United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 14-1698 

Issued: January 7, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 1, 2014 appellant, through counsel, filed a timely appeal from a June 13, 2014 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish an injury in the 

performance of duty. 

On appeal, counsel contends that OWCP’s decision was contrary to fact and law. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 31, 2011 appellant, then a 61-year-old pipefitter and plumber, filed an 

occupational disease claim (Form CA-2) alleging that he developed lung cancer as a result of 

exposure to asbestos at the employing establishment while in the performance of duty. 

In a June 24, 2011 letter, OWCP notified appellant of the deficiencies of his claim and 

requested additional factual and medical evidence. It requested a comprehensive medical report 

from a treating physician containing a diagnosis of his condition and an explanation of how the 

alleged work exposure caused or aggravated his claimed condition. OWCP afforded appellant 

30 days to submit additional evidence and respond to its inquiries. 

Appellant submitted a position description and an April 14, 2010 report from Dr. Nitin 

Jain, a Board-certified oncologist, who diagnosed squamous cell carcinoma of the lung. Dr. Jain 

indicated that appellant had a mass in the right upper lobe of the lung. He noted that appellant 

had a 20 pack a year history of smoking, worked as a pipefitter for the employing establishment 

but previously worked for the Navy. Dr. Jain stated that appellant was “concerned about going 

back to work in an environment which he thinks is full of asbestos/dust.” 

On May 12, 2010 appellant underwent surgery for his right upper lobe lung cancer 

performed by Dr. Wickii Vigneswaran, a Board-certified thoracic surgeon. 

In an August 18, 2011 letter, the employing establishment controverted appellant’s claim 

on the basis that he had not worked in areas that may have contained asbestos, abatement was 

performed by contractors and not employees, and testing was due before they began removal of 

the asbestos. The employing establishment submitted testing results from 1995 and 1996. 

In a letter dated October 27, 2011, the employing establishment indicated that an 

occupational illness evaluation for appellant was conducted by Kristen Edwards, an industrial 

hygienist. Documentation showed that appellant was a pipefitter and plumber with the 

employing establishment from 1993 to 2010. His duties included working with piping located 

above the ceiling and in confined areas in routine and emergency situations. In the event of an 

emergency line break, asbestos containing material (ACM) posed a minimal potential for 

inhalation exposure due to the wet method inhibiting airborne contaminations. Although some 

pipes may have contained asbestos, if the material was not disturbed and no fugitive dust was 

generated, the likelihood of inhalation was very minimal. Additionally, employees were advised 

to wear a particulate respirator when working above the ceiling and suspected ACM was present. 

By decision dated November 18, 2011, OWCP denied the claim on the basis that 

appellant failed to establish fact of injury. It found that the evidence was not sufficient to 

establish that he was exposed to asbestos or any other agent during the course of his federal 

employment. 

On November 28, 2011 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative and submitted a July 15, 2011 computerized tomography scan of 

the chest and upper abdomen, which revealed an interval increase in the right paratracheal lymph 

node. 
3

A telephonic hearing was held before an OWCP hearing representative on 

March 15, 2012. 

Appellant submitted an August 20, 2010 chest x-ray, which showed bilateral interstitial 

fibrosis consistent with asbestosis and blunting of the costophrenic angle consistent with 

asbestos-related pleural disease. He also submitted pulmonary function analyses dated 

March 31, 2010 and June 23, 2011. 

In an April 5, 2011 report, Dr. Alvin Schonfeld, a Board-certified pulmonologist, did not 

conduct a physical examination of appellant, but reviewed his medical records and found that he 

worked for the Navy from 1968 to 1971 and American Invesco Realty from 1973 to 1977. 

Dr. Schonfeld determined that appellant had been exposed to asbestos during his employment 

and concluded that this exposure contributed to the development of his lung cancer. 

By decision dated May 18, 2012, the hearing representative affirmed the November 18, 

2011 decision. 

On May 31, 2012 appellant, through counsel, requested reconsideration and submitted a 

series of reports, including an April 6, 2012 report from Dr. Ravi Salgia, a Board-certified 

oncologist, who indicated that appellant did not know if there was asbestos in the pipes or in any 

other material, but that he may have been exposed to asbestos from 1969 to 1971 while 

employed as a Naval boatswain’s mate. Regarding his position as a pipefitter for the employing 

establishment from 1993 to 2010, he stated that he was provided a “[physician’s] facemask” and 

that particles from pipe insulation would potentially still “get in his mouth” while cutting pipes. 

Appellant further suggested that there may have been exposure to asbestos from the ground and 

dirt spaces (crawl space, ceilings). 

In a report dated April 26, 2012, Dr. Clara Schroedl, a Board-certified pulmonologist, 

indicated that appellant’s diagnostic testing did not have evidence of asbestos-related lung 

disease (not pleural plaques, effusion, interstitial lung disease). Dr. Schroedl explained that if his 

first exposure to asbestos was in 1993, it may have been too early to see asbestosis as the typical 

latency was 20 to 30 years. 

By decision dated June 13, 2014, OWCP denied modification of the May 18, 2012 

decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA2

 has the burden of establishing the essential 

elements of his or her claim, including the fact that the individual is an “employee of the United 

States” within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, and that an injury3

 was sustained in the performance of duty. These 

 2 Id. 

3

 OWCP regulations define an occupational disease or illness as a condition produced by the work environment 

over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). 
4

are the essential elements of each compensation claim, regardless of whether the claim is 

predicated upon a traumatic injury or an occupational disease.4 

To establish that an injury was sustained in the performance of duty in a claim for an 

occupational disease claim, an employee must submit the following: (1) a factual statement 

identifying employment factors alleged to have caused or contributed to the presence or 

occurrence of the disease or condition; (2) medical evidence establishing the presence or 

existence of the disease or condition for which compensation is claimed; and (3) medical 

evidence establishing that the diagnosed condition is causally related to the employment factors 

identified by the employee.5

 

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical evidence. The opinion of the physician must 

be based on a complete factual and medical background of the employee, must be one of 

reasonable medical certainty and must be supported by medical rationale explaining the nature of 

the relationship between the diagnosed condition and the specific employment factors identified 

by the employee.6

 

ANALYSIS 

Appellant alleged that he developed lung cancer as a result of being exposed to asbestos 

at work. The Board finds that he has not established the factual element of his claim that he 

experienced an employment-related exposure to asbestos. 

The record establishes that appellant worked for the Navy from 1968 to 1971, American 

Invesco Realty from 1973 to 1977, and the employing establishment from 1993 to 2010. There 

is no evidence to establish that he was exposed to asbestos during his work as a pipefitter and 

plumber with the employing establishment from 1993 to 2010. In an August 18, 2011 letter, the 

employing establishment indicated that appellant had not worked in areas that may have 

contained asbestos. It noted that abatement was performed by contractors and not employees 

and testing was done before they began removal of the asbestos. 

In a letter dated October 27, 2011, the employing establishment explained that an 

occupational illness evaluation for appellant was conducted by Ms. Edwards, an industrial 

hygienist. Documentation showed that appellant was a pipefitter and plumber with the 

employing establishment from 1993 to 2010. His duties included working with piping located 

above the ceiling and in confined areas in routine and emergency situations. Asbestos containing 

material posed a minimal potential for inhalation exposure due to the wet method inhibiting 

airborne contaminations in the event of an emergency line break, and although some pipes may 

have contained asbestos, if the material was not disturbed and no fugitive dust was generated, the 

 4 See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004). 

5 See D.R., Docket No. 09-1723 (issued May 20, 2010). See Roy L. Humphrey, 57 ECAB 238, 241 (2005); 

Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989). 

6 See O.W., supra note 4. 
5

likelihood of inhalation was very minimal. Additionally, employees were advised to wear a 

particulate respirator when working above the ceiling and suspected ACM was present. 

On April 6, 2012 Dr. Salgia indicated that appellant did not know if there was asbestos in 

the pipes or any other material he worked with, but that he may have been exposed to asbestos 

from 1969 to 1971 while employed as a Naval boatswain’s mate. Regarding his position as a 

pipefitter for the employing establishment from 1993 to 2010, appellant stated that he was 

provided a “[physician’s] facemask” and that particles from pipe insulation would potentially 

still “get in his mouth” while cutting pipes. Appellant further suggested that there may have 

been exposure to asbestos from the ground and dirt spaces (crawl space and ceilings). He was 

unable to identify the actual source or specific nature of the substances, which he believed 

caused his lung cancer. The Board finds that appellant has failed to provide sufficient factual 

evidence to support his exposure to any precise asbestos, dust, or other irritant while working at 

the employing establishment. 

An award of compensation may not be based on surmise, conjecture, or speculation. 

Neither the fact that appellant’s claimed condition became apparent during a period of 

employment, nor his belief that his condition was caused by his employment, is sufficient to 

establish causal relationship.7

 Since he failed to establish the first component of fact of injury, it 

is not necessary to discuss whether he submitted medical evidence sufficient to establish that a 

medical condition existed and whether the condition was causally related to the employment 

factors alleged.8 

On appeal, counsel contends that OWCP’s decision was contrary to fact and law. For the 

reasons stated above, the Board finds that counsel’s arguments are not substantiated. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not met his burden of proof to establish that he 

sustained an injury in the performance of duty. 

 7 See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979). 

8 See Bonnie A. Contreras, 57 ECAB 364, 368 n.10 (2006). 
6

ORDER 

IT IS HEREBY ORDERED THAT the June 13, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 7, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board