United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.A., Appellant
and
TENNESSEE VALLEY AUTHORITY,
DIVISION OF OPERATIONS SUPPORT,
Surgoinsville, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Douglas T. Jenkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-548
Issued: November 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 19, 2008 appellant, through his representative, filed a timely appeal from
the December 3, 2008 merit decision of the Office of Workers’ Compensation Programs.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUE
The issue is whether the Office properly suspended appellant’s right to compensation
under 5 U.S.C. § 8123(d) for obstructing a medical examination.
FACTUAL HISTORY
On September 25, 1987 appellant, then a 48-year-old crane operator, sustained a
traumatic injury in the performance of duty when he fell while climbing into a motor crane. The
Office accepted his claim for displaced fracture of the left radius and ulna, fractured ribs,
contusion of the thoracolumbar spine with strain and consequential depressive disorder.

Appellant received compensation for temporary total disability on the periodic rolls. He also
received a schedule award for a 15 percent permanent impairment of his left upper extremity.
On September 10, 2008 the Office informed appellant that it was making an appointment
for him to obtain a second-opinion psychiatric assessment to provide additional evidence of the
nature of his condition, the extent of disability and appropriate treatment. It warned appellant
that, if he failed to keep the appointment, he would have to advise the Office of the reason in
writing within seven days. “Only legitimate, documented emergencies will be deemed as
adequate grounds for not keeping the appointment.” The Office notified appellant of the
statutory penalty for refusing to submit to or obstructing an examination.
On October 8, 2008 the Office provided appellant with the name and address of the
psychiatrist who would be evaluating him as well as the date and time of the appointment.
Appellant’s appointment was for October 28, 2008.
On October 27, 2008 it appears that appellant’s sister telephoned the Office to advise that
he was in the Woodridge Psychiatric Hospital in Johnson City, Tennessee, and she did not know
when he would be released. On October 29, 2008 the Office learned that appellant did not keep
his appointment.
On October 30, 2008 the Office issued appellant a notice of proposed suspension of
compensation because he failed to report for the scheduled examination as directed. It again
informed him of the penalty for obstruction and asked him, if he had any valid reason for failing
to submit to or cooperate with the scheduled examination, to submit his reasons in writing “with
supporting evidence” within 14 days.
On November 4, 2008 appellant wrote to the Office to explain the reason he did not keep
his appointment:
“I have received your letter dated October 30, 2008 regarding my scheduled
appointment with Dr. James Turnbull on October 28, 2008. This appointment
was cancelled because I was in the hospital and unable to keep the appointment. I
was in Woodridge Hospital in Johnson City, TN until October 28, when
Woodridge transported me to Pavilion Hospital in Kingsport, TN. I am still in
Pavilion Hospital. When I am discharged, I will reschedule appointment with
Dr. Turnbull. As you requested, we have left message at 1-800-660-0338, ext.
3852, that I would reschedule the appointment. Thank you.”
In a decision dated December 3, 2008, the Office finalized the suspension of appellant’s
compensation effective that date. It acknowledged appellant’s November 4, 2008 letter, but
found that he did not provide supporting evidence and, therefore, did not provide a sufficient
explanation of his failure to attend or cooperate.
LEGAL PRECEDENT
An employee shall submit to examination by a medical officer of the United States, or by
a physician designated or approved by the Secretary of Labor, after the injury and as frequently

2

and at the times and places as may be reasonably required.1 If an employee refuses to submit to
or obstructs an examination, his right to compensation is suspended until the refusal or
obstruction stops. Compensation is not payable while a refusal or obstruction continues, and the
period of the refusal or obstruction is deducted from the period for which compensation is
payable to the employee.2
To invoke this provision of the law, the Office must ensure that the claimant has been
properly notified of his responsibilities with respect to the medical examination scheduled.
Either the claims examiner or the medical management assistant may contact the physician
directly and make an appointment for examination. The claimant and representative, if any,
must be notified in writing of the name and address of the physician to whom he is being referred
as well as the date and time of the appointment. The notification of the appointment must
contain a warning that benefits may be suspended under 5 U.S.C. § 8123(d) for failure to report
for examination. The claimant must have a chance to present any objections to the Office’s
choice of physician, or any reasons for failure to appear for the examination, before the Office
acts to suspend compensation.3
If the claimant does not report for a scheduled appointment, he should be asked in writing
to provide an explanation within 14 days. If good cause is not established, entitlement to
compensation should be suspended in accordance with 5 U.S.C. § 8123(d) until the date on
which claimant agrees to attend the examination. Such agreement may be expressed in writing
or by telephone (documented on Form CA-110). When the claimant actually reports for
examination, payment retroactive to the date on which the claimant agreed to attend the
examination may be made. The claimant’s statement that he will not appear for an examination
is not sufficient to invoke the penalty. Refusal to schedule an examination at the direction of the
Office is also insufficient to invoke section 8123(d).4 The action of the employee’s
representative is considered the action of the employee for the purpose of determining whether
the employee refused to submit to or in any way obstructed an examination required by the
Office.5
ANALYSIS
The Office properly notified appellant of his responsibilities with respect to the medical
examination scheduled for October 28, 2008. It notified him in writing of the name and address
of the physician as well as the date and time of the appointment. The Office also warned
appellant that his benefits might be suspended under 5 U.S.C. § 8123(d) for failure to report for

1

5 U.S.C. § 8123(a).

2

Id. at § 8123(d).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14 (July 2000).
4

Id.

5

20 C.F.R. § 10.323 (1999).

3

the examination. Therefore, when he failed to report, the Office gave him a chance to present his
reasons.
In addition to a telephone call from his sister the day before the scheduled appointment,
appellant offered a written explanation on November 4, 2008. Nonetheless, the Office judged
the reason insufficient because he did not provide supporting evidence. It had notified appellant
on September 10, 2008 that only a legitimate “documented” emergency would be deemed
adequate grounds for not keeping the appointment; however, in its October 30, 2008 notice of
proposed suspension of compensation, the Office informed appellant that he would need to
support his reason with evidence.
The Office requires written verification that appellant was unable to attend the
October 28, 2008 appointment because he was an in-patient or was being transferred from a
hospital in Johnson City to a hospital in Kingsport and was otherwise incapacitated. Without
that supporting evidence, the Office properly found that appellant failed to show good cause and
properly invoked the penalty of suspension under 5 U.S.C. § 8123(d). The Board will, therefore,
affirm the Office’s December 3, 2008 decision.
On appeal, appellant’s representative argues that appellant was wholly incapacitated in a
mental ward. Without documentation verifying his incapacity, the Office has nothing more than
a bare allegation, an unsubstantiated excuse. The representative asserts that appellant provided
letters from himself, his sister and the provider of his situation. However, the only information
the Office received was appellant’s November 4, 2008 letter and the October 27, 2008 telephone
call from his sister. The record contains no letter from the provider verifying appellant’s
incapacity on October 28, 2008.
Appellant’s representative made clear in his appeal to the Board dated December 11,
2008, that appellant will immediately comply with the requested examination now that he is out
of the hospital. However, appellant stated in his November 4, 2008 letter to the Office that he
would reschedule the appointment when he was discharged. Therefore, until he submits to the
Office written verification that he was incapacitated on October 28, 2008, his right to
compensation will remain suspended. When appellant actually reports for examination, the
Office may then pay compensation retroactive to the date on which he agreed to attend.
CONCLUSION
The Board finds that the Office properly suspended appellant’s right to compensation
under 5 U.S.C. § 8123(d) for obstructing a medical examination.

4

ORDER
IT IS HEREBY ORDERED THAT the December 3, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF LABOR, MINE SAFETY & )
HEALTH ADMINISTRATION, Warrendale, PA, )
Employer
)
__________________________________________ )
M.C., Appellant

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-1238
Issued: January 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 24, 2016 appellant filed a timely appeal from an April 13, 2016 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.
ISSUE
The issue is whether appellant has established intermittent periods of total disability on
December 1 and 16, 2015, and January 11, February 9, and March 16, 2016 causally related to
her accepted employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 12, 2015 appellant, then a 51-year-old mine safety and health inspector, filed
a traumatic injury claim (Form CA-1) alleging that on December 31, 2014 she sustained carpal
tunnel syndrome as a result of typing and driving long distances. The claim form did not
indicate whether she stopped work. By letter received by OWCP on February 5, 2015, appellant
requested that her case be considered an occupational disease claim (Form CA-2) because her
condition was caused by continued and repeated exposure to factors of her federal employment
over a period of time. She believed that the employment duties of driving long distances for long
periods of time, writing, keyboarding, climbing stairs, gripping hand rails, and accessing mines
and equipment caused her condition. Appellant noted that she first recognized her symptoms in
November 2014.
On January 20, 2015 appellant underwent right carpal tunnel release surgery.
stopped work. On March 31, 2015 she underwent left carpal tunnel release surgery.

She

OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and bilateral
trigger finger (acquired). It paid intermittent compensation for wage loss and leave buy back.
Appellant received medical treatment from Dr. Lance J. Klingler, a Board-certified
orthopedic surgeon, who indicated in an August 25, 2015 report that appellant complained of left
thumb numbness. Upon examination of her upper extremities, Dr. Klingler observed well-healed
carpal tunnel wounds. He reported tenderness in the left thumb A1 pulley and mild tenderness in
the right thumb A1 pulley. Dr. Klingler diagnosed carpal tunnel syndrome and trigger thumbs.
He advised appellant to continue working with restrictions, including lifting up to five pounds
and no climbing.
On September 8, 2015 appellant returned to full-time limited duty. OWCP continued to
pay for medical benefits.
Dr. Klingler continued to treat appellant. In a November 6, 2015 work status form, he
noted diagnoses of bilateral carpal tunnel syndrome and bilateral trigger thumbs. Dr. Klingler
indicated that she was able to work with restrictions of no climbing. He also noted that appellant
could drive occasionally. In a November 18, 2015 letter, Dr. Klingler explained that the only
portion of her job that she could not perform was that of climbing. He reported that he had a
follow-up examination with appellant in February 2016 and would reassess her need for any
ongoing restriction. Dr. Klingler included a duty status report, which indicated that she was able
to work with the restriction of no climbing and driving limited to two hours per day.
Appellant filed claims for disability compensation (Forms CA-7) for eight hours of wage
loss on each of the following dates: December 1 and 16, 2015, and January 11, February 9, and
March 16, 2016.2 She indicated that she was unable to work due to “bilateral carpal tunnel
syndrome pain, home therapy, and restrictive medications.”
2

Appellant also filed claims for wage-loss compensation for four hours of LWOP on December 15, 2015,
January 15 and 19, February 2 and 3, and April 5, 2016 due to medical appointments. OWCP paid disability
compensation for those claimed periods.

2

In support of her claims appellant submitted various letters dated December 1, 2015 to
February 9, 2016, which described the medications she was taking to treat her carpal tunnel
syndrome condition. She noted that she took Hydrocol/acetam, 5-325 milligram, and
Nortriptylin, 10 milligram daily. Appellant remarked that the medications cautioned against
driving and other tasks which required one to be alert. She explained that on December 1 and
16, 2015, and January 11, February 9, and March 16, 2016 she was “unable to attend work due to
such symptoms and side effects, which would make driving and tasks hazardous as well as being
in severe pain and unable to focus.”
By e-mails dated December 14 to 16, 2015 from Danial Mitchel, a safety and health
program coordinator for the employing establishment corresponded with OWCP regarding the
physical requirements of appellant’s position. He indicated that she would drive extensively for
her position as a mine inspector. Mr. Mitchell noted that appellant had been driving to work
daily, but she claimed that due to her prescribed medications she would not drive to work
because of the side effects of drowsiness and dizziness. OWCP advised the employing
establishment that if appellant was unable to drive to work because of medications, there were
various alternative means of transportation to work. It explained that if, however, appellant was
disabled from work because the employing establishment could not accommodate her driving
restrictions, compensation would be payable.
In a December 18, 2015 e-mail, Barbara Foglia, an OWCP registered nurse, advised
OWCP that appellant was on prescription pain medication. She noted that the medical records
documented that appellant’s only work restriction was climbing.
On December 29, 2015 OWCP e-mailed the employing establishment inquiring if the
employing establishment would provide alternative work on those days when appellant could not
drive. It advised that the inability to drive to report to work due to medications would not be
payable since there were alternate means to report to work. In an e-mail dated January 8, 2016,
the employing establishment responded to OWCP that appellant had been assigned light,
sedentary duty performing office work. It also explained that the employing establishment did
not have a temporary modified job assignment for a mine inspector that did not include climbing.
By letters dated January 5 and 26, 2016, OWCP advised appellant that the evidence
submitted was insufficient to establish her claims for disability compensation on the dates of
December 1 and 16, 2015 due to her inability to drive because of pain medication. It requested
that she submit additional evidence to establish that she was disabled from work on the claimed
dates as a result of her accepted conditions.
OWCP referred appellant’s case, along with a statement of accepted facts (SOAF) and
the medical record, to Dr. Frank A. Graf, a Board-certified orthopedic surgeon, for an
examination and second opinion on whether she required ongoing medical treatment for her
work-related injuries and whether she was disabled from performing the physical duties of her
date-of-injury job.
The SOAF provided to Dr. Graf indicated that the physical requirements of a mine safety
and health inspector included two hours of sitting, pulling/pushing, fine manipulation (includes
keyboarding), and driving a vehicle, three hours of bending/stooping, climbing, kneeling, and

3

twisting, four hours of simple grasping, five hours of standing, and six hours of walking. The
employing establishment also provided a description of appellant’s duties as a mine safety and
health inspector.
In a February 3, 2016 report, Dr. Graf noted that appellant had worked for the employing
establishment for 11 years and accurately described her duties as a mine safety and health
inspector. He reviewed her medical history and related that sometime in 2013 she began to
experience gradual onset of increasing bilateral hand symptoms, including pain, numbness, and
tingling. Dr. Graf related appellant’s physical examination findings and diagnosed bilateral
upper extremity cumulative trauma disorder with exposure to repetitive motion and vibration,
bilateral carpal tunnel syndrome status post carpal tunnel neurolysis, and stenosis tenosynovitis
A1 proximal pulleys of both thumbs and ring fingers. He reported that she continued to suffer
“persistent and ongoing residuals of her work-related upper extremity cumulative trauma and
vibration syndrome effecting [sic] both hands.” Dr. Graf noted that appellant still needed
ongoing medical treatment and opined that additional surgery for her bilateral trigger thumbs and
fingers would likely be reasonable and necessary to treat her symptoms. He determined that she
was unable to climb ladders or onto equipment or drive the distances required to meet her job
description as a mine inspector. Dr. Graf noted that appellant was presently employed full time
in an office setting.
Dr. Klingler continued to treat appellant. In various form and duty status reports (Forms
CA-17) dated January 15 to February 2, 2016, he noted diagnoses of bilateral carpal tunnel
syndrome and trigger thumbs. Dr. Klingler indicated that appellant could continue working with
restrictions of no climbing and driving limited to two hours a day.
In various letters dated January 19 and February 3, 2016, appellant responded to OWCP’s
development letter. She explained that she was claiming disability compensation on the claimed
dates due to “inability to drive, impaired alertness, and rapid mental and muscular coordination
when taking medications as prescribed.” Appellant noted that she was providing a note of
explanation from her physician. She also mentioned that she was including the written
“Management Plan for Inspector.” Appellant related that the inspector position required driving
as part of her job duties for any given day, without scheduled dates. She also noted that, with
regard to alternative modes of transportation, there was no form of public transportation from her
home to her place of work and there were no coworkers who lived near her to allow for
carpooling. Appellant indicated that a taxi cab service was available and that she could utilize
this form of transportation with written approval. She further explained that the inability to drive
was not the only reason she was unable to work, but that, on those dates she claimed disability,
she also experienced severe pain, dizziness, drowsiness, physical and mental impairments, and
slow motor skills. Appellant provided the following: “a Summary of Key Requirements and
Duties,” which indicated that her position required driving; an internet printout, which described
the side effects of her prescribed pain medication, and her latest performance evaluation.
Appellant continued to receive medical treatment. In a February 16, 2016 report,
Joshua Dion, a nurse practitioner, noted appellant’s complaints of wrist and arm pain. He
provided physical examination findings and diagnosed trigger finger and carpal tunnel syndrome.
Mr. Dion provided workers’ compensation forms dated February 16 to March 15, 2016, which
indicated that appellant could continue working per Dr. Klingler’s work restrictions.

4

In a March 8, 2016 report, Dr. Dennis G. Rork, a Board-certified family practitioner,
related appellant’s complaints of continued pain and limited function of the hands. He indicated
that she was unable to work since right carpal tunnel surgery in January 2015. Dr. Rork noted
that appellant’s job required driving, computer work, and pulling with hands. He asserted that
she was unable to perform these job duties. Upon examination, Dr. Rork observed decreased
range of motion, joint stiffness, and joint swelling. He diagnosed chronic pain syndrome, carpal
tunnel syndrome. Dr. Rork opined that appellant remained disabled and was unable to perform
the required tasks of her job due to physical limitations. He provided a workers’ compensation
disability form, which detailed her work restrictions.
In an e-mail dated March 17, 2016 to OWCP, the employing establishment advised
OWCP that it would be unable to provide light work for appellant after April 16, 2016.
In a letter received on April 11, 2016, nurse practitioner Mr. Dion noted that appellant
was under his care for a chronic health condition that required ongoing treatment and use of
potent analgesics to control her symptoms. He advised that she not drive when taking her
analgesic medication and to be attentive to the effects of decreased reaction time, clouded
judgment, drowsiness, and tolerance and would need to follow these work restrictions.
By decision dated April 13, 2016, OWCP denied appellant’s claim for disability
compensation on the dates of December 1 and 16, 2015 and January 11, February 9, and
March 16, 2016, finding that the medical evidence of record failed to establish that she was
unable to work on the claimed dates as a result of her accepted conditions. It determined that
disability compensation was not payable for “random” days when she decided not to report to
work because she was unable to drive to work. OWCP found that the employing establishment
accommodated appellant’s restrictions and that driving was not required in her modified
position.
LEGAL PRECEDENT
Under FECA the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in FECA.3 Furthermore, whether a particular
injury causes an employee to be disabled for employment and the duration of that disability are
medical issues which must be proved by a preponderance of the probative, and substantial
medical evidence.4
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 The opinion of the physician must be
3

See 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

4

Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.6 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors of incidents is sufficient to establish causal relationship.7
For each period of disability claimed, the employee must establish that she was disabled
from work as a result of the accepted employment injury. The Board will not require OWCP to
pay compensation for disability in the absence of medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
an employee to self-certify his or her disability and entitlement to compensation.8
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and bilateral
trigger finger as a result of her employment duties as a mine safety and health inspector.
Appellant underwent bilateral carpal tunnel release surgery and stopped work. On September 8,
2015 she returned to full-time limited duty. In various wage-loss compensation claim forms,
appellant requested eight hours of compensation each on December 1 and 16, 2015 and
January 11, February 9, and March 16, 2016 due to her accepted conditions. She experienced
side effects from her medication, including impaired alertness, a restriction against driving,
severe pain, dizziness, and slow motor skills. By decision dated April 13, 2016, OWCP denied
appellant’s claims for intermittent disability on the above dates. The Board finds that appellant
has failed to establish that she was disabled from work on December 1 and 16, 2015 and
January 11, February 9, and March 16, 2016 due to her accepted conditions.
The Board notes initially that the evidence of record substantiates that appellant returned
to modified work on September 8, 2015. Appellant’s only medical restriction at that time was no
climbing. The employing establishment has explained that because climbing would be required
for mine inspection, appellant was given sedentary work duties.
During the periods of disability claimed, appellant received medical treatment from
Dr. Klingler. In his November 18, 2015 letter, Dr. Klingler related that the only physical
requirement of her job that she could not perform was climbing. He provided duty status reports
dated November 18, 2015 to February 2, 2016, which indicated that appellant was able to work
with restrictions of no climbing and driving limited to two hours. The Board notes that
Dr. Klingler did not relate that she was totally disabled from work on any of her claimed dates of
disability, but rather that she could work with specific restrictions. Dr. Klingler did not provide
any opinion that appellant was unable to work her light-duty assignment on the specific dates
claimed by her due to her employment-related conditions. Accordingly, his reports fail to
6

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

7

Dennis M. Mascarenes, 49 ECAB 215 (1997).

8

Amelia S. Jefferson, 57 ECAB 183 (2005).

6

establish any disability from work on December 1 and 16, 2015 and January 11, February 9, and
March 16, 2016 due to her accepted conditions.
In his March 8, 2016 report, Dr. Rork related appellant’s complaints of continued pain
and limited function of the hands. He conducted an examination and diagnosed chronic pain
syndrome, carpal tunnel syndrome. Dr. Rork discussed that the physical requirements of
appellant’s job required driving, computer work, and pulling with hands. He opined that
appellant was unable to perform the required tasks of her job due to physical limitations and was
disabled. Dr. Rork did not identify the specific dates that she was disabled from work and failed
to explain how she was no longer able to work her light-duty position due to her accepted
employment injury. The Board will not require OWCP to pay compensation for disability in the
absence of medical evidence directly addressing the specific dates of disability for which
compensation is claimed.9 To do so, would essentially allow an employee to self-certify their
disability and entitlement to compensation.10
In his February 3, 2016 report, Dr. Graf opined that appellant continued to suffer
residuals of her work-related injuries and determined that she was unable to meet her job duties
as a mine inspector. He noted that she had been placed in a sedentary position, but he did not
opine that she was disabled from her modified position on any specific date.11
Appellant was also treated by Mr. Dion, a nurse practitioner. Mr. Dion’s report is of no
probative value, however, because nurse practitioners are not considered physicians as defined
under FECA.12
On appeal, appellant alleges that she submitted probative evidence, which supported her
inability to work on the contested dates, including the driving limitation and the side effects of
the medication she was taking. She noted that she was absent for five days due to chronic pain,
medication side effects, and conducting home therapy and that the “root cause” of these absences
were for chronic pain or treatment for bilateral carpal tunnel syndrome. As noted above,
however, the medical evidence submitted failed to adequately establish disability on December 1
and 6, 2015 and January 11, February 9, and March 16, 2016 as a result of her accepted
employment injury.
While appellant has also alleged that narcotic medications prescribed for her accepted
condition caused symptoms, which interfered with her drive to work on the days in question,
Dr. Klinger’s restrictions indicated that she could drive up to two hours a day, and she has stated

9

Sandra D. Pruitt, 57 ECAB 126 (2005).

10

J.S., Docket No. 16-1014 (issued October 27, 2014).

11

Id.

12

5 U.S.C. § 8101(2); E.H., Docket No. 08-1862 (issued July 8, 2009); S.E., Docket No. 08-2214 (issued
May 6, 2009).

7

that she had alternate forms of transportation available. OWCP therefore properly concluded
that her alleged inability to work due to her alleged inability to drive was not compensable.13
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.606 through 10.607.
CONCLUSION
The Board finds that appellant has not established intermittent periods of total disability
on December 1 and 16, 2015 and January 11, February 9, and March 16, 2016 causally related to
her upper extremity conditions.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2016 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 26, 2017
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

13

See R.H., 58 ECAB 654 (2007).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lemont, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-82
Issued: March 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 15, 2014 appellant, through his attorney, timely appealed the September 3,
2014 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 the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on or about
December 6, 2012.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 58-year-old retired letter carrier, filed a timely occupational disease claim
(Form CA-2) for cervical radiculopathy, which arose on or about December 6, 2012.2 He
described his letter carrier duties as requiring constant neck and upper body full-range repetitive
motions. Appellant also stated that delivering bundles of mail on the street increased full-range
neck motions. He began experiencing a stiff neck in November 2012, which progressively
worsened over the next few weeks. Appellant developed pain in his right shoulder blade,
burning, and constant pain in his right arm, as well as tingling and numbness in his right thumb
and index finger. He claims he retired early because of his cervical condition.
Dr. John A. Panozzo, a Board-certified family practitioner, in his March 6, 2013 report,
found appellant had severe nerve impingement at C4 and C6, with right-side radicular pain and
weakness. He noted that appellant had been under his care since December 27, 2012, and was
unable to perform his current job.3
On August 19, 2013 OWCP informed appellant of the five basic elements to establishing
entitlement under FECA. Additionally, it advised that the medical evidence submitted thus far
was insufficient. Appellant was afforded at least 30 days to provide, inter alia, a physician’s
opinion explaining how employment activities either caused, aggravated, or contributed to his
severe nerve impingement at C4 and C6.4
OWCP subsequently received March and April, 2013 treatment notes from Dr. Asad A.
Cheema, a Board-certified anesthesiologist with a subspecialty in pain medicine. Appellant had
complained of right shoulder and arm pain. Dr. Cheema diagnosed cervicalgia, cervical
degenerative disc disease, and right C6 radiculopathy. On March 25 and April 9, 2013 he
administered C5-6 epidural steroid injections. Appellant returned for a follow-up on April 23,
2013 and was noted to be doing much better after his injection. Physical examination revealed
increased cervical spine range of motion. Appellant received matrix therapy and was scheduled
for a third injection in two weeks.
In an August 28, 2013 report, Dr. Panozzo noted that he had treated appellant for
shoulder and neck pain on four occasions between December 6, 2012 and June 6, 2013. Test
results revealed degenerative disc disease at C3-4 with right foraminal stenosis and right C4
nerve root impingement. There was also evidence of broad-based disc bulge at C5-6, left
foraminal narrowing, and marked right foraminal stenosis with apparent impingement of the
right C6 nerve root. Dr. Panozzo diagnosed cervical pain, right upper extremity pain/weakness,
and right foraminal stenosis. Appellant’s treatment included physical therapy. Dr. Panozzo also
provided work restrictions that included limited repetitive neck movements, no heavy lifting in
excess of 10 pounds, and no repetitive upper extremity movement. Regarding causal
2

Appellant retired April 1, 2013. His Form CA-2 is dated June 16, 2013; however, the employing establishment
did not receive the claim until August 14, 2013.
3

The March 6, 2013 handwritten note contains additional information that is illegible.

4

OWCP also requested a description on appellant’s activities outside of his federal employment.

2

relationship, he explained that appellant’s job required constant neck and upper body full-range
repetitive movement four to six hours a day. Dr. Panozzo also explained that appellant worked
in a cramped vehicle that limited his body movement, thus requiring him to use his neck to look
from far left to far right.
Dr. M. Kamran Khan, a Board-certified neurosurgeon, submitted a September 16, 2013
report summarizing his treatment of appellant. He initially examined appellant on February 5,
2013, then saw him on four additional occasions through September 13, 2013. Appellant’s
symptoms included neck pain, right arm pain with numbness and tingling, right first and second
digit paresthesias, and shooting pain in the right arm and scapula. Dr. Khan described
appellant’s right arm pain as lancinating, and noted the pain limited his activities. He also
indicated appellant’s pain was worse with position changes. Test results revealed multilevel
degenerative disc disease with severe foraminal stenosis on the right at C5-6, which limited
appellant’s activities and ability to work. Dr. Khan believed the repetitive motions of a letter
carrier could have been the cause of appellant’s degenerative cervical spine and could be
potentiating his symptomatology.5 He diagnosed cervical radiculopathy, neck pain, and
multilevel degenerative disc disease with severe foraminal stenosis on the right at C5-6.
Appellant’s course of treatment included physical therapy, pain medication (Tramadol),
nonsteroidal anti-inflammatory drugs (Naproxen), and epidural steroid injections, all of which
provided minimal relief.6 Dr. Khan also noted appellant had a home exercise program. He
explained that appellant’s repetitive motions on the job exacerbated his cervical degenerative
disc disease, leading to a progression of his symptoms.
In a decision dated October 4, 2013, OWCP denied appellant’s claim on the basis that the
medical evidence failed to establish a causal relationship between the diagnosed cervical
condition and his accepted employment exposure.
Appellant requested a hearing, which was held on March 31, 2014. He testified
regarding his 36-year career as a letter carrier. The first 22 years appellant walked his route,
delivering mail from a shoulder bag. After that, he spent 14 years on a curbside route delivering
mail from a long life vehicle (LLV). Appellant indicated that he made approximately 800
deliveries each day on his curbside route. He also testified about an incident in early April 2013
when he was at home cleaning a ceiling fan and felt a “little twinge of pain” in his neck.
Additionally, appellant submitted a March 4, 2014 typewritten statement regarding his curbside
LLV delivery duties. He described how he began his day with a five-minute vehicle inspection,
followed by one to three hours of sorting/casing mail. Afterwards, appellant would place the
cased mail into trays, which he then loaded on gurneys, along with parcels and other machinesorted flats/letters. He indicated that he transported the stacked gurney to the LLV and unloaded
the mail/parcels into his delivery vehicle. Appellant then spent four to six hours driving the LLV

5

Dr. Khan described appellant’s letter carrier duties as requiring repetitive motions and full range of motion of
the neck and upper body for four to six hours a day. He also noted that appellant worked in a cramped vehicle that
limited his body movements. As such, appellant was required to use his neck to look from far left to far right
repeatedly while delivering the mail.
6

Dr. Khan had referred appellant to Dr. Cheema.

3

and delivering mail curbside. He stated that each day he would have to twist and turn his neck
“tens of thousands of times.”
Posthearing, OWCP received the results of a January 29, 2013 cervical magnetic
resonance imaging (MRI) scan. Dr. Thomas A. Predy, a Board-certified diagnostic radiologist,
found marked right degenerative facet hypertrophy and some hypertrophy of the uncovertebral
joint, which caused marked right foraminal stenosis and right C4 nerve root impingement in the
foramen. At the C5-6 level, there was a fairly broad-based eccentric right posterolateral disc
bulge with small adjacent endplate osteophytes, which caused marked right foraminal stenosis
and apparent impingement of the right C6 nerve root. Dr. Predy reported left foraminal
narrowing and that the results were technically limited due to problems with patient motion
during the examination.
In a March 26, 2014 report, Dr. Khan, referred by Dr. Panozzo, first saw appellant on
February 5, 2013, and noted a history of neck and right arm pain since November 2012. He
indicated at the time appellant denied any kind of recent injury, motor vehicle accident or fall.
Appellant reported that his right arm numbness and tingling had progressed over the last month
or so. Dr. Khan had previously, in February 2013, diagnosed cervical radiculopathy, and
recommended four weeks of physical therapy and cervical traction and had prescribed Tramadol,
as needed, for pain.
Appellant returned for follow-up on March 4 and 13, 2013. Dr. Khan noted that
appellant continued to have shooting pain in his right arm and suprascapular region. An MRI
scan revealed multilevel degenerative disc disease with foraminal stenosis, particularly on the
right side at C5-6. Dr. Khan recommended that appellant see Dr. Cheema for possible cervical
epidural steroid injections because it appeared that the pathology was more foraminal and not
central canal. Appellant was scheduled for follow-up in six weeks. Dr. Khan noted that
appellant returned on April 24, 2013 after pain management treatment with Dr. Cheema. In the
interim, appellant apparently had suffered a temporary aggravation of his symptomatology while
cleaning fans in his home, but his symptoms had since returned to baseline and his diagnosis
remained the same. Dr. Khan referenced that appellant had been seen in the neurosurgery clinic
and that it appeared appellant was getting some mild relief from Dr. Cheema’s epidural steroid
injections. He diagnosed neuritis or radiculitis secondary to the stenosis. Regarding causal
relationship, Dr. Khan noted that he reviewed appellant’s March 4, 2014 statement, and it was
his belief that the repetitive movements and twisting required to perform his job duties
aggravated an underlying cervical disc disease causing the foraminal stenosis with neuritis or
radiculitis.7
OWCP also received a March 31, 2014 report from Dr. Panozzo, along with his progress
notes dated December 6, 2012, January 15, March 6, and June 6, 2013. In his March 31, 2014
report, Dr. Panozzo noted that appellant was a longtime patient whom he treated for a neck
condition beginning December 6, 2012.8 At the time, appellant had experienced neck and right
7

According to Dr. Khan, appellant did not appear to be a surgical candidate.

8

The December 6, 2012 progress notes indicated that appellant complained of right shoulder pain, which began
six days prior. There was no known injury. The progress notes identified appellant as a mailman who used his arm
a lot. Appellant was also noted to have experienced pain with computer use.

4

shoulder pain for approximately six days without any known specific event or trauma occurring.
He returned on January 15, 2013 after going to physical therapy and reported that his therapist
advised that perhaps the problem was coming from the neck. Dr. Panozzo stated that appellant
described burning upper arm pain and tingling in his thumb and first finger. Appellant also
reported pain in the right shoulder blade and in the cervical spine area. Dr. Panozzo noted that
extension of the right arm increased appellant’s shoulder pain, and there was pain on palpation of
the cervical spine at C6-7 just below the right shoulder blade. He provided a tentative diagnosis
of cervical pain with radiculopathy, and recommended some diagnostic work.
Dr. Panozzo’s March 31, 2014 report also included a description of appellant’s
January 29, 2013 cervical MRI scan results. He noted that when he saw appellant on June 6,
2013, he again presented with complaints of cervical pain and right upper extremity
radiculopathy and weakness. Dr. Panozzo found appellant’s complaints to be consistent with the
cervical MRI scan findings. He also noted that he had referred appellant to Dr. Khan, a
neurosurgeon, because it was evident appellant’s condition would most likely require surgery.
Dr. Panozzo’s final diagnosis was consistent with Dr. Predy’s interpretation of the January 29,
2013 cervical MRI scan.
Having reviewed appellant’s March 4, 2014 statement, Dr. Panozzo indicated that since
December 2012 appellant would have been incapable of performing the described job duties. He
stated that the nearly continuous neck and upper extremity movements required of the job, which
included lifting, carrying, reaching, and twisting, caused appellant’s condition or at least
permanently aggravated an existing degenerative condition.
By decision dated May 9, 2014, the Branch of Hearings and Review affirmed OWCP’s
October 4, 2013 decision. A hearing representative similarly found that appellant had failed to
establish a causal relationship between his diagnosed cervical condition and the implicated
employment factors.9
On June 2, 2014 counsel requested reconsideration. He resubmitted appellant’s March 4,
2014 statement, along with a May 19, 2014 report from Dr. Cheema. In his report, Dr. Cheema
noted that he began treating appellant on March 21, 2013 for complaints of neck, right shoulder,
and arm pain. In addition to pain, which was primarily located in the C6 area, appellant also
experienced weakness in the right hand. Dr. Cheema indicated that appellant noticed the pain
around Thanksgiving 2012, and that it progressively worsened. Physical examination revealed
decreased range of motion in the cervical spine, particularly at the C6 dermatomal. Dr. Cheema
was of the impression appellant suffered from cervical degenerative disc disease with right C6
radiculopathy. Beginning March 25, 2013, he administered a series of epidural steroid injections
that provided appellant some relief, but not complete relief. Dr. Cheema stated that he referred
appellant back to Dr. Panozzo and advised that, if his condition worsened, appellant should
either return for follow-up with him or return to see his neurosurgeon, Dr. Khan.
Dr. Cheema reviewed appellant’s March 4, 2014 statement. He explained that appellant
probably had some underlying cervical degenerative disc disease, and his constant upper
9

The hearing representative accepted as factual appellant’s description of his letter carrier duties, noting that the
employing establishment had not disputed appellant’s assertions concerning his former work activities.

5

extremity usage, as well as turning and twisting of his neck, aggravated the cervical degenerative
disc disease to the point of producing the foraminal stenosis, which in turn caused radicular
symptoms and the need for injections. Dr. Cheema further commented that appellant reached
maximum medical improvement and was incapable of returning to work as a letter carrier given
the described physical requirements.
In a September 3, 2014 decision, OWCP reviewed the merits of the claim, but denied
modification of the hearing representative’s May 9, 2014 decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.10
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.11
Where there is medical evidence of a preexisting condition involving the same part of the
body as the claimed employment injury, the issue of causal relationship invariably requires
inquiry into whether there was employment-related aggravation, acceleration, or precipitation of
the underlying condition.12 Accordingly, the physician must provide a rationalized medical
opinion which differentiates between the effects of the work-related injury or disease and the
preexisting condition.13 Such evidence will permit the proper kind of acceptance, such as
whether the employment-related aggravation was temporary or permanent.14

10

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
11

Victor J. Woodhams, supra note 10.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e
(January 2013).
13

Id.

14

Id.

6

ANALYSIS
Appellant’s diagnosed conditions include multilevel cervical degenerative disc disease,
right C5-6 foraminal stenosis, and right-side cervical radiculopathy. Dr. Panozzo, Dr. Khan, and
Dr. Cheema each reviewed appellant’s March 4, 2014 statement regarding his letter carrier
duties, and attributed his cervical condition at least in part to his employment. However, the
Board finds that none of these physicians provided a rationalized medical opinion regarding
causal relationship.
Dr. Khan initially surmised that the repetitive motions of a letter carrier could be the
cause of appellant’s degenerative cervical spine and could be potentiating his symptomatology.
However, in that same September 16, 2013 report, he also explained that appellant’s repetitive
motions on the job exacerbated his cervical degenerative disc disease, leading to a progression of
his symptoms. Dr. Khan was uncertain at the time whether appellant’s letter carrier duties
caused his cervical degenerative disc disease or merely exacerbated an underlying condition. His
initial assessment was speculative at best.
In his latest report dated March 26, 2014, Dr. Khan stated that repetitive movements and
twisting aggravated an underlying cervical degenerative disc disease causing appellant’s
foraminal stenosis with neuritis or radiculitis. With respect to this latter opinion, he failed to
explain how appellant’s letter carrier duties aggravated his underlying cervical degenerative disc
disease. Dr. Khan also did not explain how he was able to distinguish the effects of the
work-related aggravation from the underlying cervical degenerative disc disease. A physician’s
opinion on causal relationship must be supported by medical rationale, explaining the nature of
the relationship between the diagnosed condition and appellant’s specific employment factors.15
Consequently, the Board finds that Dr. Khan’s reports are insufficient to establish a causal
relationship between appellant’s cervical condition and his letter carrier duties.
In his March 31, 2014 report, Dr. Panozzo diagnosed cervical degenerative disc disease
with right degenerative facet hypertrophy at C3-4 and right foraminal stenosis and right C4 nerve
root impingement. He also diagnosed right C5-6 posterolateral disc bulge with osteophytes,
right foraminal stenosis impinging the right C6 nerve root, and left foraminal narrowing
producing bilateral radiculopathy -- right more than left.16 As noted, Dr. Panozzo reviewed
appellant’s March 4, 2014 statement, and indicated that the nearly continuous neck and upper
extremity movements required of the job caused appellant’s condition or at least permanently
aggravated the already degenerative condition. It is evident that he was uncertain whether
appellant’s letter carrier duties directly caused his cervical degenerative disc disease or was
merely an aggravating factor. Not only is the opinion speculative, but Dr. Panozzo also failed to
explain how appellant’s nearly continuous neck and upper extremity movements either caused or

15

Victor J. Woodhams, supra note 10.

16

Dr. Panozzo’s final diagnosis essentially mimicked Dr. Predy’s reading of appellant’s January 29, 2013
cervical MRI scan.

7

contributed to his current cervical condition. Absent an explanation, Dr. Panozzo’s March 31,
2014 opinion is insufficient to establish causal relationship.17
Dr. Cheema’s May 19, 2014 report is similarly flawed. He stated that appellant probably
had some underlying cervical degenerative disc disease. Dr. Cheema further commented that
appellant’s constant upper extremity usage, as well as turning and twisting of his neck
aggravated the cervical degenerative disc disease to the point of producing the foraminal
stenosis, which in return caused radicular symptoms. However, he did not adequately explain
how appellant’s specific job duties aggravated the underlying condition, nor did he indicate how
he was able to distinguish the effects of the work-related aggravation from the underlying
cervical degenerative disc disease. Consequently, Dr. Cheema’s May 19, 2014 opinion is
insufficient to satisfy appellant’s burden of establishing a causal relationship between his
cervical condition and his accepted employment exposure.
Based on the foregoing analysis, the Board finds that the medical evidence of record fails
to establish a causal relationship between appellant’s current cervical condition and his accepted
employment exposure as a letter carrier. Accordingly, OWCP properly denied appellant’s
occupational disease claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.18
CONCLUSION
The medical evidence fails to establish that appellant’s claimed cervical condition is
employment related. Consequently, appellant has not proved that he sustained an injury in the
performance of duty on or about December 6, 2012.

17

Victor J. Woodhams, supra note 10.

18

See 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.

8

ORDER
IT IS HEREBY ORDERED THAT the September 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF THE NAVY, OFFICE OF
GENERAL COUNSEL, Pensacola, FL,
Employer
__________________________________________
Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-0964
Issued: September 9, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On April 3, 2017 appellant, through counsel, filed a timely appeal from a February 15,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Board
docketed the appeal as No. 17-0964.
On October 11, 2013 appellant, then a 51-year-old temporary legal assistant, filed a
traumatic injury claim (Form CA-1) alleging that on October 1, 2013 she injured her back at work.2
She stopped work on October 1, 2013 and did not return.3 By decision dated May 15, 2014, OWCP
accepted her claim for aggravation of lumbar impingement syndrome.
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

Appellant stated that computer wires got caught on the wheel of her chair and that she had bent down to push the
wires to the back of her desk and away from her chair. When she got up from her bent position, she experienced a
sharp pain in her back. Appellant’s temporary appointment expired on December 19, 2014.
3

Appellant received continuation of pay from October 2 through November 15, 2013.

By decision dated August 27, 2014, OWCP denied appellant’s Form CA-7 claim for
compensation for the periods November 18, 2013 to January 12, 2014 and February 27 through
August 27, 2014. It found that the evidence of record failed to establish disability due to the
accepted work injury during the periods claimed.
OWCP received an August 19, 2014 report from Dr. Clark S. Metzger, an orthopedic
surgeon, and a report from Dr. Aaron B. Stein, a Board-certified pain management specialist and
anesthesiologist.
On January 5, 2015 OWCP received appellant’s request for reconsideration. It also
received a January 28, 2015 report from Dr. Joseph McGowin, III, a Board-certified orthopedic
surgeon and second opinion specialist, for which it requested clarification on February 10, 2015.
By decision dated March 2, 2015, OWCP denied modification of its August 27, 2014
decision. It only considered Dr. Stein’s report, and found that it did not contain a complete and
accurate history of injury and was not contemporaneous with the periods of compensation claimed.
OWCP subsequently received Dr. McGowin’s March 10, 2015 addendum report. On
June 24, 2015 it expanded acceptance of the claim to include aggravation herniated lumbar disc.4
On June 28, 2016 OWCP received appellant’s Form CA-7 claim for wage-loss
compensation for disability from work during the period November 18, 2013 to May 31, 2016. In
a July 1, 2016 letter, it indicated that no further action would be taken on the wage-loss claim as a
formal decision had already been issued denying the claim for compensation for the period
November 18, 2013 to May 31, 2016.
On October 24, 2016 appellant, through counsel, requested reconsideration of OWCP’s
July 1, 2016 letter, which he contended was essentially a decision. Counsel also argued that the
medical reports submitted established appellant’s entitlement to wage-loss compensation benefits
as she was not capable of performing her normal duties during the claimed period.
On December 12, 2016 appellant requested reconsideration of OWCP’s July 1, 2016 letter
was a formal decision, which denied appellant’s claim for compensation for the period
November 18, 2013 to May 31, 2016. He contended that the claims examiner was refusing to
process wage-loss benefits for the period June 1 through November 21, 2016 on the basis of the
August 27, 2014 and March 2, 2015 decisions. Counsel noted that on June 24 and October 6, 2015
OWCP had expanded acceptance of the claim to include additional conditions. He argued that
expansion of the accepted conditions and the second opinion report of October 5, 2016 confirmed
disability and causation since the date of the accident and, together with the additional new
evidence, supported and provided medical opinion that appellant was not capable of performing
her normal duties, which entitled her to wage-loss compensation benefits. Counsel concluded that
appellant had presented new legal argument such that she had overcome her burden of proof
despite the fact that the August 27, 2014 and March 2, 2015 decisions were more than one year
old.

4

On October 6, 2015 OWCP reaffirmed its acceptance of the claim to include aggravation of herniated lumber disc.

2

By decision dated February 15, 2017, OWCP denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
The Board has considered the matter and finds that OWCP properly found that appellant’s
request for reconsideration, which OWCP received on December 12, 2016, more than one year
after issuance of OWCP’s March 2, 2015 decision, was untimely filed. The Board rejects
counsel’s argument that OWCP’s July 1, 2016 letter was a formal decision. Section 10.126 of
OWCP’s regulations provides that a decision shall contain findings of fact and a statement of
reasons.5 The letter did not identify itself as a final decision and OWCP attached no appeal rights
for appellant to pursue. Further, the content of the letter was informational in nature as a response
to appellant’s June 28, 2016 claim for wage-loss compensation for the period November 18, 2013
to May 31, 2016.6 The last merit decision of record was OWCP’s March 2, 2015 decision. As
appellant’s request for reconsideration was not received by OWCP until December 12, 2016, more
than one year after issuance of OWCP’s March 2, 2015 decision, it was untimely filed.
However, having reviewed the case record submitted by OWCP, the Board finds that this
case is not in posture for a decision. The Board notes that the underlying issue is wage-loss
compensation due to appellant’s accepted aggravation of lumbar impingement syndrome (thoracic
or lumbosacral neuritis or radiculitis) and aggravation of a herniated lumbar disc. Evidence
submitted in support of appellant’s reconsideration request included reports from Dr. Metzer dated
September 24, 2014 and Dr. Stein dated December 5, 2014. Dr. Metzer noted that appellant would
be off work until she was seen by Dr. Stein. In his December 5, 2014 report, Dr. Stein opined that
appellant was totally disabled due to work-related disc displacement/bulge at L4-5.
The Board notes that OWCP had only considered Dr. Stein’s report in its March 2, 2015
decision.7 OWCP failed to mention or consider any other evidence, such as Dr. Metzer’s report
or the January 28, 2015 report from Dr. McGowin, its second opinion physician. Furthermore,
prior to its March 2, 2015 decision, it had requested that Dr. McGowin clarify his report to explain
how appellant’s current diagnoses of lumbar disc herniation and lumbar radiculitis and inability to
work were medically connected to the October 1, 2013 work injury. However, prior to receiving
Dr. McGowin’s March 10, 2015 addendum, OWCP denied modification of its August 27, 2014
decision. The Board finds that OWCP’s failure to obtain the clarification report from
Dr. McGowin after undertaking to develop the evidence in this case constituted error.8
Additionally, prior to the filing of her reconsideration request, OWCP expanded acceptance
of the claim to include aggravation of herniated lumbar disc. It also had reports from Dr. Stein,
Dr. Terry W. Taylor, Board-certified in occupational medicine and Dr. McGowin regarding the
causal relation of her medical conditions and disability. It is noted that OWCP had referred
appellant to Dr. Taylor on August 13 and November 17, 2015. Once OWCP undertakes to develop

5

20 CFR § 10.126.

6
The Board notes that OWCP has not issued a formal decision addressing the full scope of appellant’s wage-loss
compensation claim.
7

See A.F., Docket No. 11-1297 (issued December 20, 2011); D.K., 59 ECAB 141 (2007) (evidence which repeats
or duplicates evidence already in the case record does not constitute a basis for reopening a case).
8

Melvin James, 55 ECAB 406 (2004).

3

the medical evidence further, it has the responsibility to do so in the proper manner.9 As it
undertook development of the evidence by referring appellant to Dr. Taylor prior to appellant’s
request for reconsideration, OWCP had an obligation to secure the evidence if possible.10 Its
failure to do so was error.
OWCP’s summary findings in rejecting the evidence appellant submitted with her request
for reconsideration does not comply with the review requirements under FECA and its
implementing regulations.11 Despite the untimeliness of appellant’s request for reconsideration,
the case must be remanded for OWCP to describe the evidence appellant submitted and give
detailed reasons for accepting or rejecting appellant’s claimed periods of disability.12
The Board will, therefore, set aside OWCP’s February 15, 2017 decision and remand the
case for issuance of an appropriate final decision.
IT IS HEREBY ORDERED THAT the February 15, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and remanded to OWCP for further action
consistent with this decision of the Board.
Issued: September 9, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
9

Id.

10

See Peter C. Belkind, 56 ECAB 580 (2005).

11

See 20 CFR § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (February 2016); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).
12

See also M.L., Docket No. 09-0956 (issued April 15, 2010).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Alcova, WY, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 09-1619
Issued: June 2, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 10, 2009 appellant filed a timely appeal of the June 1, 2009 merit decision of the
Office of Workers’ Compensation Programs, which affirmed the denial of his occupational
disease claim. Pursuant to 20 C.F.R. §§ 501.2 and 501.3(e), the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant sustained pulmonary sarcoidosis or other condition
causally related to his federal employment as a welder.
FACTUAL HISTORY
On January 15, 2008 appellant, then a 59-year-old plant mechanic, filed an occupational
disease claim for sleep apnea, hyperventilation, sarcoidosis and congestive heart failure. He
listed February 10, 2000 as the date of injury and April 23, 2005 as the date he first realized his
condition was employment related. In a statement received on February 11, 2008, appellant
described the physical demands of his job and identified employment factors that he believed

contributed to his claimed conditions. He noted prolonged exposure to noxious fumes caused by
welding and grinding and using caustic chemicals to clean and prepare welding surfaces.
Appellant stated that there was no uniform air circulation in the welding area or recirculation
fans to keep dust down. He stated that the grinders lacked hoses to extinguish dust from the area.
Appellant also advised that he was provided with an ill-fitting welding hood, with no respirator
or outside air source.
On February 28, 2008 the employing establishment provided a copy of appellant’s
position description, which confirmed that his plant mechanic duties included welding and
grinding. It noted that cavitation welding usually lasted three weeks a year and was one of the
most physically demanding tasks which appellant “could be performing ... 8 [to] 9 hours per day,
[4] days a week, up to 15 weeks per year,” with occasional overtime work. As to his claim of illfitting equipment and inadequate ventilation, the employer advised that welding areas were
equipped with exhaust fans and hoods supplied by fresh air. Since 1986, fresh air was supplied
to the hoods from pumps with air filters located outside the welding/grinding area. The
equipment was updated in 1999 and additional equipment installed in 2001 to cool the hood air
supply. Ventilation systems were installed around 1990 and were used when performing
welding and grinding on turbine runners. The system pulled air in from around the workers’ legs
and dispersed it above their heads. There were large ventilation fans to remove hot air located
just below the roof. The employer stated that workers were required to wear their personal
protective equipment when performing welding/grinding operations. When acid was used for air
arcing and grinding, employees were supplied with air hoods and/or respirators. It was noted
that air hoods were not designed to be airtight.
The Office received copies of appellant’s employee health records and medical records
from his treating physician, Dr. Eric E. Stevens, Board-certified internist in pulmonary disease.
Appellant was hospitalized on April 23, 2005 for progressive respiratory distress. A mediastinal
biopsy showed noncaseating granulomas consistent with sarcoidosis. Appellant was also
diagnosed with pneumonia, diastolic congestive heart failure, type 2 diabetes, possible sleep
apnea and obesity hypoventilation.1 On August 19, 2005 Dr. Stevens advised that appellant had
recently undergone a sleep study that established sleep apnea.2 As to his pulmonary condition,
he stated that a recent computerized tomography (CT) scan showed that lymphadenopathy had
dramatically improved from an earlier study on April 23, 2005. Moreover, the previously seen
patchy pulmonary infiltrates had resolved. A pulmonary function study administered earlier that
day was reported as “near normal.” Dr. Stevens diagnosed biopsy-proven sarcoidosis, diastolic
cardiac dysfunction, right heart failure, obstructive sleep apnea, diabetes and history of kidney
stones. He advised that the previously seen patchy infiltrate on CT scan may have been an
infection or sarcoid. Appellant was using oxygen and a continuous positive airway pressure
(CPAP) machine for his sleep apnea. Dr. Stevens advised that appellant could continue to work
with some moderate work restrictions, such as avoiding work on high platforms at the end of
cranes. Otherwise, appellant seemed to be doing well at work and had improved considerably
since first seen in the spring 2005.
1

The hospital discharge summary did not list appellant’s weight, but contemporaneous medical records indicated
that he weighed in excess of 350 pounds.
2

Overnight polysomnography testing was performed on May 20, 2005.

2

On March 24, 2006 Dr. Stevens reported that appellant had been doing well, with no
coughing, wheezing or chest pain, but with some dyspnea on exertion, especially if appellant
climbed anything. Appellant used his CPAP regularly at night and reported having a good
energy level during the day until about 5:00 p.m. when he grew tired. His weight was listed at
358 pounds and his various diagnoses remained unchanged. Dr. Stevens advised against
climbing greater than 10 feet at work.
On January 19, 2007 Dr. Stevens noted that a recent CT scan showed improvement in
appellant’s mediastinal and hilar lymphadenopathy, with a decrease in size and number of the
lymph nodes. The diagnostic study also showed improvement in the lung parenchymal
interstitial reticulonodular pattern. Dr. Stevens reported that appellant was doing well and he
continued to work, but recently had what sounded like a cold. Appellant also reported a little
more shortness of breath with activity, particularly when climbing stairs. Dr. Stevens advised
that appellant had gained significant weight at 418 pounds. He diagnosed biopsy-proven
sarcoidosis and noted that appellant’s CT scan showed improvement. Additional diagnoses
included a history of patchy infiltrate on CT scan with minimal residual reticulonodular pattern;
diastolic cardiac dysfunction with right heart failure -- clinically better, though prone to edema;
obstructive sleep apnea; hypoxia; diabetes; renal insufficiency; and self-reported increased
shortness of breath. Dr. Stevens continued appellant’s work restriction with respect to going up
and down in a crane, but found that he was able to climb short distances, for example to change a
light bulb with a ladder.
On June 7, 2007 Dr. Kate Flanigan Sawyer, an physician with the U.S. Department of
Health and Human Services, Federal Occupational Health (FOH), conducted a medical
surveillance examination.3 In a September 13, 2007 report, she did not list any employmentrelated diagnoses. Dr. Sawyer placed an “x” on the form indicating that there were “No medical
findings ... noted that indicate a work-related injury/illness.” The report identified several health
problems not caused by work, which included sarcoidosis, diabetes mellitus, obstructive sleep
apnea, obesity, vision loss, knee pain, back pain, abnormal cholesterol and hypertension.
Dr. Sawyer also noted that appellant had a moderate bilateral mid/high frequency hearing loss,
but she did not address causation. Appellant’s work limitations included no crane operation, no
climbing, no arduous exertion and no prolonged kneeling. He was encouraged to utilize
protective equipment when exposed to loud noise.
On August 3, 2007 Dr. Stevens noted that appellant reported doing well since his last
visit. Appellant’s sleep quality had improved after acquiring a new bed and use of his CPAP
every night, which resulted in fairly good daytime energy. Dr. Stevens reported no shortness of
breath, no coughing, no wheezing, no fevers or chills and no chest pain. There were no visual
complaints, skin complaints or musculoskeletal complaints. Appellant’s weight was listed at 431
pounds. Dr. Stevens repeated his prior list of diagnoses and reiterated that appellant was “doing
well.” As to appellant’s work restrictions, he was to avoid going up in the crane but allowed to
use a 10- to 12-foot ladder to change light bulbs. Dr. Stevens explained that because of
appellant’s stable subjective status, no specific diagnostic tests or studies were presently
required.
3

Dr. Sawyer is Board-certified in occupational medicine.

3

In a December 11, 2007 letter, Dr. Stevens noted that appellant had been a patient since
April 2005 and had biopsy-proven sarcoidosis, with a history of pulmonary involvement. He
stated that other issues included diastolic and cardiac dysfunction, right heart failure, diabetes,
chronic hypoxia, renal insufficiency and sleep apnea. Dr. Stevens advised that appellant had an
apnea-hypopnea index of 45, which was indicative of severe sleep apnea, but that he was
compliant on CPAP.
In a January 7, 2008 letter, Dr. Sawyer noted that appellant requested that she submit a
description of his current status at the workplace. As a medical reviewing officer for FOH, she
reviewed his periodic surveillance examinations for the employing establishment from 2004 to
2007 and provided medical clearances for his job as power plant mechanic. Dr. Sawyer
explained that appellant’s current exposures at work included noise, dust, occasional heat stress,
coatings (coal tar, epoxies), solvents, welding fumes and heavy metals (arsenic, cadmium,
chromium, lead, manganese, nickel and zinc). Appellant was also involved in occasional
confined space welding operations. According to his workplace exposure assessment form, he
currently used protective equipment 100 percent of the time (such as earplugs, respirator and
welding leathers). Additionally, appellant had not reported any current symptoms from his
exposures. Dr. Sawyer stated that appellant informed her that, during his almost 32 years of
work at the employing establishment, his exposures had been much greater in the past and that
protective equipment had not been used on the job, particularly with welding. She advised that
he was currently medically cleared for his job with a restriction and his respirator clearance was
limited. Due to a nonwork-related medical problem, appellant was restricted from climbing
anything taller than eight feet. His respirator clearance was limited to supplied-air respirators or
powered-air purifying respirators and he was cleared for using a respirator at mild exertion only.
During appellant’s June 7, 2007 physical examination, there was no shortness of breath,
wheezing or coughing. Dr. Sawyer also indicated that appellant’s physical examination revealed
distant decreased lung sounds. She noted that his pulmonary function had declined each year
from 2004 to 2007 and his latest pulmonary function study followed a moderately restricted
pattern, with reported values at approximately 60 percent of predicted. Because appellant’s
respiratory status had declined over the years and he already had limitations at work, Dr. Sawyer
predicted that his job limitations would become greater in the future.
In a report dated January 29, 2008, Dr. James W. Washburn, an internist with the
Department of Veterans Affairs (VA), noted that appellant had been a patient of his since
July 2006. On March 28, 2005 appellant was admitted to the Sheridan medical center due to a
three-week history of shortness of breath and was diagnosed and treated for pneumonia. He
improved with treatment and was discharged on March 31, 2005. On April 19, 2005, however,
appellant presented to the Casper outpatient clinic with a persistent cough and was treated with
another course of antibiotics. Dr. Washburn noted that appellant was subsequently admitted to
the medical center in Loveland on April 23, 2005 due to shortness of breath and a persistent
cough and was seen in consultation by two pulmonologists. Pulmonary function studies
administered at the time revealed a moderate obstructive lung defect. Additionally, a CT scan of
the chest showed right infiltrate with a reticulonodular pattern and a mediastinal biopsy
confirmed the diagnosis of sarcoidosis. Appellant was discharged on April 28, 2005 in improved
condition. Since April 2005, he had been treated by Dr. Stevens for sarcoidosis at regular
intervals. Regarding the cause of appellant’s pulmonary condition, Dr. Washburn stated that the
etiology of sarcoidosis was unknown but that current medical literature supported environmental
4

factors as a possible cause. He stated that “[f]rom [appellant’s] detailed description of his
working environment at the hydroelectric plant, it is plausible that his [s]arcoidosis is work
related.”
On May 23, 2008 Dr. Stevens submitted a one-paragraph letter noting that appellant had
been his patient since April 2005 and had biopsy-proven sarcoidosis with a history of pulmonary
involvement. Appellant underwent additional diagnostic testing on May 23, 2008 and the CT
scan showed persistent mediastinal and hilar adenopathy, consistent with sarcoidosis. In
addition, recent pulmonary function studies confirmed restrictive pulmonary physiology, which
had worsened slightly since 2005. Dr. Stevens stated that appellant’s condition remained the
same as before and he was maximally compliant with therapy.
The Office referred appellant to Dr. Lawrence H. Repsher, a Board-certified pulmonary
disease specialist, who examined him on February 18, 2009. Dr. Repsher reviewed appellant’s
employment and medical histories, diagnostic records, performed a physical examination and
administered a pulmonary function and arterial blood gas studies. He found no evidence of any
occupational lung disease and no evidence of welders’ siderosis or other welding-related
disorder. Dr. Repsher diagnosed morbid obesity (self-reported weight of 407 pounds),
sarcoidosis, insulin-dependent diabetes mellitus, mild chronic renal failure -- probably secondary
to diabetes, dyslipidemia, history of ureterolithiasis, recurrent gouty arthritis, obstructive sleep
apnea -- very severe and pulmonary hypertension with decompensated biventricular congestive
heart failure.
Based on the findings on examination and review of the medical records, Dr. Repsher
advised that appellant did not currently or previously sustain any occupational lung disease
related to his work as a welder. He explained that pulmonary sarcoidosis was a disease of
unknown cause, which had never been statistically related to work as a stainless steel welder.
Dr. Repsher found that appellant’s pulmonary function abnormalities were more than adequately
explained by his morbid obesity, sleep apnea and pulmonary sarcoidosis. He added that it was
probably unsafe for appellant to work off the ground on ladders or scaffolding, but given
appropriate respiratory protection, he could continue to work as a welder, albeit with some
discomfort in view of his morbid obesity and decompensated right ventricular heart failure.
In a February 27, 2009 decision, the Office denied appellant’s claim. It found that, while
the record supported that the claimed occupational exposures occurred, the medical evidence did
not establish that his diagnosed conditions were related to his work activities as a welder.
Appellant requested reconsideration on April 6, 2009 and submitted additional treatment
records. In a May 9, 2005 report, Dr. Stevens stated that he initially evaluated appellant during
the April 2005 hospitalization. He underwent a mediastinal lymph node biopsy that confirmed
sarcoidosis as the cause of his mediastinal and hilar adenopathy. Dr. Stevens also found a patchy
right lower lobe density on a CT scan, which may have been pneumonia, but could also have
been focal sarcoidosis. There was also evidence of sleep apnea, diastolic heart failure and right
heart dysfunction. Dr. Stevens stated that with diuresis and oxygen therapy appellant had done
much better. He noted that appellant was employed as a journeyman, which was basically an allaround job “where he does just about everything, welding, repair work, etc.” Under the heading
“Social History,” Dr. Stevens reported that appellant had a variety of exposures including

5

asbestos and welding. Appellant also had a pet cat and was a nonsmoker. After reviewing a
recent pulmonary function study, Dr. Stevens stated that most of appellant’s impairment was
“probably” attributable to his “body habitus,” so it was “not clear whether the sarcoidosis [was]
actually causing any problems.” He reiterated that the patch of infiltrate on the CT scan “may
certainly have been an infectious pneumonia.”
A February 15, 2008 treatment note stated that appellant sounded a little worse.
Appellant told Dr. Stevens that this typically happened starting with a work-related activity that
occurred in the fall when he would go into Freemont Canyon. Dr. Stevens advised that appellant
was having more shortness of breath and more fluid retention. Appellant used his CPAP every
night for eight or more hours without any complications and had good energy during the day
until the late afternoon. Dr. Stevens found no current coughing or wheezing, just dyspnea on
exertion. He noted that appellant probably had another year of working and had been exposed to
welding and metal grinding dust in the past. Dr. Stevens diagnosed biopsy-proven sarcoidosis,
sleep apnea, hypoxia, diabetes, history of renal insufficiency and diastolic heart failure. He also
noted that appellant’s peripheral edema might be worse, which could reflect worse oxygenation
or worse right heart failure. The increase in shortness of breath could be due to weight gain or
represent a flare of sarcoidosis, “though his lungs are clear.” When seen on May 23, 2008,
Dr. Stevens noted that subjectively appellant was about the same with dyspnea on exertion, no
coughing and no wheezing.
The Office also received a May 20, 2008 FOH medical surveillance examination report
from Dr. Christopher M. Snyder, an internist, who diagnosed pulmonary sarcoidosis with
interstitial pulmonary fibrosis, type 2 diabetes and sensorineural hearing loss. The report did not
address the etiology of any diagnosed condition.
In a June 1, 2009 decision, the Office denied appellant’s occupational disease claim,
finding that the medical evidence failed to establish a causal relationship between his diagnosed
conditions and his employment.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.5
4

5 U.S.C. §§ 8101-8193 (2006).

5

20 C.F.R. § 10.115(e), (f) (2009); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.

6

To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.6
The issue of whether a claimant’s disability is related to accepted conditions of his
employment is a medical question that must be established by probative medical opinion from a
physician. Medical opinions must be of reasonable medical certainty and supported with
rationale explaining the nature of the relationship between the diagnosed condition and specific
employment factors.7 While the opinion supporting causal relationship does not have to reduce
the cause or etiology of a disease or condition to an absolute certainty, the opinion must be one
of reasonable medical certainty and not speculative or equivocal in character.8 A medical
opinion not fortified by medical rationale is of diminished probative value.9
ANALYSIS
Appellant contends that his employment as a welder and mechanic at the employing
establishment caused his pulmonary and other medical conditions. The Office accepted that he
was exposed to various chemicals, fumes and dusts in his federal employment. The Board finds
that appellant has not submitted sufficient medical evidence to establish that any of his diagnosed
medical conditions was caused or contributed to by his exposures in his federal employment.
The medical evidence of record reflects that appellant was hospitalized on April 23, 2005
for progressive respiratory distress. A biopsy was obtained that showed evidence leading to the
diagnosis of sarcoidosis. Appellant was also diagnosed with pneumonia, congestive heart
failure, diabetes mellitus and sleep apnea. Following his hospitalization, he was treated on a
regular basis by Dr. Stevens, a specialist in pulmonary disease, who obtained diagnostic testing
that showed improvement from earlier studies. Dr. Stevens confirmed the diagnosis of biopsy
proven sarcoidosis and noted that earlier seen infiltrates observed on the CT scans may have
been an infection or sarcoid. While he noted that appellant could continue to work within certain
specified restrictions, Dr. Stevens did not provide any opinion relating appellant’s diagnosed
conditions to his federal employment. Dr. Stevens’ treatment notes from 2005 to 2008 do not
adequately explain how appellant’s pulmonary condition or other medical problem related to his
duties and exposures as a welder or mechanic. He addressed appellant’s obesity and treatment
for obstructive sleep apnea, for which appellant obtained some relief with compliance on CPAP.
In a May 5, 2005 report, Dr. Stevens addressed appellant’s job as a journeyman welder and
mechanic and noted that there had been certain occupational exposures arising in his job.
However, he obtained a pulmonary function study and stated that appellant’s sarcoidosis was
6

Victor J. Woodhams, supra note 5.

7

See Roy L. Humphrey, 57 ECAB 238 (2005); Steven S. Saleh, 55 ECAB 169 (2003).

8

See Kathy A. Kelley, 55 ECAB 206 (2004).

9

See David L. Scott, 55 ECAB 330 (2004).

7

probably attributable to his body habitus and that the patchy infiltrate seen on CT scan may have
been an infectious pneumonia. This is not sufficient medical opinion to relate appellant’s
diagnosed conditions to any exposure in his federal employment, as alleged. None of the
treatment records from Dr. Stevens contain an adequate explanation of how the various
diagnoses relate to appellant’s federal employment.
In a January 29, 2008 report, Dr. Washburn stated that “[f]rom [appellant’s] detailed
description of his working environment at the hydroelectric plant, it is plausible that his
[s]arcoidosis is work related.” This opinion on causal relationship, however, is speculative and
equivocal. Dr. Washburn acknowledged that the etiology of sarcoidosis was unknown but that
medical literature indicated that environmental factors were a possible cause. He did not provide
a detailed description of appellant’s work environment or the accepted exposures arising in his
work as a welder or mechanic. Moreover, Dr. Washburn did not provide any extensive
discussion of the medical literature to which he referred as supporting a possible cause for
appellant’s pulmonary condition. This report is not sufficient to establish appellant’s claim as
causation is couched in speculative terms.
The medical evidence from Dr. Sawyer and Dr. Repsher does not support causal
relationship. Based on a June 7, 2007 examination, Dr. Sawyer reported that there were no
medical findings to support a work-related injury or illness. She identified several health
problems not caused by work, including sarcoidosis, diabetes, obstructive sleep apnea and
obesity. Dr. Sawyer subsequently reviewed appellant’s surveillance physical examinations from
2004 to 2007 and addressed his exposures at work to dust, coatings, solvents, welding fumes,
noise and heavy metals. However, she did not attribute any of his diagnosed conditions to these
accepted exposures. Rather Dr. Sawyer noted that appellant was cleared to work but had
restrictions due to nonwork-related medical problems. She noted a decrease in pulmonary
functioning each year from 2004 but did not attribute this to any exposures in appellant’s work as
a welder or mechanic.
In a February 18, 2009 report, Dr. Repsher stated that appellant did not currently have or
previously sustain any occupational lung disease related to his work as a welder. He was
provided with appellant’s medical records, reports from diagnostic studies and obtained a
pulmonary function and arterial blood gas studies. Based on his examination, Dr. Repsher found
that appellant did not have any evidence of a pulmonary condition related to his job as a welder.
He explained pulmonary sarcoidosis was a disease of unknown cause which had never been
statistically shown as related to the work appellant performed. Dr. Repsher attributed appellant’s
medical conditions to his morbid obesity, sleep apnea and decompensated right ventricular
function.
Based on the evidence of record, appellant failed to establish that any of his diagnosed
conditions are causally related to his employment as a plant mechanic or welder. The Board
finds that the Office properly denied his occupational disease claim.
CONCLUSION
Appellant has not met his burden of proof to establish any medical condition, including
pulmonary sarcoidosis, as causally related to his federal employment work exposure.

8

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 2, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

9