United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1136
Issued: January 14, 2022

Case Submitted on the Record

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

JURISDICTION
On July 16, 2021 appellant, through counsel, filed a timely appeal from a June 7, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted September 6, 2020 employment incident.
FACTUAL HISTORY
On September 9, 2020 appellant, then a 46-year-old miscellaneous clerk, filed a traumatic
injury claim (Form CA-1) alleging that on September 6, 2020 she sustained a laceration to her left
hand requiring six stitches when she was attacked by a dog while in the performance of duty. She
indicated that she was affixing a form on an interviewee’s door when a dog suddenly pushed the
door open and attacked her. On the reverse side of the claim form appellant’s supervisor, N.M.,
acknowledged that appellant was injured in the performance of duty and certified that his
knowledge of the injury comported with the information provided by appellant.
Appellant submitted an incident report dated September 6, 2020. It indicated that on that
date she was going “door to door for her job … and was bitten by a dog.”
In an urgent care return to work form dated September 6, 2020, Rachel Davis, a certified
physician assistant, indicated that appellant may return to modified-duty work.
In a development letter dated September 16, 2020, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence necessary to
establish her claim and attached a questionnaire for her completion. OWCP afforded appellant 30
days to submit the requested evidence.
In a September 6, 2020 urgent care and visit summary report, Ms. Davis noted that
appellant was bitten by a dog on her left hand at a house that she was surveying for work. On
physical examination of the left hand she observed a laceration o n the inferior heel of hand, open
and bleeding. Ms. Davis assessed “dog bite of hand.”
In a summary report dated September 10, 2020, Dawn L. Bruni, a nurse practitioner, noted
that appellant was evaluated for a follow up after a dog bite on Sunday.
In a September 14, 2020 urgent care report, Ms. Bruni indicated that appellant was seen
for removal of sutures that were placed following a dog bite on the left hand. She reported that
the wound was healing well with minimal erythema and tenderness.
By decision dated October 29, 2020, OWCP denied appellant’s claim. It accepted that the
September 6, 2020 employment incident occurred, as alleged, but denied the claim finding that the
evidence of record did not include medical evidence containing a diagnosis from a qualified
physician in connection with the accepted employment incident.
On November 19, 2020 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on March 22, 2021 at
which appellant’s representative cited to OWCP’s procedure manual and contended that OWCP
should accept the claim for a dog bite injury to the left hand. He also asserted that appellant
developed an infection as a result of the September 6, 2020 dog bite injury.
2

In an April 14, 2021 letter, Dr. Katelyn Atwater, a Board-certified internist, indicated to
counsel that secondary thrombocytosis “can be” an inflammatory response “not necessarily due to
a dog bite, but could be related.” She also noted that appellant’s secondary thrombocytosis had
resolved.
OWCP received a laboratory report dated October 12, 2020, which indicated the presence
of thrombocytosis.
By decision dated June 7, 2021, OWCP’s hearing representative modified the October 29,
2020 decision to find that appellant had established a medical diagnosis of thrombocytosis in
connection with the September 6, 2020 employment incident, but denied the claim, finding that
the medical evidence of record was insufficient to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 4 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established. 7
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. 8 Second, the employee must submit evidence, in the
form of probative medical evidence, to establish that the employment incident caused a personal
injury.9

3

Id.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB
354 (1989).

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The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 10 The opinion of
the physician must be based on a complete factual and medical background of the employee, 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 factor(s)
identified by the employee.11 The weight of the 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.12
Pursuant to OWCP’s procedures, no development of a claim is necessary where the
condition reported is a minor one which can be identified on visual inspection by a lay person (e.g.,
burn, laceration, insect sting, or animal bite). 13 No medical report is required to establish a minor
condition such as a laceration. 14
ANALYSIS
The Board finds that appellant has met her burden of proof to establish a laceration on her
left hand causally related to the accepted September 6, 2020 employment incident.
OWCP procedures provide that if a condition reported is a minor one, such as a burn,
laceration, insect sting, or animal bite, which can be identified on visual inspection by a lay person,
a case may be accepted without a medical report and no development of the case need be
undertaken, if the injury was witnessed or reported promptly, and no dispute exists as to the
occurrence of an injury; and no time was lost from work due to disability. 15 This section of
OWCP’s procedures further states that, in cases of serious injury (motor vehicle accident,
stabbings, shootings, etc.) if the employing establishment does not dispute the facts of the case,
and there are no questionable circumstances, the case may be accepted for a minor condition, such
as laceration, without a medical report, while simultaneously developing the case for other more
serious conditions. This is true even if there is lost time due to such a serious injury.16
Appellant noted on her claim form that she suffered a laceration to her left hand, which
required six stitches, following a dog bite injury. The Board finds that the description of the
condition, a dog bite to her left hand and resultant laceration, and history of injury, is the type of
10

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24,
2019); Robert G. Morris, 48 ECAB 238 (1996).
11

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
12

James Mack, 43 ECAB 321 (1991).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.800.6(a) (June 2011).

14

Id.; see B.H., Docket No. 20-1048 (issued September 15, 2021) (the Board accepted a laceration above a
claimant’s left eye as causally related to the accepted employment incident).
15

Supra note 13.

16

Id.

4

minor condition identifiable on visual inspection by a lay person for which OWCP’s procedures
allows the acceptance of a claim without a medical report from a qualified physician. 17 The
signature of N.M., appellant’s supervisor, on the September 9, 2020 Form CA-1acknowledged
appellant’s statement that she sustained a dog bite to her left hand while in the performance of
duty. Appellant promptly received medical treatment at an urgent care facility and the
September 6, 2020 report from Ms. Davis noted a laceration on appellant’s left hand, which
required stitches, following a dog bite. As the evidence of record establishes diagnosed visible
injuries, the Board finds that appellant has met her burden of proof to establish a laceration to her
left hand causally related to the accepted September 6, 2020 employment incident. 18 The case
will, therefore, be remanded for payment of medical expenses and any attendant disability.
The Board further finds, however, that appellant has not established the additional
condition of thrombocyclosis causally related to the September 6, 2020 employment injury. In an
April 14, 2021 letter, Dr. Atwater explained that thrombocytosis “can be” an inflammatory
response “not necessarily due to a dog bite.” The Board finds that her opinion is speculative in
nature. Dr. Atwater did not definitively opine that appellant developed thrombocyclosis as a result
of appellant’s September 6, 2020 employment injury, but merely noted that the condition “can be”
a response to a dog bite. 19 The Board has held that medical opinions that are speculative or
equivocal in character are of diminished probative value. 20 The Board finds, therefore, that this
evidence is insufficient to establish appellant’s burden of proof to establish additional medical
conditions as causally related to the accepted employment injury.
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 met her burden of proof to establish a left hand laceration
causally related to the accepted September 6, 2020 employment incident. The Board further finds,
however, that she has not met her burden of proof to establish additional medical condition s as
causally related to the accepted September 6, 2020 employment injury.

17

Id.; see A.C., Docket No. 20-0703 (issued December 22, 2020) (the Board accepted an open leg wound due to a
dog bite as causally related to the accepted employment incident).
18

T.C., Docket No. 21-0513 (issued September 14, 2021) (the Board accepted a left finger contusion as causally
related to the accepted employment incident); see also B.C., Docket No. 20-0498 (issued August 27, 2020) (the Board
accepted a lumbar contusion as causally related to the accepted employment incident).
19

R.Q., Docket No. 20-0585 (issued September 10, 2021); P.D., Docket No. 18-1461 (issued July 2, 2019); C.M.,
Docket No. 19-0264 (issued December 19, 2019).
20

D.B., Docket No. 18-1359 (issued May 14, 2019); Ricky S. Storms, 52 ECAB 349 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the June 7, 2021 decision of the Office of Workers’
Compensation Programs is reversed in part and affirmed in part.
Issued: January 14, 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.N., Appellant
and
DEPARTMENT OF THE AIR FORCE,
LACKLAND AIR FORCE BASE,
San Antonio, TX, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Catherine D. Carter, Esq., for the Director

Docket No. 11-21
Issued: July 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 4, 2010 appellant, through her representative, filed a timely appeal from a
June 28, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was a federal employee within the meaning of the Act for
purposes of receiving compensation for an injury she allegedly sustained on August 6, 2007.
FACTUAL HISTORY
On May 28, 2009 appellant, then a 59-year-old English as a Second Language (ESL)
specialist at the Defense Language Institute English Language Center (DLIELC), filed a Form
1

5 U.S.C. § 8101 et seq.

CA-2 claim for benefits, alleging a dislocated right shoulder when she fell while lifting boxes
into a moving van outside her home in California on August 6, 2007. In a statement received by
OWCP on July 21, 2009, appellant asserted that she was packing in preparation for her move
from California to San Antonio, Texas, where she was scheduled to commence employment with
DLIELC on September 4, 2007.
She had worked at employing establishment since
September 4, 2007.
By letter dated June 11, 2009, OWCP advised appellant that it required additional
evidence to determine whether she was eligible for compensation benefits. It informed her that it
did not appear that she was a federal employee at the time of her alleged injury. OWCP
requested that appellant submit additional factual and medical evidence in support of her claim.
Appellant submitted a position description and a Form SF-50 which indicated that her
federal employment was to commence as of September 4, 2007.
By decision dated November 30, 2009, OWCP denied appellant’s claim, finding that she
was not eligible for compensation under the Act because she was not an “employee” of the United
States for the purpose of coverage under the Act.
By letter dated April 16, 2010, the employing establishment asserted that appellant was
not a federal employee as of August 6, 2007 for purposes of receiving compensation. It advised
that she did not formally begin her federal employment until September 4, 2007, when she took
an oath and completed affidavits which formally commenced her employment. Therefore,
September 4, 2007 marked the effective date of appellant’s federal employment.
By letter dated December 21, 2009, appellant’s attorney requested a hearing, which was
held on March 23, 2010. At the hearing, appellant testified that, prior to moving to Texas, she
received a verification letter of employment from the DLIELC dated July 19 or 20, 2007 which
constituted proof of her federal employment. She acknowledged, however, that she did not
receive a moving allowance, reimbursement or any stipend for her move; nor did she receive
compensation for government service prior to her September 4, 2007 employment start date.
Appellant stated that she had a copy of the verification letter, which she used as proof of
employment to obtain an apartment in San Antonio, and that she would submit this letter to
OWCP. OWCP’s hearing representative agreed to keep the record open for 30 days to provide
appellant the opportunity to submit a copy of the employment verification letter; however, the
record does not contain a response.
By decision dated June 28, 2010, OWCP’s hearing representative affirmed the
November 30, 2009 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing that 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
2

5 U.S.C. §§ 8101-8193.

2

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.3 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.4
Section 8101(1) of the Act defines a federal employee as “a civil officer or employee in any
branch of the government of the United States, including an officer or employee of the United
States, without pay or for nominal pay, when a statute authorizes the acceptance of use of the
service or authorizes payment of travel or other expenses of the individual.”
Section 10.5 of the implementing regulations define a federal employee as:
“(1) A civil officer or employee in any branch of the Government of the United
States, including an officer or employee of an instrumentality wholly owned by the
United States;
“(2) An individual rendering personal service to the United States similar to the
service of a civil officer or employee of the United States, without pay or for
nominal pay, when a statute authorizes the acceptance or use of the use of the
service, or authorizes payment of travel or other expenses of the individual.”
ANALYSIS
The Board finds that appellant has not submitted sufficient evidence to establish that she
was an “employee of the United States” within the meaning of the Act at the time of her alleged
August 6, 2007 injury. Appellant did not submit sufficient evidence to establish that she was
employed by the Federal Government under the definitions listed above. It is uncontested that she
did not commence employment. On the date of her alleged injury, appellant was packing her
belongings in preparation for a move from California to Texas, where she would begin her federal
employment almost a month later. While she may have received a formal offer of federal
employment prior to her injury, it was for employment which would not commence until
September 4, 2007. Appellant was not a federal employee or a person rendering service similar to
that of a federal employee at the time of her injury. The act of loading boxes into a moving truck
did not constitute federal employment. Appellant was not rendering personal service to the United
States similar to the service of a civil officer or employee of the United States, without pay or for
nominal pay, under a statute which authorizes the acceptance or use of the use of the service or
authorizes payment of travel or other expenses. She acknowledged at the hearing that she did not
receive any compensation prior to September 4, 2007 or reimbursement for her moving expenses.
Appellant was not providing any service or benefit to the employing establishment at the time of

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

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her alleged injury. Therefore her preemployment activity on August 6, 2007 was personal and was
not undertaken as a federal employee.5
Accordingly, appellant has not established that she was a federal employee for the purpose
of coverage under the Act as of August 6, 2007 and is not entitled to compensation. The Board
will affirm the June 28, 2010 OWCP decision.
CONCLUSION
The Board finds that appellant has failed to establish that she is a federal employee within
the meaning of the Act for purposes of receiving compensation for her alleged August 6, 2007
injury.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 18, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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See, e.g., Larry Knoke, 39 ECAB 353 (1988), where the Board affirmed the denial of the claim of a Post Office
trainee who suffered a sprained hand and possible nerve damage while engaging in preemployment testing. The Board
noted that at the time of the claimant’s injury that he was receiving no pay from the employing establishment and was
“providing no identifiable service or benefit” to the agency. See also William K. Bowen, 49 ECAB 248 (1997).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1890
Issued: April 9, 2008

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 July 10, 2007 appellant, through counsel, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decisions dated August 7, 2006 and February 23, 2007,
finding that she had no more than a 33 percent impairment of the right upper extremity. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has more than a 33 percent impairment of the right upper
extremity, for which she received a schedule award. On appeal, counsel contends that the Office
improperly relied on the report of an Office medical adviser to resolve a conflict in the medical
evidence.
FACTUAL HISTORY
On April 10, 1995 appellant, then a 45-year-old inspection operations support technician,
filed a traumatic injury claim assigned file number 02-729575. She alleged that on April 4, 1995
she experienced pain in her neck, shoulder and arm when she caught a computer terminal as it

fell from a counter at work. On March 11, 1997 appellant filed a claim for an occupational
disease assigned file number 02-0696840 because her request for surgery for a condition she
sustained on April 4, 1995 was denied by the Office on February 10, 1997. The Office accepted
the claims for right carpal tunnel syndrome, right shoulder impingement syndrome, calcific
tendinitis and right shoulder and cervical sprains.1 It authorized arthroscopy and subacromial
decompression of the right shoulder which was performed by Dr. Gregory S. Gallick, an
attending Board-certified orthopedic surgeon, on April 18, 1996 and right carpal tunnel release
which was also performed by Dr. Gallick on July 9, 1998.
On September 22, 1999 appellant filed a claim for a schedule award dated July 27, 1999.
In a June 15, 1999 medical report, Dr. David Weiss, an osteopath, Board-certified in orthopedic
surgery, opined that she sustained a 53 percent impairment of the right upper extremity based on
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (4th ed. 1995). On July 26, 1999 Dr. Daniel Kalash, an Office medical adviser, reviewed
Dr. Weiss’ June 15, 1999 report and agreed with his finding that appellant sustained a 53 percent
impairment of the right upper extremity.
Subsequently, appellant filed another claim for a schedule award. She submitted
Dr. Weiss’ April 14, 2000 report which found that appellant sustained a 60 percent impairment
of the right upper extremity based on the fourth edition of the A.M.A., Guides. On August 7,
2000 Dr. Henry Magliati, an Office medical adviser, reviewed Dr. Weiss’ April 14, 2000
findings and determined that appellant sustained a 37 percent impairment of the right upper
extremity.
By decision dated October 3, 2000, the Office granted appellant a schedule award for a
37 percent impairment of the right upper extremity based on Dr. Magliati’s August 7, 2000
opinion. In a letter dated October 6, 2000, appellant, through counsel, requested an oral hearing
before an Office hearing representative.
In a September 12, 2001 decision, an Office hearing representative set aside the
October 3, 2000 decision and remanded the case to the Office. The hearing representative found
a conflict in the medical opinion evidence between Dr. Weiss and Dr. Magliati as to the extent of
permanent impairment to appellant’s right upper extremity.
On remand the hearing
representative instructed the Office to refer appellant together with the case record and a
statement of accepted facts to an appropriate impartial medical specialist to resolve the conflict.
By letter dated October 18, 2001, the Office referred appellant to Dr. Robert Dennis, a
Board-certified orthopedic surgeon, for an impartial medical examination. In a November 26,
2001 report, Dr. Dennis opined that appellant sustained a 31 percent impairment of the right
upper extremity based on the fifth edition of the A.M.A., Guides. On December 20, 2001
Dr. Magliati reviewed Dr. Dennis’ October 18, 2001 report. He determined that appellant
sustained a 24 percent impairment of the right upper extremity based on the A.M.A., Guides.

1

The Office doubled the cases assigned file numbers 02-072957 and 02-0696840 into a master case file assigned
file number 02-069840.

2

By decision dated January 2, 2002, the Office granted appellant a schedule award for a 24
percent impairment of the right upper extremity based on Dr. Magliati’s December 20, 2001
opinion. In a January 8, 2002 letter, appellant, through counsel, requested an oral hearing before
an Office hearing representative.
By decision dated April 23, 2002, an Office hearing representative set aside the
January 2, 2002 decision and remanded the case to the Office. He found that the Office erred in
having Dr. Magliati review the October 18, 2001 report of Dr. Dennis as he was part of the
conflict in medical opinion.
On May 13, 2002 Dr. Merola, an Office medical adviser, reviewed Dr. Dennis’
November 26, 2001 report. He found that appellant sustained a 31 percent impairment of the
right upper extremity based on the A.M.A., Guides.
In a July 29, 2002 decision, the Office granted appellant a schedule award for a 31
percent impairment of the right upper extremity.
Appellant requested an oral hearing before a hearing representative. By decision dated
July 2, 2003, a hearing representative set aside the July 29, 2002 decision and remanded the case
to the Office. He found that the report of Dr. Dennis was not entitled to special weight as he
failed to provide the necessary measurements and calculations to support his impairment rating
based on the A.M.A., Guides.
By letter dated September 30, 2003, the Office referred appellant to Dr. Norman M.
Heyman, a Board-certified orthopedic surgeon, for an impartial medical examination. In an
October 21, 2003 report, Dr. Heyman reviewed a history of the April 4, 1995 employment injury
and appellant’s medical records. He reported his essentially normal findings on physical
examination. Dr. Heyman also reported his range of motion findings regarding appellant’s right
upper extremity. He stated that 90 degrees of flexion constituted a six percent impairment and
30 degrees of extension constituted one percent impairment (A.M.A., Guides 476, Figure 16-40).
Dr. Heyman further stated that 80 degrees of abduction constituted a five percent impairment and
30 degrees of adduction constituted one percent impairment (A.M.A., Guides 477, Figure 16-43).
He found that 30 degrees of external rotation represented a one percent impairment and 60
degrees of internal rotation represented a two percent impairment (A.M.A., Guides 479, Figure
16-46). Dr. Heyman also found that appellant’s distal clavicle resection and acromioplasty
constituted 10 percent impairment (A.M.A., Guides 506, Table 16-27). He determined that his
impairment ratings for loss of range of motion constituted a 39 percent impairment of the right
shoulder (A.M.A., Guides 510, Table 16-35). In addition, Dr. Heyman determined that appellant
sustained five percent impairment for carpal tunnel syndrome based on no atrophy or sensory
change and good muscle function and opposition. He added his impairment rating for loss of
range of motion and impairment rating for carpal tunnel syndrome to calculate a 44 percent
impairment of the right upper extremity. On October 21, 2003 Dr. Heyman completed a work
capacity evaluation, stating that appellant could not perform her regular work duties but she
could work eight hours per day with restrictions.
On November 21, 2003 Dr. Gregory L. Cohen, an Office medical adviser, reviewed
Dr. Heyman’s October 21, 2003 report. He determined that 90 degrees of flexion constituted six

3

percent impairment and 30 degrees of extension constituted one percent impairment (A.M.A.,
Guides 476, Figure 16-40). Dr. Cohen also determined that 80 degrees of abduction constituted
five percent impairment and 30 degrees of adduction constituted one percent impairment
(A.M.A., Guides 477, Figure 16-43). He found that 30 degrees of external rotation represented
one percent impairment and 60 degrees of internal rotation represented two percent impairment
(A.M.A., Guides 479, Figure 16-46). Dr. Cohen added his loss of range of motion impairment
ratings to calculate a 16 percent impairment of the right upper extremity. He stated that the
maximum impairment rating due to appellant’s shoulder pain was five percent (A.M.A., Guides
492, Table 16-15). Dr. Cohen multiplied this deficit by 60 percent Grade 3 deficit (A.M.A.,
Guides 482, Table 16-10), which yielded a 3 percent impairment for pain. He combined the
impairment ratings for loss of range of motion and pain to calculate a 19 percent impairment of
the right upper extremity (A.M.A., Guides 604, Combined Values Chart). Dr. Cohen stated that
there was no impairment due to upper extremity weakness based on section 16.8a on page 508 of
the A.M.A., Guides. He determined that maximum upper extremity impairment for sensory
deficit or pain when the median nerve was involved at the wrist (carpal tunnel syndrome) was 39
percent (A.MA., Guides 492, Table 16-15). Dr. Cohen stated that this was more advantageous
for appellant than using very mild pinch weakness. He multiplied this deficit by 25 percent for
minimal abnormal sensations (A.M.A., Guides 482, Table 16-10), which yielded a 10 percent
impairment for carpal tunnel syndrome. Dr. Cohen combined the 19 percent impairment for loss
of range of motion and 10 percent impairment for carpal tunnel syndrome to calculate a 27
percent impairment of the right upper extremity (A.M.A., Guides 604, Combined Values Chart).
He concluded that appellant reached maximum medical improvement in November 2001 based
on Dr. Dennis’ report.
By decision dated December 23, 2003, the Office granted appellant a schedule award for
27 percent impairment based on Dr. Cohen’s November 21, 2003 opinion. The Office also
found that appellant received an overpayment in the amount of $7,363.21 as she received a
schedule award for a 31 percent impairment of the right upper extremity when she should have
received an award for 27 percent impairment.
In a letter dated December 29, 2003, appellant, through counsel, requested an oral
hearing before a hearing representative. In a decision dated November 8, 2004, a hearing
representative set aside the December 23, 2003 decision and remanded the case to the Office. He
found that, although Dr. Cohen provided a rationalized medical opinion in support of his finding
that appellant sustained a 27 percent impairment of the right upper extremity, he did not address
whether she had any impairment due to her distal clavicle resection. On remand the hearing
representative instructed the Office to obtain a supplemental report from Dr. Cohen which
explained why appellant did not have any impairment for her right shoulder surgery based on the
A.M.A., Guides.
In a July 11, 2006 report, Dr. Cohen opined that appellant sustained a 10 percent
impairment of the right upper extremity for her distal clavicle resection (A.M.A., Guides 506,
Table 16-27). He combined this impairment rating with his previous finding of 16 percent
impairment for loss of range of motion, 3 percent impairment for pain and 10 percent impairment
for carpal tunnel syndrome to determine that appellant sustained a 33 percent impairment of the
right upper extremity (A.M.A., Guides 604, Combined Values Chart). Dr. Cohen stated that, as

4

previously noted, there was no additional impairment for weakness based on section 16.8a of the
A.M.A., Guides.
By decision dated August 7, 2006, the Office granted appellant a schedule award for a 33
percent impairment of the right upper extremity based on Dr. Cohen’s July 11, 2006 opinion.2
On August 14, 2007 appellant, through counsel, requested an oral hearing.
In a decision dated February 23, 2007, a hearing representative affirmed the August 7,
2006 decision. She found that appellant had no more than a 33 percent impairment of the right
upper extremity based on Dr. Cohen’s July 11, 2006 opinion. The hearing representative found
that Dr. Cohen properly applied the A.M.A., Guides and provided rationale for his opinion.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.5 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.6
In determining whether a claimant has discharged his or her burden of proof and is
entitled to compensation benefits, the Office is required by statute and regulation to make
findings of fact.7 Office procedure further specifies that a final decision of the Office must
include findings of fact and provide clear reasoning which allows the claimant to understand the
precise defect of the claim and the kind of evidence which would tend to overcome it.8 These
requirements are supported by Board precedent.9

2

In an August 7, 2006 letter, the Office advised appellant that an overpayment of compensation no longer existed
in her claim as she was entitled to a schedule award for 31 percent impairment of the right upper extremity and she
previously received a schedule award for 27 percent impairment.
3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(19).

6

20 C.F.R. § 10.404.

7

5 U.S.C. § 8124(a) provides: The [Office] shall determine and make a finding of facts and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of the Office
shall contain findings of fact and a statement of reasons.
8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

9

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

5

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.10
When the Office obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the specialist’s opinion requires clarification
or elaboration, the Office must secure a supplemental report from the specialist to correct the
defect in his original report.11 However, when the impartial specialist is unable to clarify or
elaborate on his original report or if his supplemental report is also vague, speculative or lacking
in rationale, the Office must submit the case record and a detailed statement of accepted facts to
a second impartial specialist for the purpose of obtaining his rationalized medical opinion on the
issue.12
ANALYSIS
The Office determined that a conflict in the medical opinion evidence arose between
Dr. Weiss, an attending physician, and Dr. Magiliati, an Office referral physician, as to the extent
of permanent impairment of appellant’s right upper extremity due to her employment-related
right carpal tunnel syndrome, right shoulder impingement syndrome, calcific tendinitis and right
shoulder and cervical sprains. Dr. Weiss found that appellant sustained a 60 percent impairment
of the right upper extremity based on the A.M.A., Guides. Dr. Magliati opined that appellant
sustained a 37 percent impairment of the right upper extremity based on the A.M.A., Guides.
The Office initially referred appellant to Dr. Dennis, selected as the impartial medical
specialist. However, his report was found insufficient to resolve the conflict in the medical
opinion evidence. The case was remanded to the Office for referral of appellant to another
impartial medical specialist. On remand, the Office properly referred appellant to Dr. Heyman
for an impartial medical examination.
In an October 21, 2003 report, Dr. Heyman stated that appellant sustained a 44 percent
impairment of the right upper extremity based on the A.M.A., Guides. He stated that 90 degrees
of flexion constituted six percent impairment and 30 degrees of extension constituted one percent
impairment (A.M.A., Guides 476, Figure 16-40). Dr. Heyman further stated that 80 degrees of
abduction constituted five percent impairment and 30 degrees of adduction constituted one
percent impairment (A.M.A., Guides 477, Figure 16-43). He found that 30 degrees of external
rotation represented one percent impairment and 60 degrees of internal rotation represented two
percent impairment (A.M.A., Guides 479, Figure 16-46). Dr. Heyman also found that
appellant’s distal clavicle resection and acromioplasty constituted 10 percent impairment
(A.M.A., Guides 506, Table 16-27). He determined that his impairment ratings for loss of range
10

Gloria J. Godfrey, 52 ECAB 486 (2001).

11

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
12

Nancy Keenan, 56 ECAB 687 (2005); Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB
673 (1996).

6

of motion constituted a 39 percent impairment of the right shoulder (A.M.A., Guides 510, Table
16-35). In addition, Dr. Heyman determined that appellant sustained five percent impairment for
carpal tunnel syndrome based on no atrophy or sensory change and good muscle function and
opposition. He added his impairment rating for loss of range of motion and impairment rating
for carpal tunnel syndrome to calculate a 44 percent impairment of the right upper extremity.
On November 21, 2003 Dr. Cohen, an Office medical adviser, reviewed Dr. Heyman’s
findings and applied the A.M.A., Guides. He determined that appellant sustained a 27 percent
impairment of the right upper extremity. In a supplemental report dated July 11, 2006,
Dr. Cohen further determined that appellant sustained a 10 percent impairment of the right upper
extremity for her accepted employment-related distal clavicle resection based on the A.M.A.,
Guides. He combined this impairment rating with his previous impairment ratings to determine
that appellant sustained a 33 percent impairment of the right upper extremity (A.M.A., Guides
604, Combined Values Chart).
On August 7, 2006 the Office issued a decision granting appellant a schedule award for
33 percent impairment of the right upper extremity based on Dr. Cohen’s opinion. This decision
was affirmed by an Office hearing representative on February 23, 2007. The Board finds that the
Office medical adviser did not explain why Dr. Heyman’s opinion was not entitled to special
weight accorded an impartial medical specialist. If the Office medical adviser believed that
Dr. Heyman’s opinion needed clarification or elaboration, the Office has a responsibility to
secure a supplemental report from him that corrects the defect in the original opinion.13 For
these reasons, the case should be remanded to the Office for a proper evaluation of appellant’s
claim for a schedule award in accordance with the above-described standards. The Office should
request a supplemental opinion from Dr. Heyman. If Dr. Heyman is unwilling or unavailable to
render such, the Office should select another impartial medical specialist for an evaluation of
appellant and an opinion as to the extent and degree of any employment-related impairment.
After such development it deems necessary, the Office should issue an appropriate decision.14
CONCLUSION
The Board finds that the conflict in the medical evidence was not properly resolved and
the case requires further development.

13

See cases cited in supra note 12.

14

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2007 and August 7, 2006
decisions of the Office of Workers’ Compensation Programs are set aside and the case is
remanded for further action consistent with this decision.
Issued: April 9, 2008
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
PEACE CORPS, MEDICAL SERVICES
DIVISION, Mombo, Tanzania, Employer
__________________________________________
Appearances:
Robert E. Irvin, D.O., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0089
Issued: October 17, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 6, 2018 appellant, through her representative, filed a timely appeal from a
March 26, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards docketed the appeal as No. 19-0089.
On March 5, 2018 appellant requested reconsideration and submitted an authorization
designating her physician, Dr. Robert Irvin, a neuromusculoskeletal medicine specialist, to
represent her before OWCP.
By decision dated March 26, 2018, OWCP denied appellant’s request for reconsideration
of the merits of her claim. It did not send a copy of that decision to her authorized representative.

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.

OWCP’s regulations and Board case law require OWCP to send a copy of its decision to
the authorized representative. 2 The Board has held that a decision under the Federal Employees ’
Compensation Act3 is not properly issued unless both appellant and the authorized representative
have been sent copies of the decision. 4 As OWCP did not send the March 26, 2018 decision to
appellant’s authorized representative, the Board concludes that the decision was not properly
issued. The Board will, therefore, set aside the March 26, 2018 decision and remand that case for
an appropriate and properly issued decision on the relevant issue. Accordingly,
IT IS HEREBY ORDERED THAT the March 26, 2018 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.

See 20 C.F.R. § 10.127, which provides in pertinent part: “A copy of the decision shall be mailed to the
employee’s last known address. If the employee has a designated representative before OWCP, a copy of the decision
will also be mailed to the representative.” See M.R., Order Remanding Case, Docket No. 11-0632 (issued
September 28, 2011) (the Board found that OWCP did not properly issue its decision where it did not send a copy of
that decision to appellant’s authorized representative); George R. Bryant, Docket No. 03-2241 (issued April 19, 2005)
(the Board found that OWCP did not properly issue its June 18, 2003 decision when it did not send a copy of that
decision to the authorized representative on that date. The Director of OWCP conceded a procedural error and advised
that a merit review would be conducted on remand to preserve the claimant’s appeal rights). Cf. R.W., Docket No.
15-1886 (issued February 4, 2016) (where the Board set aside OWCP’s hearing abandonment decision and remanded
the case as it did not serve the notice of hearing on appellant’s authorized representative).
2

3

5 U.S.C. § 8101 et seq.

4

Travis L. Chambers, 55 ECAB 138 (2003) (the Board held that section 10.127 requires that a copy of an OWCP
decision be sent to the authorized representative and that any other interpretation of the language of the regulation
would be inconsistent with the clear language of its initial provisions); see also M.R. and George R. Bryant, supra
note 2.

2

Issued: October 17, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
NATIONAL PROTECTION & PROGRAMS
DIRECTORATE, Casa Grande, AZ, Employer
__________________________________________

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

Docket No. 19-0362
Issued: June 11, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 11, 2018 appellant filed a timely appeal from a June 18, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish acute renal failure
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On July 21, 2014 appellant, then a 58-year-old chemical security inspector, filed an
occupational disease claim (Form CA-2) alleging that he sustained acute renal failure causally
1

5 U.S.C. § 8101 et seq.

related to factors of his federal employment. He noted that he initially became aware of his
condition on May 29, 2014 and attributed it to his work duties on May 30, 2014. Appellant
stopped work on May 29, 2014.
On October 11, 2013 appellant received treatment in the emergency department for an ileus
or small bowel obstruction. On January 30, 2014 he received treatment for a skin rash.
In a statement accompanying his claim, appellant related that beginning in 2005 he had
worked as an inspector at chemical facilities and rail tank cars. He had no family history of
problems with his kidneys. Appellant attributed his acute renal failure to “years of chronic
exposure to chemicals and recent multiple inspections of agricultural chemical facilities” in the
weeks before he became ill. He noted that the facilities contained potassium nitrate which had
“health hazards known to cause blood and kidney issues.” Appellant described in detail his
employment duties, noting that he conducted hundreds of inspections of rail tankers carrying
chemicals such as chlorine and anhydrous ammonia from May 2005 to July 2010. In July 2010,
he began inspecting facilities and worked with a state inspector from 2011 to 2013 who had
physical reactions when exposed to nitrate-based chemicals in factories. Appellant related that the
number of inspections he conducted had greatly increased in 2013 and that he had begun to
experience “unexplained medical issues which required emergency medical care.” He received
treatment for ileus on October 11, 2013, which he noted could be caused by chemical exposure,
and developed a severe rash and hives on his skin after conducting five inspections of chemical
facilities in Hawaii. Appellant advised that he was hospitalized on May 30, 2014 for acute renal
failure and that a neurologist had opined that chemical exposure had contributed to his condition
after learning of his occupation.
In a May 30, 2014 consultation, Dr. Theodore Tzeremas, a Board-certified nephrologist,
evaluated appellant for an acute kidney injury. He noted that appellant had a history of
hyperlipidemia and hypertension and that he took ibuprofen nightly. Dr. Tzeremas diagnosed an
acute kidney injury which he suspected resulted from “severe volume depletion in the setting of
nonsteroidal medication use.”
In a discharge summary dated June 1, 2014, Dr. Matthew C. Kerzan, a Board-certified
internist, discussed appellant’s hospitalization for high creatinine levels after lab work revealed
acute renal failure. He diagnosed acute renal failure due to either medications, urinary retention,
or chemicals. Dr. Kerzan noted that appellant had a history of smoking in the past and had been
exposed to chemicals in his work as a chemical inspector.
On August 15, 2014 appellant submitted a summary of recent chemical facility inspections
that he had performed from September 17, 2013 to July 2, 2014.
In a progress report dated September 3, 2014, Dr. Maninder P. Chatha, a Board-certified
nephrologist, diagnosed stage two chronic kidney disease with high creatinine levels for three
months.
Appellant underwent a left renal biopsy on September 11, 2014. Dr. Juan M. Iturregui, a
Board-certified pathologist, indicated that the biopsy had revealed tubulointerstitial fibrosis and a
focal acute tubular injury. He advised, “The degree of tubulointerstitial fibrosis is out of proportion

2

to the damage to vessels and glomeruli, therefore, these changes could represent the chronic
sequela of a previously tubulointerstitial disorder, such as acute tubular necrosis due to a toxic
event or a hemodynamic disturbance.”
On September 30, 2014 appellant provided a list of additional facilities that he inspected,
including ones that had environmental violations. He submitted a nonexhaustive list of chemicals
that were present at the inspected facilities.
On October 13, 2014 Dr. Chatha related that he had treated appellant initially for an acute
kidney injury and was currently treating him for chronic kidney disease and hypertension. He
advised that appellant should avoid exposure to toxic chemicals, stress, and extensive travel.
Appellant submitted enforcement and compliance histories for various facilities that he had
inspected and information regarding complaints and accidents at facilities from Occupational
Safety and Health Administration (OSHA). He also submitted chemical release information for
facilities.
In a development letter dated December 12, 2014, OWCP advised appellant that the
evidence currently was insufficient to show that he actually had experienced the alleged
employment factors or had sustained a diagnosed condition due to an employment activity. It
notified him of the type of additional evidence needed, including a detailed factual statement
describing the activities that he believed had contributed to his condition and a report from his
attending physician addressing the causal relationship between any diagnosed condition and
factors of his federal employment. OWCP afforded appellant 30 days to submit the requested
evidence.
Appellant, in a January 2, 2015 response to OWCP’s development letter, noted that the
renal biopsy had revealed that his condition resulted from a toxic event, a hemodynamic
disturbance, or a combination of the two. He related that he had developed a rash at a facility
where a fellow inspector had a reaction to airborne nitrates. The employing establishment did not
provide safety equipment. Appellant advised that he had smoked cigarettes for 20 years, but
stopped in November 2007. He noted that the Material Safety Data Sheet (MSDS) for ammonium
nitrate listed a kidney injury as a possible consequence of prolonged exposure. Appellant advised
that inspections of facilities had increased dramatically over the last five years and that he had
been exposed to “nitrates, insecticides and pesticides stored in enclosed warehouse type
facilities….” He indicated that his physician had asked him what he did for a living as he could
not determine the etiology of his acute renal failure. Appellant had described his employment and
Dr. Tzeremas had informed him that chemical exposure had caused his condition.
An official at the employing establishment, R.L., reviewed appellant’s statement and
advised that it appeared to be accurate.
Appellant submitted a list of chemicals likely to be present in rail cars and chemicals of
interest to the employing establishment.
In a report dated January 14, 2015, Dr. Chatha noted that appellant had been hospitalized
with ileus in December 2013. In January 2014, after conducting inspections of chemical facilities,
he had to obtain treatment in the emergency room for a rash. Dr. Chatha related that appellant had
3

been admitted to the hospital in May 2014 for elevated creatinine levels. A biopsy had revealed
that appellant had kidney damage due to either acute tubular necrosis or toxic exposure, so
Dr. Chatha had referred appellant to a toxicologist to determine the cause of his condition.
Dr. Chatha diagnosed stage two chronic kidney disease. He related, “[Appellant] has a long list
of chemical exposure that he has had for the work-related inspection of different facilities. It is
difficult to specify which chemical could have contributed given that the biopsy was done after
the fact.”
By decision dated February 4, 2015, OWCP denied appellant’s occupational disease claim.
It found that he had not factually established the occurrence of the alleged chemical exposure.
OWCP noted that appellant had a 20-year history of smoking cigarettes. It concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
On February 25, 2015 appellant, through his then-counsel, requested a telephonic hearing
before an OWCP hearing representative.
In a report dated September 15, 2015, Dr. Jeffrey D. Gaber, a Board-certified internist,
evaluated appellant for chronic renal failure. He reviewed medical records, including the
pathology report finding chronic tubular interstitial changes, and a focal nebular injury due to
either toxic exposure or acute tubular necrosis. Dr. Gaber advised, “It is clear that since the
situation did not entirely return to normal, it is not due to acute tubular necrosis (which should
have resolved completely,) but instead was a chronic problem and thus more consistent with a
toxic exposure.” He listed the chemicals found at sites that appellant inspected, noting that many
facilities had violated federal safety regulations for releases of chemicals or an improper safety
system. Dr. Gaber indicated that the biopsy showed no evidence of kidney disease from
hypertension or gout, and that he had denied the use of excessive anti-inflammatory medication.
He diagnosed chronic renal insufficiency as a result of chronic tubular interstitial nephritis.
Dr. Gaber related, “It is clear that [appellant] has been exposed to a number of toxic chemicals
during his career with [the employing establishment], many of which are well-known to be
nephrotoxic. During his career, he did not have protective respiratory equipment. The pathology
report on the kidney biopsy is consistent with a toxic cause of renal insufficiency.” He noted that
appellant was repeatedly exposed to chemicals in his employment and that “chronic repeated
exposure cause human toxicity and [it] does not require a single large exposure to do this.”
Dr. Gaber advised that smoking cigarettes did not cause renal failure. He reviewed OWCP’s
decision and related:
“To reiterate, [appellant] did not have any preexisting or underlying conditions to
cause renal failure and, as stated just before, tobacco use is definitely not one of
them. The fact that a single chemical cannot be determined as the offending agent
does not, in my opinion, reduce the validity of his claim. In fact, in my opinion,
since so many of the chemicals can cause renal insufficiency, that history alone
strengthens [appellant’s] claim.
“To summarize, then, it is my opinion to a reasonable degree of medical certainty
that there is a strong causal relationship between [appellant’s] renal insufficiency
and the work[-]related exposures described above.”

4

A telephonic hearing was held on September 17, 2015.
Appellant’s then-counsel, in a November 16, 2015 statement, asserted that the evidence
from Dr. Gaber was sufficient to establish appellant’s claim.
By decision dated December 8, 2015, an OWCP hearing representative affirmed the
February 4, 2015 decision. She found that appellant had not established exposure to a particular
toxic chemical.
Thereafter, appellant provided statements from coworkers who had accompanied him on
inspections. In a statement dated November 22, 2016, P.F., a coworker, related that he
accompanied appellant on around five inspections between May 2005 and May 2014. He advised
that the chemical present at the facilities was potassium nitrate. In a statement dated November 23,
2016, T.W., a coworker, related that he performed around 20 inspections with appellant from
May 2005 to May 2014, and provided an extensive list of chemicals likely present during the
inspections.2 R.R., a coworker, in a November 29, 2016 statement advised that he had
accompanied appellant on three inspections and that sulfur dioxide and ammonium nitrate were
present at the facilities.
In a report dated June 24, 2016, Dr. Harry F. Goss, Jr., a Board-certified internist and
nephrologist, discussed appellant’s belief that his exposure to chemicals had caused his renal
condition. He diagnosed renal interstitial fibrosis, secondary tubulointerstitial nephritis, kidney
disease, a history of hypertension, history of toxic inhalation exposure, occupational exposure to
toxic agents in agriculture, occupational exposure to toxic waste, kappa light chain disease,
azotemia, and gout.
Appellant submitted an affidavit on December 7, 2016 describing in detail his workplace
exposure to chemicals, including anomia nitrate, potassium nitrate, potassium permanganate, and
aluminum phosphide. He described improper release and storage of chemicals at various facilities
that he had inspected and asserted that the employing establishment had not provided him with
respiratory equipment.
OWCP on December 7, 2016 received a November 18, 2015 statement from the employing
establishment regarding the exposure of another employee to hazardous chemicals.
In a supplemental report dated December 7, 2016, Dr. Gaber noted that appellant had
provided an affidavit indicating that he had experienced significant exposure to ammonia nitrate
in ripped and leaking pallets during the inspection at a facility with poor ventilation. In 2014, he
had performed inspections on a facility which contained the chemicals potassium nitrate,
potassium permanganate, and aluminum phosphide. Dr. Gaber discussed appellant’s exposure to
other chemicals during the course of his inspection of nine facilities. He indicated that he had
2

In a statement dated November 21, 2016, J.C., a coworker, related that he worked with appellant on fewer than
10 inspections from May 2005 and May 2014 and that he could not recall the chemicals. R.H., a coworker, in a
November 30, 2016 statement advised that he accompanied appellant on between 5 to 20 inspections and that the
position of chemical security inspector required exposure “to both known and unknown chemicals while conducting
an inspection.” R.L., a coworker, advised on November 28, 2016 that he did not know what chemicals were present
at inspected facilities.

5

reviewed the MSDS for the various chemicals and articles relevant to renal failure after exposure
to certain chemicals. Dr. Gaber related:
“Therefore, it is my conclusion, stated to a reasonable degree of medical certainty,
and based on the medical literature and that contained in the [MSDS], that it is far
more likely than not that the alleged exposures [appellant] had to one or all of the
following -- potassium permanganate, potassium nitrate, phosphorus, phosphorus
oxychloride, chlorine dioxide, and aluminum phosphide -- caused him to develop
chronic renal failure. These chemicals had volatility and can cause off-gassing, as
they can slowly evaporate and compromise the interior air quality.”
On December 6, 2016 the employing establishment denied the request from then-counsel
for information regarding the number of inspections appellant performed from May 2005 through
May 2014, the specific chemicals in the facilities, a description of the storage of the chemicals,
protective clothing or respirators he wore, and chemicals leaking or improperly stored.
On December 7, 2016 appellant, through his then-counsel, requested reconsideration of the
December 8, 2015 hearing decision. Counsel contended that he had submitted sufficient evidence
to demonstrate exposure to toxins and asserted that OWCP had failed to obtain a statement from
the employing establishment regarding alleged work exposure in accordance with its procedures.
He also maintained that the medical evidence was sufficient to establish causal relationship
between exposure to toxins in the course of appellant’s employment and his chronic renal failure.
By decision dated March 9, 2017, OWCP modified its December 8, 2015 decision to find
that appellant had established exposure to chemicals in the course of his federal employment. It
determined, however, that the medical evidence of record was insufficient to establish that he
sustained a diagnosed medical condition causally related to the accepted exposure. OWCP found
that Dr. Gaber did not discuss appellant’s history of hypertension.
In a report dated July 1, 2017, Dr. Gaber related that appellant’s biopsy had established
that his renal insufficiency had resulted from interstitial nephritis, a condition unrelated to
hypertension. He advised that there was no evidence that appellant’s controlled hypertension
“played any role in the development of the renal insufficiency.”
On September 14, 2017 appellant, through his then-counsel, requested reconsideration. He
asserted that the opinions of Dr. Gaber and Dr. Chatha were sufficient to establish causation.
By decision dated June 18, 2018, OWCP denied modification of its March 9, 2017
decision. It found that appellant had not submitted reasoned medical evidence explaining how his
exposure to potassium permanganate, potassium nitrate, phosphorus oxychloride, chlorine
dioxide, or aluminum phosphide caused renal failure.
On appeal appellant asserts that he has submitted sufficient evidence to establish his claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
6

United States within the meaning of FECA, that the claim was filed within the applicable time
limitation period of FECA,3 that an injury was sustained while 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 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.5
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.7
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility to see that justice is done.8 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.9
OWCP’s procedures provide that the claims examiner should refer the case to a second
opinion physician when it has gathered all the medical evidence from the attending physician and
does not have enough evidence about a diagnosis or an adequately reasoned opinion about causal

3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

P.D., Docket No. 17-1885 (issued September 17, 2018).

7

R.P., Docket No. 17-1914 (issued November 27, 2018).

8

X.V., Docket No. 18-1360 (issued April 12, 2019).

9

20 C.F.R. § 10.121.

7

relationship to accept the case, but does have sufficient evidence to suggest that the claimant might
be entitled to benefits.10
ANALYSIS
The Board finds that this case is not in posture for decision.
In a report dated September 15, 2015, Dr. Gaber discussed appellant’s exposure to toxins
in the course of his federal employment and noted that he was not provided with respiratory
equipment. He advised that appellant was exposed to nephrotoxic chemicals and opined that the
pathology report was consistent with toxins as a source of appellant’s renal insufficiency, noting
that the fact that his condition had failed to resolve demonstrated that tubular necrosis was not the
causative agent. Dr. Gaber opined that tobacco use did not result in appellant’s renal failure. He
concluded that appellant had experienced renal insufficiency due to employment-related chemical
exposure. On December 7, 2016 Dr. Gaber discussed appellant’s specific exposure to chemicals
at various facilities, including ammonia nitrate, potassium nitrate, potassium permanganate, and
aluminum phosphide, and opined that his exposure to these chemicals resulted in his chronic renal
failure. On July 1, 2017 he advised that the biopsy results had established that appellant’s
hypertension failed to contribute to his renal insufficiency.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter.11 It shares responsibility to see that justice is done.12 The Board finds that Dr. Gaber
provided an opinion that appellant’s renal failure resulted from chemical exposure to ammonia
nitrate, potassium nitrate, potassium permanganate, and aluminum phosphide in the course of
appellant’s federal employment. He based his opinion on an uncontradicted history of injury and
the results of objective testing. Dr. Gaber’s opinion is sufficient, given the absence of any
opposing medical evidence, to require further development of the record.13 Accordingly, the
Board will remand the case to OWCP.
Additionally, although it is the claimant’s burden of proof to establish his or her claim,
OWCP shares responsibility in the development of the evidence, particularly when such evidence
is of the character normally obtained from the employing establishment or other government
source.14 On remand OWCP shall obtain all relevant information from the employing
establishment regarding the details of appellant’s accepted chemical exposures, and his use of any
protective equipment. It should prepare a statement of accepted facts and refer to a second opinion
physician to determine whether he has sustained renal insufficiency causally related to the accepted

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluation Medical Evidence, Chapter
2.0810.9.b (1) (June 2015); see also K.B., Docket No. 18-1548 (issued March 11, 2019).
11

See J.V., Docket No. 17-0973 (issued July 19, 2018).

12

Id.

13

D.C., Docket No. 18-1664 (issued April 1, 2019).

14

See G.R., Docket No. 18-1490 (issued April 4, 2019).

8

factors of his federal employment.15 Following this and any other necessary further development,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: June 11, 2019
Washington, DC

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

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

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

15

See K.B., supra note 10.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, DOVER ANNEX,
Wharton, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0460
Issued: January 19, 2022

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 February 2, 2021 appellant, through counsel, filed a timely appeal from a December 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.

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.

ISSUE
The issue is whether appellant met her burden of proof to establish a cervical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On October 19, 2016 appellant, then a 49-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed cephalgia and occipital cervical nerve palsy
due to carrying her postal carrier bag which was excessively heavy. She noted that she first became
aware of this condition in October 2012, but did not realize its relationship to factors of her federal
employment until November 2012. Appellant stopped work on September 27, 2016.
In an October 21, 2016 form report, Dr. Walter G. Husar, a neurologist, diagnosed occipital
pain, cephalgia, and cervical nerve sprain and strain with an onset date of October 2012. He
indicated that appellant was capable of working two to four hours per day, three to four days per
week, from November 16 to December 23, 2016.
In a December 1, 2016 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the necessary evidence.
In a December 9, 2016 report, Dr. Slobodan Miric, a Board-certified neurologist, diagnosed
right occipital neuralgia, cervicalgia, and possible left C7 cervical radiculopathy. He detailed
motor, sensory, and physical examination findings.
A December 12, 2016 bilateral upper extremity electromyograph/nerve conduction
velocity (EMG/NCV) study showed left C6 subacute cervical radiculopathy and right mild carpal
tunnel syndrome.
In a report dated December 22, 2016, Dr. Mehul Shah, a Board-certified anesthesiologist,
diagnosed cervical radiculopathy, cervicalgia, sacroiliitis, lumbar facet arthropathy, and chronic
low back pain. Appellant attributed her right-sided cervicalgia, left upper extremity radiculopathy,
and numbness to her job duties including continuous activity and lifting of heavy packages.
Dr. Shah opined that her cervical radiculopathy and cervicalgia along the occipital neuralgia
“could be work related given her physically demanding job.”
In a report dated December 23, 2016, Dr. Miric, based on appellant’s examination findings,
diagnosed cervical radiculopathy, chronic cervical spinal pain, and cervical spinal stenosis with
myelopathy. He noted that she had related that approximately three years prior she slipped and
fell at work, which aggravated her cervical spine pain.
Dr. Shah, in an unsigned January 19, 2017 report, detailed the history of appellant’s neck
and arm pain beginning in 2012. He provided examination findings and diagnosed cervical
radiculopathy. Dr. Shah attributed appellant’s condition and pain to her employment duties which
required continuous activity and lifting of heavy packages. He recommended a functional capacity
evaluation (FCE) to determine her work capacity.
2

By decision dated January 30, 2017, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that her diagnosed cervical
condition was causally related to the accepted factors of her federal employment.
On February 22, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on August 15, 2017.
Prior to the hearing, appellant submitted an undated report from Dr. Shah. Dr. Shah noted that
appellant had experienced neck and arm pain since 2012, which she attributed to her employment
duties including carrying up to 70-pound packages and continuous lifting. He opined that her
condition was directly related to her physically demanding job.
In a decision dated October 12, 2017, the hearing representative affirmed OWCP’s
January 30, 2017 decision.
On August 17, 2018 appellant, through counsel, requested reconsideration and submitted
an August 15, 2018 report from Dr. Shah, in support of her request. Dr. Shah reiterated her
medical history and examination findings from his prior reports. He reviewed appellant’s letter
carrier job duties which included holding mail with the left arm for long periods of time, lifting
trays and tubs of mail to vehicle tray level, loading large parcels into equipment, pushing/pulling
up to 20 pounds and lifting between 15 and 35 pounds with occasional lifting up to 70 pounds.
Based on his review of her work duties, Dr. Shah found that her years of repetitive heavy lifting
and carrying a postal carrier bag, could cause and aggravate her herniated discs and spondylitic
changes.
By decision dated November 14, 2018, OWCP denied modification.
On October 25, 2019 appellant, through counsel, requested reconsideration and submitted
additional evidence. Dr. Miric, in a June 28, 2019 report, detailed appellant’s neurological and
physical findings and diagnosed cervical spinal pain, cervical spondylosis, and mild compressive
cervical myelopathy.
In his August 19, 2019 report, Dr. Miric reviewed a magnetic resonance imaging (MRI)
scan which demonstrated stable cervical spondylosis and multilevel cervical disease which had
not progressed since the prior study. He also related appellant’s physical examination findings.
By decision dated January 15, 2020, OWCP denied modification.
On March 12, 2020 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In the February 24, 2020 report, Dr. Ira Goldstein, a Board-certified neurologist, noted that
appellant’s symptoms were not due to a single clear incident, and he noted that she had several
falls over the years while working as a mail carrier. He reviewed an MRI scan which demonstrated
C4-5 large disc osteophyte and retrolisthesis as well as films from 2016 to 2017 showing
degenerative changes. Dr. Goldstein opined that appellant’s duties which required heavy lifting
exposed her neck and low back to greater mechanical stresses which accelerated her spinal
degenerative disease. He explained that her long and repeated exposure to the mechanical stress

3

caused by her job duties led to her cervical disc degeneration, development of retrolisthesis,
osteophyte production resulting in neural compression, and radiculopathy.
In letter dated March 16, 2020, OWCP requested clarification from Dr. Goldstein regarding
the physiological process by which the accepted specific employment factors caused or aggravated
the diagnosed conditions. It advised that pain was not a valid diagnosis under FECA, but
considered a symptom. OWCP afforded Dr. Goldstein 20 days to respond. No response was
received.
By decision dated June 3, 2020, OWCP denied modification.
On September 18, 2020 appellant, through counsel, requested reconsideration.
Accompanying her reconsideration request was a September 17, 2020 report from Dr. Goldstein.
Dr. Goldstein summarized appellant’s medical treatment, medical history, noted her employment
duties, and attributed her neck pain and neurological symptoms to the ears of mechanical stresses
due to heavy labor. He explained that long work hours, frequent overtime, 60 - to 80-pound
mailbag, and continuous walking, lifting, bending while carrying a heavy bag over her right
shoulder contributed to the development of right-sided disc osteophyte complex, cervical
radiculopathy, and neck pain. Appellant’s symptoms were modest outside of her work, and most
notable while she was working, which he explained was consistent with her work activity
contributing to the exacerbation and development of her radiculopathy.
By decision dated December 2, 2020, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 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. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
3

Id.

4

H.H., Docket No. 20-0839 (issued May 25, 2021); C.G., Docket No. 20-0957 (issued January 27, 2021); J.W.,
Docket No. 18-0678 (issued March 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. Cameron,
41 ECAB 153 (1989).
5

H.H., id.; J.S., Docket No. 18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7,
2018); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

H.H., id.; L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No. 18-0914 (issued February 24,
2020); Delores C. Ellyett, 41 ECAB 992 (1990).

4

(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) rationalized medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. 7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence. 8 The opinion of the physician must be based on a
complete factual and medical background of the employee, 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 factors identified by the employee. 9
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her claim, appellant provided narrative reports from Dr. Goldstein dated
February 24 and September 17, 2020. Dr. Goldstein summarized her medical treatment, noted her
history of falls at work and provided physical examination findings. He explained that her long
and repeated exposure to the mechanical stress caused by her job duties led to her cervical disc
degeneration, development of retrolisthesis, osteophyte production resulting in neural
compression, and radiculopathy which he attributed to appellant’s employment. In both reports,
Dr. Goldstein opined that her cervical conditions were exacerbated by her employment duties,
which included long work hours, frequent overtime, carrying a 60- to 80-pound mailbag over her
right shoulder, and lifting and bending. In both reports, he explained that her duties exposed her
neck to greater mechanical stresses which in turn accelerated her spinal degenerative disease. The
Board finds that, while not fully rationalized and sufficient to establish the claim, Dr. Goldstein’s
reports provide a mechanism of injury, reference objective diagnostic reports, and support that
appellant’s diagnosed conditions are causally related due to the accepted employment factors.10
They also raise an uncontroverted inference between appellant’s diagnosed conditions and her
accepted factors of employment and, thus, they are sufficient to require OWCP to further develop
the medical evidence.11
It is well established that, proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares

7

C.G., supra note 4; S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

8

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018).

10

E.P., Docket No. 19-1703 (issued April 16, 2021); C.W., Docket No. 19-0322 (issued July 18, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); D.W., Docket No. 17-1884 (issued November 8, 2018); John J. Carlone,
41 ECAB 354 (1989).
11

M.R., Docket No. 20-0101 (issued September 14, 2021); Richard E. Simpson, 55 ECAB 490 (2004); John J.
Carlone, 41 ECAB 354, 360 (1989).

5

responsibility in the development of the evidence.12 OWCP has an obligation to see that justice is
done.13
The case shall therefore be remanded to OWCP for further development. On remand
OWCP shall prepare a statement of accepted facts, the medical evidence of record, and appellant
to a specialist in the appropriate field of medicine for a second opinion evaluation. Upon referral,
the physician shall conduct a physical examination and provide a rationalized medical opinion as
to whether her cervical conditions were caused or aggravated by factors of her employment. If the
second opinion physician opines that the diagnosed conditions are not causally related, he or she
must explain with rationale how or why the opinion differs from that of Dr. Goldstein’s reports.
Following this, and any other further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

See supra note 4; H.H., Docket No. 20-0839 (issued May 25, 2021); J.P., Docket No. 19-1206 (issued
February 11, 2020); M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB
200 (1985).
13

See H.H., id.; J.P., id.; C.M., Docket No. 17-1977 (issued January 29, 2019); A.J., Docket No. 18-0905 (issued
December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

6

ORDER
IT IS HEREBY ORDERED THAT the December 2, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with decision of the Board.
Issued: January 19, 2022
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

7