United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Boston, MA, Employer
__________________________________________

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

Docket No. 18-0217
Issued: June 27, 2018

Case Submitted on the Record

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

JURISDICTION
On November 7, 2017 appellant filed a timely appeal from a July 6, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective February 27, 2017, due to her failure to attend a
scheduled medical examination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 10, 2008 appellant, then a 55-year-old medical instrument technician, filed a
traumatic injury claim (Form CA-1) alleging that, on January 9, 2008, she sustained head, neck,
arm, and hand injuries while reaching for an endoscope case in the performance of her duties,
which fell and hit her head. She stopped work on January 11, 2008. OWCP initially accepted the
claim for mild head contusion. It subsequently expanded acceptance of the claim to include
aggravation of degenerative cervical disc disease, left partial rotator cuff tear, aggravation of
degenerative arthritis of the cervical spine, and neck and shoulder myofascial pain. Appellant
received compensation for temporary total disability from OWCP on the supplemental roll
commencing March 2, 2008. On November 3, 2008 she returned to limited-duty work, four hours
a day, three days a week. On July 3, 2012 appellant retired from the employing establishment.
By decision dated December 5, 2012, OWCP denied appellant’s schedule award claim
(Form CA-7). It noted that she had not responded to its September 17, 2012 development letter,
which requested that she submit a medical report from her physician assessing her permanent
impairment based on the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)2 and establishing the date on which she
reached maximum medical improvement (MMI).
By letters dated September 8 and 9, 2015, OWCP referred appellant to Dr. Christopher B.
Geary, a Board-certified orthopedic surgeon, in Boston, Massachusetts, for a second opinion
evaluation to determine the nature of her condition, extent of her disability, and appropriate
medical treatment. It advised that an appointment had been scheduled for October 1, 2015 at 8:00
a.m. Appellant was further advised that, if she refused or obstructed the examination, her
compensation could be suspended under 5 U.S.C. § 8123(d).
On September 29, 2015 appellant informed OWCP that she was unable to attend the
October 1, 2015 appointment because she was in Florida. By letter dated September 29, 2015,
OWCP notified her that an appointment with Dr. Geary was rescheduled for October 15, 2015 at
2:00 p.m.
An October 15, 2015 letter reflects that OWCP was notified by QTC Medical Services,
OWCP’s scheduling contractor, that appellant did not appear for her October 15, 2015
examination.
In an October 23, 2015 notice, OWCP proposed to suspend appellant’s compensation
benefits pursuant to 5 U.S.C. § 8123(d) as she failed to attend the examination scheduled for
October 15, 2015 with Dr. Geary. Appellant was advised that she should provide a written
explanation of her reasons, with substantive corroborating evidence, within 14 days for failing to
attend the scheduled examination.
During a telephone conversation on November 4, 2015 and by letter of the same date,
appellant advised OWCP that she no longer lived in Massachusetts. She claimed that being
subjected to further evaluation was a form of harassment by OWCP. Appellant noted that OWCP
2

A.M.A., Guides (6th ed. 2009).

2

had sent her to an evaluation performed on December 7, 2010 by Dr. St. George Tucker Aufranc,
a Board-certified orthopedic surgeon and an impartial medical specialist, who agreed that her
restrictions were permanent and that she had reached MMI.3 In a letter dated November 5, 2015,
she advised OWCP of her new permanent address in Florida.
By decision dated December 8, 2015, OWCP finalized its proposed suspension, effective
November 15, 2015. It noted that it directed appellant on September 29, 2015 to report for the
examination scheduled on October 15, 2015, but she did not attend the examination or show good
cause for her failure to attend the examination as she failed to indicate her intent to reschedule the
appointment in her November 4, 2015 response letter.
By appeal request form and letter dated December 13, 2013 and received by OWCP on
December 13, 2015, appellant requested a review of the written record by an OWCP hearing
representative. She noted that when she was contacted by QTC Medical Services on October 14,
2015 about her October 15, 2015 appointment with Dr. Geary that was the first communication
she had received about the scheduled appointment. Appellant advised QTC’s Medical Services
representative that she lived in Florida and that she could not be in Massachusetts on the next day.
She indicated that the representative notified OWCP that she would not be able to attend the
appointment with Dr. Geary. Appellant further indicated that on October 14, 2015 she informed
OWCP that she lived in Florida and that she could not get a ﬂight out in time for the appointment.
She maintained that she had notified OWCP of her change of address. OWCP informed her that
her records would be transferred to a Florida district office. Appellant related that she thought she
would be hearing from the Florida district office, but instead she received OWCP’s December 8,
2015 suspension decision. She requested that the decision be overturned as her address change
was never documented in her records by OWCP after three failed attempts to do so.
By decision dated April 26, 2016, an OWCP hearing representative reversed the
December 8, 2015 decision and directed that appellant’s wage-loss compensation be reinstated
retroactive to November 15, 2015. She found that OWCP did not consider the fact that appellant
resided in Florida at the time it scheduled her for a second opinion examination in Massachusetts,
which was a reasonable and acceptable explanation for her failure to appear.
By letters dated November 14 and December 14, 2016, OWCP referred appellant to
Dr. Fuchs in Fort Meyers, Florida for a second opinion evaluation. It advised that an appointment
had been scheduled for January 10, 2017 at 10:30 a.m. OWCP further advised that, if appellant
refused or obstructed the examination, her compensation could be suspended under 5 U.S.C.
§ 8123(d).
On December 20, 2016 appellant informed OWCP that she had not received any
compensation benefits in accordance with OWCP’s hearing representative’s April 26, 2016
decision.

3

The Board notes that Dr. Aufranc was selected by OWCP as an impartial medical specialist to resolve a conflict
in medical opinion evidence between Dr. Joseph F. Audette, an attending Board-certified physiatrist, and Dr. Joel A.
Saperstein, a Board-certified orthopedic surgeon and an OWCP referral physician, regarding appellant’s work
capacity.

3

In a letter dated January 11, 2017, QTC Medical Services informed OWCP that appellant
did not attend the January 10, 2017 appointment with Dr. Fuchs in Fort Meyers, Florida.
In a notice dated February 6, 2017, OWCP proposed to suspend appellant’s compensation
benefits pursuant to 5 U.S.C. § 8123(d) for failure to attend the January 10, 2017 examination with
Dr. Fuchs. Appellant was advised that she should provide a written explanation of her reasons,
with substantive corroborating evidence, within 14 days for failing to attend the scheduled
examination. She did not respond within the allotted time.
By decision dated February 27, 2017, OWCP finalized its proposed suspension, effective
that same date. It noted that it had directed appellant on December 14, 2016 to report for the
examination scheduled on January 10, 2017, but she did not attend the examination or show good
cause for her failure to attend the examination as she failed to respond to the proposed suspension
notice.
In a February 20, 2017 letter received by OWCP on February 28, 2017, appellant
responded to the February 6, 2017 proposed suspension notice. She reiterated her prior
contentions.
In an appeal request form and letter dated March 22, 2017 and received by OWCP on
March 30, 2017, appellant requested a review of the written record by an OWCP hearing
representative regarding the February 27, 2017 decision. She restated her prior arguments.
By decision dated July 6, 2017, a second OWCP hearing representative affirmed the
February 27, 2017 decision, finding that appellant failed to attend an OWCP-directed examination
and failed to provide an adequate reason for failure to do so.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability as
a result of federal employment, to undergo a physical examination as it deems necessary.4 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.5 OWCP
regulations at section 10.320 provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.6 Section
8123(d) of FECA and section 10.323 of OWCP regulations provide that, if an employee refuses to
submit to or obstructs a directed medical examination, his or her right to compensation is
suspended until the refusal or obstruction ceases.7 OWCP procedures provide that, before OWCP
may invoke these provisions, the employee is to be provided a period for 14 days within which to

4

5 U.S.C. § 8123.

5

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007); James C. Talbert, 42 ECAB 974 (1991).

6

20 C.F.R. § 10.320.

7

5 U.S.C. § 8123; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

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present in writing his or her reasons for the refusal or obstruction.8 If good cause for the refusal
or obstruction is not established, entitlement to compensation is suspended in accordance with
section 8123(d) of FECA.9
ANALYSIS
The Board finds that OWCP properly suspended appellant’s compensation, pursuant to
5 U.S.C. § 8123(d), for failure to attend a medical examination.
OWCP scheduled a second opinion evaluation on January 10, 2017 with Dr. Fuchs in Fort
Meyers, Florida. Appellant did not appear for the scheduled examination. By decision dated
February 27, 2017, OWCP suspended her compensation benefits based on her failure to appear.
On July 6, 2017 an OWCP hearing representative affirmed the February 27, 2017 decision.
The determination of the need for an examination, the type of examination, the choice of
locale, and the choice of medical examiners are matters within the province and discretion of
OWCP. The only limitation on OWCP’s authority, with regard to instructing a claimant to undergo
a medical examination, is that of reasonableness.10 The Board has interpreted the plain meaning
of section 8123(d) to provide that compensation is not payable while a refusal or obstruction of an
examination continues.11
On December 14, 2016 OWCP advised appellant that it would refer her for a second
opinion examination and that, if she did not keep the appointment, her benefits could be suspended.
Appellant was referred for a second opinion evaluation with Dr. Fuchs and was advised of the need
for the examination and the time and place for the scheduled appointment. She did not attend the
scheduled January 10, 2017 appointment.
OWCP subsequently allowed appellant 14 days to provide reasons for failing to appear.12
In response and on appeal, appellant contended that a medical examination should not have been
scheduled because OWCP never reinstated her workers’ compensation benefits retroactive to
November 15, 2015 as directed by OWCP’s hearing representative’s April 26, 2016 decision,
which reversed OWCP’s December 8, 2015 OWCP decision suspending her compensation
benefits for failure to attend an October 15, 2015 medical examination. The fact that OWCP did
not reinstate appellant’s compensation benefits in compliance with the April 26, 2016 decision is

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).
9

Id.

10

Lynn C. Huber, 54 ECAB 281 (2002).

11

M.B., Docket No. 10-1755 (issued March 24, 2011).

12

5 U.S.C. § 8123; S.B., 58 ECAB 267 (2007).

5

not a sufficient reason for her failure to attend the January 10, 2017 medical examination.13
Appellant has not otherwise explained why she did not attend the scheduled examination.
As appellant did not attend the January 10, 2017 scheduled examination and failed to
provide good cause for failing to appear within 14 days of OWCP’s February 6, 2017 notice of
proposed suspension, the Board finds that OWCP properly suspended entitlement to future
compensation in accordance with 5 U.S.C. § 8123(d) until the date on which she agrees to attend
the examination.14 When appellant actually reports for examination, payment retroactive to the
date on which she agreed to attend the examination may be made.15
On appeal appellant contends that she has not received workers’ compensation benefits
since November 15, 2015 despite an OWCP hearing representative’s April 26, 2016 decision,
which reversed a prior December 8, 2015 OWCP suspension decision and reinstated her
compensation benefits as of November 15, 2015. She notes that, after being notified about a
medical examination with Dr. Fuchs and an OWCP referral physician, she unsuccessfully tried to
contact OWCP to request that they reinstate her compensation benefits. Appellant relates that the
next correspondence she received was a February 27, 2017 OWCP decision, which suspended her
wage-loss compensation and medical benefits. As explained above, the Board finds that OWCP
properly suspended entitlement to future compensation in accordance with 5 U.S.C. § 8123(d)
until the date on which she agrees to attend the examination.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective February 27, 2017, due to her failure to attend a
scheduled medical examination.

13

The Board notes that appellant was receiving Social Security Administration retirement benefits and OWCP did
not send her an election of benefits form to indicate whether she wanted to continue receiving these benefits or to
receive FECA benefits.
14

L.B., Docket No. 14-2005 (issued January 28, 2015).

15

Id.; C.S., Docket No. 11-1366 (issued December 12, 2011); E.B., 59 ECAB 298 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the July 6, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 27, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, WEST GARDEN
POST OFFICE, Garden Grove, CA, Employer
__________________________________________

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

Docket No. 20-0806
Issued: June 4, 2021

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 February 29, 2020 appellant filed a timely appeal from a September 4, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed from the last merit decision, dated July 24, 2018, to the filing of this appeal, pursuant

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of her oral argument request, appellant asserted that oral argument should be granted because OWCP
improperly denied her request for merit review. The Board, in exercising its discretion, denies appellant’s request for
oral argument because the Board lacks jurisdiction over the merits of this claim. As such, the arguments on appeal
can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal would
further delay issuance of a Board decision and not serve a useful purpose. Consequently, the oral argument request is
denied and this decision is based on the case record as submitted to the Board.

to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 23, 2006 appellant, then a 44-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she sustained lacerations to her right thigh and elbow and
a fractured left tibia and fibula when she was involved in a motor vehicle accident (MVA) while
in the performance of duty. OWCP accepted the claim for an open wound of the right elbow and
arm without complications and an open fracture of the left medial malleolus of the ankle. It
subsequently expanded acceptance of the claim to include a fracture of the phalanges of the left
foot and contact dermatitis of the right foot/ankle due to drugs and medicine. OWCP paid
appellant wage-loss compensation for total disability from June 24, 2006 until April 4, 2007, when
she returned to modified employment. It paid her wage-loss compensation for intermittent time
lost from work for the period November 28, 2007 to June 16, 2012.
In a report dated August 27, 2009, Dr. John B. Dorsey, a Board-certified orthopedic
surgeon, advised that he was treating appellant for “a crush injury involving the left foot and ankle
with healed fractures and retained hardware.” He noted that she had “developed a rash overlying
the metallic plate, which was used to repair the fibular fracture.” Dr. Dorsey indicated that he was
awaiting clarification from a dermatologist regarding whether the rash was an allergic reaction to
the metal. He further asserted that appellant had pain in her lower back due to an antalgic gait.
In a report dated July 9, 2013, Dr. Steven M. Ma, a Board-certified orthopedic surgeon and
OWCP referral physician, found that appellant’s injuries, due to her June 23, 2006 MVA, had
healed with the exception of contact dermatitis of the right foot/ankle due to drugs and medication.
He noted that on June 23, 2006 she had undergone an emergency left ankle surgery, which included
the placement of a metal plate and nine screws in the left ankle. Appellant developed a rash on
her left foot and subsequently developed a right foot rash. On examination Dr. Ma found a skin
rash over the arch of the feet bilaterally. He found that appellant had residual problems and
disability due to her employment injury from the left ankle fracture and bilateral rash on her feet.
Dr. Ma recommended treatment with a dermatologist.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the September 4, 2019 decision, OWCP received additional evidence. 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.

2

On June 5, 2014 Dr. Jenny Soung, a Board-certified dermatologist, diagnosed Koebner
phenomenon, noting that appellant’s skin condition had appeared soon after a MVA.
In a report dated October 8, 2014, Dr. Dorsey advised that appellant was unable to work
from December 30, 2013 to May 29, 2014 due to psoriasis of the left foot, which a dermatologist
had found to be Koebner phenomenon. He related that she was unable to wear the required work
shoes. Dr. Dorsey related, “[Appellant] has sustained crush injuries to her left foot, and the crush
injury resulted in Koebner’s phenomenon, which was, in essence, psoriasis on her left foot at the
operative site.”
In a state workers’ compensation form report dated December 9, 2014, Dr. Dorsey
diagnosed an open wound of the lower arm and topical dermatitis. He noted that appellant had a
history of Koebner phenomenon. Dr. Dorsey advised that she could perform modified
employment. In a duty status report (Form CA-17) dated December 10, 2014, he diagnosed a rash
on both feet, back pain, a left ankle fracture, and a crush injury to the foot. Dr. Dorsey found that
appellant should limit walking to one and half hours per day. He continued to submit Form CA-17s
providing work limitations.
In a report dated April 30, 2015, Dr. Dorsey noted that appellant was off work from
December 30, 2013 to May 29, 2014 because she was unable to wear work shoes due to her rash.
He indicated that she was currently working in tennis shoes. In Form CA-17s dated April through
November 2015, Dr. Dorsey primarily diagnosed dermatitis/psoriasis and found that appellant
should limit walking to one and a half hours.4
On December 16, 2015 Dr. Dorsey advised that appellant had continued ankle pain due to
her crush injury and subsequent chronic psoriasis, or Koebner phenomenon. He indicated that
appellant could not wear her required work shoes as it exacerbated her rash.
On July 8, 2016 OWCP referred appellant to Dr. Vipal Soni, a Board-certified
dermatologist, for a second opinion examination. It requested that Dr. Soni address whether she
had sustained chronic psoriasis and Koebner phenomenon as a consequence of her accepted
employment injury.
In a report dated October 17, 2016, Dr. Soni noted that appellant had a painful rash on her
feet that had begun after her 2006 MVA. He diagnosed psoriasis or dyshidrotic dermatitis. On
examination Dr. Soni found papulosquamous eruptions on the soles of the feet. He asserted that
appellant’s condition was inconsistent with Koebner phenomenon, which occurred in the exact
location of prior trauma. Dr. Soni opined that it was possible that appellant had chronic psoriasis,
but that the “stress of the MVA and/or dog bite at most would have been an aggravating or
precipitating factor and not the underlying cause of the condition.”5 He related that it was “difficult
to state with certainty whether the aggravation is temporary or permanent in this particular case,”
4

Dr. Dorsey also submitted state workers’ compensation forms describing appellant’s current symptoms and
referring to the Form CA-17s for her disability status.
5
OWCP accepted under OWCP File No. xxxxxx175 that appellant sustained an open wound of the right hip and
thigh due to a dog bite on February 18, 2012.

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but that he had not seen stress permanently aggravate psoriasis. Dr. Soni found that appellant had
no skin-related residuals.
On August 8, 2017 appellant filed claims for compensation (Form CA-7) requesting
intermittent wage-loss compensation from December 16, 2014 through June 1, 2017. In an
attached time analysis form, the employing establishment listed dates and time missed from work
and indicated that the reason was that it had no work available within her medical restrictions.
Appellant submitted Form CA-17s from Dr. Dorsey dated May 4, 2016 to May 17, 2017
diagnosing primarily a rash or psoriasis and finding that she should not walk over one and a half
hours per day.
In a development letter dated September 6, 2017, OWCP advised appellant that it had not
accepted her claim for psoriasis or Koebner phenomenon. It informed her of the evidence
necessary to establish her claim for disability compensation, including medical evidence
supporting that she had work restrictions for the claimed period as a result of her employment
injury. OWCP afforded appellant 30 days to submit the necessary information.
By decision dated February 15, 2018, OWCP denied appellant’s claim for wage-loss
compensation, beginning December 16, 2014. It noted that it had not accepted psoriasis and
Koebner phenomenon as employment related.
Thereafter, OWCP received a January 10, 2018 report from Dr. Dorsey. Dr. Dorsey
asserted that appellant had continued left ankle pain due to her June 23, 2006 crush injury. He
indicated that she had developed Koebner phenomenon, which was “a medical condition that
expresses proliferative isomorphic response to otherwise healthy skin.” Dr. Dorsey found that
walking and standing in the course of her employment exacerbated her rash.
On April 27, 2018 appellant, through her representative, requested reconsideration. The
representative noted that OWCP had accepted contact dermatitis, which she asserted had likely
resulted in Koebner phenomenon. She related that appellant could not wear shoes or perform her
letter carrier duties because of the rashes on her feet that had begun near the placement of the metal
hardware. The representative noted that, in August 2009, Dr. Dorsey had found that the psoriasis
was an allergic reaction to the metal.
By decision dated July 24, 2018, OWCP denied modification of its February 15, 2018
decision. It indicated that the evidence demonstrated that the stress of appellant’s MVA would, at
most, have aggravated or precipitated her chronic psoriasis rather than being an underlying cause.
On May 16, 2019 appellant, through her representative, requested reconsideration. She
maintained that the employing establishment had refused to provide her with work based on
nonexistent restrictions. Appellant submitted duty status reports (Form CA-7) from 2016 that
limiting walking.
By decision dated May 30, 2019, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It noted that she also had an accepted
condition for intervertebral disc degeneration of the lumbar spine under another file number.

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On July 24, 2019 appellant, through her representative, again requested reconsideration.
She noted that appellant had nine screws in her ankle due to her MVA and that she had developed
a rash around the site of the incision and hardware around a year later. On November 24, 2008
the rash had been tentatively diagnosed as psoriasis due to Koebnerization of the wound. The
representative asserted that Dr. Ma had found that the rash on her feet was causally related to her
June 2006 MVA. She further noted that Dr. Soni had diagnosed psoriasis or dyshidrotic eczema
and found that stress was a primary cause of the condition. The representative maintained that,
while physicians differed on the exact diagnosis of the rash, OWCP had accepted that the rash had
developed due to her employment injury. She noted that the Form CA-17s primarily limited
walking and questioned why the employing establishment failed to provide appellant with work
accommodations.
Appellant resubmitted medical evidence from 2019. She further resubmitted the July 9,
2013 report from Dr. Ma and the October 17, 2016 report by Dr. Soni.
By decision dated September 4, 2019, OWCP denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.9 If the request is timely, but fails to meet at least one of the

6

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
7
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
9

Id. at § 10.608(a); see also F.V., Docket No. 18-0239 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

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requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.10
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
OWCP denied appellant’s claim for intermittent wage-loss compensation from
December 16, 2014 through June 1, 2017. It found that the evidence supported that she missed
time from work during this period due to psoriasis or eczema that it had not accepted as
employment related.
Appellant’s July 24, 2019 timely request for reconsideration failed to show that OWCP
had erroneously applied or interpreted a specific point of law; consequently, she is not entitled to
a review of the merits based on the first requirement pursuant to 20 C.F.R. § 10.606(b)(3).
On reconsideration appellant’s representative contended that the physicians had agreed that
the rash on her feet was employment related even though they differed on the exact diagnosis. She
asserted that Dr. Ma, an OWCP referral physician, had found in his July 9, 2013 report that
appellant’s bilateral foot rash was causally related to her employment injury. Appellant’s
representative further asserted that Dr. Soni, another OWCP referral physician, had diagnosed
either psoriasis or dyshidrotic dermatitis. Dr. Soni found that stress from the MVA would at most
have aggravated her chronic psoriasis and that it was unclear whether such aggravation was
temporary or permanent. The representative asserted that, as this was the first mention of this
particular diagnosis, it should have been developed as one of the main causes for the onset of the
condition. The Board finds that this constitutes a new and relevant legal argument not previously
considered, which directly addresses the relevant underlying issue of whether the claimed
disability is employment related.11
As appellant has advanced a new and relevant legal argument, she is entitled to a review
of the merits of the claim under section 10.606(b)(3) of OWCP’s regulations.12 Following any
further development as deemed necessary, OWCP shall issue an appropriate merit decision on
appellant’s claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

10

Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April 2, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
11

See D.T. (L.S.), Docket No. 19-1060 (issued October 20, 2020).

12

M.L. (E.L), Docket No. 20-0605 (issued January 27, 2021).

6

ORDER
IT IS HEREBY ORDERED THAT the September 4, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 4, 2021
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stanton, CA, Employer
__________________________________________

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

Docket No. 18-0669
Issued: August 10, 2018

Case Submitted on the Record

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

JURISDICTION
On February 8, 2018 appellant filed a timely appeal from a November 16, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated October 31, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 20, 2015 appellant, then a 57-year-old supervisor of customer service, filed an
occupational disease claim (Form CA-2) claiming that she sustained an occupational injury in the
1

5 U.S.C. § 8101 et seq.

form of a rotator cuff tear. She indicated that she first became aware of her claimed condition on
June 15, 2014 and first realized on August 27, 2014 that it was caused or aggravated by her federal
employment. In an accompanying April 20, 2015 statement, appellant indicated that she had pain
in both shoulders, and she attributed her condition to using an old desk at work that had drawers
that were hard to open and close. She stopped work on April 21, 2015, but later returned to
modified duty.2
In an April 14, 2015 attending physician’s report (Form CA-20), Dr. Talal Malhis, a Boardcertified orthopedic surgeon, listed the history of injury as bilateral shoulder pain and diagnosed
rotator cuff tear. He found that appellant was partially disabled from August 27, 2014 to the
present.
In an April 28, 2015 development letter, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim.
Appellant submitted an August 27, 2014 report from Dr. Malhis who noted that appellant
reported that her bilateral shoulder pain started about four months ago. Dr. Malhis diagnosed
bilateral shoulder pain, adhesive capsulitis of the left shoulder, and rotator cuff tendinitis of the
left shoulder. The findings of an October 2, 2014 magnetic resonance imaging (MRI) scan of
appellant’s left shoulder contained an impression of tear of the infraspinatus footplate,
supraspinatus tendinosis, teres minor edema with quadrilateral space syndrome, and thickened
inferior glenohumeral ligaments with fluid in the extra-articular biceps tendon sheath (as can be
seen with adhesive capsulitis versus post-traumatic result). On April 7, 2015 Dr. Malhis diagnosed
rotator cuff tear of the left shoulder, bilateral shoulder pain, and bilateral adhesive capsulitis of the
shoulders.
By decision dated June 9, 2015, OWCP denied appellant’s claim because she failed to
submit sufficient medical evidence to establish that her claimed shoulder condition was causally
related to the accepted employment factors.3
On September 9, 2015 appellant requested reconsideration of OWCP’s June 9, 2015
decision and submitted a July 13, 2015 MRI scan of the right shoulder which showed signs of
chronic calcific supraspinatus tendinitis, mild bursitis, and mild arthropathy of the
acromioclavicular joint. The findings of a July 14, 2015 MRI scan of the left shoulder showed
signs of chronic calcific supraspinatus tendinitis, mild bursitis, and mild arthropathy of the
acromioclavicular joint.
In a July 27, 2015 report, Dr. Hosea Brown, III, an attending Board-certified orthopedic
surgeon, discussed appellant’s shoulder problems and reported the findings of the physical
examination he conducted on that date. He diagnosed bilateral rotator cuff syndrome, bilateral
shoulder tenosynovitis, bilateral acromioclavicular joint arthropathy, right calcific supraspinatus
tendinitis, and bilateral subdeltoid/subacromial bursitis. Dr. Brown opined that these conditions
2

Appellant retired from the employing establishment, effective April 29, 2016.

3
OWCP accepted the employment factors as alleged, i.e., using an old desk at work that had drawers that were
hard to open and close.

2

were caused by appellant’s repetitive typing duties and by opening and closing desk drawers with
both arms for one hour each day over the course of her 26-year federal employment. He
determined that appellant had partial disability due to her diagnosed conditions.
In September 2015, OWCP referred appellant for a second opinion examination with
Dr. Michael J. Einbund, a Board-certified orthopedic surgeon. It requested that Dr. Einbund
provide an opinion regarding whether appellant had an employment-related condition.
In an October 13, 2015 report, Dr. Einbund discussed appellant’s factual and medical
history and detailed the findings of the physical examination he conducted on that date. He noted
that appellant exhibited full range of motion of her shoulders with no motor weakness. Appellant
reported experiencing pain in her right rotator cuff while engaging in range of motion testing.
Dr. Einbund diagnosed disorder of bursae and tendons of both shoulders. He noted that an
October 2, 2014 MRI scan of appellant’s left shoulder showed a rotator cuff tear, but that this
finding was not confirmed by a July 14, 2015 MRI scan of the left shoulder. Dr. Einbund found
that appellant’s bilateral shoulder condition was not caused or aggravated by the implicated
employment factors, but rather was due to the progression of a degenerative process.
By decision dated October 28, 2015, OWCP denied modification noting that the weight of
the medical evidence with respect to her shoulder condition rested with the well-rationalized
opinion of Dr. Einbund. It determined that the opinion of Dr. Brown was conclusory in nature and
of questionable plausibility.
On August 4, 2016 appellant requested reconsideration of OWCP’s October 28, 2015
decision and submitted additional evidence. In a July 18, 2016 report, Dr. Charles Herring, an
attending Board-certified orthopedic surgeon, discussed appellant’s shoulder problems and
reported the findings of the physical examination he conducted on that date. He diagnosed bilateral
shoulder impingement syndrome, bilateral shoulder subacromial bursitis, right shoulder calcific
tendinitis, bilateral shoulder acromioclavicular joint arthropathy, and bilateral shoulder adhesive
capsulitis. Dr. Herring noted that appellant reported pushing and pulling faulty metal desk drawers
while working for the employing establishment. He indicated that this type of activity could cause
bursitis and impingement.
In an August 1, 2016 report, Dr. Brown asserted that the biomechanical process of
appellant’s opening and closing desk drawers over an extended period was competent to cause the
diagnosed bilateral shoulder conditions. He claimed that the repetitive trauma caused by this
activity was confirmed by the diagnostic testing of record. Dr. Brown expressed his disagreement
with OWCP’s finding that the weight of the medical evidence with respect to appellant’s shoulder
condition rested with the opinion of Dr. Einbund.
By decision dated October 31, 2016, OWCP denied modification, noting that the weight of
the medical evidence with respect to appellant’s shoulder condition continued to rest with the wellrationalized opinion of Dr. Einbund. It determined that the opinions of appellant’s attending
physicians were not well rationalized and that there was no conflict in the medical opinion
evidence regarding the cause of appellant’s shoulder condition.

3

On January 19, 2017 appellant requested reconsideration of OWCP’s October 31, 2016
decision and submitted a January 5, 2017 report from Dr. Basimah Khulusi, an attending Boardcertified physical medicine and rehabilitation physician, who indicated that she disagreed with
Dr. Einbund’s opinion that appellant’s shoulder condition was solely due to age-related
progression of a degenerative condition. She alleged that Dr. Einbund had an inherent conflict of
interest because he was hired by OWCP to examine appellant. Dr. Khulusi asserted that the reports
of appellant’s attending physicians showed that appellant’s opening and closing of faulty desk
drawers at work caused her multiple shoulder problems.
By decision dated January 23, 2017, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It determined that the evidence that
appellant submitted in connection with her timely reconsideration request was similar to evidence
that already had been considered.
On October 27, 2017 appellant requested reconsideration of OWCP’s October 31, 2016
decision. In support of her reconsideration request, she submitted copies of new reports from
attending physicians.
In a March 1, 2017 report, Dr. Brown noted that appellant presented for follow up of her
bilateral shoulder discomfort. He discussed appellant’s compensation claim and asserted that there
was a conflict in the medical opinion evidence between the second opinion physician, Dr. Einbund,
and two attending physicians, Dr. Herring and himself. Dr. Brown recommended that appellant
be referred for a referee evaluation in order to resolve the conflict in the medical opinion evidence.
He detailed the findings of the physical examination he conducted on March 1, 2017, noting that
appellant had significant discomfort upon range of motion testing of the shoulders with positive
bilateral shoulder impingement signs and weakly positive bilateral arc maneuvers. Dr. Brown
diagnosed bilateral rotator cuff syndrome, bilateral shoulder tenosynovitis, bilateral
acromioclavicular joint arthropathy, right calcific supraspinatus tendinitis, and bilateral
subdeltoid/subacromial bursitis.
In a June 5, 2017 report, Dr. Brown provided findings upon physical examination on that
date which were similar to those provided in his March 1, 2017 report. He again asserted that there
was a conflict in the medical opinion evidence between the second opinion physician, Dr. Einbund,
and two attending physicians, Dr. Herring and himself. Dr. Brown again recommended that
appellant be referred for a referee evaluation. In a June 5, 2017 duty status report, he diagnosed
bilateral rotator cuff syndrome and indicated that work restrictions were not applicable to
appellant.
In an October 19, 2017 letter to OWCP, Dr. Khulusi indicated that she had received
OWCP’s January 23, 2017 decision denying merit review which advised that her January 5, 2017
report was not sufficient to warrant a referee examination or to shift the weight of medical opinion
previously accorded to Dr. Einbund. She asserted that there was a conflict between multiple
physicians who treated appellant, including two orthopedic specialists, and the second opinion
physician hired by OWCP, and she noted that OWCP still refused to send appellant for a referee
evaluation. Dr. Khulusi asserted that OWCP procedures provide that, when there is a conflict of
medical opinion between an attending physician and a second opinion physician, as in the present
case, the claimant and the case record should be referred to a Board-certified specialist in the

4

pertinent field of medicine that is appropriate for the issue in conflict.4 She indicated that she was
hereby requesting that OWCP refer appellant for a referee evaluation in accordance with “FECA
laws.”
By decision dated November 16, 2017, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It determined that the
evidence and argument that appellant submitted in connection with her timely reconsideration
request was repetitive or immaterial to the underlying issue of the case.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.5
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence that: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.6 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.7 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.8
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.9 For OWCP decisions issued on or after
August 29, 2011, the date of the application for reconsideration is the “received date” as recorded
in the Integrated Federal Employees’ Compensation System (iFECS).10 If the last day of the one-

4

Dr. Khulusi cited several portions of the Federal (FECA) Procedure Manual regarding the referral of claimants to
impartial medical specialists.
5

5 U.S.C. § 8128(a).

6
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

Id. at § 10.607(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See
also C.B., Docket No. 13-1732 (issued January 28, 2014). For decisions issued before June 1, 1987, there is no
regulatory time limit for when reconsideration requests must be received. For decisions issued from June 1, 1987
through August 28, 2011, the one-year time period begins on the next day after the date of the original decision and
must be mailed within one year of OWCP’s decision for which review is sought.

5

year time period is a Saturday, Sunday, or a legal holiday, OWCP will still consider a request to
be timely filed if it is received on the next business day.11
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record12 and the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.13
While a reopening of a case may be predicated solely on a legal premise not previously considered,
such reopening is not required where the legal contention does not have a reasonable color of
validity.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
OWCP issued a decision on October 31, 2016 and received appellant’s request for
reconsideration on October 27, 2017. Appellant’s request was timely filed because it was received
within one year of OWCP’s October 31, 2016 decision.15
The Board finds that appellant’s request for reconsideration has not met any of the
requirements of 20 C.F.R. § 10.606(b)(3), and its does not require OWCP to reopen the case for
further review of the merits of the claim. Appellant’s request for reconsideration did not show that
OWCP erroneously applied or interpreted a specific point of law, or advance a new and relevant
legal argument not previously considered by OWCP. The underlying issue of the present case,
i.e., whether the medical evidence establishes that appellant sustained an employment-related
occupational injury, is a medical issue which must be addressed by relevant medical evidence.16
A claimant may be entitled to a merit review by submitting relevant and pertinent new
evidence, but the Board finds that appellant did not submit any such evidence in this case.
Appellant submitted March 1 and June 5, 2017 reports in which Dr. Brown detailed
examination findings from those dates and asserted that there was a conflict in the medical opinion
evidence regarding appellant’s shoulder condition between the second opinion physician,
Dr. Einbund, and two attending physicians, Dr. Herring and himself. Dr. Brown recommended
that appellant be referred for a referee evaluation in order to resolve the conflict in the medical
opinion evidence. Appellant also submitted an October 19, 2017 letter in which Dr. Khulusi also
asserted that there was a conflict between multiple physicians who treated appellant, including two
11

Id. at Chapter 2.1602.4. See also M.A., Docket No. 13-1783 (issued January 2, 2014).

12

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

13

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

14

John F. Critz, 44 ECAB 788, 794 (1993).

15

See supra note 9.

16

See Bobbie F. Cowart, 55 ECAB 746 (2004).

6

orthopedic specialists, and the second opinion physician hired by OWCP. Dr. Khulusi claimed
that OWCP procedures provide that when there is a conflict of medical opinion between an
attending physician and a second opinion physician, as in the present case, the claimant and the
case record should referred to a Board-certified specialist in the pertinent filed of medicine that is
appropriate for the issue in conflict.
In essence, these reports present an opinion by attending physicians that there is a conflict
in the medical opinion evidence regarding appellant’s shoulder condition between OWCP’s
referral physician, Dr. Einbund, and the attending physicians which requires referral to an
impartial medical specialist.17 However, the Board notes that OWCP already considered and
rejected this proposition when it determined that the weight of the medical evidence with respect
to appellant’s shoulder condition rested with Dr. Einbund’s opinion. The Board further found that
there was no conflict in the medical opinion evidence regarding the cause of appellant’s shoulder
condition because the opinions of appellant’s attending physicians were not well rationalized. The
reports of Dr. Brown and Dr. Khulusi do not require reopening appellant’s case for merit review
as the Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record does not constitute a basis for reopening a case.18
Moreover, the opinions of Dr. Brown and Dr. Khulusi asserting that there is a conflict in
the medical opinion evidence essentially address a legal determination and the Board has held that
a medical expert’s determination of legal standards is outside the scope of his or her expertise.19 In
this regard, the opinions of Dr. Brown and Dr. Khulusi regarding whether there is a conflict in the
medical opinion evidence are not directly relevant to the underlying issue of the present case, i.e.,
whether the medical evidence of record shows that appellant sustained an occupational condition
due to the accepted federal employment factors. The Board has held that the submission of evidence
or argument which does not address the particular issue involved does not constitute a basis for
reopening a case.20
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
17

See supra notes 15 through 17.

18

See supra note 12. In his March 1 and June 5, 2017 narrative reports, Dr. Brown provided examination findings,
but these findings are similar to those provided in earlier reports and this aspect of these reports would not require
reopening of appellant’s claim for merit review.
19

See Barbara Bush, 38 ECAB 710, 714 (1987).

20

See supra note 13. In a June 5, 2017 duty status report, Dr. Brown diagnosed bilateral rotator cuff syndrome and
indicated that work restrictions were not applicable to appellant. However, this report is not relevant to the underlying
issue of this case because it does not contain any opinion on the cause of the diagnosed condition.

7

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 10, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
ENVIRONMENTAL PROTECTION AGENCY,
HEADQUARTERS, Washington, DC, Employer
__________________________________________

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Appearances:
Appellant, pro se
No Appearance, for the Director

Docket No. 09-1245
Issued: May 24, 2010

Oral Argument February 2, 2010

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

JURISDICTION
On April 14, 2009 appellant filed a timely appeal from the April 18, 2008 merit decision
of the Office of Workers’ Compensation Programs, which denied his injury claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant sustained an injury causally related to his exposure to
environmental factors in his employment from December 1991 to July 1995.
FACTUAL HISTORY
On April 25, 1997 appellant, then a 54-year-old retired program analyst, filed a claim
alleging that his neurological and respiratory symptoms were a result of his federal employment,
primarily a result of his work environment in the Waterside Mall office complex. He began
working in the Waterside Mall in December 1991. Appellant first became aware of his disease
or illness in November 1993. He first became aware of a causal relationship to his employment
in April 1994, after his supervisor told him the Waterside Mall had a history of sick building

syndrome. Initially, appellant’s symptoms were apparent only when working in his immediate
office space in the West Tower annex but gradually seemed to appear and worsen in adjoining
work spaces. Following an exposure to smoke and fumes from an electrical fire on May 17,
1994, symptoms seemed to emerge upon entering the building from any site. From August 1994
to March 1995, appellant was allowed to work primarily from home, after which he began
working at an alternative work site but occasionally visited the Waterside Mall. He stopped
work in July 1995 and retired on disability. Appellant identified the nature of his diagnosed
disease or illness as occupational asthma/reactive airways disease, migraine headaches, chronic
fatigue syndrome and allergic rhinitis.1
The Office received results of a screening study to evaluate the Waterside Mall indoor air
quality after a May 17, 1994 fire, which started and was contained in an electrical switching unit
in the truck loading area of the West Tower garage. Employees reported odors of smoke and
fumes on the lower and upper West Tower floors and in the stairwells.
On May 31, 1994 Dr. Christopher S. Holland, a specialist in occupational medicine and a
health unit consultant, related appellant’s complaints, history of present illness and past medical
history. He noted that appellant provided a history of childhood asthma, seasonal allergies to
mold and pollen, chronic bronchitis, prostatitis, reflux esophagitis and an episode of spontaneous
pneumothorax. Dr. Holland reported that appellant had experienced headaches for five years but
an increase in the intensity and frequency of his pain caused him to see a neurologist for the first
time in November 1993. In addition to being followed on a long-standing basis for his migraine
headaches and esophagitis, appellant was treated episodically with antibiotics for upper
respiratory infections and bronchitis.
Dr. Holland described normal findings on physical examination, though a pulmonary
function test was aborted when coughing interrupted the procedure. He discussed a May 25,
1994 indoor air quality investigation of appellant’s office space, conducted to discover any
environmental factor that might be exacerbating appellant’s upper respiratory condition.
Dr. Holland concluded that appellant’s complaints were consistent with “tight building
syndrome.” He noted that the Waterside Mall was a tight building and that appellant’s history of
allergies and allergic bronchitis might place him in a higher risk group, as it seemed to be
generally accepted that atopic persons were more prone to develop symptoms associated with
tight building. Based on the walk-through survey, Dr. Holland could find no factor or air
contaminant that could be considered causative.
On November 30, 1994 Dr. Lawrence M. Stein, a pulmonologist, diagnosed allergic
rhinitis and airway hyperresponsiveness. He reviewed appellant’s self-reported respiratory peak
flow measurements and found them strongly suggestive of airway hyperresponsiveness related to
occupational exposure. Dr. Stein reviewed an allergist’s report documenting that appellant was
an atopic individual suffering from both allergic rhinitis and airway hyperresponsiveness. He
found that appellant’s symptoms of cough, chest tightness, lightheadedness and weakness were
associated with exposure to his workplace.
1

Appellant would amend the supplemental statement in support of his formal claim to include neurocognitive
impairment.

2

On December 1, 1994 Dr. Rosemary K. Sokas, a specialist in occupational medicine,
diagnosed reactive airways disease. She noted that allergy testing revealed a wide variety of
positive allergens, including Aspergillus niger and Rhizopus. Dr. Sokas noted an indoor air
quality assessment from 1989, which revealed that microorganisms collected from condensation
pans in the Waterside Mall’s West Tower annex grew Aspergillus niger and Rhizopus, among
several yeasts, molds and bacteria. She also noted respiratory peak flow measurements
indicating that continued exposure to the compounds that triggered appellant’s initial bout of
respiratory problems would be expected to cause a progressive decline of pulmonary function.
Dr. Sokas concluded that the precise identification of exposures and the elimination of those
exposures was an admirable goal.
On June 2, 1995 Dr. Sokas informed Dr. Holland that she had reviewed the industrial
hygiene form he provided, describing the industrial hygienist’s evaluation of appellant’s office
space. She advised that September 28, 1994 scratch testing showed appellant to be allergic to
several specific fungi identified in his work space. Dr. Sokas noted that appellant’s allergies
were fairly well documented and that the history of his workplace included a number of incidents
of water damage leading to occasional episodes of fairly high fungal overgrowth.
On January 20, 1995 Dr. Lewis B. Eberly, a neurologist, saw appellant as a consultant to
Dr. Stein. Appellant told Dr. Eberly that he was diagnosed with migraines in 1994 and had no
prior history of headaches. Thereafter he developed respiratory problems, including allergic
rhinitis and upper airways responsiveness. Dr. Eberly reviewed a list appellant provided of
occupational chemical exposures. He described his findings and stated that appellant had toxic
headaches induced by environmental toxins.
On May 18, 1995 Dr. Eberly noted that appellant’s symptoms seemed to be generalizing
to some degree to other environmental situations, such as when he visited shopping malls,
particularly sporting goods or hardware stores or at times with exposure to exhaust fumes. He
stated that he could not rule out the possibility of an intracranial mass with associated headaches
occurring more frequently.
On May 22, 1996 Dr. Kenneth B. Singleton, a consulting Board-certified internist
supported appellant’s application for a disability retirement. He reported that appellant’s three
major diagnoses were reactive airways disease, migraine headache and chronic fatigue
syndrome. Other well-documented diagnoses included undifferentiated somatoform disorder,
irritable bowel syndrome, hiatal hernia, reflux esophagitis and vasomotor rhinitis.
On August 1, 1997 the Office asked the employer to provide the results of any other air
samples or investigative reports on the problems at the Waterside Mall. The employer replied on
September 29, 1997 that they would supply the results shortly.
In a decision dated January 21, 1998, the Office denied appellant’s injury claim. It found
that the medical evidence was insufficient to establish that his claimed conditions were caused by
his exposure at the Waterside Mall.2 The Office noted that none of the medical reports discussed
2

The Office identified the claimed conditions as occupational asthma, occupational reactive airways disease,
migraine headaches due to toxic exposures, chronic fatigue syndrome, allergic rhinitis and neurocognitive
impairment.

3

how or why any specific substance, chemical or irritant (or combination) in what specific level or
concentration in appellant’s work location caused or contributed to the claimed conditions since
November 1993. It stated that it was unclear from the medical evidence how the claimed
conditions were due to exposure at work when the environmental studies showed no apparent
problems with the work location. The physicians did not support their opinion with any specific
exposure evidence, environmental studies or convincing medical rationale.
Appellant submitted a substantial number of documents related to the indoor air quality at
the Waterside Mall, including memoranda, surveys, findings, safety and occupational health
inspection reports, microbiological samplings, indoor air quality measurement studies,
evaluations of organic emissions and analysis of the heating, ventilating and air conditioning
systems. The Office received a July 21, 1995 indoor air quality evaluation of his office space,
which found that measured values for carbon dioxide, carbon monoxide, temperature, relative
humidity and airborne fungi and bacteria were within the acceptable range, except for a
relatively low air exchange rate of 0.2 air changes an hour. Fungi, bacteria and yeast
contaminated the wallboard and probably carpet surrounding the interior air conditioning unit
located in the north hallway of the Washington Information Center, where appellant spent a
significant amount of time. Perimeter induction units in appellant’s office space were
significantly blocked by objects placed on or in front of the units by the occupants.
Dr. Mark E. Bradley, a specialist in occupational medicine, worked at the health unit as a
consultant from November 1988 through May 1989. On June 25, 1989 he reported that he had
interviewed and examined about 60 employees and expressed very serious concerns about their
health and well being. At least 80 percent had bona fide medical problems that Dr. Bradley
believed were caused by working in the Waterside Mall; 50 to 60 percent had symptoms and
physical findings consistent with tight building syndrome, including eye and throat irritation and
headaches; 30 to 40 percent having symptoms and findings of airway hyperreactivity, a form of
occupational asthma; 10 percent had evidence of allergic alveolitis.
On October 20, 1989 Dr. Bradley reviewed a health survey and found that some
employees, particularly those with respiratory illnesses, were at immediate health risk with longterm health effects. He noted that the prevalence of symptoms from the survey was
astonishingly high, by an order of magnitude than he expected.
Appellant submitted an April 15, 2004 report from Dr. Singleton, who was now serving
as the lead physician supporting his claim for workers’ compensation. Dr. Singleton reviewed
appellant’s examinations and treatment from December 1993 to 2004. He related the history of
disease given by appellant. Dr. Singleton described his findings on physical examination and the
results for diagnostic testing from December 1993 to April 2004. He diagnosed occupational
asthma and reactive airways disease; migraine headaches; sensitization and hyperreactivity;
neurocognitive impairment; chronic fatigue and immune dysregulation syndrome; neurally
mediated hypotension and dysautonomia; chronic dizziness; ataxia/loss of balance; and upper
airways disease consisting of vasomotor rhinitis.
Dr. Singleton concluded with reasonable medical certainty that each diagnosed medical
condition was directly caused by appellant’s 2.5 years of occupational exposures to seriously
deficient ventilation and high-dose exposures to particulates and multiple specific chemical and

4

microbiological contaminants in the workplace. He explained that it was not medically
reasonable to conclude that any of the diagnoses were due to preexisting medical conditions,
preexisting allergic diseases or nonwork concurrent causes, such as his home. Dr. Singleton
stated that appellant’s only preexisting illnesses were hiatal hernia, reflux esophagitis and a selfreported past history of allergic rhinitis. He stated that there was no valid, credible evidence to
support that appellant’s respiratory illness and headaches were preexisting and nonoccupational.
Dr. Singleton noted his agreement with other treating physicians from 1994 to 1996 that all of
appellant’s illnesses were occupationally caused. Health unit records clearly indicated that
appellant’s headaches, increased frequency of upper respiratory infections and all his other
symptoms were strongly associated with working in the Waterside Mall. Appellant’s physicians
could find no nonoccupational medical reasons for his illness. Appellant had recovered from
allergic bronchitis more than 20 years before working at the employing establishment, his
preexisting allergic rhinitis was not the cause of new respiratory problems, he had none of the
new respiratory symptoms or illnesses when he began work at the employing establishment and
30 days of respiratory peak flow measurements (May to June 1994) produced objective medical
proof of occupational causation of appellant’s asthma and reactive airways diseases.
Dr. Singleton addressed causation for all of the diagnosed conditions.
Dr. Singleton relied on the December 25, 2003 report of Dr. Richard Cothern, a physicist
with experience as a toxicologist, chemist and environmental risk assessor, for information on
appellant’s exposure data. Dr. Cothern was appellant’s colleague in the Waterside Mall and filed
his own claim for workers’ compensation.3
Following a telephonic hearing on May 5, 2005, an Office hearing representative asked
the employer to provide all reports and studies concerning the air quality where appellant worked
in the 1990s.
In a decision dated August 2, 2005, the Office hearing representative found that further
development of the evidence was warranted. Factual evidence demonstrated problems with the
ceiling in 1992 and problems with the carpet in 1994. The medical evidence related a worsening
of appellant’s condition to his workplace. The hearing representative instructed the Office to
prepare a statement of accepted facts and refer appellant to an appropriate Board-certified
specialist for a second opinion.
The Office prepared an October 30, 2006 statement of accepted facts, which accepted
that appellant’s workplace posed a degree of environmental hazards due to defective ceiling tiles
and carpet from December 1992 to August 1994. The statement also accepted that the following
occurred during this period:
“-1992 Recommendation made to replace ceiling tiles;
“-April 6, 1994 OHSA report indicated need for changing carpet in the
workplace;

3

Dr. Cothern is not a “physician” under 5 U.S.C. § 8101(2).

5

“July 21, 1995 report showed evidence of contamination in the carpet consisting
of fungi, bacteria and yeast.
“In addition the claimant was exposed to normal workplace odors and smells
during this period. Evidence of excessive levels of workplace bacteria, hazardous
chemicals, odors or improper ventilation, during this period, has not been
definitively established.
“-March 21, 1996 report showed evidence of bird droppings in the workplace.”
The Office referred appellant, together with the medical evidence and the statement of
accepted facts, to Dr. Robert L. Bloom, Board-certified in pulmonary disease, for a second
opinion on appellant’s respiratory condition.
Dr. Bloom evaluated appellant on
November 28, 2006. He related appellant’s history of illness and his findings on physical
examination. Dr. Bloom interpreted the spirometry performed that day as entirely normal. He
reviewed complete pulmonary function tests performed on July 2, 2003 and found them to be
entirely normal, including diffusing capacity. Dr. Bloom also reviewed a February 22, 2005
computerized tomography (CT) scan, which he read to be entirely normal.
Dr. Bloom found that appellant had an entirely normal pulmonary function with no
evidence of any type of disability or chronic pulmonary dysfunction. He stated that appellant did
not require oxygen. Dr. Bloom cautioned that the current evaluation did not absolutely exclude a
diagnosis of mild intermittent asthma, “but there is certainly no evidence to support that
diagnosis.” Though he did not think it warranted, he noted that a methacholine challenge test
would give definitive information on whether mild intermittent asthma was present. Dr. Bloom
noted that he was not an expert in toxicology or an expert in neurology or chronic fatigue
syndrome and was unable to state any opinion regarding appellant’s other multiple complaints.
Dr. Samuel V. Spagnolo, Board-certified in pulmonary disease, a professor of medicine
and an Office medical consultant, reviewed appellant’s medical record and found that lung
function values from 1994, 2003 and 2006 were completely normal, with no evidence of
obstructive or restrictive lung impairment. Methacholine challenges in 1994 and 1995 were
negative. It was Dr. Spagnolo’s opinion that the evidence did not support any lung condition
caused by, precipitated by, aggravated by or as a consequence of any occupationally related
exposure. “[Appellant’s] lungs are normal and have been normal since initially tested in 1994.”
He noted that the result of self-reported peak flow measurements could not be validated and
should not be used in determining a diagnosis of asthma or an asthma-like condition. Dr. Bloom
found that appellant did not meet the criteria for the diagnosis of chronic asthma, reactive
airways dysfunction syndrome or hyperreactive airways disease. He could not offer an expert
opinion on the conditions referred to as chronic fatigue syndrome or multiple chemical
sensitivities.
The Office prepared a June 22, 2007 statement of accepted facts amended to include as
accepted a May 17, 1994 fire at the Waterside Mall and a subsequent screening study showing
elevated levels of tetrachloroethylene and dichloromethane. It attached the study to the
statement of accepted facts.

6

The Office referred appellant, together with the medical record and the statement of
accepted facts, to Dr. Harvey A. Schwartz, Board-certified in rheumatology and allergy/
immunology, for a second opinion on chronic fatigue syndrome. On July 23, 2007 Dr. Schwartz
related appellant’s history and current symptoms and complaints. He described findings on
examination and reviewed the statement of accepted facts. Dr. Schwartz diagnosed chronic
fatigue syndrome, history of reactive lung disease, possible heart murmur and other symptoms as
noted. It was his opinion that, based on current objective findings, the medical evidence did not
support that appellant developed chronic fatigue syndrome as a result of his workplace exposure.
Dr. Schwartz explained that chronic fatigue syndrome had no known causative agent or agents.
Infections, environmental factors, allergies, psychological stress and other agents had been posed
to cause or contribute, but to date there was no objective data showing a causal relationship.
Dr. Schwartz saw no medical data to support that appellant developed shortness of breath and
coughing or permanent respiratory symptoms as a result of exposure to toxic chemicals at work.
He stated that the likelihood of causal relationship was greater at the time of work exposure, but
he saw no evidence that exposures more than 10 years ago had resulted in any permanent
respiratory condition. Dr. Schwartz specifically found that chronic fatigue syndrome, dizziness,
alleged orthostatic hypotension, heart murmur and respiratory symptoms (with the exception of
possible increased respiratory symptoms during the time of exposure) and other symptoms were
unrelated to appellant’s workplace exposure. He noted that the primary diagnosis he was asked
to review was chronic fatigue syndrome.
The Office prepared an August 10, 2007 statement of accepted facts amended to include
a copy of the July 21, 1995 indoor air quality survey. It attached the survey to the statement of
accepted facts.
The Office found a conflict in medical opinion on the issue of pulmonary or respiratory
injury (asthma, occupational reactive airways disease and allergic rhinitis). It found a separate
conflict on the issue of chronic fatigue injury. The Office referred appellant, together with the
medical record and the statement of accepted facts, to Dr. Jeff B. Hales, Board-certified in
pulmonary disease, and to Dr. Madalene K. Greene, Board-certified in rheumatology, to resolve
these conflicts. When it was discovered that Dr. Hales had previously seen appellant, the Office
informed appellant that it would reschedule him with another pulmonologist.
Dr. Greene reviewed appellant’s extensive medical record and on October 18, 2007 she
interviewed and examined him. She found that he clearly had disabling chronic fatigue
syndrome. Dr. Greene noted that appellant’s symptoms of extreme fatigue, weakness, myalgia,
arthralgia, headache, dizziness, disruptive sleep and neurocognitive impairment started out with a
flu-like syndrome in 1993 and then persisted and progressively worsened over the ensuing three
to four years. She stated that the onset of appellant’s chronic fatigue syndrome was temporally
related to his “occupational exposure” from December 1991 to July 1995. Dr. Greene noted that
the exposures in the statement of accepted facts -- elevated levels of tetrachloroethylene and
dichloromethane in 1994 and contamination in the carpet with fungi, bacteria and yeast and in
1996 bird droppings -- were all documented one to three years after the onset of appellant’s
symptoms. Further, Dr. Greene stated that she was unaware of any data showing these
substances to be directly causative, precipitating, aggravating or a consequence of chronic
fatigue syndrome. She explained that studies had looked for an “infectious agent” etiology of
chronic fatigue syndrome, but none was found. Dr. Greene an “immune dysfunction” theory of

7

chronic fatigue syndrome that at best showed only nonspecific findings with no significance yet
determined in the pathogenesis of the disorder. She indicated that it was possible that the
workplace environment contributed to appellant’s chronic fatigue syndrome but explained “the
current state of standard medical knowledge” could not draw a causal connection.
In a January 8, 2008 supplemental report, Dr. Greene stated, “In my opinion, based on a
reasonable degree of medical certainty and based upon my ongoing practice of [r]heumatology
and ongoing medical updates of current and past literature, I do not think that [appellant’s]
occupational exposure during the period December 1991 [to] July 1995 contributed to his
[c]hronic [f]atigue [s]yndrome.”4
In a decision dated April 18, 2008, the Office denied appellant’s claim, finding that the
medical evidence failed to establish a causal relationship between a diagnosed condition and
exposures in his workplace. It found that the weight of the evidence rested with the impartial
medical specialist, Dr. Greene.
On appeal, appellant contends that the Office’s decision is not supported by substantial,
rationalized evidence, that it contains errors of law and an improper legal standard of causation,
that the Office incorrectly adjudicated factors of employment, selectively chose evidence,
ignored uncontested evidence favorable to appellant, gave the weight of the evidence to the
impartial medical specialist despite little or no rationalization and failed to weigh properly the
well-reasoned medical opinions of seven attending physicians whose opinions were supported by
uncontested, heavily documented evidence.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.5 An
employee seeking benefits under the Act has the burden of proof to establish the essential
elements of his claim. When an employee claims that he sustained an injury in the performance
of duty, he must submit sufficient evidence to establish that he experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He must also
establish that such event, incident or exposure caused an injury.6
Causal relationship is a medical issue7 and must be shown by a medical opinion that is
based upon a specific and accurate history of employment incidents or conditions,8 that is of

4

Prior to allowing Dr. Greene an opportunity to submit her supplement report, the Office referred appellant to
Dr. Neil I. Stahl, Board-certified in rheumatology, who reported on January 22, 2008 that chronic fatigue syndrome
is a syndrome of unknown cause with triggers that cannot often be identified.
5

5 U.S.C. § 8102(a).

6

John J. Carlone, 41 ECAB 354 (1989).

7

Mary J. Briggs, 37 ECAB 578 (1986).

8

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

reasonable medical certainty9 and that is supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the established incident or factor of
employment.10
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.11 When there exist 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 upon a
proper factual background, must be given special weight.12
In assessing the medical evidence, the number of physicians supporting one position or
another is not controlling. The weight of such evidence is determined by its reliability, its
probative value and its convincing quality. The opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested and the medical rationale expressed in support of
the physician’s opinion are factors which enter into such evaluation.13
ANALYSIS
Appellant filed a claim alleging that his various neurological and respiratory symptoms
were causally related to his work environment, primarily at the Waterside Mall, from
December 1991 to July 1995. He has the burden of proof to establish that he experienced a
specific exposure occurring at the time, place and in the manner alleged. Appellant must also
establish that such exposure caused an injury.
The Office accepted that appellant established certain workplace exposures. It found that
his workplace posed “a degree of environmental hazards” due to defective ceiling tiles and carpet
from December 1992 to August 1994. The Office’s statement of accepted facts referred to a
recommendation in 1992 to replace ceiling tiles, an April 6, 1994 OSHA report indicated the
need to change carpet, a July 21, 1995 report showing evidence of contamination in the carpet
consisting of fungi, bacterial and yeast and a March 21, 1996 report showing evidence of bird
droppings in the workplace.14 It would amend the statement of accepted facts to include a copy
of the July 21, 1995 indoor air quality survey and a screening study following the May 17, 1994
fire at work.

9

See Morris Scanlon, 11 ECAB 384, 385 (1960).

10

See William E. Enright, 31 ECAB 426, 430 (1980).

11

5 U.S.C. § 8123(a).

12

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

13

Naomi A. Lilly, 10 ECAB 560 (1959).

14

The report actually found that fungi, bacteria and yeast contaminated the wallboard and “probably” carpet
surrounding the interior air conditioning unit located in the north hallway of the Washington Information Center.

9

The Board finds that the Office’s statement of accepted facts is limited in scope. While it
is not practicable to include within the written statement of accepted facts every survey, finding,
sampling, measurement, analysis, inspection report or memoranda appearing in the case record,
it is unreasonable to present only a small fraction of that evidence as factually established. A
physician giving an opinion on causal relation should have available for review, if needed, any
environmental data or finding relevant to appellant’s workplace from December 1991 to
July 1995.15 The Office should sift through the evidence, particularly the substantial number of
documents it received in April 2005 and copy all relevant reports of environmental data and
findings to a CD-ROM, which may then accompany a properly revised statement of accepted
facts.
The statement of accepted facts should make no reference to “normal” workplace odors
and smells and should make no finding that “excessive” levels of bacteria, chemicals, odors or
improper ventilation are not established.16 Any survey that finds levels of contaminants to be
normal or within acceptable standards should be included in the accepted environmental data and
findings, but the judgment of whether the actual levels were nonetheless sufficient to injure
appellant must be left to the physician addressing causal relationship. The statement of accepted
facts should also avoid describing environmental factors as “hazards.” Whether such factors
posed a danger or risk to appellant should also be left to the physician.
Further development is warranted based on a revised statement of accepted facts. It may
be broadly accepted as factual that appellant was exposed to environmental factors in his federal
employment from December 1991 to July 1995. The question then becomes whether appellant’s
occupational exposure caused an injury.
Appellant submitted medical opinion evidence to support the element of causal
relationship. Dr. Stein, a pulmonologist, associated allergic rhinitis and airways hyperresponsiveness to workplace exposure. Dr. Sokas, a specialist in occupational medicine, found
that appellant was allergic to specific allergens found in his workplace in 1989 and in an
industrial hygienist’s evaluation of appellant’s office. Dr. Eberly, a neurologist, found that
appellant had toxic headaches induced by environmental toxins, but he could not rule out the
possibility of an intracranial mass with associated headaches occurring more frequently.
Dr. Singleton, a Board-certified internist who served as the lead physician in support of
appellant’s claim, included in his April 15, 2004 report a diagnosis of a number of medical
conditions and concluded that each was directly caused by appellant’s 2.5 years of occupational
exposures to seriously deficient ventilation and high-dose exposures to particulates and multiple
specific chemical and microbiological contaminants in the workplace. He saw in the health unit
records a strong association between working in the Waterside Mall and appellant’s headaches,
increased frequency of upper respiratory infections and all his other symptoms. Dr. Singleton
15

Environmental data prior to December 1991 or after July 1995, such as a March 21, 1996 report showing
evidence of bird droppings in the workplace, may be of limited relevance to appellant’s actual exposure.
16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.0809.4.a(4)
(September 2009) (vague or generic terms such as light, heavy, undue, severe, irregular and abnormal are to be
avoided, since they are subject to great differences of interpretation).

10

considered appellant’s self-reported record of respiratory peak flow measurements for 30 days in
1994 to be objective medical proof of occupational causation of appellant’s asthma and reactive
airways diseases.
A conflict in medical opinion arose, however, with respect to appellant’s pulmonary or
respiratory complaints. Dr. Bloom, Board-certified in pulmonary disease and a second-opinion
physician, interpreted appellant’s November 28, 2006 spirometry as entirely normal, as he did
the complete pulmonary function tests on July 2, 2003 and a CT scan on February 22, 2005. It
was his impression that appellant had entirely normal pulmonary function with no evidence of
any type of disability or chronic pulmonary dysfunction. Dr. Bloom concluded that appellant did
not require oxygen.
Dr. Spagnolo, Board-certified in pulmonary disease, a professor of medicine and an
Office medical consultant, supported Dr. Bloom’s impression. He noted that lung function
values from 1994, 2003 and 2006 were completely normal, with no evidence of obstructive or
restrictive lung impairment and negative methacholine challenges in 1994 and 1995. It was
Dr. Spagnolo’s opinion that the evidence did not support any lung condition caused by,
precipitated by, aggravated by or as a consequence of any occupationally-related exposure. He
declared that appellant’s lungs were normal “and have been normal since initially tested in
1994.” Dr. Spagnolo took issue with Dr. Singleton’s reliance on self-reported peak flow
measurements, stating they could not be validated and should not be used to determine a
diagnosis of asthma or asthma-like condition. Dr. Bloom further found that appellant did not
meet the criteria for the diagnosis of chronic asthma, reactive airways dysfunction syndrome or
hyperreactive airways disease.
A conflict in medical opinion arose between the Office physicians and appellant’s
physicians on whether appellant sustained a pulmonary or respiratory injury in the performance
of duty. This conflict remains unresolved. The Office referred appellant to Dr. Hales, Boardcertified in pulmonary disease, for an impartial medical evaluation; however, Dr. Hales had
previously seen appellant. It never referred appellant to another pulmonologist. On remand, the
Office shall refer appellant to an impartial medical specialist Board-certified in pulmonary
disease to resolve the conflict pursuant to section 8123(a) of the Act.
A second conflict arose on the issue of chronic fatigue syndrome. Dr. Schwartz, Boardcertified in rheumatology and allergy/immunology and a second-opinion physician, diagnosed
chronic fatigue syndrome but stated that, based on current objective findings, the medical
evidence did not support that appellant developed chronic fatigue syndrome as a result of his
workplace exposure. He explained that chronic fatigue syndrome had no known causative agent
or agents. Dr. Schwartz specifically found that chronic fatigue syndrome, dizziness, alleged
orthostatic hypotension, heart murmur, respiratory symptoms (with the exception of possible
increased respiratory symptoms during the time of exposure) and other symptoms were unrelated
to appellant’s workplace exposure.
To resolve the conflict on whether appellant sustained a chronic fatigue injury in the
performance of duty, the Office properly referred appellant to Dr. Greene, Board-certified in
rheumatology. Dr. Greene sided with Dr. Schwartz. She diagnosed disabling chronic fatigue
syndrome and noted that the onset of appellant’s symptoms -- extreme fatigue, weakness,

11

myalgia, arthralgia, headache, dizziness, disruptive sleep, neurocognitive impairment -coincided with appellant’s federal employment. Dr. Greene indicated that it was possible that
the workplace environment contributed to appellant’s chronic fatigue syndrome, but she
explained “the current state of standard medical knowledge” could not causally connect the two.
Studies had looked for an “infectious agent” etiology of chronic fatigue syndrome but found
none. In Dr. Greene’s supplemental report, she made clear that based on a reasonable degree of
medical certainty and based upon her ongoing practice of rheumatology and ongoing medical
updates of current and past literature, she did not think that appellant’s occupational exposure
during the period December 1991 to July 1995 contributed to his chronic fatigue syndrome.
On the issue of whether appellant sustained a chronic fatigue injury in the performance of
duty, the Board finds that the weight of the medical opinion evidence rests with Dr. Greene, the
impartial medical specialist, whose opinion was clear and unequivocal and her rationale was
straightforward. Echoing Dr. Schwartz’ observation that chronic fatigue syndrome has no
known causative agent, she stated that the current state of standard medical knowledge did not
permit a causal link between appellant’s chronic fatigue syndrome and his federal workplace.
Dr. Greene’s opinion stands as the weight of the medical evidence notwithstanding the
imperfections in the Office’s statement of accepted facts. They have no bearing on her rationale
and must be considered harmless error in the context of the opinion she provided.
The Office’s April 18, 2008 decision correctly denied one aspect of appellant’s claim -that relating to chronic fatigue syndrome -- but improperly denied the whole of the claim. There
remains, as discussed earlier, a conflict on the issue of pulmonary or respiratory injury, a matter
Dr. Greene, as rheumatologist, is unqualified to resolve. The Board will therefore affirm the
April 18, 2008 decision on the issue of chronic fatigue injury.
One of the arguments appellant makes on appeal deals with the breadth of his claim. He
argues the Office must adjudicate each of his 11 claimed medical conditions: occupational
asthma, reactive airways disease, chronic fatigue syndrome, migraines, sensitization,
neurocognitive impairment, hypotension, dysautonomia, chronic dizziness, ataxia and rhinitis.
As explained above, an impartial medical specialist will address the claimed pulmonary or
respiratory conditions. The Office has adjudicated appellant’s claim for chronic fatigue
syndrome. Dr. Greene seemed to indicate that extreme fatigue, weakness, myalgia, arthralgia,
headache, dizziness, disruptive sleep and neurocognitive impairment were symptoms of
appellant’s chronic fatigue syndrome. The Office should follow up with Dr. Greene to determine
whether her opinion on chronic fatigue syndrome effectively addressed more than one of the 11
claimed conditions, such as dysautonomia, hypotension, dizziness, ataxia/loss of balance,
headache/migraine and cognitive impairment. To the extent that her opinion effectively
addressed these claimed conditions or symptoms, no further development of the medical
evidence is warranted. To the extent that it did not and to the extent that any remaining
nonrespiratory condition constitutes a separate medical diagnosis, the Office shall further
develop the evidence by obtaining a second opinion on causal relationship.
Appellant places significance on the number of physicians he counts on his side of the
ledger and on the length of and number of footnotes in, Dr. Singleton’s April 15, 2004 report,
compared to the length of the reports obtained from Office referral physicians. But that is not
controlling. The report of an Office referral physician need not be as lengthy as the attending

12

physician’s or as copiously footnoted to establish an actual disagreement under section 8123(a)
of the Act. The report of an impartial medical specialist need not be as involved to satisfactorily
resolve that disagreement. Appellant argues the probative value of the medical opinion
evidence, but ultimately that determination falls within the adjudicator’s judgment.
Appellant argues that the employer never responded to the Office’s request for relevant
environmental data. He obtained a remarkable amount of such data on his own (1,500 or 2,000
pages, he told the Board) and submitted that evidence to the record. Therefore, there appears to
be no compelling reason to ask the employer to duplicate appellant’s effort and further burden an
already ponderous case record.17
Appellant argues that the employer did not “validly contest” his claim and that in the
absence of a valid contest, the Office must accept his evidence of occupational causation for his
entire claim as uncontested fact. The authority he cites does not support this contention. The
Office may accept a claimant’s account of an incident at work. Causal relationship is a medical
issue that depends on the medical opinion evidence.18
Appellant argues that the doctrine of “relative circumstances” should apply to half a
dozen of his claimed conditions, including chronic fatigue syndrome. Under the doctrine,
circumstances may allow, in rare cases, an inference of causal relationship not generally
permitted from the coincidence of employment and injury.19 Application of the doctrine is not
mandatory but a matter of judgment and adjudicatory discretion.20 Appellant has not persuaded
the Board that the doctrine should apply in his case. He cites two cases, but the medical record
does not establish a recognized precipitating factor or efficient producer of chronic fatigue
syndrome, without which -- not to mention the opinion of the impartial medical specialist -- there
is no strong suggestion of causal relationship.21
Appellant further argues that the Office accepted the claims of other employees exposed
to the same environmental factors in the Waterside Mall. His individual claim must stand on its
own merits based on the medical evidence submitted. In deciding the merits of this appeal, the
Board may not review the outcomes of other claims or evidence in other case records.
17

See Federal (FECA) Procedure Manual, supra note 16, Development of Claims, Chapter 2.0800.5.b(3)
(January 2004) (the Office should avoid requesting evidence which already appears in the file or for which no need
is anticipated, as such requests place an unwarranted burden on the party asked to submit the information and
unnecessary material creates a bulky file which then requires additional time to review).
18

Ausberto Guzman, 25 ECAB 362 (1974).

19

Elsbeth Severin (Nicholas Severin), 9 ECAB 91 (1956); Alice E. Nielsen, 8 ECAB 413 (1955);
Robert Symonds, 4 ECAB 541 (1952); Anna Strehl (William Strehl), 2 ECAB 74 (1948).
20

Bernard P. Godbold, 8 ECAB 407 (1955) (the relative circumstances of the claim “may” be relied upon in
conjunction with the medical evidence to support a compensation award if they strongly suggest a relationship of
cause and effect) (Alternate Chairman Lawyer dissenting).
21

Cf. id. (where a medical treatise supported and the Office medical advisers accepted, that Parkinson’s disease
may be attributed to a sufficiently severe head trauma); Laura H. Hoexter, 44 ECAB 987 (1993) (where the Office
medical adviser confirmed a specific causal agent by explaining that a virus was the precipitating factor in adult
Reye’s syndrome).

13

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
chronic fatigue syndrome is causally related to his exposure to environmental factors of
employment from December 1991 to July 1995. The Board further finds that this case is
otherwise not in posture for decision. Further development of the evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the April 18, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed on the issue of chronic fatigue syndrome and is
otherwise set aside. The case is remanded for further action consistent with this opinion.
Issued: May 24, 2010
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

14