United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF THE ARMY, ARKANSAS
NATIONAL GUARD, CAMP ROBINSON,
North Little Rock, AR, Employer
__________________________________________

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Appearances:
James W. Stanley, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0207
Issued: December 22, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 23, 2020 appellant, through counsel, filed a timely appeal from a
November 2, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 2, 2020 decision, appellant submitted additional evidence to OWCP
and on appeal to the Board. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is
limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before
OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is
precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include additional conditions as causally related to the accepted March 30, 2005
employment injury.
FACTUAL HISTORY
This case has previously been before the Board on a different issue.4 The facts and
circumstances of the case as set forth in the Board’s prior decision are incorporated herein by
reference. The relevant facts are as follows.
On March 31, 2005 appellant, then a 37-year-old painter, filed a traumatic injury claim
(Form CA-1) alleging that on March 30, 2005 he sustained a lumbar sprain/strain due to lifting
sand bags off a pallet while in the performance of duty. OWCP initially accepted that he sustained
a lumbar sprain/strain and later expanded the acceptance of his claim to include displacement of
lumbar intervertebral discs at L4-5 and L5-S1 without myelopathy, other complications due to
other internal orthopedic device, implant and graft and disorders of the left sacrum. Appellant
stopped work for various periods, commencing March 30, 2005, and OWCP paid appellant wageloss compensation for periods of disability from work.
OWCP authorized the performance on December 9, 2005 of lumbar laminectomy and
fusion surgery at L4-5 and L5-S1.
On February 11, 2008 appellant underwent additional OWCP-authorized surgery at L4-5
and L5-S1, including re-exploration of lumbar fusion with removal of pedicle screws at L4 and
L5.
On March 19, 2008 OWCP expanded the acceptance of the claim to include complications
due to internal orthopedic device, implant, and graft.
After developing the medical evidence, OWCP expanded the acceptance of appellant’s
claim on November 16, 2010 to include disorder of the left side of his sacroiliac joint.
On July 24, 2019 appellant requested that the acceptance of his claim be expanded to
include additional right leg conditions causally related to the accepted March 30, 2005
employment injury. In a July 26, 2019 report, Dr. Kenneth Rosenzweig, a Board-certified
orthopedic surgeon, diagnosed postlaminectomy syndrome with chronic L5 radiculopathy and
pain confirmed by nerve testing involving both the right and left leg; and S1 joint dysfunction as
an adjacent level syndrome from a lumbar spinal fusion status post hardware removal.
On November 8, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions, for a second opinion examination and evaluation with
Dr. Jason G. Stewart, a Board-certified orthopedic surgeon. It requested that Dr. Stewart evaluate
whether the acceptance of appellant’s claim should be expanded to include additional conditions
causally related to the accepted March 30, 2005 employment injury.

4

Docket No. 12-0645 (issued August 7, 2012).

2

In a December 9, 2019 report, Dr. Stewart discussed appellant’s factual and medical
history and reported the findings of his physical examination. He advised that appellant had no
tenderness over the lumbar region upon palpation, and that range of motion of the lumbar spine
revealed mild discomfort. Dr. Stewart reported that bilateral Faber testing was positive, bilateral
supine straight leg raising testing was positive at 10 degrees, and seated straight leg raising testing
was negative. He diagnosed fusion of the spine and postoperative arthrodesis, and noted that the
herniated nucleus pulposus at L4-5 was resolved by the surgical removal of hardware. Dr. Stewart
opined that there was no objective evidence to support a diagnosis of sacroiliac joint disorder
connected to the March 30, 2005 employment injury. He reported that he was unable to establish
additional diagnoses connected to the March 30, 2005 employment injury, specifically noting that
no right lower extremity pathology was found in connection with that injury.
By decision dated December 31, 2019, OWCP denied appellant’s claim, finding that he
had not met his burden of proof to expand the acceptance of his claim to include additional
conditions as causally related to the accepted March 30, 2005 employment injury. It determined
that the December 9, 2019 opinion of Dr. Stewart carried the weight of the medical evidence.
On January 10, 2020 appellant, through counsel, requested reconsideration of the
December 31, 2019 decision.
Appellant submitted a January 21, 2020 report from Dr. Kevin Collins, an attending Boardcertified orthopedic surgeon, who discussed appellant’s factual and medical history and reported
the findings of his physical examination. Dr. Collins diagnosed herniated nucleus pulposus at L4,
L5, and S1 with radiculopathy, S1 joint dysfunction, and chronic back pain due to trauma. He
opined that appellant’s lifting and handling of heavy sand bags on March 30, 2005, necessitated
lumbar surgery and that appellant now had postlaminectomy syndrome affecting both lower
extremities. Dr. Collins indicated that diagnostic testing confirmed that appellant’s L5
radiculopathy was worse in the right lower extremity than in the left lower extremity.
In August 2020 OWCP determined that there was a conflict in the medical opinion
evidence between Dr. Stewart and Dr. Collins regarding whether the acceptance of appellant’s
claim should be expanded to include additional conditions cau sally related to the accepted
March 30, 2005 employment injury. In order to resolve the conflict, it referred appellant, pursuant
to section 8123(a) of FECA (5 U.S.C. § 8123(a)), to Dr. Michael S. Clarke, a Board-certified
orthopedic surgeon, for an impartial medical examination and an opinion on the matter. OWCP
provided Dr. Clarke with a SOAF and a series of questions.
In a September 8, 2020 report, Dr. Clarke detailed appellant’s factual and medical history
and reported the findings of his physical examination. He discussed appellant’s lumbar surgeries
and diagnostic testing, and noted that appellant presently reported having persistent low back pain
with occasional referral to his lower extremities. Dr. Clarke indicated that, upon examination, the
strength of right-sided dorsiflexion was questionably slightly decreased in comparison to the left
side without confirmation through atrophy. He noted that straight leg testing bilaterally produced
back pain, but no significant radicular pain. Dr. Clarke indicated that appellant’s “back situation
can be described as an exacerbation of the preexisting congenital condition of L5 [-]S1
spondylolisthesis with degenerative disc disease.” He advised that spondylolisthesis, due to pars
interarticularis defects, was a congenital deficit, which could cause instability and subsequent
degenerative disc disease. Dr. Clarke opined that his examination of appellant showed minimal
objective findings and noted, “[n]o significant radiculopathy of the right lower extremity could be
3

demonstrated.” He noted that x-rays demonstrated a herniated degenerative disc at L4-5 and that
a magnetic resonance imaging (MRI) scan showed facet hypertrophy contributing to the abutment
of the bilateral exiting L5 nerves.
By decision dated November 2, 2020, OWCP denied modification of its December 31,
2019 decision. It found that the special weight of the medical evidence regarding appellant’s
expansion claim rested with the opinion of Dr. Clarke, the impartial medical specialist.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury. 5 The medical evidence required to establish causal relationship
between a specific condition, and the employment injury is rationalized medical opinion evidence.
The opinion of the 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. 6
The Board has held that when the medical evidence supports an aggravation or acceleration
of an underlying condition precipitated by working conditions or injuries, such disability is
compensable. 7 However, the normal progression of untreated disease cannot be stated to constitute
“aggravation” of a condition merely because the performance of normal work duties reveals the
underlying condition.8
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.9 For a conflict to arise, the opposing physicians’ opinions must be of
virtually equal weight and rationale. 10 In situations where the case is properly referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist,
if sufficiently well rationalized and based upon a proper factual background, must be given special
weight.11

5

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B.,
Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
6

See E.J., Docket No. 09-1481 (issued February 19, 2010).

7

C.H., Docket No. 17-0488 (issued September 12, 2017).

8

Id.

9

5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued
May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
10

P.R., Docket No. 18-0022 (issued April 9, 2018).

11

See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31
ECAB 1010 (1980).

4

In a situation where OWCP secures an opinion from an impartial medical examiner for the
purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental report
from the examiner for the purpose of correcting the defect in the original opinion. 12
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP properly determined that there was a conflict in the medical opinion between
Dr. Stewart, an OWCP referral physician, and Dr. Collins, an attending physician, regarding
whether the acceptance of appellant’s claim should be expanded to include additional conditions
causally related to the accepted March 30, 2005 employment injury. In order to resolve the
conflict, it properly referred appellant, pursuant to section 8123(a) of FECA, to Dr. Clarke for an
impartial medical examination and an opinion on the matter.13
In a September 8, 2020 report, Dr. Clarke noted that appellant presently reported having
persistent low back pain with occasional referral to his lower extremities. He indicated that, upon
examination, the strength of right-sided dorsiflexion was questionably slightly decreased in
comparison to the left side without confirmation through atrophy. Straight leg testing bilaterally
produced back pain, but no significant radicular pain. Dr. Clarke indicated that appellant’s “back
situation can be described as an exacerbation of the preexisting congenital condition of L5 [-]S1
spondylolisthesis with degenerative disc disease.” He advised that spondylolisthesis due to pars
interarticularis defects was a congenital deficit, which could cause instability and subsequent
degenerative disc disease. Dr. Clarke opined that his examination of appellant showed minimal
objective findings and noted, “[n]o significant radiculopathy of the right lower extremity could be
demonstrated.” He noted that x-rays demonstrated a herniated degenerative disc at L4-5 and that
an MRI scan showed facet hypertrophy contributing to the abutment of the bilateral exiting L5
nerves.
The Board finds that the September 8, 2020 report of Dr. Clarke raises questions that
require clarification. In several parts of his report, Dr. Clarke referred to appellant not having
significant radiculopathy of the lower extremities. He thereby raised the possibility of appellant
having a diagnosable lower extremity condition, albeit of perhaps a lesser degree. Dr. Clarke did
not adequately explain why a diagnosis of some form of a work-related lower extremity condition
was not appropriate. Such clarification is especially necessary in the present case as appellant’s
claim has been accepted for displacement of lumbar intervertebral discs at L4-5 and L5-S1, as well
as for complications related to OWCP-authorized surgery at the lumbar disc levels. In addition,
Dr. Clarke did not adequately explain why the diagnostic testing of record did not demonstrate a
work-related lower extremity condition.
For the above-described reasons, the conflict in medical opinion remains unresolved.
Therefore, the Board will remand this case to OWCP for referral of the case record, a SOAF, and,
if necessary, appellant, to Dr. Clarke for a supplemental report regarding whether the acceptance
of his claim should be expanded to include additional conditions causally related to the accepted
12

S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

13

See supra notes 10 and 11.

5

March 30, 2005 employment injury. If Dr. Clarke is unable to clarify or elaborate on his original
report or if his supplemental report is also vague, speculative, or lacking in rationale, OWCP must
submit the case record and a detailed SOAF to a new impartial specialist for the purpose of obtaining
his or her rationalized medical opinion on the issue. 14 After this and such further development as
deemed necessary, OWCP shall issue a de novo decision regarding appellant’s expansion claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 2, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: December 22, 2021
Washington, DC

Janice B. Askin, 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

J.K., Docket No. 21-0007 (issued July 30, 2021; R.H., Docket No. 17-1903 (issued July 5, 2018); Harold Travis, 30
ECAB 1071, 1078 (1979).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF THE INTERIOR,
GEOLOGICAL SURVEY, Denver, CO,
Employer
__________________________________________

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

Docket No. 07-1598
Issued: December 13, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 30, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs’ hearing representative dated March 30, 2007 that affirmed
termination of his medical benefits as of May 19, 2006 and denied compensation benefits for
continuing disability and residuals. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
medical benefits effective May 19, 2006; and (2) whether appellant has established that he has
any continuing residuals causally related to the May 19, 1997 employment injury.
FACTUAL HISTORY
On May 20, 1997 appellant, then a 32-year-old hydrological technician, filed a traumatic
injury claim alleging that he dislocated his right knee on May 19, 1997 while lifting and carrying

a heavy pipe to a band saw.1 The Office accepted his claim for aggravation of preexisting right
knee degenerative arthritis and authorized right knee arthroscopic debridement surgeries, which
were performed on June 2, 1997 and October 5, 2001. By letter dated April 20, 1999, the Office
placed appellant on the periodic rolls for temporary total disability.
On August 21, 2001 the Office issued a loss of wage-earning capacity decision based
upon appellant’s reemployment as an associate information technician analyst effective
April 2, 2001. The Office found appellant had no loss of wage-earning capacity in his new
position as he was earning more money than he would have earned in his date-of-injury position.
The Office also issued a schedule award decision on August 21, 2001 which awarded
appellant a 19 percent permanent impairment to his right lower extremity.2
On January 15, 2005 appellant requested that the Office provide a motorized cart to
perform his limited-duty job.
On March 22, 2005 Dr. Robert F. LaPrade, a treating Board-certified orthopedic surgeon,
diagnosed “advanced arthritic changes in his right knee due to a chronic anterior cruciate
ligament (ACL) tear and associated instability as well as mild right hip osteoarthritis.” He
concluded that a knee replacement was not appropriate due to appellant’s age. Dr. LaPrade
recommended purchase of a motorized cart to “help diminish [appellant’s] knee pain and
swelling and also should help to decrease the number of days he has had to take off because of
this pathology.”
On May 13, 2005 Dr. Eric Berkson, an Office medical adviser, opined that purchase of a
motorized cart was unnecessary and recommended that a total knee replacement be considered.
In a report dated September 8, 2005, Dr. Paul Cederberg, a Board-certified orthopedic
surgeon, opined that appellant no longer had any disability or residuals due to his accepted
May 19, 1997 employment injury. He also concluded that appellant should not have a total knee
replacement and that a motorized cart should be purchased, but not by the Office.
On October 25, 2005 appellant noted that he no longer needed the motorized cart due to
his reassignment to the help desk which was more sedentary.
On November 4, 2005 the Office referred appellant to Dr. Jon Engelking, a Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion evidence between
Dr. LaPrade, Dr. Berkson and Dr. Cederberg as to whether appellant continued to have residuals
of his May 19, 1997 employment injury; whether he could return to his full-time regular duties
1

The record contains evidence that appellant allegedly sustained a subsequent right knee traumatic injury at work
on July 17, 1997. Appellant returned to a limited-duty job on March 27, 1998 and tendered his resignation at the
end of the workday. On May 22, 1998 appellant was involved in an automobile accident and sustained injuries to
his neck and back. The Office found that he had no wage-earning loss in his new position as he was earning more
money than he would have earned in his date-of-injury position.
2

By letter dated May 3, 2001, appellant was informed that his schedule award payment ended on April 20, 2002
and that he was entitled to additional medical treatment due to his accepted May 19, 1997 employment injury. He
was advised that he was not entitled to additional wage-loss compensation.

2

and whether purchase of a motorized cart by the Office for residuals of his May 19, 1997
employment injury was warranted.
On December 19, 2005 Dr. Engelking, based upon a review of the medical evidence,
statement of accepted facts and physical examination, concluded that appellant had no disability
due to his accepted May 19, 1997 employment injury. He diagnosed “moderately severe to
severe tricompartmental degenerative” right knee arthritis, which he attributed to appellant’s
motorcycle accident as a teenager and prior “open medial lateral meniscectomies and anterior
cruciate ligament deficiency.” A physical examination of the right knee revealed no effusion,
“significant bony hypertrophy,” very free lateral, medial movement of the patella and no crepitus
on active knee range of motion. Palpation of the patellofemoral joint revealed diffuse
tenderness, but “no localization of that tenderness.” Dr. Engelking attributed appellant’s work
limitation to his preexisting condition along with his significant degenerative knee arthritis,
which he attributed to “his anterior cruciate deficient knee and medial and lateral
meniscectomies.” In concluding, he opined that appellant sustained a temporary aggravation of
his preexisting right knee arthritis. Dr. Engelking opined that appellant’s residuals were
primarily due to his motorcycling injury as a teenager “and subsequent meniscal and ligament
injuries.” Based upon his review of the records, he concluded that appellant “had severe
degenerative changes of his knee prior to the work injury of May 19, 1997.” Any current
disability and physical restrictions are due to appellant’s preexisting significant right knee
degenerative arthritis and unrelated to the May 19, 1997 employment injury.
On April 6, 2006 the Office issued a notice of proposed termination of appellant’s
medical benefits based upon the report of Dr. Engelking, the impartial medical examiner.
In a report dated April 19, 2006, Dr. LaPrade noted his disagreement with Dr. Engleking
that appellant no longer has any disability or residuals due to the May 19, 1997 employment
injury. In support of this conclusion, he noted that appellant had been “functioning quite well,
without any problems” and that following the injury “he has not been able to get back to any
higher level of function.” Dr. LaPrade opined that appellant sustained a permanent aggravation
of his underlying arthritic condition “as he has continued to have problems with pain and
swelling with activities since his work-related injury of May 19, 1997.” He also opined that
appellant’s work restrictions “are directly related to his work injury of May 19, 1997.”
Appellant disagreed with the Office’s proposal to terminate his medical benefits and
submitted argument and evidence to support his disagreement. He contended that he was
entitled to have the cart purchased by the Office as he sustained a permanent injury. Appellant
noted that the schedule award that the Office issued established his permanent disability as a
result of his injury. He contended that the refusal of the Office to purchase the cart prevented
him from performing his light-duty job and was a violation of due process.
In a “revised final termination” decision dated May 19, 2006, the Office terminated
appellant’s medical benefits effective that date.
On June 4, 2006 appellant requested an oral hearing, which was held on
February 7, 2007. He was represented by his father at the hearing and submitted medical and
factual evidence.

3

On October 30, 2006 appellant contended that he was entitled to wage-loss compensation
due to his termination effective May 30, 2006 from United Defense/BAE Systems.
On February 12, 2007 appellant resubmitted medical evidence previously submitted and
considered by the Office and a September 27, 2006 Minnesota unemployment decision. The
Minnesota unemployment law judge noted that appellant quit his position with BAE on May 30,
2006 as he believed his work restrictions were not being accommodated and that he was being
discriminated against due to his disability.
On February 26, 2007 the Office received appellant’s argument and additional evidence.
In a February 1, 2007 report, Dr. LaPrade diagnosed right knee chronic anterior cruciate
ligament tear, moderate to advanced right knee arthritic changes, semimembranosis bursitis,
medial plical irritation and milder right knee flexion contraction. He opined that appellant’s
employment injury “was certainly an exacerbating factor in precipitation of his arthritis, in that
he had no previous symptoms.”
By decision dated March 30, 2007, an Office hearing representative affirmed the
May 19, 2006 decision.3 She also found that appellant had no continuing residuals or disability
due to his accepted May 19, 1997 employment injury.
LEGAL PRECEDENT -- ISSUE 1
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that the employee no longer has residuals of an employment-related condition, which
require further medical treatment.4
In situations where 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.5
ANALYSIS -- ISSUE 1
Appellant’s claim had been accepted aggravation of preexisting right knee degenerative
arthritis and authorized right knee arthroscopic debridement surgeries, which were performed on
June 2, 1997 and October 5, 2001. The Board finds that the Office properly declared that a
conflict in the medical opinion was created between Dr. LaPrade, appellant’s treating Board3

Although the Office hearing representative actually affirmed the termination of “all” compensation benefits, the
Board notes that appellant was not in receipt of wage-loss compensation benefits as the Office had reduced his loss
of wage-earning capacity to zero effective April 2, 2001 based on his actual wages as an associate information
technician analyst.
4

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); John F. Glynn, 53 ECAB 562 (2002).

5

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Darlene R. Kennedy, 57 ECAB ___
(Docket No. 05-1284, issued February 10, 2006); James Mack, 43 ECAB 321 (1991).

4

certified orthopedic surgeon, and Dr. Cederberg, a second opinion Board-certified orthopedic
surgeon, as to whether appellant had any continuing residuals or disability causally related to his
accepted May 19, 1997 employment injury. The Office also properly found a conflict in the
medical opinion between Dr. LaPrade and Dr. Berkson, an Office medical adviser, as to whether
the purchase of a motorized cart was necessary and whether total knee replacement should be
considered. Dr. LaPrade opined that appellant continued to have residuals and disability due to
his knee injury. He recommended the purchase of a motorized cart and opined that total knee
replacement was not warranted. Dr. Cederberg concluded that appellant had no disability or
residuals due to his May 19, 1997 employment injury. The Office medical adviser recommended
that total knee replacement be considered and that the purchase of a motorized cart was
unnecessary.
The Office referred appellant to Dr. Engelking, selected as an impartial medical
specialist. In a detailed report dated December 19, 2005, he reviewed the evidence of record,
statement of accepted facts and conducted a physical examination. Dr. Engelking opined that
appellant sustained a temporary aggravation of his preexisting right knee arthritis due to the
May 19, 1997 employment injury. He opined that appellant’s right knee condition was primarily
due to his motorcycling injury as a teenager “and subsequent meniscal and ligament injuries.” In
support of his opinion, Dr. Engelking concluded that appellant “had severe degenerative changes
of his knee prior to the work injury of May 19, 1997” based upon a review of the record and,
thus, appellant’s current disability and physical restrictions were due to his preexisting
significant right knee degenerative arthritis and unrelated to the May 19, 1997 employment
injury.
On April 19, 2006 Dr. LaPrade noted that he had reviewed Dr. Engelking’s report and
disagreed with his conclusion that appellant had no disability or residuals due to the accepted
May 19, 1997 employment injury. Dr. LaPrade opined that the May 19, 1997 employment
injury had caused a permanent aggravation as appellant had been “functioning quite well,
without any problems” and following the injury he was unable to get function as well. In
addition, appellant had problems with swelling and pain following the May 19, 1997
employment injury and his current restrictions are directly related to the employment injury.
The Board finds that Dr. Engelking’s report is entitled to special weight. He found that
appellant sustained a temporary aggravation of a preexisting knee condition as a result of the
May 19, 1997 employment injury. Dr. Engelking further concluded that any disability or
residuals were due to appellant’s preexisting right knee degenerative changes, which were due to
his motorcycle accident as a teenager and subsequent ligament and meniscus injuries. His report
is sufficiently rationalized and based on a proper factual and medical background. Thus, the
Office met its burden of proof in the termination of medical benefits.
Appellant submitted additional reports from Dr. LaPrade in response to the proposed
notice to terminate his compensation. It is well established that the subsequently submitted
reports of a physician on one side of a conflict of medical opinion, are generally insufficient to
overcome the weight of the impartial medical specialist or to create a new conflict of medical
opinion.6 In an April 19, 2006 report, Dr. LaPrade stated that he had reviewed Dr. Engelking’s
6

Kathryn E. Demarsh, 56 ECAB ___ (Docket No. 05-269, issued August 18, 2005). Richael O’Brien, 53 ECAB

5

report and disagreed with his conclusion that appellant had no disability or residuals due to the
May 19, 1997 employment injury. He opined that appellant sustained a permanent aggravation
of his preexisting knee arthritis as a result of the May 19, 1997 employment injury. Dr. LaPrade
based his opinion that the May 19, 1997 employment injury caused a permanent rather than a
temporary aggravation as appellant had been “functioning quite well, without any problems” and
that following the injury “he has not been able to get back to any higher level of function.” The
Board finds this rationale insufficient to create a new conflict. Board precedent has held that the
opinion of a physician that a condition is causally related to an employment injury because the
employee was asymptomatic before the injury is insufficient, without supporting medical
rationale, to establish causal relationship.7 The Board, therefore, finds these reports are
insufficient to overcome the weight accorded Dr. Engelking, the impartial medical specialist,
whose opinion was well rationalized and established that appellant’s employment-related
residuals had ceased.8 The Office, therefore, met its burden of proof to terminate his medical
benefits effective May 19, 2006.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant.9 In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he had an employment-related disability, which continued after termination of compensation
benefits.
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. 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
appellant’s diagnosed condition and the implicated employment factors.10 The opinion of the
physician must be based on a complete factual and medical background of appellant, must be one
of reasonable medical certainty and must be supported by medical rationale explaining the nature

234 (2001).
7

Roma A. Mortenson-Kindschi, 57 ECAB ___ (Docket No. 05-977, issued February 10, 2006) (a medical report
is of limited probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale); Jaja K. Asaramo, 55 ECAB 200 (2004) (the mere fact that
employee was asymptomatic before the injury is insufficient, without supporting medical rationale, to establish
causal relationship).
8

Kathryn E. Demarsh, supra note 6 (the reports from appellant’s physician reiterated his opinion on disability
and, as he was one side of the conflict resolved by the impartial medical specialist, the additional reports were
insufficient to create a new conflict as he essentially repeated his opinion on continuing disability).
9

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
10

Kathryn E. Demarsh, supra note 6.

6

of the relationship between the diagnosed condition and the specific employment factors
identified by appellant.11
ANALYSIS -- ISSUE 2
The medical evidence submitted after the May 19, 2006 termination of benefits consists
of a February 1, 2007 report from Dr. LaPrade and a September 27, 2006 Minnesota
unemployment decision. Dr. LaPrade reiterated his opinion that appellant’s May 19, 1997
employment injury “was certainly an exacerbating factor in precipitation of his arthritis, in that
he had no previous symptoms. As noted above, the mere fact that appellant was asymptomatic
prior to his injury, without supporting medical rationale, is insufficient to establish that appellant
continues to have residuals of his accepted employment injury.12 Dr. LaPrade’s report is similar
to his prior reports which gave rise to a conflict in medical opinion.13 As his opinion did not
contain new findings or rationale upon which a new conflict might be based, it is insufficient to
overcome that of Dr. Engelking or to create a new medical conflict.14 Appellant also submitted a
September 27, 2006 Minnesota unemployment decision which found that he was discriminated
against based upon his disability and that his restrictions were not accommodated. Decisions
made by such tribunals are pursuant to different statutes that have varying standards for
establishing disability and eligibility for benefits. The finding of that review board is not
determinative of appellant’s rights under the Federal Employees’ Compensation Act and does
establish that he continues to have any residuals due to his accepted employment injury and is
entitled to continuing compensation benefits.15 Appellant therefore did not submit the necessary
rationalized medical evidence to substantiate that any claimed disability on or after May 19,
2006 was causally related to his federal employment.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective May 19, 2006. The Board further finds that appellant did not establish
continuing disability or residuals causally related to the May 19, 1997 employment injury

11

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

12

Jaja K. Asaramo, supra note 7.

13

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. LaPrade’s report did not contain new findings or rationale
upon which a new conflict might be based.
14

See Mary A. Ceglia, 55 ECAB 626 (2004).

15

See Andrew Fullman, 57 ECAB ___ (Docket No. 05-967, issued May 12, 2006) (the Board found the
submission of a state unemployment compensation review board did not establish clear evidence that the Office
erred in denying appellant’s claim).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 30, 2007 is affirmed.
Issued: December 13, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKER SAFETY, HEALTH &
ENVIRONMENT, OFFICE OF AUDIT,
Dallas, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0718
Issued: March 1, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On April 12, 2021 appellant filed a timely appeal from a March 26, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards
docketed the appeal as No. 21-0718.
On October 25, 2016 appellant, then a 60-year-old auditor, filed an occupational disease
claim (Form CA-2) alleging that he sustained a bilateral hand injury due to factors of his federal
employment which required repetitive movements. He stopped work on December 19, 2016 .
OWCP accepted appellant’s claim for carpal tunnel syndrome of the right and left upper limbs. It
paid him wage-loss compensation on the supplemental rolls beginning March 19, 2017.
In a February 28, 2018 letter, appellant claimed that he sustained bilateral ring and middle
trigger fingers as a consequence of his accepted employment injury.

1

The Board notes that appellant’s Application for Review (Form AB-1) notes that she is also requesting an appeal
from a December 17, 2019 decision. However, as that decision was issued more than 180 days before the filing of this
appeal, the Board lacks jurisdiction over that decision. 20 C.F.R. § 501.3(e).

By decision dated January 24, 2019, OWCP denied expansion of appellant’s claim to
include consequential conditions.
On September 19, 2019 appellant requested reconsideration and submitted additional
medical evidence in support of his claim.
By decision dated December 17, 2019, OWCP denied modification of its January 24, 2019
decision, finding that the medical evidence of record was insufficient to establish that appellant’s
claimed consequential bilateral ring and middle trigger finger conditions were causally related to
his accepted employment injury.2
On November 2, 2020 appellant requested reconsideration. Along with appellant’s letter,
OWCP received additional medical evidence.
In a letter dated February 19, 2021, OWCP informed appellant that “[o]n November 2,
2020 we received your letter requesting reconsideration.” It advised that it was not clear from his
letter which decision or issues for which he was seeking reconsideration. OWCP then advised
appellant that no further action would be taken on his letter. It related that if he wished to request
reconsideration, then he should make such request in writing within one year of the decision for
which review was sought together with relevant evidence not previously submitted or legal
argument not previously considered.
On February 19, 2021 appellant again requested reconsideration of the December 17, 2019
decision.
By decision dated March 26, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
his reconsideration request was not received until February 19, 2021.
The Board has duly considered this matter and finds that OWCP improperly determined
that appellant’s request for reconsideration was untimely filed. 3 In the instant case, the case record
contains a request for reconsideration received by OWCP on November 2, 2020. As the
November 2, 2020 request for reconsideration was received within one year of OWCP’s
December 17, 2019 merit decision, 4 it was timely filed. 5 Therefore, OWCP should have applied
the standard applicable to timely reconsideration requests as set forth in 20 C.F.R. § 10.606(b)(3),
rather than the more stringent clear evidence of error standard for untimely reconsideration
2

In a July 13, 2020 decision, OWCP granted appellant a schedule award for five percent permanent impairment of
the right arm. It found that he had zero percent permanent impairment of the left arm.
3

Order Remanding Case, J.C., Docket No. 20-1360 (issued March 12, 2021); I.A., Docket No. 19-1910 (issued
September 29, 2020); Order Remanding Case, D.F., Docket No. 20-0267 (issued June 29, 2020); E.S., Docket
No. 17-0698 (issued July 14, 2017).
4

J.C., id.; R.T., Docket No. 20-0298 (issued August 6, 2020); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4(a) (February 2016).
5

J.C., id.; J.H., Docket No. 18-1367 (issued July 17, 2019); R.M., Docket No. 17-0473 (issued June 6, 2017); C.B.,
Docket No. 13-1732 (issued January 28, 2014).

2

requests set forth in 20 C.F.R. § 10.607(a). Because it erroneously reviewed the evidence
submitted in support of appellant’s reconsideration request under the incorrect standard, the Board
will remand the case for review of this evidence under the proper standard of review for timely
reconsideration requests. 6
Thus, the Board finds that this case must be remanded for proper adjudication and
application of the appropriate standard of review, to be followed by an appropriate decision.
Accordingly,
IT IS HEREBY ORDERED THAT the March 26, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 1, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6

J.C., id.; Order Remanding Case, L.N., Docket No. 19-0170 (issued August 21, 2019).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newport News, VA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-107
Issued: April 14, 2015

Case Submitted on the Record

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

On October 20, 2014 appellant filed an application for review of a July 29, 2014 decision
of the Office of Workers’ Compensation Programs (OWCP), claim number xxxxxx196, which
denied his occupational disease claim.1 The appeal was docketed as number 15-107.
In the July 29, 2014 decision, OWCP noted that appellant had four prior occupational
disease claims for emotional conditions, claim numbers xxxxxx530, xxxxxx793, xxxxxx379 and
xxxxxx142.2 In denying appellant’s claim for compensation under claim number xxxxxx196, the
claim presently before the Board, the claims examiner noted reviewing evidence from claim
numbers xxxxxx530, xxxxxx793, xxxxxx379 and xxxxxx142. OWCP’s claims examiner stated,
“upon review of this record in its entirety, I find that you have not submitted one allegation that
1

On June 17, 2013 appellant, a letter carrier, filed an occupational disease claim alleging that he developed an
emotional condition due to high levels of stress and traumatic incidents at work. In a July 26, 2013 statement, he
asserted that he had post-traumatic stress disorder and his condition was a direct result of the incidents that took
place on his job in January 2008 and January 2010. Appellant also stated that he had flashbacks due to violent
threatening nature of incidents from 1997 to 2013; that his emotional condition claims were improperly denied on
December 6, 2012 and March 4, 2013; and events that took place on December 6, 2012 and March 4, 2013 caused
his post-traumatic stress disorder to worsen.
2

The complete records for case file numbers xxxxxx530, xxxxxx793, xxxxxx379, and xxxxxx142 are not before
the Board on the present appeal.

has not been adjudicated under prior claims, specifically xxxxxx520, xxxxxx793, xxxxxx379 or
xxxxxx142. The evidence submitted was insufficient to establish your claim because no specific
details were provided surrounding new incidents has been claimed to have caused your
condition.” The claims examiner noted that “[OWCP] has adjudicated 2008, 2010, 2012 and
2013 incidents under prior claims and cannot [be] re-adjudicated under a new claim and
specifically on reconsideration.” He further noted that “the evidence does not support that you
actually experienced an employment incidents alleged to have occurred that has not been alleged
and adjudicated under prior cases with [OWCP].”
The Board has duly considered the matter and notes that the case is not in posture for a
decision. The claim before the Board, case file number xxxxxx196, involves appellant’s claim
for an emotional condition from work incidents he experienced from 1997 to 2013. OWCP
denied his claim on the grounds that he did not establish that he sustained a new work-related
occupational condition based on new incidents. In the July 29, 2014 decision, it noted reviewing
evidence and findings made in case file numbers xxxxxx530, xxxxxx793, xxxxxx379 and
xxxxxx142. OWCP’s decision indicates that case file numbers xxxxxx530, xxxxxx793,
xxxxxx379 and xxxxxx142 may have evidence germane to claim number xxxxxx196.
Pursuant to its procedures, OWCP has determined that cases should be combined where
correct adjudication depends on cross-referencing between files. In the instant appeal, it appears
that, for a full and fair adjudication, OWCP claims pertaining to appellant’s emotional condition
should be combined pursuant to OWCP procedures.3 This will allow OWCP to consider all
relevant claim files in developing appellant’s claim.
The case will be remanded to OWCP to combine case files numbers xxxxxx196,
xxxxxx530, xxxxxx793, xxxxxx379 and xxxxxx142. Following this and such other development
as deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s claim.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

2

IT IS HEREBY ORDERED THAT the July 29, 2014 decision be set aside and the
matter remanded to the Office of the Workers’ Compensation Programs for further proceedings
consistent with this order.
Issued: April 14, 2015
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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CARL VINSON VETERANS
ADMINISTRATION MEDICAL CENTER,
Dublin, GA, Employer
__________________________________________

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

Docket No. 07-1026
Issued: October 1, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 6, 2007 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated June 8 and October 6, 2006 and January 9, 2007.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an injury on November 3, 2005 causally related to her federal employment; and
(2) whether the Office properly denied her requests for subpoenas.
FACTUAL HISTORY
On November 23, 2005 appellant, then a 53-year-old registered nurse, filed a Form CA-1,
traumatic injury claim, alleging that on November 3, 2005 she sustained an allergic reaction to
environmental chemicals consisting of redness on her anterior chest, generalized heat, increased

blood pressure, abdominal pain and itching. She stopped work that day. Appellant had been
working limited duty in an office environment due to an accepted single episode of an allergic
reaction to a solvent on June 17, 2005.1
By letter dated December 1, 2005, the Office informed appellant of the evidence needed
to support her claim. On December 20, 2005 the employing establishment controverted the
claim. In a December 16, 2005 report, Dr. Mohammad Al-Shroof, a Board-certified internist,
advised that appellant was disabled until further notice. Pulmonary function studies dated
December 19, 2005 were interpreted as normal. In a December 27, 2005 report, Dr. Susan L.
Tanner, an internist, advised that appellant was being treated for chemical sensitivities.2
By decision dated January 3, 2006, the Office denied appellant’s claim. It accepted that
the claimed incident occurred but that the medical evidence was insufficient to establish causal
relationship.
On February 2, 2006 appellant requested a hearing.3 She submitted a copy of an email
sent to the employing establishment on November 18, 2005 in which she stated that on
November 3, 2005 she was scheduled for a pulmonary function test at employee health and,
upon arriving there at 7:30 a.m., she was instructed to go to the intensive care unit (ICU) for the
test. As she was walking to the ICU, she looked for a telephone in ambulatory care to call her
union representative, but while there her eyes became irritated and red; appellant became hot and
had a headache. Appellant subsequently experienced difficulty breathing and a scattered
stinging sensation. She continued to the ICU for the test but was told to return to employee
health. Her throat began to feel tight and sore and she became anxious. Appellant arrived at
employee health at about 8:15 a.m. and requested to be examined by a doctor. She stated that
she was initially refused medical treatment by management and called security. Appellant was
then treated by Chris May, a physician’s assistant, and later seen by Dr. Sesha P. Chary in the
emergency room. After her discharge at 3:25 p.m., she felt unsteady, but was able to drive to the
emergency room at Fairview Hospital where she was treated.
On March 11, 2006 appellant submitted requests to subpoena medical personnel
including Dr. Chary, Betty Reynolds, R.N., and Mr. May, all with the employing establishment,
Dr. Tanner and Dr. Willie Edward Morgan, an emergency physician, with Fairview Hospital. By

1

The June 17, 2005 claim was adjudicated by the Office under file number 06-2143995 and the instant claim
under file number 06-2153585. Appellant had four additional accepted claims for a reaction to an insect bite on
July 24, 2004, file number 06-2119680, a September 13, 2004 contact dermatitis caused by a glove, file number
06-2124292 and incidents on February 3 and 24, 2007 for single episodes of reactions to solvents, file number
06-2134956 and file number 06-2134957.
2

Appellant also submitted medical evidence that predated the instant claim and a July 8, 2005 statement in which
she requested reasonable accommodation, noting that she sustained her first allergic reaction on July 24, 2004.
3

Appellant also submitted evidence regarding events that predated the date of injury and duplicate of evidence
previously of record. The record also contains affidavits dated January 27, 2006 in which James Hampton and Jerry
Jackson, of the employing establishment’s human resources department, testified regarding an Equal Employment
Opportunity Commission claim submitted by appellant and evidence regarding a reprimand for extended
unauthorized absence.

2

decision dated June 8, 2006, an Office hearing representative denied appellant’s requests for
subpoenas.
Appellant submitted medical reports dated November 3, 2005 from the employing
establishment health clinic. Mr. May noted seeing her at 8:15 to 8:30 a.m. with complaints of
syncope and intense pruritus. Physical findings included high blood pressure and an increased
heart rate but no hives or urticaria and her airway remained patent. Mr. May opined that
appellant was having a panic attack and advised that Benadryl was given because she took
Benadryl on a daily basis but had not taken it yet that day. Cool compresses were placed and
appellant was monitored. Her blood pressure dropped in about 20 minutes. At 8:40 a.m. she
was given Ativan and her care was transferred to Dr. Chary who noted appellant’s history of
hypertension and multiple allergies and her symptoms of itching, stomach ache, headache and
that she felt that she was having panic episodes. She noted that appellant improved with normal
oximetry. Cutaneous examination revealed no gross or obvious maculopapular rash. Dr. Chary
concluded that appellant had an “obvious allergic reaction which I am unable to pinpoint.”
Emergency room reports from Fairview Park Hospital, also dated November 3, 2005, noted that
appellant arrived a 3:15 p.m., complaining that she became dizzy while driving home.
Dr. Morgan noted that physical examination revealed normal skin with no rash. He diagnosed
acute urticaria. Appellant was monitored in the waiting room until it was safe for her to drive
and she was discharged at 12:12 a.m. on November 4, 2005.
In a February 23, 2006 report, Dr. Tanner advised that she began treating appellant on
December 27, 2005. She noted appellant’s complaints of allergic reactions consisting of
burning, itching and rashes which had increased in severity and that appellant correlated these
with stripping and sealing floors at the employing establishment. Dr. Tanner opined that
appellant had sensitivity to scents, odors, fumes and latex and fit the profile of a patient with a
diagnosis of multiple chemical sensitivity. By report dated April 3, 2006, Dr. Herbertta Pearson,
Board-certified in family medicine, advised that appellant had been treated for multiple chemical
sensitivity since February 21, 2006, noting that episodes dated back to June 2005. She
recommended that appellant not be exposed to chemicals at work. Pulmonary function studies of
April 20, 2006 were interpreted by Dr. Jeffrey Rymuza, Board-certified in internal medicine and
pulmonary disease, as borderline normal. In a June 15, 2006 report, Dr. Mokhtar Hacena, a
Board-certified internist, noted that appellant was not working. He provided physical findings,
advised that her diagnostic testing showed improvement. Dr. Hacena diagnosed persistent
occupational asthma and recurrent urticaria, controlled for the past few months. He opined that
the improvement of appellant’s lung function was suggestive of occupational asthma and
urticaria “induced by chemical at the workplace.” Dr. Hacena advised that she could return to
work in a chemical-free environment.
At the hearing held on June 28, 2006, appellant’s attorney argued that a pattern of
exposures at work caused her medical condition. Appellant testified that on November 3, 2005
she was working in an office environment with carpeting and had entered an area with a strong
chemical smell and then began to panic.
By letter dated July 31, 2006, the employing establishment responded to appellant’s
hearing testimony. It noted that no stripping or waxing of floors was performed in any of the
areas appellant claimed to have entered or visited and that she had submitted no documentation

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of sensitivity testing identifying any specific chemical in use that caused her to have an allergic
reaction. The employing establishment provided a housekeeping checklist dated November 2,
2005 that showed that on the night of November 2, 2005 the only area that was stripped and
waxed was a bathroom on 9A.
In a June 27, 2006 report, Dr. Tanner noted appellant’s report that repeated exposures to
solvents, chemicals, floor wax, sealants, ammonia and methyl ether used in the work
environment caused her condition. She characterized it as permanent, chronic and recurring.
Dr. Tanner diagnosed multiple chemical sensitivity characterized by swelling, itching, pain,
scratching, redness, drowsiness, chronic fatigue, severe headache, stomach pain,
uncontrolled/accelerative high blood pressure, blurred vision, ineffective breathing, tightness in
chest, chest pain, rashes on extremities and chest, sensitive eyes with tearing, gastrointestinal
exacerbation, urticaria, hives, swelling, altered mental status, generalized muscle/joint pain, poor
balance, irritability, cognitive difficulties and vertigo. Dr. Tanner also diagnosed depression and
noted that appellant could have side effects from the medication she was taking. Appellant’s
treatment consisted of elimination and protection from volatile compounds, any other known
incitants and biological treatment and advised that appellant could only live and work in
environments that were rigidly controlled for exposure to volatile compounds, odors, molds,
asbestos and chemical solvents. In an undated report, received by the Office on August 8, 2006,
Dr. Tanner noted a history that appellant had allergic reactions at work in February and
June 2005 due to exposure to a solvent. She listed a number of chemicals used in hospitals and
advised that, based on appellant’s history and medical documentation, “anyone of these
chemicals are [sic] more likely than not to trigger an allergic reaction/responses.” Dr. Tanner
reiterated her previous diagnosis.
In a July 19, 2006 report, Dr. Al-Shroof advised that he had treated appellant from
August 2004 to January 2006 for multiple allergic reactions, urticaria, anxiety disorder,
hypertension, palpitations and noncardiac chest pain. He noted that stress tests from
August 2004 and January 2006 did not reveal any coronary artery disease.
By decision dated October 6, 2006, an Office hearing representative affirmed the
January 3, 2006 decision. She found that the evidence of record established that appellant
experienced symptoms of illness with 45 minutes of her arrival at work on November 3, 2005.
However, the medical evidence failed to establish both the specific nature of the illness and a
relationship to a specific causal agent in her workplace, on that date. The hearing representative
advised appellant that, because she and her attorney claimed multiple instances of exposure, she
could file an occupational disease claim.
On December 12, 2006 appellant requested reconsideration.4 In reports dated October 23
and December 1, 2006, Dr. Tanner again opined that appellant experienced an allergic reaction
on November 3, 2005 when she “walked through an area or areas with allergens present or used
and environmental stimuli that have been known to cause allergic reaction/responses in the past.”
These allergens triggered an allergic reaction which worsened within minutes resulting in a
permanent aggravation to appellant’s immune system. Dr. Tanner advised that frequent
4

Appellant again submitted irrelevant and duplicative evidence.

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exposure had made appellant become very hypersensitive to workplace allergens and that she
was disabled secondary to workplace chemical exposures in June and November 2005 and
opined that she could not be within less than one foot of chemicals or solvents.
By decision dated January 9, 2007, the Office denied modification of the October 6, 2006
decision.
LEGAL PRECEDENT -- ISSUE 1
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 disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.6
Office regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.7 In order to determine whether an employee sustained an injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component is whether the employee actually
experienced the employment incident that is alleged to have occurred. The second component is
whether the employment incident caused a personal injury and generally this can be established
only by medical evidence.8
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.9 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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 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.10 Neither the mere fact
5

5 U.S.C. §§ 8101-8193.

6

Gary J. Watling, 52 ECAB 278 (2001).

7

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

8

Tracey P. Spillane, 54 ECAB 608 (2003).

9

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

10

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

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that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.11
ANALYSIS -- ISSUE 1
The Board finds that the medical evidence is insufficient to establish a causal relationship
to a chemical agent or other allergen at the employing establishment on November 3, 2005, as
alleged.
The pulmonary function studies on December 19, 2005 and April 20, 2006 do not contain
an opinion regarding the cause of any diagnosed condition and medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.12 The reports submitted from the employing establishment
health unit and Fairview Hospital did not establish that appellant sustained an employment injury
on November 3, 2005. Mr. May’s report does not constitute competent medical evidence, as a
physician’s assistant is not considered a physician under the Act.13 Nonetheless, he found no
hives or urticaria on physical examination and diagnosed a panic attack. Dr. Chary also found no
skin rash and opined that appellant had an “obvious allergic reaction which I am unable to
pinpoint.” Dr. Al-Shroof merely advised that appellant was disabled on December 16, 2005. In
July 2006, he advised that he had treated appellant from August 2004 to January 2006 for
multiple diagnoses including allergic reactions, urticaria and an anxiety disorder. Dr. Al-Shroof
did not provide an opinion regarding the cause of appellant’s diagnosed condition. Dr. Pearson
merely recommended that appellant not be exposed to chemicals at work. As these reports do
not contain opinions regarding the cause of appellant’s condition, they do not establish that she
sustained an employment injury on November 3, 2005.14
Dr. Morgan, an emergency room physician at Fairview Hospital diagnosed acute
urticaria. His physical findings, however, revealed normal skin with no rash. The Board has
long held that medical opinions that are speculative or equivocal in character have little probative
value.15 Dr. Morgan’s report is therefore insufficient to meet appellant’s burden of proof. While
Dr. Hacena opined in a June 15, 2006 report, that the improvement of appellant’s lung function
was suggestive of occupational asthma and urticaria “induced by chemical at the workplace,” he
did not provide an opinion that her condition was caused by a November 3, 2005 incident or
otherwise specify the chemical agent or agents implicated. Medical conclusions such as

11

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

12

Willie M. Miller, 53 ECAB 697 (2002).

13

5 U.S.C. § 8101(2); see Ricky S. Storms, 52 ECAB 349 (2001).

14

Willie M. Miller, supra note 12.

15

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

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Dr. Hacena’s which are unsupported by rationale are of diminished probative value and are
insufficient to establish causal relation.16
Dr. Tanner who began treating appellant in December 2005 and provided a number of
reports, diagnosed multiple chemical sensitivity caused by workplace exposure to various
chemicals and noted that appellant had allergic reactions in February, June and November 2005.
By definition, a traumatic injury is a condition of the body caused by a specific event or incident
or series of events or incidents within a single workday or shift.17 The mere fact that a condition
manifests itself during a period of employment or the claimant’s belief that the condition was
caused or aggravated by employment conditions is insufficient to establish a causal
relationship.18 Dr. Tanner must provide an opinion on whether the employment incident
described caused or contributed to claimant’s diagnosed medical condition and support that
opinion with medical reasoning to demonstrate that the conclusion reached is sound, logical and
rational.19 Dr. Tanner did not opine that appellant’s condition was caused by exposure on
November 3, 2005. Furthermore, her opinion is devoid of her physical findings or any objective
testing in support of her diagnoses and conclusions. For these reasons, Dr. Tanner’s opinion is
insufficient to meet appellant’s burden of proof to establish that she sustained an employment
injury on November 3, 2005.20
Because appellant did not submit a reasoned medical opinion explaining what caused or
contributed to her medical condition on November 3, 2005 she did not establish the critical
element of causal relationship.21 As noted by the hearing representative, she retains the right to
file an occupational disease claim.22
LEGAL PRECEDENT -- ISSUE 2
Section 8126 of the Act provides that the Secretary of Labor, on any matter within her
jurisdiction, may issue subpoenas for and compel the attendance of witnesses within a radius of
100 miles. This provision gives the Office discretion to grant or reject requests for subpoenas.
The implementing Office regulations provide that subpoenas for documents will be issued only
where the documents are relevant and cannot be obtained by any other means. The Office
16

Albert D. Brown, 52 ECAB 152 (2000).

17

20 C.F.R. § 10.5(ee); Ellen L. Noble, supra note 7.

18

Charles E. Evans, 48 ECAB 692 (1997).

19

John W. Montoya, 54 ECAB 306 (2003).

20

Id.

21

Id.

22

In cases of injury on or after September 7, 1974, section 8122(a) of the Act provides that a claim for disability
or death must be filed within three years after the injury or death. 5 U.S.C. § 8122(a); Duet Brinson, 52 ECAB
168 (2000). The three-year time period begins to run from the time the employee is aware or by the exercise of
reasonable diligence should have been aware, that his or her condition is causally related to the employment. It is
well settled that, if an employee continues to be exposed to injurious working conditions, the time limitation begins
to run on the last date of this exposure. Debra Young Bruce, 52 ECAB 315 (2001).

7

hearing representative retains discretion on whether to issue a subpoena.23 A claimant may
request a subpoena only as part of the hearings process and no subpoena will be issued under any
other part of the claims process. To request a subpoena, the requestor must submit the request in
writing and send it to the hearing representative as early as possible but no later than 60 days (as
evidenced by postmark, electronic marker or other objective date mark) after the date of the
original hearing request.24 Subpoenas for witnesses will be issued only where oral testimony is
the best way to ascertain the facts25 and in requesting a subpoena, a claimant must explain why
the testimony is relevant to the issues in the case and why a subpoena is the best method or
opportunity to obtain such evidence because there is no other means by which the testimony
could have been obtained.26 The function of the Board on appeal is to determine whether there
has been an abuse of discretion.27
ANALYSIS -- ISSUE 2
In this case, appellant requested subpoenas for the appearance of various medical
personnel. The Board, however, finds that the Office hearing representative did not abuse her
discretion in denying appellant’s subpoena requests. In requesting a subpoena, a claimant must
explain why the testimony is relevant to the issues in the case and why a subpoena is the best
method or opportunity to obtain such evidence because there is no other means by which the
testimony could have been obtained.28 Here appellant did not show why information could not
be obtained other than through the subpoena process.29 Thus, the Office hearing representative
acted within her discretion in not issuing subpoenas as requested by appellant.30
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an employment-related injury on November 3, 2005 and that the Office did not abuse
its discretion in denying her subpoena requests.

23

20 C.F.R. § 10.619.

24

20 C.F.R. § 10.619(a)(1).

25

Gregorio E. Conde, 52 ECAB 410 (2001).

26

20 C.F.R. § 10.619(a)(2).

27

Gregorio E. Conde, supra note 25.

28

Claudio Vazquez, 52 ECAB 496 (2001).

29

Janet L. Terry, 53 ECAB 570 (2002).

30

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 9, 2007 and October 6 and June 8, 2006 be affirmed.
Issued: October 1, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
U.S. POSTAL SERVICE, NORTH SHEPHERD
STATION, Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-259
Issued: August 19, 2011

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 November 9, 2010 appellant filed a timely appeal from a July 19, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
compensation.1 She also appeals an August 16, 2010 merit decision finding that she received an
overpayment of compensation for which she was at fault and an October 8, 2010 nonmerit
decision denying her request for a prerecoupment hearing. Pursuant to the Federal Employees’
Compensation Act (FECA)2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1

The July 19, 2010 letter from OWCP to appellant does not contain appeal rights. However, as OWCP provided
factual and legal findings by indicating that it had considered the medical evidence and determined that she did not
establish disability from June 24 to July 16, 2010, the Board finds that the July 19, 2010 correspondence constitutes
a decision under 20 C.F.R. § 10.126. See C.E., Docket No. 08-2133 (issued May 20, 2009).
2
3

5 U.S.C. § 8101 et seq.

In a decision dated September 16, 2010, OWCP denied appellant’s request for a schedule award. Appellant has
not appealed this decision and thus it is not before the Board at this time. See 20 C.F.R. § 501.2(c).

ISSUES
The issues are: (1) whether OWCP properly adjudicated appellant’s claim for
compensation from June 24 to July 16, 2010; (2) whether appellant received an overpayment of
$1,155.65 because she received compensation for total disability after she returned to work;
(3) whether she was at fault in creating the overpayment; and (4) whether OWCP properly
denied appellant’s request for a prerecoupment hearing as it was made after the final
overpayment decision.
FACTUAL HISTORY
On September 3, 2008 appellant, then a 49-year-old letter carrier, filed a claim alleging
that she sustained an injury to her lower back on August 29, 2008 in the performance of duty.
OWCP accepted the claim for a lumbar sprain and lumbar radiculitis. It paid appellant
compensation for totally disability using electronic funds transfer beginning October 22, 2008.
In a June 21, 2010 telephone message, appellant advised OWCP that she was returning to
full-time modified work on June 22, 2010. On June 25, 2010 she notified it that she had stopped
work on June 24, 2010 on the advice of her physician. On July 15, 2010 appellant filed a claim
for compensation beginning June 24, 2010. The employing establishment indicated that she took
leave without pay from June 25 to July 16, 2010.
On July 14, 2010 OWCP advised appellant of its preliminary determination that she
received an overpayment of $1,155.65 because she returned to limited duty on June 22, 2010 but
received compensation through July 3, 2010. It further informed her of its preliminary finding
that she was at fault in creating the overpayment. OWCP requested that appellant complete the
enclosed overpayment recovery questionnaire and submit supporting financial documents.
Additionally, it notified her that, within 30 days of the date of the letter, she could request a
telephone conference, a final decision based on the written evidence or a prerecoupment hearing.
In a July 19, 2010 decision, OWCP determined that the medical evidence was insufficient
to show that appellant was disabled from employment. It denied appellant’s claim for
compensation from June 24 to July 16, 2010 after finding that the medical evidence did not
establish that she was disabled due to her August 29, 2008 work injury.4
By decision dated August 16, 2010, OWCP found that appellant received an overpayment
of $1,155.65 because she received compensation after returning to work for eight hours. It
further determined that she was at fault in creation of the overpayment and requested that she
forward a check in the amount of the overpayment as repayment.

4

On July 29, 2010 OWCP informed appellant that the position of city carrier was suitable and provided her 30
days to accept the position or provide reasons for her refusal.

2

On August 27, 2010 appellant requested a prerecoupment hearing. She completed an
overpayment recovery questionnaire.5 By decision dated October 8, 2010, OWCP denied her
prerecoupment hearing request as it was submitted after the final overpayment decision.
On appeal, appellant asserts that the position that she returned to work on June 22, 2010
violated her medical restrictions. She also contends that she is unable to repay the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Under FECA the United States shall pay compensation for the disability of an employee
resulting from personal injury sustained while in the performance of duty.6 Once OWCP accepts
a claim and pays compensation, it has the burden of justifying modification or termination of an
employee’s benefits. OWCP may not terminate compensation without establishing that the
disability ceased or that it was no longer related to the employment.7 Generally, it can meet this
burden by showing that the employee returned to work, even if that work is light duty rather than
the date-of-injury position, if thereafter the employee earns no less than he or she had before the
employment injury.8 A short-lived and unsuccessful attempt to return to duty, however, does not
automatically discharge OWCP’s burden to justify termination of compensation.9
OWCP is required by its statute and regulations to make findings of fact. 5 U.S.C.
§ 8124(a) provides: “[OWCP] shall determine and make a finding of facts and make an award
for or against payment of compensation.” Its regulations provide that a decision “shall contain
findings of fact and a statement of reasons.”10
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for lumbar sprain and lumbar radiculitis. It paid her
compensation for disability beginning October 22, 2008. Appellant returned to modified
employment full time on June 22, 2010 but stopped work on June 24, 2010 and filed a claim for
compensation. On July 19, 2010 OWCP found that the medical evidence did not show that she
was entitled to compensation beginning June 24, 2010.
As noted, the July 19, 2010
correspondence constitutes a decision as OWCP weighed the medical evidence and reached a
legal conclusion. It did not, however, adequately discuss the factual and medical evidence of
record. OWCP is required to make findings of fact and a statement of reasons regarding the

5

In a decision dated September 16, 2010, OWCP denied appellant’s claim for a schedule award. See supra note

6

5 U.S.C. § 8102(a).

7

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

8

See Billy Sinor, 35 ECAB 419 (1983).

3.

9

See Janice F. Migut, 50 ECAB 166 (1998) (where the employee returned to work for two days, the burden
remained on OWCP to justify terminating her benefits).
10

20 C.F.R. § 10.126.

3

material facts of the case.11 The findings should be sufficiently detailed so that the claimant can
understand the reasoning behind the decision.12
Additionally, OWCP placed the burden on appellant for establishing disability. As
discussed, however, a short-lived return to work does not shift the burden of proof regarding
employment-related disability.13 The Board has held that a shift in burden is not appropriate
when there is a brief return to work and the medical evidence does not establish that the claimant
could continue to perform the light-duty job.14 Appellant returned to work on June 22, 2004 but
stopped on June 24, 2004, a period of only two days. It remained OWCP’s burden of proof to
terminate compensation. As OWCP failed to issue an appropriate decision and placed the
burden on appellant to establish total disability, the Board finds that OWCP terminated
wage-loss compensation benefits without meeting its burden of proof. The July 19, 2010
decision will be reversed.
LEGAL PRECEDENT -- ISSUE 2
Section 8102 of FECA15 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.16
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section provides that, while an employee is receiving compensation, she may not
receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.17 OWCP’s regulations state in pertinent part: “compensation for wage loss due
to disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.”18
ANALYSIS -- ISSUE 2
On June 22, 2010 appellant returned to full-time modified work with the employing
establishment. She stopped work on June 24, 2010. A claimant is not entitled to receive total

11

Id.; Beverly Dukes, 46 ECAB 1014 (1995).

12

See Paul M. Colosi, 56 ECAB 294 (2005).

13

See Fred Reese, 56 ECAB 568 (2005); Cheryl A. Weaver, 51 ECAB 308 (2000).

14

Id.

15

5 U.S.C. § 8101 et seq.

16

Id. at § 8102.

17

Id. at § 8116(a).

18

20 C.F.R. § 10.500.

4

disability compensation and actual earnings for the same period.19
received an overpayment of compensation.

Accordingly, appellant

The Board finds, however, that the case is not in posture for decision regarding the
amount of the overpayment. OWCP determined that appellant received an overpayment of
compensation from June 22 to July 3, 2010. As discussed, it did not meet its burden of proof to
establish that she was not entitled to compensation after she stopped work on June 24, 2010.
Consequently, the case is not in posture for decision regarding the amount and period of the
overpayment.20
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to establish that appellant
was not entitled to compensation from June 24 to July 16, 2010. The Board further finds that
appellant received an overpayment of compensation but the case is not in posture for
determination regarding the amount and period of the overpayment.

19

L.S., 59 ECAB 350 (2008); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (September 2010).
20

In view of the Board’s determination regarding the amount and period of the overpayment, it is premature to
address the issue of whether appellant was at fault in creating the overpayment and whether OWCP properly denied
her request for a prerecoupment hearing.

5

ORDER
IT IS HEREBY ORDERED THAT the July 19, 2010 decision of the Office of
Workers’ Compensation Programs is reversed, the August 16, 2010 decision is affirmed in part
and set aside in part and the October 8, 2010 decision is set aside. The case is remanded for
further proceedings consistent with this opinion of the Board.
Issued: August 19, 2011
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

6