United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.B., Appellant

and

DEPARTMENT OF AGRICULTURE, U.S. 

FOREST SERVICE, SALMON-CHALLIS 

NATIONAL FOREST, Challis, ID, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 20-0597

Issued: July 21, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On January 23, 2020 appellant, through counsel, filed a timely appeal from a December 9, 

2019 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 rescind its acceptance of 

appellant’s claim for Lyme disease, toxic effect of venom, and cervical stenosis with radiculopathy 

and myelopathy.

FACTUAL HISTORY

On July 5, 2005 appellant, then a 54-year-old wilderness ranger, filed a traumatic injury 

claim (Form CA-1) alleging that on July 4, 2005 he sustained injury from a wood tick bite that he 

found at the top of his right leg. He did not stop work at that time. On the reverse side of the form 

appellant’s immediate supervisor indicated that appellant notified him that he had experienced a 

tick bite on his upper right leg, which had become swollen and red.

On July 5, 2005 appellant sought treatment in an emergency department where Dr. Samuel 

Gardner, an osteopath Board-certified in family medicine, noted that appellant reported that he 

discovered that he had been bitten by a tick the day before. At the site of the bite, Dr. Gardner

noticed a circular erythematous rash or violet-purple area with a red central lesion of approximately 

two centimeters in diameter. He diagnosed “questionable tick bite.” In an August 17, 2005 report,

Dr. Martha Buitrago, a Board-certified internist specializing in infectious diseases, indicated that 

appellant probably suffered from a tick-related illness. She noted that Lyme disease was an 

extremely difficult diagnosis to make in an area of very little to no incidence. The findings of an 

August 31, 2005 western blot test revealed an overall negative result for Lyme disease, but also 

showed two positive Immunoglobulin G (IgG) antibody bands. On August 31, 2005 Dr. Buitrago

noted that appellant was status post tick bite and had hypothyroidism, and indicated that the 

possibility of Lyme disease was discussed, but “not fully diagnosed at this time.”

On September 15, 2005 OWCP accepted appellant’s claim for insect bite of the right 

hip/leg and toxic effect of venom.

In an October 12, 2005 report, Dr. Buitrago indicated that appellant’s clinical picture was 

very suspicious for Lyme disease. A western blot test performed on February 22, 2006 indicated 

negative results. In a February 22, 2006 report, Dr. Thomas Rand, Board-certified in pediatric 

infectious diseases, indicated that the diagnosis of acute Lyme disease was “quite strong” and 

maintained that the antibody testing supported a diagnosis of Lyme disease. In a March 20, 2006 

report, Dr. Carl D. Vance, a Board-certified internist specializing in endocrinology, noted, “The 

patient does have Lyme disease and has documented titers.” He opined that appellant’s condition 

was appropriately treated in its early stages “so his titers may never convert because of the rapid 

treatment.”

On June 30, 2006 OWCP referred appellant’s case to Dr. Jean Weaver, a Board-certified 

internist who served as an OWCP district medical adviser (DMA), and requested an opinion on 

whether appellant’s claimed conditions were employment related. In a July 7, 2006 report,

Dr. Weaver provided a summary of the medical evidence of record and advised that it was highly 

likely that appellant had employment-related Lyme disease.
3

On July 10, 2006 OWCP expanded the acceptance of appellant’s claim to include Lyme 

disease. Appellant stopped work on July 23, 2006 and OWCP paid him wage-loss compensation 

for periods of work stoppage.

On June 7, 2007 OWCP referred appellant’s case to Dr. Morley Slutsky, a Board-certified 

occupational medicine physician serving as a DMA. In a June 14, 2007 report, Dr. Slutsky 

indicated that Lyme disease had been responsible for severe fatigue and muscles aches, which had 

reduced appellant’s ability to exercise his neck. He opined that, with such limited activity and 

neck movement, the underlying arthritic changes developed more active inflammation, which in 

turn limited neck movement further and accelerated spinal degeneration.

On June 21, 2007 expanded the acceptance of appellant’s claim to include cervical stenosis 

with radiculopathy and myelopathy.

In response to appellant’s May 2018 request for physical therapy to treat employmentrelated muscle weakness per Dr. Buitrago’s recommendation, OWCP referred appellant’s case to

Dr. David I. Krohn, a Board-certified internist serving as a DMA. In an August 2, 2018 report,

Dr. Krohn asserted that Dr. Buitrago had not provided a well-reasoned narrative explanation as to 

how appellant’s symptoms might have been caused Lyme disease, or the other accepted conditions.

On October 4, 2018 OWCP referred appellant, together with a statement of accepted facts 

(SOAF) and series of specific questions, for a second opinion examination with Dr. Gabriela 

Kaufman, a Board-certified internist specializing in infectious diseases. It requested that

Dr. Kaufman evaluate whether appellant had residuals of the accepted employment-related 

conditions, including Lyme disease.

In a November 8, 2018 report, Dr. Kaufman discussed appellant’s factual and medical 

evidence, noting that appellant reported that at work on July 4, 2005 he used a knife to remove a 

tick (including its head) from his right upper thigh. She advised that appellant further reported 

that the tick was not engorged and that, the next day, he noticed an area of redness around the bite 

that looked like a bull’s eye. Dr. Kaufman indicated that a western blot test performed on 

August 31, 2005 showed two IgG antibody bands, and a repeat western blot test performed on 

February 22, 2006 was entirely negative. She reported the results of her physical examination, 

noting that appellant did not exhibit any skin rash or edema of the extremities. Dr. Kaufman 

diagnosed possible insect bite, febrile illness in 2005, arthritis, hypothyroidism, headaches, insulin 

resistance, hypertension, hypercholesterolemia, skin desquamation on finger pad, and Agent 

Orange exposure in Vietnam. She indicated that the diagnoses of possible tick bite, generalized 

weakness, febrile illness, and fatigue “could be related to the 2005 work-related injury.”

Dr. Kaufman noted, “[u]nfortunately it is not clear what condition the patient had, if the patient 

more likely than not had Lyme disease.” She indicated that appellant had an extensive work-up 

that was negative and opined that he could have had a viral illness. Dr. Kaufman noted, “[w]ithout 

definitive diagnosis though, it is impossible to tell if the symptoms the patient is still experiencing 

are related to the original condition.” She advised that, with most viral illnesses, as well as Lyme 

disease, the lingering symptoms tended to resolve within five years from the original infection. In 

response to OWCP’s question regarding whether appellant continued to have residuals of the 

accepted insect bite and effect of venom, Dr. Kaufman indicated that he did have residual 

symptoms, including headaches, arthralgias, weakness, and fatigue, but advised that it was unclear 
4

if these were in any way related to the original insect bite or effect of venom because she did not 

believe that there was a definitive diagnosis from 2005.

In response to OWCP’s question regarding whether appellant continued to have residuals 

of the accepted Lyme disease condition, she indicated that she did not believe that appellant had 

Lyme disease. Dr. Kaufman noted that on July 4, 2005 appellant reported a tick bite on his right 

upper thigh, followed by the appearance of a rash the next day, but that the tick was not engorged 

at the time he removed it with his knife. She asserted that Lyme disease usually had a two-to-three 

week incubation period before the onset of symptoms and that, for Lyme disease to be transmitted, 

the tick had to be attached for at least 48 hours and had to become engorged as it fed. Dr. Kaufman 

indicated that appellant had been appropriately treated with an initial course of 10 days of 

doxycycline, followed later by a course of 30 days. She advised that appellant had not 

seroconverted, meaning that his Lyme IgG antibody titers never became positive. Dr. Kaufman 

opined that, when patients had residual Lyme disease problems, they seroconverted and had 

positive western blot results with at least 5 out of 10 bands. She asserted that patients with Lyme 

disease might not seroconvert if they were treated early, but indicated that the absence of 

seroconversion meant that the infection was resolved. Dr. Kaufman noted that appellant’s western 

blot results had two bands at most, which could potentially have shown a cross reaction from other 

conditions. In response to OWCP’s question regarding whether appellant had residuals of the

accepted cervical spinal stenosis, she indicated that the condition seemed to have been controlled 

after appellant underwent fusion surgery, but that OWCP might want to obtain an additional report 

from appellant’s surgeon. Dr. Kaufman asserted that appellant’s current symptoms could be

related to a multitude of diagnoses. She maintained that appellant’s physical activity was likely 

limited by his pain and fatigue, and advised that he could potentially benefit from rheumatology 

and physiatry evaluations to address his arthralgias, fatigue, and weakness.

3

 Dr. Kaufman

indicated that a physiatrist would be a more appropriate person to complete a work capacity 

evaluation form (OWCP-5c).

Dr. Kaufman indicated that, given appellant’s symptomatology, he could potentially 

benefit from physical therapy, but noted that she could state that the symptoms appellant was still 

experiencing were related to his original injury in 2005. She advised that it might be worth 

evaluating appellant for any potential effect of Agent Orange that he had been exposed to. 

Dr. Kaufman maintained that appellant’s arthralgias could be due to multiple falls from his work 

as a rancher while trying to tame horses and noted, “[w]hile I believe the symptoms are real, I 

cannot state that they are related to his original injury.” She indicated that appellant could not 

perform the full duties of his date of injury job because of the significant physical demands of the

job. Dr. Kaufman noted that appellant had weakness, fatigue with physical activity, and pain, and 

indicated that his age was likely also a limitation. She asserted that appellant might be able to 

perform a less demanding job, likely on a part-time basis, but his fatigue might be a limiting factor. 

Dr. Kaufman advised that appellant could benefit from a physiatry evaluation to determine if he 

has any potential for medical improvement which would allow him to return to work.

 

3 Dr. Kaufman advised that appellant’s impairing arthralgias and fatigue were not related to the accepted workrelated conditions.
5

On January 17, 2019 OWCP requested that Dr. Buitrago review Dr. Kaufman’s 

November 8, 2018 report, and provide an opinion regarding appellant’s employment-related 

conditions. In a February 13, 2019 report, Dr. Buitrago reported physical examination findings 

and diagnosed joint pain, metabolic syndrome, and hypertensive disorder. She indicated that, after 

the incident with the tick bite in 2005, appellant started feeling tired, and had headaches, joint 

pains and malaise. Dr. Buitrago noted, “[a] lot of his symptoms resolved after oral Doxycycline 

and IV Ceftriaxone. This leads me to believe that it is possible he has a tick borne illness. Not 

sure which one. It could have been Lyme’s (sic) disease. We are not completely sure.”

In a March 21, 2019 letter, OWCP proposed to rescind its acceptance of appellant’s claim 

for Lyme disease, toxic effect of venom, and cervical stenosis with radiculopathy and myelopathy. 

It indicated that the weight of the medical opinion evidence with respect to whether appellant had 

employment-related Lyme disease rested with the well-rationalized opinion of Dr. Kaufman, the 

second opinion physician. OWCP asserted that, because the opinion of Dr. Kaufman “invalidates”

the original acceptance of Lyme disease, this opinion “also invalidates” the acceptance of cervical 

stenosis with radiculopathy and myelopathy as Dr. Slutsky had determined that appellant’s 

cervical spine condition developed as a consequence of his work-related duties and the limitations 

placed upon his activity due to the accepted condition of Lyme disease. It afforded appellant 30 

days to present evidence and argument challenging the proposed rescission action.

In April 3, 2019 statement, appellant argued that tick he saw imbedded in his right hip on 

July 4, 2005 was so small that it would have been impossible to tell if had been engorged with 

blood. He noted that he had been working in the woods for six days with no shower facilities when 

he discovered the tick and suggested that, therefore, the tick had been attached to him for more 

than 48 hours. Appellant asserted that many of the facts in Dr. Kaufman’s November 8, 2018 

report were incorrect. He submitted a May 15, 2019 report from Dr. Buitrago who reported 

physical examination findings and diagnosed joint pain, metabolic syndrome, and hypertensive 

disorder. Dr. Buitrago provided a discussion of appellant’s medical problems since 2005 which 

was similar to that contained in her February 13, 2019 report.

By decision dated August 8, 2019, OWCP rescinded its acceptance of appellant’s claim for 

Lyme disease, toxic effect of venom, and cervical stenosis with radiculopathy and myelopathy. It 

found that the weight of the medical opinion evidence rested with the opinion of Dr. Kaufman.

On August 13, 2109 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. During the hearing held on 

November 5, 2019, counsel argued that Dr. Kaufman’s opinion was not sufficiently rationalized 

to serve as the basis for OWCP’s rescission action.

By decision dated December 9, 2019, OWCP’s hearing representative affirmed the 

August 8, 2019 decision.
6

LEGAL PRECEDENT

Section 8128 of FECA provides that the Secretary of Labor may review an award for or 

against payment of compensation at any time on his own motion or on application.4 The Board 

has upheld OWCP’s authority to reopen a claim at any time on its own motion under section 8128 

of FECA and, where supported by the evidence, set aside or modify a prior decision and issue a 

new decision.5 The Board has noted, however, that the power to annul an award is not an arbitrary 

one and that an award for compensation can only be set aside in the manner provided by the 

compensation statute.6

Workers’ compensation authorities generally recognize that compensation awards may be 

corrected, in the discretion of the compensation agency and in conformity with statutory provision, 

where there is good cause for so doing, such as mistake or fraud. Once OWCP accepts a claim, it 

has the burden of proof to justify termination or modification of compensation benefits. This also 

holds true where OWCP later decides that it erroneously accepted a claim.7 

OWCP bears the burden of proof to justify rescission of acceptance on the basis of new 

evidence, legal argument and/or rationale.8 Probative and substantial positive evidence or 

sufficient legal argument must establish that the original determination was erroneous. OWCP 

must also provide a clear explanation of the rationale for rescission.9

ANALYSIS

The Board finds that OWCP did not meet its burden of proof to rescind its acceptance of 

appellant’s claim for Lyme disease, toxic effect of venom, and cervical stenosis with radiculopathy 

and myelopathy.

The Board finds that the evidence OWCP relied upon to rescind these medical conditions, 

i.e., the November 8, 2018 report of Dr. Kaufman, the OWCP referral physician, is not sufficiently 

rationalized to justify OWCP’s rescission action.

In her November 8, 2018 report, Dr. Kaufman indicated, in response to OWCP’s question 

regarding whether appellant continued to have residuals of the accepted Lyme disease condition, 

that she did not believe that appellant had Lyme disease. She noted that on July 4, 2005 appellant 

reported a tick bite on his right upper thigh, followed by the appearance of a rash the next day, but 

that the tick was not engorged at the time he removed it with his knife. Dr. Kaufman asserted that 

 

 

4 5 U.S.C. § 8128.

 

5 See L.M., Docket No. 19-0705 (issued September 11, 2019); John W. Graves, 52 ECAB 160, 161 (2000). See 

also 20 C.F.R. § 10.610.

 

6 D.W., Docket No. 17-1535 (issued February 12, 2018).

 

7 V.R., Docket No. 18-1179 (issued June 11, 2019).

 

8 See L.G., Docket No. 17-0124 (issued May 1, 2018).

 

9 See W.H., Docket No. 17-1390 (issued April 23, 2018).
7

Lyme disease usually had a two-to-three week incubation period before the onset of symptoms 

and that, for Lyme disease to be transmitted, the tick had to be attached for at least 48 hours and 

had to become engorged as it fed. She indicated that appellant had been appropriately treated with 

an initial course of 10 days of doxycycline, followed later by a course of 30 days. Dr. Kaufman

advised that appellant had not seroconverted, meaning that his Lyme IgG antibody titers never 

became positive. She noted that appellant had two positive bands on western blot testing and 

opined that, when patients had residual Lyme disease problems, they seroconverted and had 

positive western blot results with at least 5 out of 10 bands. 

The Board notes, however, that Dr. Kaufman indicated in portions of her November 8, 

2018 report that appellant could have had employment-related Lyme disease or some other insectvenom type disease. These portions render her opinion equivocal with respect to whether appellant 

actually suffered the accepted employment conditions. The Board has held that an opinion which 

is equivocal regarding a given medical matter is of limited probative value regarding that matter.

10

 

Dr. Kaufman indicated that the diagnoses of possible tick bite, generalized weakness, febrile illness 

from 2005, and fatigue “could be related to the 2005 work-related injury.” She noted, 

“[u]nfortunately it is not clear what condition the patient had, if the patient more likely than not 

had Lyme disease.” Dr. Kaufman advised that appellant had an extensive work-up that was 

negative and opined that he could have had a viral illness. She noted, “[w]ithout definitive 

diagnosis though, it is impossible to tell if the symptoms the patient is still experiencing are related 

to the original condition.” While Dr. Kaufman suggested in one part of her report that appellant’s 

lack of seroconversion showed the absence of Lyme disease, in another part of her report she 

suggested that appellant could have had Lyme disease at some point despite such lack of 

seroconversion. She noted that patients with Lyme disease might not seroconvert if they were 

treated early, but indicated that the absence of seroconversion meant that the infection was 

resolved. Dr. Kaufman’s discussion of the accepted condition of toxic effect of venom is similarly 

equivocal in nature. In response to OWCP’s question regarding whether appellant continued to 

have residuals of the accepted insect bite and effect of venom, Dr. Kaufman also provided an 

equivocal statement. She indicated that appellant did have residual symptoms, including 

headaches, arthralgias, weakness, and fatigue, but advised that it was unclear if these were in any 

way related to the original insect bite or effect of venom because she did not believe that there was 

a definitive diagnosis from 2005. The Board further notes that Dr. Kaufman did not directly 

address whether appellant ever suffered employment-related cervical stenosis with radiculopathy 

and myelopathy. As OWCP based its rescission of this condition on Dr. Kaufman’s discussion of 

Lyme disease, the November 8, 2018 report also fails to provide adequate justification for 

OWCP’s rescission of its acceptance of the condition of cervical stenosis with radiculopathy and 

myelopathy.

For these reasons, OWCP did not present sufficient evidence to rescind its acceptance of 

appellant’s claim for Lyme disease, toxic effect of venom, and cervical stenosis with radiculopathy 

and myelopathy.11

 

10 See E.B., Docket No. 18-1060 (issued November 1, 2018); Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).

11 See supra notes 8 and 9.
8

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to rescind its acceptance of 

appellant’s claim for Lyme disease, toxic effect of venom, and cervical stenosis with radiculopathy 

and myelopathy.

ORDER

IT IS HEREBY ORDERED THAT the December 9, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: July 21, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board