle tension dysphonia, and likely scarring of the 

vocal fold. She advised that she should “be away from chemicals and gases which may worsen

her symptoms” and required a 15-minute break from talking every three hours.
4

In a development letter dated August 31, 2018, OWCP requested that appellant submit 

medical evidence supporting that she was disabled from work as a result of her accepted 

employment injury from June 27, 2016 to August 17, 2018. It afforded her 30 days to submit the 

requested information. No response was received.

By decision dated October 30, 2018, OWCP denied appellant’s claim for disability from 

work for the period June 27, 2016 through August 17, 2018.

On November 7, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review.

A telephonic hearing was held on March 4, 2019. Appellant testified that she provided 

medical evidence to the employing establishment regarding medical restrictions but was told that 

there was no position available for her that did not require working with chemicals. She did her 

own search for a new position in a different craft and located a position as a clerk.

By decision dated May 8, 2019, OWCP’s hearing representative vacated the October 30, 

2018 decision. He noted that Dr. Sridharan, Dr. Wilson, and Dr. Grant had found that appellant 

had continued residuals of her hoarseness and dysphonia and could not be exposed to chemicals 

and gases at work. The hearing representative indicated that Dr. Bane had found that her 

hoarseness was unrelated to her injury, but had failed to address the accepted condition of 

dysphonia and the toxic effect of chlorine gases or whether she had sustained any periods of 

disability. He remanded the case for a supplemental opinion from Dr. Bane, including whether 

appellant had sustained scarring of the vocal cords from her work injury.

Dr. Bane subsequently advised OWCP that he was not scheduling appointments. On 

June 21, 2019 OWCP referred appellant to Dr. Douglas McCorkle, a Board-certified 

otolaryngologist, for a second opinion examination.

In a report dated July 10, 2019, Dr. McCorkle discussed appellant’s complaints of 

continued hoarseness after she “apparently breathed some fumes” on March 30, 2016. He noted 

that she had not worked for three years to avoid fumes, but was currently employed as a clerk. 

Dr. McCorkle found no lesions, modules, polyps, scarring, or inflammation on endoscopy. He 

opined that appellant’s employment injury had not caused vocal cord scarring and that her 

hoarseness resulted from muscle tension dysphonia. Dr. McCorkle related, “Both toxic effects of 

bleach and dysphonia are no longer present. I cannot state with a reasonable degree of medical 

certainty that any toxic effects of bleach would cause chronic problems or dysphonia and lead to 

a disability from June 27, 2016 through August 17, 2018.” In a supplemental report dated 

August 23, 2019, he indicated that appellant’s dysphonia had not resolved, but was unrelated to 

the accepted work exposure.

By decision dated August 29, 2019, OWCP denied appellant’s claim for disability from 

work for the period June 27, 2016 through August 17, 2018.

On September 11, 2019 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review.
5

Following a preliminary review, by decision dated December 6, 2019, OWCP’s hearing 

representative vacated the August 29, 2019 decision. The hearing representative found that

Dr. McCorkle had based his conclusion that appellant’s dysphonia was unrelated to the 

employment injury on an inaccurate background and that he had not provided a detailed record 

review. The hearing representative advised that he should provide a reasoned opinion addressing 

whether appellant was totally disabled during the period claimed and whether she had residuals of 

dysphonia. Additionally, the hearing representative found that OWCP should ask the employing 

establishment whether limited-duty employment was available within any work restrictions.

On December 12, 2019 OWCP requested that Dr. McCorkle advise whether appellant had 

residuals of dysphonia and, if so, whether she was totally disabled from all employment from 

June 27, 2016 through August 17, 2018.

In a separate letter dated December 12, 2019, OWCP requested that the employing 

establishment advise whether it had received medical evidence from appellant regarding her work 

restrictions, whether it had limited-duty available within those restrictions, and to the describe the 

actions that “transpired attempting to return the claimant to work.” No response was received.

In a supplemental report dated January 29, 2020, Dr. McCorkle opined that the findings on 

physical examination were “relatively unremarkable for any significant vocal cord injury.” He 

advised that appellant had no residuals of dysphonia and the toxic effects of chlorine gas, and noted 

that smoke and acid reflux may have affected the inhalation injury. Dr. McCorkle found that she 

could resume her usual employment without restriction.

OWCP sent a second request for information to the employing establishment on 

February 4, 2020. No response was received.

By decision dated March 3, 2020, OWCP denied appellant’s claim for disability from work 

for the period June 27, 2016 through August 17, 2018.

On March 10, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review.

By decision dated May 13, 2020, following a preliminary review, OWCP’s hearing 

representative vacated the March 3, 2020 decision. The hearing representative found that

Dr. McCorkle had not provided rationale supporting that appellant was not totally disabled during 

the claimed period, and indicated that OWCP should have asked whether she had any disability, 

partial or total, for the period in question. OWCP’s hearing representative noted that the statement 

of accepted facts did not set out her job duties. The hearing representative found that the 

employing establishment had not responded to its request for information about the availability of 

limited-duty positions and thus determined that OWCP could accept that limited-duty work was 

not available during the claimed period. 

In an addendum report dated June 3, 2020, Dr. McCorkle advised that appellant was not 

disabled from June 27, 2016 through August 17, 2018 because her physical examination had 

yielded unremarkable findings and as her voice had been raspy on one occasion, but not another.

He noted that she had previously smoked which could have contributed to dysphonia and that a 
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voice impairment would not result in total disability given her job. Dr. McCorkle opined that 

appellant had no disability, partial or total, from June 27, 2016 through August 17, 2018.

By decision dated June 5, 2020, OWCP denied appellant’s claim for disability from work 

for the period June 27, 2016 through August 17, 2018.

On June 9, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review.

A telephonic hearing was held on September 16, 2020. Appellant testified that she was off 

work from the date of injury until August 17, 2018, and she subsequently changed positions from 

a custodian to a clerk so that she would not be exposed to chemicals. She advised that prior to that 

time, the employing establishment had not allowed her to resume work.

By decision dated December 1, 2020, OWCP’s hearing representative affirmed the June 5, 

2020 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim, including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury.4 For each period of 

disability claimed, the employee has the burden of proof to establish that he or she was disabled 

from work as a result of the accepted employment injury.5 Whether a particular injury causes an 

employee to become disabled for work, and the duration of that disability, are medical issues that 

must be proved by a preponderance of probative and reliable medical opinion evidence. 6

Under FECA the term disability means incapacity, because of an employment injury, to 

earn the wages that the employee was receiving at the time of injury. 7 Disability is, thus, not 

synonymous with physical impairment which may or may not result in an incapacity to earn 

wages.8 An employee who has a physical impairment causally related to his or her federal 

employment, but who nonetheless has the capacity to earn the wages that he or she was receiving 

at the time of injury, has no disability as that term is used in FECA.9

3

Supra note 2.

4

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August23, 2019);

C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 

ECAB 1143 (1989). 

5 M.C., Docket No. 18-0919 (issued October 18, 2018).

6

See K.C., Docket No. 17-1612 (issued October 16, 2018).

7

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

8

See L.W., Docket No. 17-1685 (issued October 9, 2018).

9

See M.W., Docket No. 20-0722 (issued April26, 2021); D.G., Docket No. 18-0597 (issued October 3, 2018).
7

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, OWCP 

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

shall make an examination.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

ANALYSIS

The Board finds that the case is not in posture for decision regardingwhether appellant was 

disabled from work for the period June 27, 2016 through August 17, 2018 causally related to her 

accepted March 30, 2016 employment injury. 

On June 23, 2016 Dr. Wilson, a treating physician, diagnosed dysphonia, toxic gas 

exposure, and a persistent cough, noting that appellant had injured her larynx on March 30, 2016. 

He opined that she was totally disabled for work from that date until July 26, 2016. On July 26, 

2016 Dr. Wilson found that appellant could not work around chemicals and required a room that 

was well ventilated. He indicated that she was disabled from work until August 30, 2016. In a 

report dated September 27, 2016, Dr. Wilson related that appellant’s otolaryngologist had 

recommended surgery and found that she could resume work with a special mask. He diagnosed 

dysphonia, a burn of the larynx and trachea, the toxic effect of chlorine gas resulting the abovementioned burns, and dysphasia and opined that she should remain off work. On December 20, 

2016 Dr. Wilson indicated that appellant could work if she was not around chemicals, noting that 

she had decided against surgery. On August 28, 2018 Dr. Grant advised that she could not work 

around chemicals or gases and could not talk more than three hours without a 15-minute break. 

On July 10, 2019 Dr. McCorkle, an OWCP referral physician, diagnosed hoarseness from 

muscle tension dysphonia and found that appellant was not disabled from June 27, 2016 through 

August 17, 2018. In a January 29, 2020 report, he found no residuals of the diagnosed dysphonia 

and toxic effects of chlorine gas. On June 3, 2020 Dr. McCorkle reiterated that appellant was not 

partially or totally disabled from work during the period June 27, 2016 through August 17, 2018, 

noting that he had found unremarkable findings on examination. 

As noted above, if there is a disagreement between an employee’s physician and an OWCP 

referral physician, OWCP will appoint an impartial medical specialist who shall make an 

examination.12 The Board therefore finds that a conflict in medical opinion exists between

Dr. Wilson and Dr. Grant, appellant’s physicians, and Dr. McCorkle, OWCP’s referral physician, 

regarding whether she had any disability from employment, either total or partial, during the period 

June 27, 2016 through August 17, 2018 causally related to her accepted employment injury. 

10 5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August26, 2020); M.S., 58 ECAB 328 (2007).

11 20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

12 See S.S., Docket No. 19-1658 (issued November 12, 2020); C.S., Docket No. 19-0731 (issued August22, 2019).
8

The case must therefore be remanded to OWCP for referral of appellant to an impartial 

medical specialist for resolution of the conflict in medical opinion evidence regarding whether 

appellant sustained any period of partial or total disability from June 27, 2016 through August 17, 

2018 in accordance with 5 U.S.C. § 8123(a).13 

The Board further finds that the case is not in posture for decision regarding whether 

limited-duty work was available to appellant within her restrictions during the claimed period of 

disability.

On April 5, 2018 the employing establishment asserted that it had attempted to 

accommodate appellant’s restrictions but that the medical evidence indicated that she was unable 

to work around chemicals. During the hearing held on March 4, 2019, appellant testified that she 

provided medical evidence to the employing establishment but was told that there was no position 

available for her within her restrictions. OWCP, on December 12, 2019, requested that the 

employing establishment advise whether it had limited-duty work available during the claimed 

period of disability, June 27, 2016 through August 17, 2018. No response was received. OWCP 

sent a second request for information to the employing establishment on February 4, 2020. The 

employing establishment still did not respond to its request for information. The hearing 

representative, by decision dated May 13, 2020, remanded the case, noting that OWCP had not 

responded to the request for information. However, no further evidence was received from the 

employing establishment regarding the availability of limited-duty work. 

While the claimant has the burden to establish entitlement to compensation, OWCP shares 

responsibility in the development of the factual evidence, particularly when such evidence is of 

the character normally obtained from the employing establishment or other government source. 14 

Therefore, the case shall be remanded for OWCP to obtain information from the employing 

establishment regarding whether it had light-duty work available for appellant as of June 27, 2016, 

which was within the restrictions necessitated by her accepted March 30, 2016employment injury. 

If the employing establishment does not sufficiently respond to the request for information about 

the availability of limited-duty positions OWCP shall accept that limited-duty work was not 

available during the claimed period. After this and other such further development as deemed

necessary, it shall issue a de novo decision on appellant’s disability claim.

CONCLUSION

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

13 See V.B., Docket No. 19-1745 (issued February 25, 2021).

14 See M.H., Docket No. 19-0930 (issued June 17, 2020); L.L., Docket No. 12-194 (issued June 5, 2012); N.S., 59 

ECAB 422 (2008).
9

ORDER

IT IS HEREBY ORDERED THAT the December 1, 2020 decision of the Office of 

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

consistent with this decision of the Board.

Issued: June 23, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board