United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.O., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

BROOKLYN VA MEDICAL CENTER, 

Brooklyn, NY, Employer

__________________________________________

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Docket No. 22-0267

Issued: September 29, 2022

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On December 9, 2021 appellant, through counsel, filed a timely appeal from a November 3, 

2021 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.3

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.

3 The Board notes that, following the November 3, 2021 decision, OWCP received additional evidence. 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 additional

evidence for the first time on appeal. Id.
2

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation benefits and medical benefits, effective January 7, 2021, as she no longer had 

disability or residuals causally related to her accepted employment condition; and (2) whether 

appellant has met her burden of proof to establish continuing disability or residuals on or after 

January 7, 2021.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

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

claim (Form CA-2) alleging that she sustained bilateral vocal cord paresis due to factors of her 

federal employment including exposure to airborne irritants in the ground floor emergency 

department.5 She noted that she first became aware of her condition and realized its relation to her 

federal employment on May 22, 2015. Appellant stopped work on May 22, 2015. On April 28, 

2016 OWCP accepted the claim for vocal cord paralysis. OWCP paid appellant wage -loss 

compensation. 

In reports dated November 16, 2015 through August 2, 2016, Dr. John Meyer, an attending 

physician Board-certified in occupational medicine, public health, and general preventative 

medicine, opined that appellant’s occupational exposure in the emergency department to 

germicides, biocides, alcohol, quaternary ammonium compounds, and bleach cause d the 

diagnosed vocal cord paralysis. Dr. Meyer noted that medical literature documented 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 noted that appellant’s physicians had 

misinterpreted her initial presenting symptoms as bronchitis and that OWCP should ignore the 

diagnosis.

On June 18, 2016 OWCP received an April 1, 2016 operative note by Dr. Radu Lucian 

Sulica, a Board-certified otolaryngologist, who performed a left medialization laryngoplasty to 

address left vocal cord paresis.

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

a Board-certified otolaryngologist, who reviewed the medical record and a statement of accepted 

facts (SOAF). Dr. Pflum diagnosed mild erythema of the left vocal cord with “left vocal cord 

paralysis probably due to a viral infection when she initially presented with bronchitis.” He found 

that appellant’s vocal cord paralysis was not caused by any toxic exposure and that appellant had 

no current disability.

4 Docket No. 18-0980 (issued January 2, 2019).

5 On October 6, 2015 Dr. Radu Lucian Sulica, an attending Board-certified otolaryngologist, performed a 

strobovideolaryngoscopy,which demonstrated left vocal fold paresis. 
3

In a report dated January 3, 2017, 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.

On May 15, 2017 OWCP received an August 20, 2015 report by Dr. Shawn C. Ciecko, 

Board-certified in otolaryngology and head and neck surgery, who attributed appellant’s dyspnea 

and dysphonia to spasmodic dysphonia as her symptoms were relieved by a prescription muscle 

relaxant medication. Dr. Ciecko commented that appellant also had signs of laryngophageal 

reflux.

On May 15, 2017 OWCP also received August 28, 2015 and September 20, 2016 reports 

by Dr. Farhad Reza Chowdhury, an osteopath Board-certified in otolaryngology, who diagnosed 

bilateral vocal cord paresis and other voice and resonance disorder.

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

Dr. Pflum, for the government. To resolve the conflict, it appointed Dr. Henry de Blasi, a Boardcertified otolaryngologist, as an impartial medical examiner (IME) in the case. The SOAF 

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

related.

Dr. de Blasi submitted a report dated May 1, 2017 in which he diagnosed idiopathic vocal 

paralysis unrelated to toxic irritants or inhalants at the workplace. 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 employment-related exposure.

In duty status reports (Form CA-17) dated November 6, 2017 and April 9, 2018, Dr. Meyer 

found appellant totally disabled from work due to vocal cord paralysis with shortness of breath 

and hoarseness. He opined that she could not tolerate exposure to chemicals, solvents, fumes, 

dust, temperature extremes, and high humidity.

By notice of proposed termination dated February 14, 2018 and finalized 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. Appellant, through counsel, subsequently appealed to 

the Board.6

By decision dated January 2, 2019, the Board reversed OWCP’s February 14, 2018 

termination decision.

7

 The Board found that OWCP failed to meet its burden of proof as

Dr. de Blasi’s report did not conform to the SOAF as he opined the accepted condition had never 

6 Appellant retired from the employing establishment, effective August 15, 2018.

7

Supra note 4. 
4

occurred. The Board noted that OWCP had, in effect, attempted to rescind the acceptance of claim 

but had not given appellant appropriate notice.

On March 15, 2019 OWCP referred appellant, the medical record, an updated SOAF, and 

a series of questions to Dr. Chong S. Kim, a Board-certified otolaryngologist, for a second opinion 

on the nature and extent of the accepted condition and any continuing effect on appellant’s work 

capacity. In an April 9, 2019 report, Dr. Chong reviewed the SOAF and medical record. He 

observed a “low level of raspiness” when appellant spoke softly that disappeared when she spoke 

more forcefully. Dr. Chong performed fiber optic nasopharyngeal lower endoscopy, which 

demonstrated normal movement and appearance of the vocal cords, moderate redness and swelling 

of the arytenoid and interarytenoid area, and fullness of the subglottis on the left from the 

placement of the medialization prosthesis. He opined that the employment-related vocal cord 

paralysis and voice dysfunction had completely resolved with “no significant degree of disability 

with her breathing or voice function that would hinder” her from performing her date-of-injury 

position. Dr. Chong characterized appellant’s breathlessness and hoarseness both as subjective 

symptoms and a reflection of laryngeal pathology related, to a reasonable medical probability, to 

nonoccupational laryngophageal reflux disease as also observed by Dr. Ciecko.

On June 11, 2019 OWCP requested that Dr. Chong provide a supplemental report with 

additional medical evidence on the condition of laryngophageal reflux disease and any causal 

relationship to work factors.

In a June 14, 2019 addendum report, Dr. Chong explained that contributing factors for 

laryngopharyngeal reflux disease included “heredity, obesity, obstructive sleep apnea, hiatal 

hernia, pregnancy, smoking, alcohol abuse, diabetes mellitus, scleroderma, and delayed gastric 

emptying.” He noted that he had not found “medical literature to support work-related factors 

contribute to laryngopharyngeal reflux disease.”

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

Dr. Chong, for the government, regarding whether the accepted conditions remained active and 

disabling. It referred appellant, an updated SOAF, the medical record, and a series of questions to

Dr. Stefan P. Kieserman, a Board-certified otolaryngologist, to resolve the conflict of opinion as 

the IME. The SOAF noted that OWCP had accepted vocal cord paralysis as an employmentrelated condition. OWCP requested that Dr. Kieserman address whether appellant had disabling 

residuals of the accepted condition, and if she had any concurrent nonoccupational disability. 

In a March 10, 2020 report, Dr. Kieserman noted his review of the medical record and 

SOAF. On clinical examination including flexible fiber optic examination, he observed a left 

thyroplasty scar, normal pharynx, some reflux changes of the larynx, and normal vocal fold 

motion. Dr. Keiserman opined that it was not possible to “ascertain with clarity that the vocal fold 

paresis of [appellant] was related to environmental work exposure.” He noted that he did not 

believe that a diagnosis of vocal fold paralysis was applicable to appellant’s case as

Dr. Chowdhury found vocal cord paresis on the right and Dr. Sulica on the left. Dr. Kieserman 

commented that workplace chemical exposures could have changed the quality of secretions and 

lubrication of the larynx, resulting in dysphonia. He also noted that laryngeal pharyngeal reflux 

could have contributed to appellant’s dysphonia, as indicated by Dr. Kim. Dr. Kieserman 

concluded that appellant had sustained vocal cord paresis but not vocal cord paralysis, and that she 

had no current disability. He returned her to full-duty work with no restrictions.
5

On November 5, 2020 OWCP issued a notice proposing to terminate appellant’s wage-loss 

compensation and medical benefits based on Dr. Kieserman’s opinion that the May 22, 2015 

accepted condition had ceased without disability or residuals. It afforded her 30 days to submit 

additional evidence of argument challenging the proposed termination.

In a letter dated November 23, 2020, appellant, through counsel, contended that the 

proposed termination was based upon an erroneous interpretation of the medical record. 

By decision dated January 7, 2021, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective that date. It found that Dr. Kieserman’s report

constituted the special weight of the medical opinion evidence.

On October 26, 2021 appellant, through counsel, requested reconsideration. He contended 

that Dr. Kieserman had not provided objective evidence to support his conclusion that appellant

had recovered full vocal cord function, or that her laryngopharyngeal reflux was not occupationally 

related. Counsel submitted a September 14, 2021 report by Dr. Richard Fazio, Board-certified in 

gastroenterology and internal medicine, who had treated appellant for gastroenterology associated 

conditions beginning in 2008. He had diagnosed appellant with gastro esophageal reflux disease 

(GERD), esophagitis, and mild gastritis after an upper endoscopy in 2013. Dr. Fazio asserted that 

appellant’s conditions had worsened during years of occupational exposure to mold and asbestos. 

She had been diagnosed subsequently with dysphonia and vocal cord damage. Dr. Fazio explained 

that years of workplace exposures caused permanent damage to her vocal cords and affected her 

gastroenterology issues. He opined that appellant’s vocal cord damage, chronic GERD, and 

chronic gastritis were a direct result of workplace exposures, and that these conditions remained 

active and disabling.

By decision dated November 3, 2021, OWCP denied modification of the January 7, 2021 

decision. 

LEGAL PRECEDENT -- ISSUE 1

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

termination or modification of compensation benefits.8 It may not terminate compensation without 

establishing that the disability had ceased or that it was no longer related to the employment. 9 

OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion 

evidence based on a proper factual and medical background.10

8 D.C., Docket No. 21-0780 (issued December 22, 2021); R.R., Docket No. 20-1653 (issued May 17, 2021); A.D., 

Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); 

Paul L. Stewart, 54 ECAB 824 (2003).

9

J.M., Docket No. 21-0071 (issued August27, 2021); T.S., Docket No. 19-0476 (issued September 24, 2020); A.G., 

Docket No. 18-0749 (issued November 7, 2018); see also I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 

734 (2003).

10 D.C., supra note 8; J.O., Docket No. 20-0519 (issued November 30, 2020); R.R., Docket No. 19-0173 (issued 

May 2, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).
6

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

entitlement for disability compensation.11 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.12

The Federal (FECA) Procedure Manual13 provides that the findings of an OWCP referral 

physician or IMEmust be based on the factual underpinnings of the claim, as set forth in the SOAF. 

When OWCP’s referral physician or IME does not use the SOAF as the framework in forming his 

or her opinion, the probative value of the opinion is diminished or negated altogether.14

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 January 7, 2021.

In his March 10, 2020 report, Dr. Kieserman, serving as the IME, opined that appellant had 

not sustained vocal cord paralysis due to the accepted occupational exposures. He asserted that 

the medical record contained no reliable clinical evidence of vocal cord paralysis at any time. 

Additionally, Dr. Kieserman indicated that reflux disease could have contributed to appellant’s 

vocal cord paresis but did not provide the requested medical rationale explaining whether the 

diagnosed reflux was work related. 

The SOAF provided to Dr. Kieserman specified that OWCP had accepted vocal cord 

paralysis caused by occupational exposures. OWCP instructed him to utilize the SOAF as the 

framework for his opinion. Instead, Dr. Kieserman concluded that appellant had no credible 

evidence of vocal cord paralysis caused by the accepted work factors. As his opinion was not 

based upon the SOAF, it is therefore of no probative value.15

The Board notes that OWCP did not indicate whether it was attempting to rescind 

acceptance of appellant’s vocal cord paralysis based on Dr. Kieserman’s impartial report. OWCP

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 

11 M.R., Docket No. 20-0993 (issued August 27, 2021); J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., 

Docket No. 18-1372 (issued February 27, 2019); KathrynE. Demarsh, 56 ECAB 677 (2005).

12 A.A., Docket No. 21-0222 (issued November 17, 2021); M.E., Docket No. 20-0877 (issued August 17, 2021); 

L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.1 

(September 2009); see K.M., Docket No. 21-1351 (issued April 28, 2022); G.Y., Docket No. 19-1683 (issued 

March 16, 2021).

14 Id. at Chapter 3.600.3(10) (October 1990); N.W., Docket No. 16-1890 (issued June 5, 2017); DarleneR. Kennedy, 

57 ECAB 414 (2006); GloriaJ. Godfrey, 52 ECAB 486 (2001).

15 Id.;see N.S., Docket No. 20-1495 (issued March30, 2022); C.L., Docket No. 21-0451 (issued February 11, 2022); 

F.M., Docket No. 20-1274 (issued September 28, 2021).
7

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.16

As the report from Dr. Kieserman is of no probative value, the Board finds that OWCP 

failed to meet its burden of proof to terminate appellant’s wage-loss compensation and medical 

benefits, effective January 7, 2021.

CONCLUSION

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

wage-loss compensation and medical benefits, effective January 7, 2021.17

ORDER

IT IS HEREBY ORDERED THAT the November 3, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: September 29, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

16 Supra note 4; V.A., Docket No. 14-0722 (issued May 8, 2014).

17 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.