United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.M., Appellant 

and 

DEPARTMENT OF LABOR, ENERGY 

EMPLOYEES OCCUPATIONAL ILLNESS 

COMPENSATION PROGRAM, Denver, CO, 

Employer 

__________________________________________ 

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Docket No. 14-1691 

Issued: November 18, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On July 31, 2014 appellant filed a timely appeal from the May 29, 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 her burden of proof to establish that she sustained an 

injury in the performance of duty. 

                                                             1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been on appeal before the Board.2 In a November 25, 2013 

decision, the Board affirmed the August 9, 2012 decision of OWCP denying appellant’s claim. 

While appellant established that she was exposed to insects or other biting pests on or around 

August 18, 2008, there was insufficient medical evidence to establish that she sustained an injury 

as a result of the accepted employment condition. The facts of the case as contained in the prior 

appeal are incorporated by reference. 

By letter dated April 10, 2014, appellant requested reconsideration. She argued that her 

physician, Dr. James DeVito, a Board-certified dermatologist, noted that she presented with a 

bite on her ankle when he first examined her. Appellant contended that the Board’s decision 

indicated that she had some kind of infestation. She submitted additional medical evidence. In a 

March 20, 2014 treatment note, Dr. DeVito noted that appellant’s last office visit was six to 

seven years prior for an infestation of mites. He noted that she requested a complete report about 

the mite infestation. Dr. DeVito examined appellant and determined that there were 

acute/subacute eczematous patches and plaques present on the bilateral arms and legs. He 

diagnosed dermatitis/eczema due to an unspecified cause. 

In an April 1, 2014 report, Dr. DeVito provided a summary of his clinical observation 

and assessment of appellant in 2008. He noted that, while she did not sustain an “injury per se,”

she presented to the office on August 18, 2008 for what was an “erythematous papule at her 

ankle consistent with an insect bite. No scalp lesions were noted.” Dr. DeVito advised that his 

diagnosis on that date was infestation of mites/insects. He noted that the objective findings 

supporting his diagnosis were his clinical examination and acumen as a dermatologist. 

Dr. DeVito opined that “a rationalized medical opinion on causal relationship is difficult to 

determine because there are a number of locations where this infestation could have occurred.” 

OWCP also received several treatment notes, some of which are not fully legible. In a 

September 11, 2008 treatment note, an unknown healthcare provider advised that appellant 

presented crying and believed that she had mites or parasites. The provider noted that appellant 

brought a piece of paper with “crud” on it. It was viewed under a microscope and was found 

negative for mites or eggs. The treatment notes indicate that three months earlier, appellant 

reported bites at work. The records advised that she had possible mites on her body and 

indicated animals were presently being treated for mites. Another undated note reported “fleas 

everywhere.” There is no legible indication that these notes or records were authored by a 

physician. 

By decision dated May 29, 2014, OWCP denied modification of its August 9, 2012 

decision. 

                                                             2

 Docket No. 13-827 (issued November 25, 2013). On August 18, 2008 appellant filed a traumatic injury claim 

alleging she was bitten by fleas at work. 
3

LEGAL PRECEDENT 

An employee seeking benefits under FECA3 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 FECA4

 and that an injury was sustained in the performance of duty.5 These 

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

predicated upon a traumatic injury or an occupational disease.6

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it must first be determined whether a “fact of injury” has been established. 

First, the employee must submit sufficient evidence to establish that he or she actually 

experienced the employment incident at the time, place and in the manner alleged.7 Second, the 

employee must submit sufficient evidence, generally only in the form of medical evidence, to 

establish that the employment incident caused a personal injury.8

An alleged work incident does not have to be confirmed by eyewitnesses in order to 

establish that an employee sustained an injury in the performance of duty, but the employee’s 

statement must be consistent with the surrounding facts and circumstances and his subsequent 

course of action.9

 A consistent history of the injury as reported on medical reports to appellant’s 

supervisor and on the notice of injury can also be evidence of the occurrence of the incident.10 

Such circumstances as late notification of injury, lack of confirmation of injury, continuing to 

work without apparent difficulty following the alleged injury and failure to obtain medical 

treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in 

determining whether a prima facie case has been established.11 Although an employee’s 

statement alleging that an injury occurred at a given time and in a given manner is of great 

probative value and will stand unless refuted by strong or persuasive evidence.12 

                                                             3

 5 U.S.C. §§ 8101-8193. 

4 Joe D. Cameron, 41 ECAB 153 (1989). 

5 James E. Chadden, Sr., 40 ECAB 312 (1988). 

6 Delores C. Ellyett, 41 ECAB 992 (1990). 

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

8 Id. 

9 Rex A. Lenk, 35 ECAB 253, 255 (1983). 

10 Id. at 255-56. 

11 Dorothy M. Kelsey, 32 ECAB 998 (1981). 

12 Id.
4

ANALYSIS 

Appellant alleged that she was bitten by mites or fleas at the employing establishment in 

the performance of duty on August 18, 2008 and sustained multiple bites to her body. In the 

prior decision, the Board found that she established exposure to insects or other biting pest 

occurred on or about August 18, 2008. However, the medical evidence provided by appellant 

was insufficient to establish that she sustained injury as a result of the accepted employment 

incident. 

Appellant submitted a March 20, 2014 treatment note from Dr. DeVito, who noted that 

her last office visit was six to seven years earlier for an infestation of mites. Dr. DeVito 

diagnosed dermatitis/eczema due to an unspecified cause. This report does not support causal 

relationship as he attributed the diagnosed conditions to an unspecified cause. 

In an April 1, 2014 report, Dr. DeVito noted that he was providing a summary of his 

clinical observation and assessment of appellant in 2008. He advised that she did not sustain an 

“injury per se,” when she presented to the office on August 18, 2008 for what was an 

“erythematous papule at her ankle consistent with an insect bite. No scalp lesions were noted.” 

Dr. DeVito explained that his diagnosis on that date was infestation of mites or insects and the 

objective findings supporting his diagnosis were his clinical examination and acumen as a 

dermatologist. He opined that “a rationalized medical opinion on causal relationship is difficult 

to determine because there are a number of locations where this infestation could have 

occurred.” The Board finds that the April 1, 2014 report does not support causal relationship. 

Dr. DeVito’s opinion is speculative in nature as he did not attribute appellant’s condition to any 

exposure at work. At most it provides equivocal support for causal relationship and is of limited 

probative value.13

OWCP also received several treatment records from unknown healthcare providers. The 

Board has held that a medical report may not be considered as probative medical evidence if 

there is no indication that the person completing the report qualifies as a “physician” as defined 

in 5 U.S.C. § 8102(2). The Board has found that reports lacking proper identification do not 

constitute probative medical evidence.14 Thus, these treatment notes and records are of no 

probative medical value in establishing the claim. 

The Board finds that appellant failed to submit rationalized medical evidence to establish 

that she sustained an injury caused by the August 18, 2008 employment incident. 

On appeal, appellant argued that her physician stated that she had a bug bite the first time 

he met with her. She noted that Dr. DeVito indicated that she was diagnosed with an infestation 

of mites or an insect bite on her ankle. The Board notes that Dr. DeVito did not provide a clear 

or unequivocal opinion on causal relationship. 

                                                             13 The Board has held that medical opinions which are speculative or equivocal in character have little probative 

value. T.M., Docket No. 08-975 (issued February 6, 2009). 

14 R.M., 59 ECAB 690 (2008). 
5

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 her burden of proof in establishing that she 

sustained an injury in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the May 29, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 18, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board