United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, RAIL 

YARD, Detroit, MI, Employer 

__________________________________________ 

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Docket No. 13-2121 

Issued: March 5, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 17, 2013 appellant filed a timely appeal from the July 24, 2013 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.2

ISSUE 

The issue is whether appellant met his burden of proof to establish that he was injured in 

the performance of duty on December 23, 2012, as alleged. 

On appeal, appellant alleges that he was exposed to a chemical spill during his 

employment and the employing establishment sent him to the hospital as a precautionary 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted new evidence on appeal. However, the Board lacks jurisdiction to review such evidence 

for the first time on appeal. See 20 C.F.R. § 501.2(c)(a); Sandra D. Pruitt, 57 ECAB 126 (2005). 
2

measure. He noted that he could not know if he had any lasting injuries from his scratchy throat 

and coughing until he was checked by a physician. 

FACTUAL HISTORY 

On December 25, 2012 appellant, then a 51-year-old Customs and Border Protection 

officer, filed a claim for occupational disease alleging that on December 23, 2012 he was 

exposed to Dipentene while working at the rail yard. 

In support of his claim, appellant submitted a report by Dr. Michael Paul, a Boardcertified surgeon, who treated appellant in the emergency department at Port Huron Hospital on 

December 23, 2012. The intake notes indicate that appellant was seen for exposure to Dipentene 

for less than one minute and that appellant denied contact with skin. The notes indicate that 

appellant complained of a slight scratchy sensation to his throat but denied an eye irritation. 

Dr. Paul stated that appellant had chemical inhalation. He listed diagnosis of acute pharyngitis, 

moderate elevation of systolic blood pressure and seasonal/environmental allergies. An x-ray 

taken at the hospital was read by Dr. John J. Ference, a Board-certified radiologist, as showing 

no acute process, findings suggestive of chronic obstructive pulmonary disease and asymmetric 

sclerosis to the anterior margin the right first rib. 

By letter dated April 1, 2013, OWCP asked appellant to submit further evidence, 

including medical evidence, in support of his claim. In a handwritten response to the questions 

on April 9, 2013, appellant indicated that he was exposed to Dipentene for approximately two 

minutes at work and that he experienced a scratchy throat that is now better. He noted that he 

has seasonal allergies. 

On April 16, 2013 a representative from the employing establishment submitted 

responses to OWCP questions and admitted that appellant was exposed to Dipentene fumes. He 

noted that appellant was working in the office and a worker from the warehouse entered the 

office and told the employees that a barrel of Dipentene had been pierced and that they should 

get out of the building. The representative noted that appellant removed himself from the 

building and moved upwind of the building and went to the hospital to be checked per fire 

department personnel recommendation. 

By decision dated July 24, 2013, OWCP denied appellant’s claim because the medical 

evidence was not sufficient to establish that a medical condition was diagnosed in connection 

with the claimed event or work factors. 

LEGAL PRECEDENT 

OWCP’s regulations define a traumatic injury as a condition of the body caused by a 

specific event or incident, or series of events or incidents, within a single workday or shift. Such 

condition must be caused by external force, including stress or strain, which is identifiable as to 

time and place of occurrence and member or function of the body affected.3 An employee 

seeking benefits under FECA has the burden of establishing the essential elements of his or her 

 3

 20 C.F.R. § 10.5(e). 
3

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, that an injury was sustained in the performance of duty as alleged and that any disability 

and/or specific condition for which compensation is claimed are causally related to the 

employment injury. These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4 

In order to determine whether an employee actually sustained an injury in the 

performance of duty, OWCP begins with an analysis of whether fact of injury has been 

established. Generally, fact of injury consists of two components, which must be considered in 

conjunction with one another. The first component to be established is that the employee 

actually experienced the employment incident or exposure, which is alleged to have occurred.5

 

In order to meet his or her burden of proof to establish the fact that he or she sustained an injury 

in the performance of duty, an employee must submit sufficient evidence to establish that he or 

she actually experienced the employment injury or exposure at the time, place and in the manner 

alleged.6

The second component is whether the employment incident caused a personal injury and 

generally can be established only by medical evidence.7 The medical evidence required to 

establish causal relationship is usually rationalized medical evidence. Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on the 

issue of whether there is a causal relationship between the claimant’s diagnosed condition and 

the implicated employment factors. The opinion of the physician must be based on a complete 

factual and medical background of the claimant, must be one of reasonable medical certainty and 

must be supported by medical rationale explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the claimant.8

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 the condition was caused by his employment is sufficient to 

establish causal relationship.9 Simple exposure to a workplace hazard does not constitute a 

work-related injury entitling an employee to medical treatment under FECA.10

 4 Jussara L. Arcanjo, 55 ECAB 281, 283 (2004). 

5 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995). 

6 Linda S. Jackson, 49 ECAB 486 (1998). 

7 John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978). 

8 Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994). 

9 D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965). 

10 20 C.F.R. § 10.303(a); see also S.H., Docket No. 10-1952 (issued May 5, 2011). 
4

ANALYSIS 

Initially, the Board finds that, although appellant filed a claim for occupational disease, 

this claim is actually a traumatic injury, as the specific incident occurred during a single workday 

or shift.11 The employing establishment does not contest that appellant was exposed to 

Dipentene on December 23, 2012. Accordingly, appellant submitted sufficient evidence to 

establish an occupational exposure to Dipentene while in the course of his federal employment. 

However, in order to meet his burden of proof, he must also submit sufficient evidence that the 

accepted Dipentene exposure caused an injury. The Board finds, however, that appellant did not 

submit such evidence. 

In support of his claim, appellant submitted his treatment notes with regard to his visit to 

the emergency department on December 23, 2012 wherein Dr. Paul diagnosed pharyngitis, 

moderate elevation of systolic blood pressure and seasonal/environmental allergies. Dr. Ference 

noted that appellant’s x-rays were suggestive of chronic obstructive pulmonary disease and 

asymmetric sclerosis to the anterior margin of the right first rib. However, neither of these 

physicians explained how these diagnoses were connected to appellant’s brief exposure to 

Dipentene on December 23, 2012. As stated above, simple exposure to a workplace hazard does 

not entitle an employee to medical treatment under FECA unless the employee has sustained an 

identifiable injury or medical condition as a result of that exposure.12 In this case, the medical 

record does not demonstrate that appellant sustained an injury or condition from briefly inhaling 

Dipentene at work.13 Therefore, appellant has not met his burden of proof that this exposure 

caused an injury. Accordingly, he has not established fact of injury and his claim was properly 

denied. 

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 did not meet his burden of proof to establish that he was 

injured in the performance of duty on December 23, 2012, as alleged. 

 11 20 C.F.R. § 10.5(15), (16) defines a traumatic injury as a wound or other injury caused by a specific event or 

incident within a single workday or shift, whereas an occupational injury is defined as a condition produced in the 

work environment over a period longer than a single workday or shift. As appellant’s exposure occurred only 

during one work shift, it is being treated as a condition arising from a traumatic work incident within a single day. 

See J.G., Docket No. 07-2371 (issued April 8, 2008). 

12 20 C.F.R. § 10.303(a). 

13 J.F., Docket No. 09-1061 (issued November 17, 2009). 
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ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated July 24, 2013 is affirmed. 

Issued: March 5, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board