United States Department of Labor 

Employees’ Compensation Appeals Board

__________________________________________ 

J.G., Appellant 

and 

DEPARTMENT OF LABOR, MINE SAFETY & 

HEALTH ADMINISTRATION, Dallas, TX, 

Employer 

__________________________________________ 

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Docket No. 14-1987 

Issued: January 21, 2015

Appearances: Case Submitted on the Record

Ronald K. Bruce, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 15, 2014 appellant, through his attorney, filed a timely appeal of an 

August 25, 2014 Office of Workers’ Compensation Programs’ (OWCP) merit decision denying 

his occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the 

case. 

ISSUE 

The issue is whether appellant has met his burden of proof in establishing that he 

developed pulmonary disease due to factors of his federal employment. 

On appeal counsel argued that the medical evidence was sufficient to establish an 

employment-related condition or in the alternative, that there was a conflict of medical opinion 

evidence which OWCP was required to resolve. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On January 28, 2013 appellant, then a 64-year-old mine safety and health inspector, filed 

an occupational disease claim alleging that he developed occupational pneumoconiosis, chronic 

obstructive pulmonary disease (COPD), and chronic bronchitis due to exposures during his 

federal employment. He stated that he first became aware of his condition on October 9, 2012 

and first attributed his condition to his employment on that date. 

Appellant stated that he worked for the employing establishment from June 16, 2000 until 

July 29, 2011. He inspected underground lead mines for approximately four years with 

exposures to gases, diesel fumes, dust, and chemicals. Appellant stated that he had dust 

exposure on a regular basis with accumulations on his skin and clothing. He also inspected 

underground limestone mines and surface limestone quarries with exposures to gases, diesel 

fumes, radon, and rock dust. Appellant experienced dust on his skin and clothing with coughing 

and nasal production. He did not wear a mask. Appellant reported his private sector 

employment and dust exposures. He stated that he had shortness of breath for several years and 

smoked cigarettes at the rate of one pack per day for 42 years. Appellant stopped smoking in 

September 2006. His left lung was removed in 2006 due to cancer and he developed pneumonia 

in 2010. 

Dr. Glen Baker, a Board-certified pulmonologist and certified B-reader examined 

appellant on November 20, 2012 and submitted a report dated December 5, 2012. He noted 

appellant’s federal and private-sector work exposures as well as his history of smoking. 

Dr. Baker stated that appellant underwent a left pneumonectomy in 2006 and that his medical 

history was positive for lung cancer. He reviewed a September 17, 2012 chest x-ray and found 

parenchymal abnormalities consistent with pneumoconiosis including small opacities category 

1/2. He did not find any pleural abnormalities consistent with pneumoconiosis. Dr. Baker found 

that appellant’s forced vital capacity (FVC) was 64 percent of predicted and that his forced 

expiratory volume (FEV1) was 39 percent of predicted. He found severe obstructive defect with 

a mild degree of restriction. Post-bronchodilator values were FVC of 70 percent and FEV1 of 43 

percent of predicted. Dr. Baker found moderate obstructive ventilator defect with a mild degree 

of restriction. He diagnosed occupational pneumoconiosis, category 1/2, COPD with a severe 

obstructive defect on pre-bronchodilator values, chronic bronchitis, and obstructive sleep apnea. 

Dr. Baker stated: 

 “[Appellant] has a long history of dust exposure in the extraction of copper, lead, 

zinc[,] and limestone. He has x-ray changes of occupational pneumoconiosis, 

which is due to a combination of the rock dust and various mineral dusts he was 

exposed to during his period of employment. [Appellant] also has severe 

obstructive airway disease and a long history of cigarette smoking. The 

combination of cigarette smoke and rock dust can be either synergistic or additive 

in terms of the effects on the lungs according to the medical literature. Thus 

[appellant’s] condition would be worse than if he had never smoked or never 

worked in the mining industry. His symptoms are due to his occupational 

exposure to various metals and his smoking history.” 
3

Dr. Baker provided an impartment rating of 65 percent under the American Medical 

Association, Guides to the Evaluation of Permanent Impairment.2

The employing establishment submitted a statement dated February 7, 2013 and 

acknowledged that appellant worked from June 16, 2000 to July 28, 2011 as a mine inspector. It 

stated that he was exposed to dusts, gases, and fumes from rocks, mobile equipment, drills, 

channel burners, excavators, milling, and rock crushing facilities. The employing establishment 

stated that it encouraged the use of respirators and had provided respirators along with annual fit 

testing for respirators for inspectors. It stated that mine inspection work rarely exposed an 

inspector to high levels of dust or gases for any length of time with an average of six hours a day 

five days a week at a mine site. 

In a letter dated April 2, 2013, OWCP requested additional factual and medical evidence 

in support of appellant’s claim and provided him with a questionnaire. It referred appellant for a 

second opinion evaluation with Dr. Harold Dale Haller, Jr, a Board-certified pulmonologist, who 

completed a report on June 19, 2013 and reviewed the statement of accepted facts. Dr. Haller 

diagnosed severe COPD, history of lung cancer, and obstructive sleep apnea. He stated that he 

could not confirm or refute appellant’s diagnosis of occupational pneumoconiosis. Dr. Haller 

attributed appellant’s COPD to his 42-year smoking history. He further stated, “It is well known 

that any significant dust exposure can cause COPD alone, or in combination with cigarette 

smoking and can accelerate the rate of decline of lung function. So, it is entirely possible that his 

exposure at work did potentially accelerate the rate of decline of his COPD.” In regard to 

pneumoconiosis, Dr. Haller found marked hyperinflation on his chest radiograph. He stated, “I 

do not see definite interstitial changes consistent with pneumoconiosis.” 

Dr. Kenneth Anderson, a colleague of Dr. Haller, a Board-certified pulmonologist and Breader, examined appellant’s June 19, 2013 studies on July 23, 2013 and found parenchymal 

abnormalities consistent with pneumoconiosis including small opacities with a profusion of 1/0. 

He found no pleural abnormalities consistent with pneumoconiosis. Dr. Haller reviewed this 

report on September 6, 2013 and stated that it did not change his previously stated opinion. 

By decision dated November 22, 2013, OWCP denied appellant’s occupational disease 

claim finding that he had not submitted the necessary medical opinion evidence to establish a 

causal relationship between his diagnosed condition and his employment exposures. It found 

that Dr. Haller’s opinion that it was “possible that exposure at work accelerated the COPD” was 

speculative and that Dr. Anderson did not find any abnormalities consistent with 

pneumoconiosis. Counsel requested an oral hearing from an OWCP hearing representative on 

December 3, 2013. 

Dr. Matthew A. Vuskovich, appellant’s physician Board-certified in occupational 

medicine and a B-reader reviewed a September 17, 2012 x-ray and found parenchymal 

abnormalities consistent with pneumoconiosis specifically small opacities 2/2, but no pleural 

abnormalities consistent with pneumoconiosis. 

 2

 A.M.A., Guides, 6th ed. 2009. 
4

Appellant testified at the oral hearing before an OWCP hearing representative on 

June 9, 2014. He described his employment duties of inspecting lead and copper mines. 

Appellant stated that he was exposed to diesel fumes, rock, and ore dust as well as gases. He 

noted that he also inspected limestone quarries and mines with exposures to rock dust. Appellant 

stated that he wore a respirator in areas that had already received citations for dust or gas, but did 

not normally wear a mask. 

Dr. Baker submitted an additional report on June 23, 2014. He reviewed appellant’s 

federal and nonfederal employment exposures. Dr. Baker stated, “The various dust, odors, 

fumes, and chemicals that he would have been exposed to have all played a part in his pulmonary 

condition. They have affected his lung function as well as the appearance of his chest x-ray. 

The sum total of his dust exposures have all contributed to his occupational pneumoconiosis, 

chronic obstructive airway disease, chronic bronchitis and possibly to the development of lung 

cancer as well with exposure to radon and lead.” He opined, “I think the sum total of his dust 

exposure has caused his current condition in concert with his smoking history. The medical 

literature suggests that when both exposures are present, the effects on the lungs may be either 

synergistic or additive.” 

By decision dated August 25, 2014, the hearing representative found that there was no 

rationalized medical evidence in support of appellant’s claim and that the weight of the medical 

evidence rested with Dr. Haller’s reports. 

LEGAL PRECEDENT 

OWCP’s regulations define an occupational disease as “a condition produced by the work 

environment over a period longer than a single workday or shift.”3 To establish that an injury 

was sustained in the performance of duty in an occupational disease claim, a claimant must 

submit the following: (1) medical evidence establishing the presence or existence of the disease 

or condition for which compensation is claimed; (2) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; and (3) medical evidence establishing that the employment factors identified by the 

claimant were the proximate cause of the condition for which compensation is claimed or, stated 

differently, medical evidence establishing that the diagnosed condition is causally related to the 

employment factors identified by the claimant. The evidence required to establish causal 

relationship is rationalized medical opinion evidence, based upon a complete factual and medical 

background, showing a causal relationship between the claimed condition and identified factors. 

The belief of a claimant that a condition was caused or aggravated by the employment is not 

sufficient to establish causal relation.4

ANALYSIS 

Appellant submitted factual and medical evidence in support of his claim for pulmonary 

disease causally related to his exposures to dust, gases, and fumes. Dr. Baker reviewed a 

September 17, 2012 chest x-ray and found parenchymal abnormalities consistent with 

 3

 20 C.F.R. § 10.5(q). 

4 Lourdes Harris, 45 ECAB 545, 547 (1994). 
5

pneumoconiosis including small opacities category 1/2. He did not find any pleural 

abnormalities consistent with pneumoconiosis. Dr. Baker diagnosed occupational 

pneumoconiosis, category 1/2, COPD with a severe obstructive defect on pre-bronchodilator 

values, chronic bronchitis, and obstructive sleep apnea. He described appellant’s history of 

employment exposures and smoking cigarettes. Dr. Baker opined that appellant’s 

pneumoconiosis was due to a combination of the rock dust and various mineral dusts he was 

exposed to during his period of employment. He stated that the combination of cigarette smoke 

and rock dust could be either synergistic or additive in terms of the effects on the lungs 

according to the medical literature. Dr. Baker concluded that appellant’s symptoms are due to 

his occupational exposure to various metals and his smoking history. 

OWCP referred appellant for a second opinion evaluation with Dr. Haller, who diagnosed 

severe COPD, history of lung cancer, and obstructive sleep apnea. Dr. Haller stated that he 

could not confirm or refute appellant’s diagnosis of occupational pneumoconiosis. He attributed 

appellant’s chronic obstructive pulmonary disease to his 42-year smoking history. Dr. Haller 

further stated, “It is well known that any significant dust exposure can cause COPD alone, or in 

combination with cigarette smoking and can accelerate the rate of decline of lung function. So, it 

is entirely possible that his exposure at work did potentially accelerate the rate of decline of his 

COPD.” 

The Board finds that this case is not in posture for a decision. Proceedings before OWCP 

are not adversarial in nature and OWCP is not a disinterested arbiter; in a case where OWCP 

“proceeds to develop the evidence and to procure medical evidence, it must do so in a fair and 

impartial manner.”5

 OWCP referred appellant to Dr. Haller for a second opinion evaluation. 

Dr. Haller made findings consistent with Dr. Baker noting that it was entirely possible that 

appellant’s exposure at work did potentially accelerate the rate of decline of his COPD. 

Dr. Anderson reviewed appellant’s June 19, 2013 x-ray studies on July 23, 2013 and, like 

Dr. Baker, found parenchymal abnormalities consistent with pneumoconiosis including small 

opacities. Like Dr. Baker he also found no pleural abnormalities consistent with 

pneumoconiosis. Dr. Haller reviewed this report on September 6, 2013 and stated that it did not 

change his previously stated opinion. The Board finds that Dr. Haller did not offer a clear 

opinion as to whether appellant’s diagnosed COPD was aggravated or accelerated by his 

employment exposures. Once OWCP undertakes development of the record, it must do a 

complete job in procuring medical evidence that will resolve the relevant issues in the case.6

 

Dr. Haller also failed to explain why Dr. Anderson’s findings of parenchymal abnormalities 

consistent with pneumoconiosis including small opacities did not support a diagnosis of 

pneumoconiosis. The Board finds that OWCP is obligated to request a supplemental report from 

him addressing these issues. After this and such other development as OWCP deems necessary, 

OWCP should issue a de novo decision. 

 5 Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985). 

6 Richard F. Williams, 55 ECAB 343, 346 (2004). 
6

CONCLUSION 

The Board finds that the case is not in posture for a decision as OWCP undertook 

development of the medical evidence and failed to complete the development by securing a 

detailed and well-reasoned report from the second opinion physician, Dr. Haller, as to whether 

appellant’s pulmonary disease developed due to factors of his federal employment. 

ORDER 

IT IS HEREBY ORDERED THAT the August 25, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further development consistent 

with this decision of the Board. 

Issued: January 21, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board