United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DALLAS MEDICAL CENTER, Dallas, TX,
Employer
__________________________________________

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

Docket No. 18-0580
Issued: September 17, 2018

Case Submitted on the Record

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

JURISDICTION
On January 24, 2018 appellant filed a timely appeal from a December 11, 2017 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On March 15, 2017 appellant, then a 39-year-old surgical technician, filed an occupational
disease claim (Form CA-2) alleging that he had developed anxiety, trouble focusing, aggravation
1

5 U.S.C. § 8101 et seq.

and irritation, intimidation and fear, loss of sleep, and fatigue due to his federal employment. He
attributed his conditions to consistent stress at work. Appellant noted that supervisors had not
educated him regarding the claim process and had not given him the resources to follow through
with his claim.
In development letters dated April 18, 2017, OWCP requested additional factual and
medical evidence in support of appellant’s alleged occupational disease from both appellant and
the employing establishment. It afforded 30 days for responses.
Appellant provided treatment notes dated December 28 and 29, 2016 from Dr. Erika M.
Navarro, a Board-certified psychiatrist, at the employing establishment medical clinic.
Dr. Navarro noted that appellant reported that he was having problems with his peers and upper
management at work. Appellant felt that he was singled out and overwhelmed due to stress.
Appellant also submitted a journal listing the work events which he felt contributed to his
emotional condition. These included unfair distribution of workload, hostile work environment,
and discrimination by S.C., the evening charge nurse. Appellant also alleged discrimination by
his supervisor, T.T., and by D.A. He alleged that services such as general, orthopedics, podiatry,
plastic, vascular, neurological, and eyes were not rotated equally. Appellant alleged that he was
denied participation in training conferences and that his limited-duty restrictions were not
accommodated while those of other surgical technicians were.
Appellant also provided a chronological listing of work events beginning
December 22, 2016. On December 28, 2016 the evening charge nurse verbally counseled
appellant and directed him to notify her when he left the operating room. T.T., his supervisor,
wrote appellant up regarding this incident. On December 30, 2016 appellant’s request to attend a
February conference was denied. A coworker received assistance from the union within a day,
while appellant had to wait six weeks. On January 18, 2017 appellant protested his schedule and
requested to work in cardiology or orthopedic surgery. He alleged that a coworker was allowed
an hour break, while he was denied a short break on February 23, 2017. On March 6, 2017 the
charge nurse referred to appellant as a “smart ass” after he objected to her demands. Appellant
reported that he was treated differently from other employees on March 7, 2017 as he was working
without help, while his coworkers “hung out” in the office. In a staff meeting on March 8, 2017,
he asserted that he was treated unfairly, and was told to “hush” by the evening charge nurse who
interrupted and talked over him. At that same meeting appellant began to leave when he was told
the staff meeting was over, and T.T. made a “very unprofessional gesture,” raised her voice, and
pointed her finger at appellant. He alleged that he was denied breaks on March 8 and 15, 2017.
On March 16, 2017 T.T. was rude to appellant on the telephone. On March 30, 2017 a coworker
used profane language. Also on March 30, 2017 T.T. asked why appellant took his time, and he
replied that he was on light duty. On April 19, 2017 appellant reported that T.T. rudely and
aggressively made him sign his mid-term performance sheet.
On May 1, 2017 the employing establishment responded to OWCP’s request for
information and asserted that the operating room was a stressful environment, that it was very
busy, and that the employing establishment pushed to complete as many surgical procedures as
possible in a day. It noted that appellant was not allowed to attend a conference for robotic surgery
as he was not experienced in this area. The employing establishment asserted that appellant

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became upset if he thought that he was working harder than his coworkers and that he believed
that he received the worst assignments. It denied these allegations and alleged that all the staff
was treated equally and fairly. The employing establishment noted that appellant was on lightduty after slipping on a wet floor. It further noted that there were staffing shortages, but that
appellant’s workload was no different from his coworkers. The employing establishment alleged
that appellant was afforded more breaks than his coworkers. It also noted that appellant became
outspoken and belligerent at a meeting in March, that he left the meeting angrily slamming the
door into a wall, and that this upset his coworkers.
In a statement dated May 19, 2017, T.T. reported that the operating room was a very
stressful area due to critically ill patients, demanding needs of surgical procedures, occasionally
irate surgeons, and a tight schedule. She denied that the workload was distributed unfairly, noted
that appellant received breaks that others did not, and explained that appellant was denied training
so that a more experienced person could go to better serve the employing establishment.
In an undated statement received by OWCP on May 23, 2017, appellant asserted that his
previous surgical technician work while in the armed forces was far more demanding than his
current position due to the additional specialties provided. He also noted that he had previously
learned to adapt to multiple personalities in a large work environment. Appellant asserted that he
was passionate about his line of work. He again attributed his emotional condition to unfair
distribution of workload, lack of respect from the evening charge nurse, harassment, retaliation,
outbursts of disrespect, and denial of training in robotics.
By decision dated August 14, 2017, OWCP denied appellant’s occupational disease claim
finding that he had not submitted any medical evidence containing a medical diagnosis in
connection with the incidents described. On August 17, 2017 it amended the August 14, 2017
decision to reflect that Dr. Navarro did not provide a diagnosis of an emotional condition.
On September 11, 2017 appellant requested reconsideration of the August 17, 2017
decision and provided a report dated August 28, 2017 from Dr. Navarro. Dr. Navarro noted that
appellant was a combat veteran with a prior diagnosis of post-traumatic stress disorder (PTSD),
depressive disorder, attention deficit hyperactivity disorder, and adjustment disorder. She opined
that on December 28, 2016appellant was in crisis with significant stress at work causing anxiety,
depression, and anger. Dr. Navarro opined that appellant’s stress could exacerbate underlying
mental health conditions such as depression and PTSD. She noted, “Given the potential
consequences of having a veteran in crisis working in a high stress environment (Operating Room),
I made the decision to authorize a seven-day leave from work to prevent an impact on patient care
and further exacerbation of the patient’s condition.”
By decision dated December 11, 2017, OWCP modified the August 17, 2017 decision to
reflect that appellant had provided medical evidence of diagnosed emotional conditions. However,
it found that he had not established that his emotional condition was sustained in the course of
employment as he had not established compensable factors of employment.

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LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, appellant must submit the
following: (1) medical evidence establishing that he has an emotional or psychiatric disorder;
(2) factual evidence identifying employment factors or incidents alleged to have caused or
contributed to the condition; and (3) rationalized medical opinion evidence establishing that the
emotional condition is causally related to the identified compensable employment factors.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA.4 There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.5
When an employee experiences emotional stress in carrying out his or her employment duties and
the medical evidence establishes that the disability resulted from an emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability results from his or her emotional reaction
to a special assignment or other requirement imposed by the employing establishment or by the
nature of the work.6 In contrast, a disabling condition resulting from an employee’s feelings of
job insecurity per se is insufficient to constitute a personal injury sustained in the performance of
duty within the meaning of FECA. Thus disability is not covered when it results from an
employee’s fear of a reduction-in-force, nor is disability covered when it results from such factors
as an employee’s frustration in not being permitted to work in a particular environment, or to hold
a particular position.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.8 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.9 A claimant must support his or her allegations with probative and reliable

2

R.L., Docket No. 17-0883 (issued May 21, 2018).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Robert W. Johns, 51 ECAB 136 (1999).

6

Cutler, supra note 3.

7

Id.

8

Charles D. Edwards, 55 ECAB 258 (2004).

9
Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
566 (1991).

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evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.10
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty.
Appellant alleged that he developed an emotional condition as a result of a series of events
at his work. OWCP denied his emotional condition claim, finding that he had not established any
compensable employment factors. The Board must, initially review whether these alleged
incidents and conditions of employment are covered by employment factors under FECA.
The Board notes that appellant’s allegations do not pertain to his regular or specially
assigned duties under Lillian Cutler.12 While the employing establishment and appellant’s
supervisor, T.T., noted that the operating room was an inherently stressful work environment,
appellant did not attribute his emotional condition to the performance of his work duties in the
operating room. He specifically noted that he had worked without issue in more stressful operating
room locations and attributed his current emotional condition to harassment, discrimination, and
retaliation as well as other actions by the employing establishment.
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,13 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employing establishment and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the factual circumstances surrounding the administrative or
personnel action established error or abuse by the employing establishment superiors in dealing
with the claimant. Absent evidence of such error or abuse, the resulting emotional condition must
be considered self-generated and not employment generated. In determining whether the

10

Roger Williams, 52 ECAB 468 (2001).

11

R.L., supra note 2; Alice M. Washington, 46 ECAB 382 (1994).

12

Cutler, supra note 3.

13

McEuen, supra note 9.

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employing establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.14
Appellant has alleged that he was required to work outside his work restrictions, while
other employee’s disabilities were accommodated.15 He has presented no evidence establishing
error or abuse by the employing establishment. The employing establishment acknowledged that
appellant was on light duty and indicated that he was provided work within his restrictions. A
claimant must submit probative evidence sufficient to establish that he or she was required to work
outside his or her medical restrictions.16 There is no probative evidence of record established that
appellant was forced to work outside his medical restrictions in this case.
Appellant alleged unfair distribution of work, denial of breaks, and unequal discipline. The
Board has long held that disputes regarding improperly assigned work duties and discipline related
to administrative or personnel matters are unrelated to regular or specially assigned work duties
and do not fall within the coverage of FECA. Although the assignment of work duties, the
monitoring of work duties, and the handling of disciplinary actions are generally related to the
employment, they are administrative functions of the employer, not duties of the employee, and
not compensable absent evidence of error or abuse.17 Appellant has not submitted probative
evidence establishing error or abuse in the handling of these activities by the employing
establishment.
Appellant attributed his emotional condition to the employing establishment’s denial of his
request for training in robotics. The Board notes that matters pertaining to training are an
administrative function of the employing establishment.18 The employing establishment explained
that its needs were better served by an employee more experienced in robotics attending the
training. The evidence of record is insufficient to establish that the employing establishment acted
unreasonably in the manner in which it determined which employee should receive training in
robotics. As noted, mere disagreement or dislike of a supervisor or management action will not
be actionable, absent evidence of error or abuse.19
Regarding appellant’s perception of hostile work environment, discrimination, harassment,
and retaliation by employing establishment management, generally, complaints about the manner
in which a supervisor performs his or her duties or the manner in which a supervisor exercises his
or her discretion fall, as a rule, outside the scope of coverage provided by FECA. This principle
recognizes that a supervisor or manager in general must be allowed to perform his or her duties

14

R.L., supra note 2; Richard J. Dube, 42 ECAB 916, 920 (1991).

15

B.H., Docket No. 17-1437 (issued November 21, 2017).

16

Id.; K.E., Docket No. 11-0861 (issued November 25, 2011).

17

G.M., Docket No. 17-1469 (issued April 2, 2018); Peter D. Butt, 56 ECAB 117 (2004).

18

R.L., supra note 2.

19

Id., Marguerite J. Toland, 52 ECAB 294 (2001).

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and employees will, at times, dislike the actions taken.20 Here again, the record contains no
corroborating evidence that any employing establishment supervisor or manager treated appellant
in a disrespectful manner. Error or abuse in discharging management duties has not been
established. This allegation is not compensable.21
With his allegations of hostile work environment, discrimination, harassment, and
retaliation, appellant indicated that he was verbally abused. The Board has held that, while verbal
abuse may constitute a compensable factor of employment, not every statement uttered in the
workplace will be covered by FECA. A raised voice in the course of conversation does not, in and
of itself, warrant a finding of verbal abuse.22 Appellant alleged that a coworker used profane
language, that the evening charge nurse told him to “hush,” and that T.T. was rude to him on the
telephone, raised her voice to him in a meeting, and rudely and aggressively instructed him to sign
his midterm performance sheet. Appellant’s allegations have not been sufficiently corroborated
by witness statements or other evidence to support that these incidents occurred as alleged. He did
not provide any corroboration or probative evidence to establish that these incidents rise to the
level of compensable verbal abuse or harassment.23 Appellant submitted no corroborating
evidence to establish hostile work environment, harassment, discrimination, or retaliation.
Regarding appellant’s allegations that the union treated him differently from other
employees, the Board has adhered to the principle that union activities are personal in nature and
are not considered to be within the course of employment.24
On his claim form, appellant alleged that the employing establishment did not aid him in
developing his OWCP claim. The handling of OWCP compensation claims by either OWCP or
the employing establishment would not arise in the performance of duty because the processing of
these claims bears no relation to appellant’s day-to-day or specially assigned work duties and
therefore are not compensable factors of employment.25
Thus, appellant has not established compensable employment factors under FECA and,
therefore, has not met his burden of proof to establish that he sustained an emotional or stressrelated condition in the performance of duty. As appellant has not established compensable
employment factors, the Board need not consider the medical evidence of record.26

20

G.M., supra note 17; Donney T. Drennon-Gala, 56 ECAB 469 (2005).

21

Id.

22

R.L., supra note 2.

23
R.L., id.; see F.A., Docket No. 17-0315 (issued July 11, 2017) (appellant described staff meetings that occurred
where she perceived her supervisor was at times singling her out or speaking to her in a condescending tone; the Board
found that appellant provided no probative evidence of harassment or abusive actions by the supervisor).
24

C.M., Docket No. 17-0027 (issued July 5, 2017); Jimmy E. Norred, 36 ECAB 726 (1985).

25

Willis E. Tomlin, Docket No. 05-0923 (issued August 11, 2005); Matilda R. Wyatt, 52 ECAB 421 (2001).

26

G.M., supra note 17; Katherine A. Berg, 54 ECAB 262 (2002).

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Appellant may submit new evidence or argument with a 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.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the December 11, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 17, 2018
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portsmouth, VA, Employer
__________________________________________

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

Docket No. 21-0401
Issued: September 14, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 28, 2021 appellant filed a timely appeal from a December 17, 2020 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 OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective July 1, 2020, as he no longer had residuals or disability causally related
to his accepted employment injury.
FACTUAL HISTORY
On October 25, 2006 appellant, then a 39-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained an aggravation of degenerative joint disease
1

5 U.S.C. § 8101 et seq.

and impingement syndrome of both shoulders causally related to the repetitive duties of his federal
employment. OWCP accepted the claim, assigned OWCP File No. xxxxxx639, for an aggravation
of impingement syndrome of the right shoulder. It subsequently expanded acceptance of the claim
to include bilateral shoulder impingement with rotator cuff tendinitis/bursitis and a tear of the left
rotator cuff. On November 25, 2008 Dr. Felix Kirven, a Board-certified orthopedic surgeon,
performed a left acromioplasty with open repair of the rotator cuff. OWCP paid appellant wageloss compensation on the supplemental rolls, effective December 2, 2008, and then on the periodic
rolls, effective January 18, 2009.2
A December 11, 2015 magnetic resonance imaging (MRI) scan demonstrated moderate
tendinopathy in the supraspinatus and infraspinatus tendons of the rotator cuff superimposed on
postsurgical changes, a possible partial rotator cuff tear in the area of the prior repair, and a loose
orthopedic suture anchor in the glenohumeral joint.
In an investigative report dated December 30, 2015, F.M., the employing establishment’s
Office of Inspector General (OIG), advised that it had conducted surveillance that revealed that
appellant was performing physical activities, including lifting weights at a fitness center, that were
contrary to the work restrictions provided by his physician. It summarized its surveillance findings
from 2015 and noted that it was maintaining the video surveillance footage in its investigative file.
OWCP subsequently determined that a conflict in medical opinion existed between
Dr. Kirven and Dr. Lawrence I. Barr, an osteopath and OWCP referral physician, regarding
whether appellant had continuing disability or a diagnosed condition causally related to his
accepted employment injury. It referred him to Dr. Ian B. Fries, a Board-certified orthopedic
surgeon, for an impartial medical examination. Based on Dr. Fries’ opinion, by decision dated
June 27, 2017, OWCP terminated appellant’s wage-loss compensation and medical benefits ,
effective that date.
Appellant, through then counsel, requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. Following a preliminary review, by decision dated
December 5, 2017, OWCP’s hearing representative reversed the June 27, 2017 decision. She
found that OWCP had neither notified appellant that it was providing surveillance video to
Dr. Fries, nor provided appellant an opportunity to request a copy of the video. OWCP’s hearing
representative further found that the statement of accepted facts (SOAF) provided to Dr. Fries
failed to include a description of appellant’s work duties. She instructed OWCP, upon return of
the case record, to reinstate appellant’s compensation benefits.
On April 22, 2019 OWCP referred appellant to Dr. Stanley Askin, a Board-certified
orthopedic surgeon, for a second opinion examination.
In a report dated May 10, 2019, Dr. Askin reviewed appellant’s history of bilateral shoulder
injuries from serving in the military and OWCP’s acceptance of an aggravation of right shoulder
2

OWCP previously accepted a 2005 occupational disease claim for an aggravation of bilateral olecranon bursitis,
an aggravation of bilateral triceps tenosynovitis, and a nontraumatic bilateral rupture of the shoulder tendons, assigned
OWCP File No. xxxxxx459. It has administratively combined OWCP File No. xxxxxx459 with the current file
number, which serves as the master file.

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impingement syndrome, bilateral shoulder impingement with rotator cuff tendinitis/bursitis, and a
left rotator cuff tear. He found no objective findings relating to the shoulders other than age-related
degenerative changes. Dr. Askin determined that appellant was “able to work out as reported in
the surveillance videos, which suggests that he has retained capacity for the expected employment
activities of a letter carrier.” He indicated that further medical treatment was not applicable. In a
work capacity evaluation (Form OWCP-5c) of even date, Dr. Askin found that appellant could
return to work full time without limitations.
On May 22, 2019 OWCP provided appellant with a copy of the imaged portion of his case
record.
In a report dated June 14, 2019, Dr. Kirven advised that appellant had continued pain and
loss of use of the shoulders, particularly on the left side. He noted that a December 11, 2015 MRI
scan had shown a recurrent tear and indicated that the “suture anchor that was used to repair the
rotator cuff has subsequently pulled out.” Dr. Kirven opined that appellant’s left shoulder surgery
on November 25, 2008 had failed and that he had a recurrent tear and failure of the suture anchor
as a consequence of his accepted employment injury. He advised that he might require further
surgery. Dr. Kirven opined that appellant was totally disabled from work due to his recurrent
rotator cuff tear of the left shoulder. He noted that his diabetic condition complicated his ability
to undergo surgery.
On June 20, 2019 OWCP provided Dr. Askin with an updated SOAF that included a
description of appellant’s job duties. In an addendum dated July 11, 2019, Dr. Askin reviewed the
updated SOAF and advised that his opinion was unaltered.
On August 7, 2019 OWCP requested that Dr. Askin address whether the acceptance of
appellant’s claim should be expanded to include additional conditions diagnosed by Dr. Kirven on
March 6, 2017.3
In an August 19, 2019 addendum, Dr. Askin attributed appellant’s “diagnostic
considerations” to aging. He found that he had no additional employment-related conditions.
OWCP determined that a conflict in medical opinion existed between Dr. Kirven and
Dr. Askin regarding the issue of continuing disability. It referred appellant to Dr. Zohar Stark, a
Board-certified orthopedic surgeon, for an impartial medical examination.
In a report dated October 24, 2019, Dr. Stark discussed appellant’s history of shoulder
problems while serving in the military and then later working at the employing establishment. He
noted that appellant had surgery on his rotator cuff in 2008 and that an x-ray of the shoulder
performed on August 10, 2017 had revealed the “projection of an anchor over the left humeral
diaphysis.” Dr. Stark advised that appellant also had left knee and ankle and bilateral hip
problems. On examination he found a negative impingement test of the shoulders bilaterally and
3

On March 6, 2017 Dr. Kirven noted that appellant’s shoulder and elbow conditions had been combined into the
current OWCP file number. He diagnosed multiple employment injuries resulting in a rotator cuff tear of the left
shoulder, shoulder impingement with tendinitis of the right shoulder, bilateral elbow chronic tendinitis/tendinopathy,
a ganglion cyst of the left ankle, and left knee chondromalacia.

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no apparent motor or sensory deficit of the upper extremities. Dr. Stark further found restrictive
motion with tenderness to palpation of the left shoulder and slightly better motion of the right
shoulder and tenderness to palpation of the elbows bilaterally. He provided his review of the
medical evidence, noting that the record contained a report describing surveillance conducted by
the OIG’s office from January to April 2015. Dr. Stark opined that appellant had no objective
findings of the accepted aggravation of impingement syndrome of the right shoulder, bilateral
shoulder impingement with rotator cuff tendinitis/bursitis, and a left rotator cuff tear. He advised
that appellant was not cooperative during the examination. Dr. Stark opined that he was no longer
disabled due to the accepted injury or any condition and required no further medical treatment. He
attributed the diagnoses of a bilateral incomplete rotator cuff tear and bilateral synovitis tendinitis
to degenerative disease of the shoulders unrelated to appellant’s employment. Dr. Stark related,
“Following the surgery in 2008, the suture anchor got loose from the bone and the various studies
shows that it is located with unchanged position in the inferior recess at the shoulder. It is my
opinion that the anchor at this time does not produce any symptoms.” He advised that the most
recent MRI scan of the shoulders dated September 8, 2017 did not show a complete rotator cuff
tear. Dr. Stark attributed appellant’s loss of range of motion of the shoulders to degenerative
disease. In a Form OWCP-5c of even date, he found that appellant could return to his usual
employment without restrictions.
On April 8, 2020 OWCP notified appellant of its proposed termination of his wage-loss
compensation and medical benefits as the special weight of the evidence established that he no
longer had any employment-related residuals or disability due to his accepted employment injury.
It afforded him 30 days to submit additional evidence or argument if he disagreed with the
proposed termination.
In an April 14, 2020 statement, appellant asserted that the loose anchor in his left shoulder
from his prior rotator cuff surgery constituted a residual of his employment injury. He noted that,
while the loose anchor was not currently causing symptoms, it could cause severe joint damage if
he did not have it repaired. Appellant advised that he had to control his diabetes prior to having
the surgery.
Appellant submitted a March 25, 2016 report from Dr. Andrew F. Kuntz, a Board-certified
orthopedic surgeon. Dr. Kuntz noted that appellant had an open rotator cuff repair in 2008 with
excellent range of motion, with some lateral shoulder pain. He indicated that he had a metallic
anchor next to the medial humeral head, but that his symptoms were currently consistent with
tendinopathy of the rotator cuff “with no symptoms from the anchor.” Dr. Kuntz advised that the
anchor had the potential to cause “severe damage to the joint surface” if it was intra-articular and
recommended either physical therapy or surgery.
By decision dated June 30, 2020, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective July 1, 2020. It found that Dr. Stark’s opinion represented the
special weight of the evidence and established that he had no further disability or residuals of his
accepted employment injury.
On July 8, 2020 appellant requested an oral hearing before a representative of OWCP ’s
Branch of Hearings and Review. He asserted that he had read that Dr. Askin had reviewed copies
of the surveillance video.

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A telephonic hearing was held on October 16, 2020. Appellant related that he had a loose
implant and was attempting to get his blood sugar under control prior to surgery. Appellant’s thencounsel asserted that Dr. Stark failed to provide rationale for his opinion, including why appellant
required no further medical treatment. He maintained that Dr. Stark was biased and his opinion
insufficiently reasoned to resolve the conflict in medical opinion. Appellant related that Dr. Askin
and Dr. Stark had access to surveillance video and that he only received a copy of the video
subsequent to the examinations.
By decision dated December 17, 2020, OWCP’s hearing representative affirmed the
June 30, 2020 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background. 6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. 7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment. 8
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”9 Where a case is
referred to an impartial medical examiner (IME) for the purpose of resolving a conflict, the opinion
of such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight. 10

4

R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

5

A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

6

C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).

7

E.J., Docket No. 20-0013 (issued November 19, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019).

8

A.J., Docket No. 18-1230 (issued June 8, 2020); R.P., Docket No. 18-0900 (issued February 5, 2019).

9

5 U.S.C. § 8123(a); J.K., Docket No. 18-1250 (issued June 25, 2019).

10

20 C.F.R. § 10.321; T.D., Docket No. 17-1011 (issued January 17, 2018).

5

ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and medical benefits, effective July 1, 2020, as he no longer had residuals or disability causally
related to his accepted employment injury.
OWCP properly determined that a conflict in medical opinion existed between Dr. Kirven,
appellant’s treating physician, and Dr. Askin, a second opinion physician, regarding whether he
had continued disability or need for medical treatment due to his accepted employment injuries.
It referred him to Dr. Stark for an impartial medical examination in order to resolve the conflict,
pursuant to 5 U.S.C. § 8123(a).
Where a case is referred to an IME for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently rationalized and based on a proper factual and medical background,
must be given special weight. 11
On October 24, 2019 Dr. Stark found that appellant had a negative impingement test of the
bilateral shoulders, no motor or sensory deficit of the upper extremities, reduced motion of the
shoulders bilaterally, worse on the left, and tenderness to palpation of the left shoulder. He further
found tenderness to palpation of the bilateral elbows. Dr. Stark discussed appellant’s history of
rotator cuff surgery in 2008 and noted that an x-ray obtained in 2017 had shown a loose anchor
over the left humeral diaphysis. He opined that he had no objective findings of the accepted
aggravation of impingement syndrome of the right shoulder, bilateral shoulder impingement with
rotator cuff tendinitis/bursitis, and a left rotator cuff tear, could resume his usual employment, and
required no further medical treatment. Dr. Stark related the diagnosed conditions of a bilateral
incomplete rotator cuff tear and bilateral synovitis tendinitis to degenerative disease of the
shoulders unrelated to appellant’s employment. He indicated that a suture anchor had come loose
after appellant’s 2008 surgery, but that its position had not changed and it was not producing
symptoms. Dr. Stark noted that recent MRI scans of both shoulders failed to show a complete
rotator cuff tear, but instead findings of degenerative joint disease. He related appellant’s reduced
shoulder motion to degenerative disease.
The Board finds that Dr. Stark provided insufficient rationale for his conclusion that
appellant no longer had disability or required medical treatment for his accepted employment
injury and, therefore, cannot constitute the special weight of medical evidence. While he found
that appellant’s continued shoulder symptoms were related to degenerative disease, Dr. Stark
failed to explain medically how the physical examination findings and history supported this
conclusion.12 When an IME fails to provide medical reasoning to support his or her conclusory
statements about a claimant’s condition, it is insufficient to resolve a conflict in the medical
evidence.13

11

R.O., Docket No. 19-0885 (issued November 4, 2019); Roger Dingess, 47 ECAB 123 (1995).

12

Id.

13

M.P., Docket No 16-0551 (issued May 19, 2017); James T. Johnson, 39 ECAB 1252 (1988).

6

The IME’s report must actually fulfill the purpose for which it was intended, it must resolve
the conflict in medical opinion. 14 If the report is vague, speculative, incomplete, or not
rationalized, it is OWCP’s responsibility to secure a supplemental report from the IME to correct
any defects.15 Consequently, the Board finds that OWCP did not meet its burden of proof to
terminate appellant’s compensation benefits.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and medical benefits, effective July 1, 2020, as he no longer had residuals or disability causally
related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 14, 2021
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

14

See S.T., Docket No. 16-1471 (issued August 18, 2017); M.G., Docket No. 14-1361 (issued December 8, 2014).

15
S.T., id. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.11d(2) (September 2010).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
DEPARTMENT OF THE NAVY, BUREAU OF
MEDICINE & SURGERY, San Diego, CA,
Employer
__________________________________________

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

Docket No. 17-1768
Issued: January 29, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 14, 2017 appellant filed a timely appeal from a June 5, 2017 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.2
ISSUE
The issue is whether appellant met his burden of proof to establish a bilateral great toe
condition causally related to the accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted evidence on appeal that was not part of the record when OWCP issued its June 5, 2017
decision. The Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final
decision. 20 C.F.R. § 501.2(c)(1). Therefore, the Board is precluded from reviewing this evidence for the first time
on appeal. Id.

FACTUAL HISTORY
On March 7, 2017 appellant, then a 49-year-old quality assurance specialist, filed an
occupational disease claim (Form CA-2) alleging the development of bilateral hallux limitus,
which he attributed to extensive walking and climbing stairs in the performance of duty. He first
became aware of his condition and its relationship to his federal employment on
October 22, 2016. Appellant advised that he was scheduled for surgery on March 15, 2017. The
employing establishment indicated that he last worked on December 29, 2016.
In a March 7, 2017 letter, the employing establishment controverted appellant’s claim. It
noted that he had not submitted any medical documentation is support of his claimed bilateral
great toe arthritic condition (hallux limitus). The employing establishment reported that
appellant had been on Family Medical Leave Act (FMLA) due to numerous medical issues. It
also noted that he had been on light duty for over a year due to a back condition and surgery.
This was supported by a March 6, 2017 statement from appellant’s supervisor.
In a letter dated March 17, 2017, OWCP requested additional factual and medical
evidence in support of appellant’s occupational disease claim. It attached a development
questionnaire and afforded him 30 days for a response.
Appellant responded to OWCP’s development questionnaire on March 21, 2017. He
indicated that, while working, he was constantly walking and climbing stairs to inspect buildings
and clinics. In October 2016 appellant started to use a cane to walk as he was denied reasonable
accommodations. He indicated that he had no activities outside his federal employment due to
chronic pain in his neck, back, feet, hands, and shoulders, for which he had several metal
implants. A copy of appellant’s October 26, 2016 reasonable accommodation request was
provided.
With respect to appellant’s foot condition, several reports from Dr. Alan K. Jones, a
podiatrist, were received. In May 19, and June 4 and 25, 2014 reports, Dr. Jones noted
appellant’s progress following left bunionectomy with decompression osteotomy. Appellant was
noted to be recovering well from the bunionectomy with no new complaints.
In an August 7, 2014 report, Dr. Jones provided an assessment of hallux limitus left lower
extremity with pain. He noted that the x-rays showed some degenerative changes associated
with the great toe joint. Alignment was excellent and appellant had good healing from the
osteotomy. Appellant was immobilized in a fracture walker.
In a September 11, 2014 report, Dr. Jones noted that appellant had continuing pain at the
surgery site on the left great toe and had pain associated with standing and walking, with some
swelling at times. Examination revealed mild discomfort with active and passive range of
motion of the left great toe joint with mild crepitus, but no erythema edema. An assessment of
hallux limitus and status post bunionectomy was provided. Appellant received an injection to his
great left toe joint.
In an October 24, 2014 report, Dr. Jones noted that the injections had been effective in
reducing appellant’s symptoms of hallux limitus. While appellant had some crepitus noted with

2

limited range of motion of the left great toe, the pain was not reproducible. X-rays continued to
show degeneration of the first metatarsophalangeal joint, especially on the distal aspect of the
metatarsal.
In a March 7, 2017 report, Dr. Jones continued to assess hallux limitus left lower
extremity. Appellant was noted to have significant hallux limitus on the left lower extremity
with limitation of motion and pain on forced dorsiflexion. X-ray examination showed significant
degeneration of the great toe joint on the left lower extremity with no other significant bony
pathology, subluxations, or dislocations noted. Appellant agreed to proceed with a Keller-type
bunionectomy with arthroplasty of the left great toe joint.
OWCP also received two May 23, 2017 medical excuse forms from Dr. Jones who
advised that appellant was excused from work beginning May 2, 2017, and that he would be able
to resume work without limitations, effective June 1, 2017.
By decision dated June 5, 2017, OWCP denied appellant’s occupational disease claim. It
found that the medical evidence of record failed to establish causal relationship between his
diagnosed condition (hallux limitus) and factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation, that an
injury was sustained in the performance of duty as alleged, and that any disability or specific
condition for which compensation is claimed is causally related to the employment injury.4
OWCP’s regulations define an occupational disease as a condition produced by the work
environment over a period longer than a single workday or shift.5 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit
the following: (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 employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.6

3

Supra note 1.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

5

20 C.F.R. § 10.5(q).

6

Victor J. Woodhams, 41 ECAB 345 (1989); see also J.H., Docket No. 17-1643 (issued June 23, 2017).

3

A medical report is of limited probative value if it is unsupported by medical rationale.7
Medical rationale includes a physician’s detailed opinion on the issue of whether there is causal
relationship between the claimant’s diagnosed condition and the implicated employment activity.
The opinion of the physician must be based on a complete factual and medical background of the
claim, 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 specific
employment activity or factors identified by the claimant.8 The belief of a claimant that a
condition was caused or aggravated by the employment is insufficient to establish causal
relationship.9
ANALYSIS
The Board finds that appellant has failed to meet his burden of proof to establish that his
claimed bilateral great toe condition (hallux limitus) is causally related to factors of his federal
employment.
Appellant alleged that he had bilateral hallux limitus. However, the evidence of record
establishes only a left-sided hallux limitus condition. Appellant alleged that his employment
duties of extensive walking and climbing of stairs caused and/or aggravated his condition.
OWCP accepted that the employment activities occurred as alleged, but denied his occupational
disease claim for hallux limitus as the medical evidence of record was insufficiently detailed to
establish a causal relationship between appellant’s diagnosed condition and his employment
duties.
In support of his occupational disease claim, appellant submitted medical reports from
Dr. Jones. In his reports dated May 19, and June 4 and 25, 2014, Dr. Jones noted appellant’s
progress following left bunionectomy with decompression osteotomy. These specific reports do
not address the claimed condition of bilateral hallux limitus.
In his reports dated August 7, September 11, and October 24, 2014, and March 7, 2017,
Dr. Jones diagnosed hallux limitus left lower extremity. He provided examination and x-ray
findings. Eventually surgery was recommended, to which appellant consented. However,
Dr. Jones did not provide any opinion regarding causal relationship between appellant’s
diagnosed bilateral hallux limitus and his federal employment. Without an opinion on causal
relationship, Dr. Jones’ reports are insufficient to meet appellant’s burden of proof.10
Thus, the Board finds that appellant has not submitted sufficient medical opinion
evidence to establish his occupational disease claim.11
7

T.F., 58 ECAB 128 (2006).

8

A.D., 58 ECAB 149 (2006).

9

Lourdes Harris, 45 ECAB 545, 547 (1994).

10

D.R., Docket No. 16-0528 (issued August 24, 2016).

11

See P.M., Docket No. 17-1320 (issued October 16, 2017).

4

Appellant may submit new evidence or argument with a 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. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish a bilateral
great toe condition causally related to his accepted employment exposure.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 29, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
San Diego, CA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-625
Issued: November 5, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 6, 2010 appellant, through her attorney, filed a timely appeal of a
December 9, 2009 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 consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
multiple chemical sensitivity or toxic encephalopathy due to her federal employment.
FACTUAL HISTORY
This case has previously been before the Board.1 Appellant, then a 48-year-old air traffic
control specialist, filed a claim for headaches and other symptoms following exposure to a

1

Docket No. 08-326 (issued August 14, 2008).

coworker’s cologne.2 On June 16, 2006 she filed a notice of occupational disease alleging that
she developed toxic encephalopathy and multiple chemical sensitivity due to exposure to a
coworker’s cologne beginning on April 20, 2006. Appellant stated that she became extremely ill
on May 11, 2006. By decision dated September 14, 2006, the Office denied her claim finding
that the medical evidence did not establish that her diagnosed condition of toxic encephalopathy
or multiple chemical sensitivity resulted from her exposure to a coworker’s cologne. Appellant
requested an oral hearing. On July 11, 2007 the hearing representative remanded the case for
additional development and doubling of her claims. The Office doubled the claims on
July 10, 2007.
By decision dated September 24, 2007, the Office denied appellant’s claim for an
occupational disease. It found that the weight of the medical opinion evidence rested with the
opinion of Dr. Thomas C. Bruff, Board-certified in preventative medicine and an Office referral
physician. Dr. Bruff found that appellant’s condition was not causally related to cologne
exposure at work. Appellant appealed this decision to the Board. In an August 14, 2008
decision, the Board found an unresolved conflict between Dr. Bruff and appellant’s physicians
Dr. Kaye H. Kilburn, Board-certified in preventative medicine, and Dr. Jeffrey Bruce Gordon, a
Board-certified family practitioner. The Board remanded the case for the Office to refer
appellant for an impartial medical examination. The facts of the case as set out in the Board’s
prior decision are incorporated herein by reference.
The Office referred appellant, a statement of accepted facts and list of questions for an
impartial medical evaluation to Dr. Michael J. Welch, a Board-certified allergist and
immunologist of professorial rank. In a March 30, 2009 report, Dr. Welch provided a detailed
2

On November 3, 2006 appellant, filed a notice of traumatic injury alleging that on October 18, 2006 she
developed a throbbing headache, numbness on the side of her body, shortness of breathe and ringing in her ears due
to exposure to noxious chemical odors from scented products (File No. xxxxxx700). By decision dated
December 19, 2006, the Office accepted her claim for temporary aggravation of toxic encephalopathy which
resolved by October 30, 2006.
Appellant filed a second traumatic-injury claim for exposure to noxious chemicals on December 15, 2006
alleging on December 5, 2006 she developed shortness of breath, throbbing headache, numbness on the side of her
face, ringing in her ears and “problems with her right eye” (File No. xxxxxx091). By decision dated September 6,
2007, the Office denied appellant’s claim finding that the medical evidence submitted was not sufficient to establish
a diagnosed condition.
Appellant filed a claim for chemical exposure on January 27, 2007 alleging that she was exposed to noxious
chemical odors from scented products (File No. xxxxxx353). By decision dated September 25, 2007, the Office
denied her claim finding that she had not established the employment exposure alleged. Appellant, through her
attorney, requested a telephonic hearing on September 29, 2007. By decision dated March 21, 2008, the Branch of
Hearings and Review denied appellant’s claim finding that she had not established that she was exposed to cologne
on January 27, 2007. Appellant requested a second telephonic hearing on March 29, 2008. By decision dated
June 9, 2008, the Branch of Hearings and Review denied appellant’s request for an oral hearing as a hearing had
previously been held on this issue of this claim.
For final adverse decisions of the Office issued prior to November 19, 2008, the Board’s review authority is
limited to appeals which are filed within one year from the date of issuance of the Office’s decision. See 20 C.F.R.
§ 501.3(d)(2). As preceding decisions of it were issued more than one-year prior to January 6, 2010, the date
appellant filed her appeal to the Board, the Board lacks jurisdiction to consider these decisions.

2

review of the medical records and noted that all blood tests and x-rays were reported as normal
except for a brain imaging study on November 6, 2006 that found “slight asymmetric decreased
uptake involving the temporal lobes, left side greater than the right side.” He noted that
appellant retired in September 2008 but still experienced episodes of headaches, shortness of
breath, palpitations and fatigue triggered by exposure to aromas, perfumes or irritants.
Dr. Welch found that her physical examination was normal with unremarkable findings in her
head, eyes, ears, nose and throat. Allergy skin testing was negative and pulmonary function
testing was normal. Dr. Welch diagnosed probable somatization disorder with histrionic
personality, migraines, allergic rhinitis, recurrent sinusitis, increased sensitivity to irritants such
as smells and perfumes, smell and taste differences and a history of right-sided central serous
retinopathy, resolved. He noted that migraines triggered by perfume beginning in 2006 could be
associated with various nonheadache neurological symptoms such as vision changes and
numbness. Appellant had a long-standing history of upper respiratory tract symptoms predating
1999 and had prior diagnoses of perennial allergic rhinoconjuncitivitis and inhalant allergy as
well as recurrent sinusitis in 2002. Dr. Welch stated that, by history, appellant had an altered or
heightened sensitivity to chemicals, smells and irritants as well as increased sensitivity to
irritants. Appellant symptoms were likely either confused with migraines or sinus problems or
greatly exaggerated by her psychosomatic disorder with histrionic personality as diagnosed on
June 29, 2006.
As to the diagnosis of multiple chemical sensitivity, Dr. Welch reviewed the medical
literature and concluded that this was not a legitimate diagnosis.3 He suggested that appellant’s
migraine condition, allergic rhinitis and tendency for recurrent sinusitis were associated with
increased sensitivity to smells and irritants in the environment which could aggravate her
conditions. Dr. Welch found no factual basis for the diagnosis of toxic encephalopathy, noting
that appellant was not exposed to any toxic chemical. The only abnormality was on the brain
scan which was very mildly abnormal and not substantiated through any clinical correlation.
Dr. Welch found that the record documented the diagnosis of central serous retinopathy in the
right eye, but that there was no evidence that this condition was due to an occupational exposure
or chemical or toxin exposure.
Dr. Welch opined that none of the medical conditions diagnosed in the record were
caused by work-related exposure to cologne or fragrances, as they were present before
February 2006. Appellant had a lifelong chemical sensitivity, allergic rhinitis and recurrent
sinusitis dating back to 2002 as well as a previous history of headaches. Dr. Welch stated that
there was no evidence to support that a permanent aggravation occurred. He noted that appellant
could have sustained a temporary aggravation of her upper respiratory allergies due to exposure
to cologne and perfume at work, but stated, “In addition, in my experience, any aggravation of
allergy symptoms from irritants rarely leads to a person needing to stop work, either on a
temporary or certainly, on a permanent basis.” In regard to her migraines, Dr. Welch opined that
annoying perfumes could lead to a situation where appellant would have temporary disability
due to a severe migraine and that her disability during May and June 2006 due to a migraine was

3

Dr. Welch included copies of the medical publications with his report.

3

reasonable.4 He concluded that she could work in an environment where her coworkers
minimized the use of perfume and cologne and other chemicals in the workplace were kept to a
minimum.
By decision dated May 14, 2009, the Office denied appellant’s claim for multiple
chemical sensitivity and toxic encephalopathy based on Dr. Welch’s opinion.
On May 19, 2009 appellant, through her attorney, requested a telephonic hearing that was
held on September 22, 2009. She testified that she retired on September 12, 2008 and that her
conditions had improved. Appellant stated that Dr. Welch did not perform any allergy testing for
perfumes or chemicals. Her attorney contended that Dr. Welch’s report was insufficient to
represent the weight of medical opinion because he did not perform appropriate testing and had a
prejudice against finding multiple chemical sensitivity. Dr. Welch argued that appellant’s claim
should be accepted.
By decision dated December 9, 2009, an Office hearing representative found that
appellant’s diagnosed conditions were not caused or permanently aggravated by her accepted
employment exposures.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act5 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disabilities and/or specific conditions for
which compensation is claimed are causally related to the employment injury.6 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (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
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The evidence required to establish causal relationship is rationalized medical opinion evidence,
4

The Office has not issued a final decision addressing this issue and the Board will not consider this for the first
time on appeal. 20 C.F.R. § 501.2(c).
5

5 U.S.C. §§ 8101-8193.

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

Victor J. Woodhams, 41 ECAB 345 (1989).

4

based upon a complete factual and medical background, showing a causal relationship between
the claimed condition and identified factors. The belief of a claimant that a condition was caused
or aggravated by the employment is not sufficient to establish causal relation.8
In situations were there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.9 Medical rationale includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment activity. The opinion of the physician must
be based on a complete factual and medical background of the claim, 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 specific employment activity or factors
identified by the claimant.10
ANALYSIS
The Board previously found a conflict of medical opinion. The Office referred appellant
to Dr. Welch, a Board-certified allergists and immunologist of professorial rank. In a March 30,
2009 report, Dr. Welch provided a detailed review of appellant’s medical records, treatment
noting normal diagnostic blood studies and x-rays. He found that the only abnormal test was a
brain imaging study of November 6, 2006 which noted a slight asymmetric decreased uptake
involving the temporal lobes, greater on the left side. Dr. Welch examined appellant and found
no abnormalities, noting that she retired in September 2008 but still had episodes of headaches,
respiratory symptoms and fatigue triggered by exposure to smells, perfumes or irritants. He
performed allergy skin testing as well as pulmonary function testing and found the results to be
normal. Dr. Welch provided several diagnoses, including probable somatization disorder with
histrionic personality, migraines, allergic rhinitis, recurrent sinusitis, increased sensitivity to
irritants such as smells and perfumes, smell and taste differences and history of right-sided
central serous retinopathy, resolved.
Dr. Welch discussed each diagnosis and noted that the majority predated the May 12,
2006 claim of injury. He disagreed with the diagnosis of multiple chemical sensitivity, stating
that it was not generally accepted by the medical community. Dr. Welch suggested that
appellant’s migraine condition, allergic rhinitis and tendency for recurrent sinusitis were
associated with increased sensitivity to smells and irritants and predated her 2006 employment
injury. He concluded that appellant’s respiratory and other symptoms were likely confused with
migraines or sinus problems or greatly exaggerated by her psychosomatic disorder with
histrionic personality. Dr. Welch did not find a basis for the diagnosis of toxic encephalopathy
and noted that appellant was not exposed to any toxic chemicals. He also emphasized that the
brain scan was very mildly abnormal and that these findings were not substantiated through
8

Lourdes Harris, 45 ECAB 545, 547 (1994).

9

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

10

A.D., 58 ECAB 149 (2006).

5

clinical correlation. Dr. Welch concluded that appellant’s central serous retinopathy in the right
eye was not due to an occupational exposure or chemical or toxin exposure based on the medical
records.
Dr. Welch found no evidence to support that appellant had sustained a permanent
aggravation which occurred of her migraines, allergic rhinitis and recurrent sinusitis. He
concluded that she sustained temporary aggravation of her upper respiratory allergies due to
exposure to cologne and perfume at work and stated, “In addition, in my experience, any
aggravation of allergy symptoms form irritants rarely leads to a person needing to stop work,
either on a temporary or, certainly, on a permanent basis.” Dr. Welch opined that appellant
could have sustained temporary disability due to migraines based on exposure to annoying
perfumes and found that her intermittent disability during May and June 2006 due to migraines
was reasonable.
The Board finds that Dr. Welch’s report is entitled to the special weight of the medical
evidence and resolved the conflict of medical opinion evidence. Dr. Welch provided a very
detailed and comprehensive report addressing appellant’s diagnosed conditions. He concluded
that none of these conditions were caused or permanently aggravated by her work exposures to
perfumes and colognes. Dr. Welch based his conclusion on an extensive review of the medical
records as well as providing reasoning for each of his conclusions. He relied on the medical
literature in finding that appellant did not sustain a multiple chemical sensitivity due to her
employment and also found that there was no confirmed objective evidence of toxic
encephalopathy. Dr. Welch also noted that the remainder of appellant’s conditions including
migraines, allergic rhinitis, recurrent sinusitis and increased sensitivity to irritants such as smells
and perfumes predated her employment exposure in 2006 based on his review of the medical
records. He offered his opinion that these conditions were not permanently aggravated by
appellant’s employment exposures. Dr. Welch based his opinion on his extensive medical
expertise and the medical records. The Board finds that this report contains the proper factual
history, detailed findings and medical reasoning in support of the conclusions to constitute the
weight of the medical evidence. The Board further finds that the Office properly denied
appellant’s claim for multiple chemical sensitivity and toxic encephalopathy based on
Dr. Welch’s report.11
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
developed either multiple chemical sensitivity or toxic encephalopathy due to exposures during
her federal employment.

11

The Board notes that Dr. Welch supported intermittent periods of total disability in May and June 2006 due to a
temporary aggravation of appellant’s preexisting migraines due to the accepted exposures to perfume and cologne.

6

ORDER
IT IS HEREBY ORDERED THAT the December 9, 2009 decision of Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Long Beach, CA, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-810
Issued: May 3, 2007

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 February 21, 2006 appellant filed a timely appeal from a February 3, 2006 decision of
the Office of Workers’ Compensation Programs that denied modification of an August 29, 2005
Office decision terminating her compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to justify termination of
appellant’s wage-loss and medical benefits effective August 29, 2005; and (2) whether appellant
established that she had any continuing employment-related disability or condition after
August 29, 2005.
FACTUAL HISTORY
On March 18, 1983 appellant, then a 32-year-old food inspector, filed a traumatic injury
claim alleging that, on March 7, 1983, she sustained an injury to her sternum when she was

examining a steer head. The Office accepted the claim for strain and separation at the
costosternal junction and paid appropriate compensation. Appellant stopped work on
March 8, 1983.1
Appellant came under the care of Dr. Gilbert H. Person, a Board-certified radiologist,
who treated appellant since March 8, 1983. In reports dated March 8 to May 31, 1983,
Dr. Person treated appellant for her work-related rib injury and diagnosed a strain or a separation
of the costosternal junction of the right side, the third, fourth and fifth ribs and advised that
appellant was totally disabled. In reports dated July 5 to October 4, 1983, he indicated that
appellant sustained recurrent dislocation of the anterior ribs from the upper sternum bilaterally
and was totally disabled. On December 30, 1983 Dr. Person determined that appellant was
permanent and stationary.
Appellant also submitted reports from Dr. James P. Pemberton, a Board-certified
orthopedic surgeon, dated December 31, 1984 to November 18, 1987. Dr. Pemberton diagnosed
chronic costochondritis and noted that conservative modalities failed and appellant was
considering surgical intervention. In reports dated July 2 to September 30, 1992, he diagnosed
chronic costochondritis and noted that a tomogram of appellant’s sternum was normal.
Dr. Pemberton opined that most of appellant’s costochondritis and sternoclavicular joint
problems were related to her large breasts and he recommended a reduction mammoplasty. In
the course of developing the claim, the Office also referred appellant to several physicians.2
Appellant came under the treatment of Dr. Christopher B. Ryan, a Board-certified
physiatrist. In a report dated July 27, 1998, Dr. Ryan noted a history of injury and treatment. He
diagnosed myofascial syndrome involving the neck, shoulders and thorax related to the several
work injuries appellant sustained in the early 1980’s and opined that appellant was totally
disabled. In a June 8, 2000 report, Dr. Ryan noted that a computerized tomography (CT) scan of
the sternoclavicular joints and proximal sternum performed on August 5, 1999 revealed
degenerative abnormalities.
On January 11, 2002 he diagnosed sprain/strain of the
chondrosternal region, cervical sprain with possible displacement of the cervical disc and chronic
sprain of the acromioclavicular joint and sternoclavicular joint. Dr. Ryan opined that all the
conditions were causally related to appellant’s original work injury. In a report dated October 4,
2002, he noted that an August 22, 2002 bone scan revealed no abnormalities. Dr. Ryan
1

On October 22, 1980 appellant injured her left shoulder at work which the Office accepted for left shoulder
girdle strain and left pectoralis major muscle strain, File No. A13-629056. She filed a claim for an injury sustained
in a fall at work on October 14, 1982, which the Office accepted for multiple contusions of the ribs, File No. A13694772. These claims were consolidated into the current claim before the Board.
2

On January 8, 1996 appellant was referred to a second opinion physician, Dr. David L. Crossen, a Boardcertified orthopedist, to determine if she had any continuing residuals of her work-related condition. In reports dated
January 24 and March 27, 1996, Dr. Crossen determined that appellant did not have residuals of her work-related
condition and could return to work in a light-duty sedentary position. On May 10, 1996 the Office proposed to
terminate appellant’s benefits and on June 11, 1996 finalized the decision. Appellant requested reconsideration on
September 19, 1996, September 30, 1997 and October 19, 1998, and the Office denied modification in decisions
dated October 1, 1996, October 28, 1997 and October 30, 1998. On April 7, 1999 appellant requested
reconsideration and submitted additional medical evidence. In a decision dated September 28, 1999, the Office
vacated the prior decisions and determined that appellant had residuals of her work-related injury and reinstated
benefits.

2

discounted these findings, noting that appellant’s condition would produce intermittent findings.
He opined that appellant continued to be totally disabled.
On October 17, 2003 the Office referred appellant to Dr. Christopher G. Palmer, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a December 11, 2003 report,
Dr. Palmer discussed appellant’s work history. He noted examination findings of a limited range
of motion of the neck on flexion, mild tenderness along her sternoclavicular joints bilaterally
without deformity or swelling, and tenderness along the anterior chest wall and sternum.
Dr. Palmer opined that there was no objective evidence of residuals of a strain or separation at
the costosternal junction. However, appellant had subjective pain and mild tenderness in those
areas. Dr. Palmer noted that no x-ray interpretations substantiated a subluxation of the ribs or a
separation of her sternoclavicular joint. He diagnosed chronic pain syndrome or chronic
costochondritis; however, the normal bone scan ruled out any significant ongoing degenerative
inflammatory process. Dr. Palmer indicated that appellant could return to work full time in a
clerical administrative position to exclude heavy lifting.
Appellant submitted a November 5, 2003 report from Dr. Ryan, who diagnosed
sprain/strain of the chondrosternal region, cervical sprain, chronic sprain of the
acromioclavicular joint and sternoclavicular joint and opined that these conditions were due to
her accepted work injury. Dr. Ryan further advised that appellant was totally disabled.
The Office found that a conflict of medical opinion arose between Dr. Ryan, for
appellant, and Dr. Palmer, for the Office. To resolve the conflict, on December 31, 2003, the
Office referred appellant to Dr. Jeffrey J. Sabin, a Board-certified orthopedic surgeon, selected as
the impartial medical specialist.
On January 29, 2004 appellant, through her attorney, objected to the selection of
Dr. Sabin as the referee physician. She indicated that Dr. Sabin was located 119 miles from her
home, he was not chosen in accordance with the independent rotation selection process and was
known to be defense oriented. In a letter dated February 9, 2004, the Office indicated that it had
adhered to program procedures for selection of referee physicians. The Office noted that
Dr. Sabin was properly selected by the rotational system.
In a report dated February 20, 2004, Dr. Sabin noted that he reviewed the records
provided and performed a physical examination of appellant. He listed a history of appellant’s
work-related injury. Dr. Sabin noted findings upon physical examination of abnormal range of
motion of the upper extremities with an inability to lift her shoulders above her head or abduct
past 80 degrees bilaterally. He noted pain to palpation of the paraspinous cervical muscles and
shoulders, severe pain to palpation of the sternoclavicular joint and costochondral junction
bilaterally. Dr. Sabin advised that there were no objective findings of a sternoclavicular and rib
injury, only subjective findings on examination. He opined that the bone scan revealed no
abnormalities and was indicative of no active process in the sternoclavicular joint or the rib
costochondral junction. Dr. Sabin advised that appellant could not return to her position as a
meat inspector; however, she could perform a sedentary position as a telephone operator for
eight hours per day. He opined that appellant’s condition was in part due to her work-related
injury, but was magnified by significant depression and neck, shoulder and knee discomfort.

3

In a letter dated February 26, 2004, the Office requested that Dr. Sabin clarify whether
appellant had any objective findings of the accepted condition of strain and separation at the
costosternal junction, whether there were residuals of her accepted work injury of 1983 and
whether she was disabled from her date-of-injury position as a meat inspector.
In a supplemental report dated February 27, 2004, Dr. Sabin noted that there were no
objective findings of the accepted condition of strain and separation at the costosternal junction.
He further noted that there were no objective residuals of the accepted work injury of 1983.
Dr. Sabin opined that appellant continued to be disabled from her date-of-injury position due to
her subjective complaints.
On March 2, 2004 the Office issued a notice of proposed termination of appellant’s
compensation benefits on the grounds that Dr. Sabin’s reports dated February 20 and 27, 2004
established no residuals of the accepted employment injury.
By letter dated March 3, 2004, appellant requested that the Office expand her claim to
include strain of the costosternal region, cervical strain, displacement of the cervical disc,
acromioclavicular joint sprain and chronic strain of the sternoclavicular joint. In a February 11,
2004 report, Dr. Ryan noted appellant’s worsening symptoms of pain, stiffness and limited range
of motion. He disagreed with the findings of the second opinion physician, Dr. Palmer, and
noted that not all medical diagnoses are supported by objective findings. In a report dated
March 30, 2004, Dr. Ryan disagreed with the opinion of Dr. Sabin and noted that there were
objective findings of disability as noted on a CT scan which showed degeneration of the
sternoclavicular joint.
On April 6, 2004 the Office terminated appellant’s compensation benefits effective that
same date on the grounds that the weight of the medical evidence established that she had no
continuing disability resulting from her accepted employment injury.
On April 16, 2004 appellant requested an oral hearing before an Office hearing
representative. The hearing was held on November 17, 2004. In a statement dated June 30,
2004, appellant asserted that the referee physician was not selected according to proper Office
procedure, that he was located too far from her residence and was chosen because of his bias
against claimants. Appellant indicated that Dr. Sabin was deposed on August 23, 2004 and
provided testimony that was in conflict with his opinion on February 20, 2004. She indicated
that Dr. Sabin testified that the diagnosis of costochondritis would be based on subjective
findings of pain and that appellant’s physicians were correct in surmising that there was
costochondritis present since she experienced pain on palpation of the anterior breast bone.
In a letter dated December 16, 2004, the Office noted that the medical evidence did not
support a finding that the additional conditions of strain of the costosternal region, cervical
strain, displacement of the cervical disc, acromioclavicular joint sprain and chronic strain of the
sternoclavicular joint were causally related to her work injury.
In a decision dated February 14, 2005, the hearing representative set aside the Office’s
April 6, 2004 decision and remanded the matter for further development. The hearing
representative determined that Dr. Sabin’s deposition testimony of August 23, 2004 was

4

inconsistent with his opinion as set forth in his medical reports. The Office was instructed to
seek clarification from Dr. Sabin with regard to whether appellant’s accepted condition remained
active and whether the accepted condition was disabling.
By letter dated May 17, 2005, the Office requested clarification from Dr. Sabin. It asked
that he address whether the accepted condition of strain and separation at the costosternal
junction remained active and whether these conditions were disabling. The Office further
inquired as to whether there were current findings of cervical strain, displacement of the cervical
disc or acromioclavicular joint sprain and, if so, whether these conditions were causally related
to appellant’s work injury. The Office provided Dr. Sabin with a copy of the statement of
accepted facts, his deposition testimony and the medical articles provided to the physician during
his deposition.
In a report dated May 26, 2005, Dr. Sabin opined that there were no objective findings
that appellant’s accepted conditions of strain and separation of the costosternal junction were
active and opined that appellant was not disabled. He noted subjective findings of decreased
range of motion of appellant’s neck and a slow and deliberate gait. Dr. Sabin indicated that there
were no studies presented concerning appellant’s neck or objective evidence of cervical disc
displacement. He did not see physical evidence of severe crepitus over the acromioclavicular
joint or severe acromioclavicular joint arthritis on an x-ray. In a report dated June 17, 2005,
Dr. Sabin indicated that he received the transcript of his deposition and the medical articles
reviewed during his deposition. After reviewing the articles, his opinion as set forth in his report
dated May 26, 2005 would not change. Dr. Sabin disagreed with Dr. Ryan’s opinion with regard
to the ability of bone scanning to detect traumatic arthritis and opined that bone scans were
helpful in detecting arthritis. He further opined that there was no objective evidence to support a
cervical strain or displacement of the cervical disc or acromioclavicular joint sprain. Dr. Sabin
referenced a February 3, 2000 MRI scan of the cervical spine which showed degenerative
changes from C4-7. He referenced an MRI scan of the left shoulder dated February 3, 2000
which revealed tendinopathy of the supraspinatus tendon but no acromioclavicular joint
arthritides. Dr. Sabin suggested that appellant’s treating physician perform additional testing to
determine if appellant had true acromioclavicular pain.
In a letter dated July 5, 2005, the Office advised Dr. Sabin to perform all the tests and
studies that he would deem necessary to determine if appellant had a work-related
acromioclavicular joint condition. In a statement dated July 7, 2005, Dr. Sabin noted that he
would not perform additional tests because he would be construed as a treating physician rather
than as an independent examiner. He opined that in order to determine if appellant had
acromioclavicular joint etiology, her treating physician could perform selective
acromioclavicular joint injections with a placebo in a blind fashion to determine if there truly
was acromioclavicular joint discomfort.
On July 28, 2005 the Office issued a notice of proposed termination of appellant’s
benefits on the grounds that Dr. Sabin’s reports dated May 26, June 17 and July 7, 2005
established no residuals of the work-related employment injury.
By decision dated August 29, 2005, the Office terminated appellant’s medical benefits
and compensation for wage loss effective that date on the grounds that the weight of the medical

5

evidence established that she had no continuing disability resulting from her accepted
employment injury.
In a letter dated September 14, 2005, appellant requested reconsideration. She asserted
that the Office improperly concluded that objective evidence was limited to concrete
physiological data contending that objective evidence also included any evidence that an
examining doctor could discover and substantiate. In an August 9, 2005 report, Dr. Ryan noted
appellant’s continued complaints of pain in the left shoulder girdle and into her chest and ribs
and opined that she continued to be disabled. He performed a Brief Battery for Health
Improvement test which revealed that psychological factors appeared to be a large component of
appellant’s chronic pain manifestation. In an August 9, 2005 report, Dr. Ryan disagreed with
Dr. Sabin’s opinion and asserted that some diagnoses did not have objective findings.
In a decision dated February 3, 2006, the Office denied modification of the August 29,
2005 decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.4
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for strain and separation at costosternal junction
and paid appropriate compensation. The Office reviewed the medical evidence and determined
that a conflict in medical opinion existed between appellant’s attending physician, Dr. Ryan,
Board-certified in physical medicine and rehabilitation, who disagreed with the Office referral
physician, Dr. Palmer, a Board-certified orthopedist, concerning whether appellant had any
continuing work-related condition and whether she could return to work. Consequently, the
Office referred appellant to Dr. Sabin to resolve the conflict.5
The Board finds that, under the circumstances of this case, the opinion of Dr. Sabin is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant’s work-related condition has ceased.

3

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

4

Mary A. Lowe, 52 ECAB 223 (2001).

5

See 5 U.S.C. § 8123(a).

6

Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.6
In a February 20, 2004 report, Dr. Sabin reviewed appellant’s history, reported findings
and noted that appellant exhibited no objective complaints or definite work-related abnormality
in her condition. He opined that there were no objective findings upon physical examination to
support that appellant had any residuals of the March 7, 1983 work injury. Dr. Sabin opined that
the bone scan revealed no abnormalities which were indicative of any active process in the
sternoclavicular joint or the rib costochondral junction. He opined that, based on the absence of
objective findings on examination and from a review of the medical records and diagnostic
studies, appellant could not return to her position as a meat inspector; however, she could
perform a position as a telephone operator for eight hours per day. Dr. Sabin indicated that
appellant’s condition was in part due to her work-related injury, but was magnified by
depression, neck, shoulder and knee discomfort. In supplemental reports dated February 27,
2004 to July 7, 2005, he noted that there were no objective findings or residual of the workrelated injury of March 7, 1983 which was accepted for strain and separation at the costosternal
junction. Dr. Sabin opined that appellant was not disabled from the work-related condition. He
further determined that there was no objective evidence to support a cervical strain or
displacement of the cervical disc or acromioclavicular joint sprain.
The Board finds that Dr. Sabin had full knowledge of the relevant facts and evaluated the
course of appellant’s condition. He is a specialist in the appropriate field. At the time benefits
were terminated, Dr. Sabin clearly opined that appellant had absolutely no work-related reason
for disability. His opinion as set forth in his reports of February 20, 2004 to July 7, 2005 are
found to be probative evidence and reliable. The Board finds that Dr. Sabin’s opinion constitutes
the weight of the medical evidence and is sufficient to justify the Office’s termination of
benefits.7
LEGAL PRECEDENT -- ISSUE 2
If the Office meets its burden of proof to terminate appellant’s compensation benefits, the
burden shifts to appellant to establish that she had continuing disability causally related to her
accepted employment injury.8 To establish a causal relationship between the condition, as well
as any disability claimed and the employment injury, the employee must submit rationalized
medical opinion evidence, based on a complete factual background, supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
6

Solomon Polen, 51 ECAB 341 (2000).

7

In cases where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).
8

Manuel Gill, 52 ECAB 282 (2001); George Servetas, 43 ECAB 424, 430 ( 1992).

7

physician must be 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 claimant. The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.9
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she has any continuing residuals of
her lumbar radiculopathy causally related to her accepted employment injuries on or after
August 29, 2005. She submitted an August 9, 2005 report from Dr. Ryan who noted her
continued complaints of pain in the left shoulder girdle and into her chest and ribs and opined
that she continued to be disabled. Dr. Ryan performed a Brief Battery for Health Improvement
test which revealed that psychological factors were a large component of appellant’s chronic
pain. He also submitted a report dated August 9, 2005 in response to Dr. Sabin’s reports dated
May 26 to July 7, 2005 and disagreed with his findings and specifically noted that contrary to
Dr. Sabin’s opinion some diagnoses did not have objective findings. Dr. Ryan indicated that
Dr. Sabin made many contradictory statements in his reports. However, he did not specifically
address how any continuing condition or medical restrictions were causally related to the
accepted March 7, 1983 employment injury. The Board has found that vague and unrationalized
medical opinions on causal relationship have little probative value.10 Additionally, Dr. Ryan’s
reports are similar to his prior reports which gave rise to a conflict in medical opinion.11
None of the reports submitted by appellant after the termination of benefits included a
rationalized opinion regarding the causal relationship between her current condition and her
accepted work-related injury of March 7, 1983.
On appeal, appellant asserts that Dr. Sabin, provided inconsistent and contradictory
opinions. However, the Board finds that Dr. Sabin found that there were no objective findings
that appellant’s accepted work-related conditions of strain and separation at costosternal junction
were active or that appellant was not disabled from this condition. The record reveals that the
Office conducted additional development as directed by the hearing representative and obtained
clarification from Dr. Sabin regarding statements made in a deposition and his medical reports
provided to the Office.12 The Office properly determined that the weight of the medical evidence
9

See Connie Johns, 44 ECAB 560 (1993); James Mack, 43 ECAB 321 (1991).

10

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
11

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Ryan’s reports do not contain new findings or rationale
upon which a new conflict might be based.
12

When the Office secures an opinion from an impartial medical specialist for the purpose of resolving a conflict
in the medical evidence and the opinion from the specialist requires clarification or elaboration, the Office has the
responsibility to secure a supplemental report from the specialist for the purpose of correcting a defect in the original
report. Phillip H. Conte, 56 ECAB ___ (Docket No. 04-1524, issued December 22, 2004).

8

rested with the opinion of Dr. Sabin who opined that appellant had no disability causally related
to her accepted work injury.
Appellant also contends that the Office’s “questions for resolution” which were sent to
Dr. Sabin were leading and improperly placed the burden of proof for providing objective
evidence of continuing residuals of her work injury on appellant. The Office noted that the
regulations at 20 C.F.R. § 10.501(a)(2) provide: “The physician’s opinion must be based on the
facts of the case and the complete medical background of the employee, must be one of
reasonable medical certainty and must include objective findings in support of its conclusions.
Subjective complaints of pain are not sufficient, in and of themselves, to support payment of
continuing compensation.” Contrary to appellant’s contention, the Office’s questions do not
hold the appellant to an improper burden of proof. The Office advised the physician to consider
objective and subjective findings, noting that subjective findings alone are not sufficient to prove
continuing residuals. Therefore, the Board finds this argument to be without merit.
Appellant asserted that the Office failed to select a referee physician in accordance with
the independent rotational selection process and that Dr. Sabin was defense oriented. However,
she submitted no evidence to support her assertion that any particular aspect of the selection
created bias. The Board has held that an impartial medical specialist properly selected under the
Office’s rotational procedures will be presumed unbiased and the party seeking disqualification
bears the substantial burden of proving otherwise; mere allegations are insufficient to establish
bias.13 Appellant’s mere allegation of bias on the part of Dr. Sabin does not establish the fact.
Therefore, the Board finds this argument to be without merit.
Finally appellant asserts that the Office ignored evidence supporting acceptance of
additional conditions as work related. However, as the Office did not issue a final decision with
regard to appellant’s claim for strain of the costosternal region, cervical strain, displacement of
the cervical disc, acromioclavicular joint sprain and chronic strain of the sternoclavicular joint,
the Board does not have jurisdiction over the matter.14
CONCLUSION
The Board finds that the Office has met its burden of proof to terminate benefits effective
November 29, 2004. The Board further finds that appellant failed to establish that she had any
continuing disability after November 29, 2004.

13

See William Fidurski, 54 ECAB 146 (2002).

14

See 20 C.F.R. § 501.2(c).

9

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 3, 2006 and August 29, 2005 are affirmed.
Issued: May 3, 2007
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

10