United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.A., Appellant 

and 

TENNESSE VALLEY AUTHORITY, 

GALLATIN FOSSIL PLANT, Gallatin, TN, 

Employer 

__________________________________________ 

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Docket No. 15-57 

Issued: February 23, 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 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 14, 2014 appellant, through his attorney, filed a timely appeal of a 

September 4, 2014 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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant developed a pulmonary condition due to exposures in his 

federal employment. 

FACTUAL HISTORY 

On April 29, 2013 appellant then a 60-year-old boilermaker, filed an occupational disease 

claim alleging that he developed occupational pneumoconiosis with pulmonary asbestosis and 

 1

 5 U.S.C. § 8101 et seq.
2

bronchitis due to exposures during his federal employment. He first became aware of his 

condition on February 14, 2013 and first realized that his condition was caused or aggravated by 

his employment on February 14, 2013. 

The employing establishment submitted a statement dated June 18, 2013 noting that 

appellant was federally employed as a pan scraper and a boilermaker for 1.6 years. Appellant 

performed federal employment from March 29 to November 30, 1977; from August 10, 1978 

through March 16, 1979 and from September 16, 1981 through January 28, 1982. The 

employing establishment noted that he spent most of his 35-year working career at various plants 

through the boilermakers union. It stated that from 1978 to 1982 respirable coal dust, total dust, 

and asbestos were below relevant permissible exposure limits established by the Occupational 

Safety and Health Administration (OSHA). The employing establishment stated that appellant’s 

position as a boilermaker did not require him to abate or repair any asbestos insulation while he 

was employed there. 

In a letter dated June 21, 2013, OWCP requested additional factual and medical evidence 

from appellant. It allowed 30 days for a response. Appellant submitted a narrative statement 

asserting that he began working for the employing establishment as a crane operator from March 

through November 1977. He stated that he was exposed to welding smoke, fumes, and dust on a 

daily basis during this period. Appellant then worked at the employing establishment as a 

boilermaker from August 7, 1978 to March 16, 1979 and from September 15, 1981 through 

January 27, 1982. He stated that he was exposed to coal dust, welding smoke, fumes, and dust 

on a daily basis. Appellant stated that he had exposure to asbestos from gaskets, boilers, and 

steam pipes as well as from the use of an asbestos blanket to cover his head and shoulders or lap 

or to lie upon. He stated that dust was visible in the air and on all of the equipment, his skin, and 

his clothing. Appellant stated that, after 1977, he worked for contractors at various employing 

establishment plants as well as other employment with similar exposures. He submitted a copy 

of his work history with the boilermakers union from 2000 through August 2012. 

Dr. Glen Baker, a Board-certified pulmonologist and certified “B” reader,2

 examined 

appellant’s February 16, 2013 x-rays and found parenchymal abnormalities consistent with 

pneumoconiosis. He reported small opacities in the middle and lower zones with profusion of 

1/0. Dr. Baker also found other abnormalities including a questionable nodule on the left. 

In a narrative report dated February 18, 2013, Dr. Baker stated that appellant worked as a 

boilermaker for 35 years with exposure to asbestos, coal dust, fly ash, and other chemicals. He 

noted that appellant reported greater asbestos exposure during the early years of his employment 

with better measures in the latter years. Dr. Baker noted that appellant had never smoked. He 

stated that appellant’s February 16, 2013 chest x-ray demonstrated occupational pneumoconiosis 

category 1/0 with pulmonary asbestosis on the basis of 2000 ILO classification. Dr. Baker also 

diagnosed bronchitis based on appellant’s history of intermittent cough and sputum production. 

He noted that appellant had a long history of asbestos exposure as well as exposure to coal dust, 

welding fumes, and welding smoke during his 35-year work history. Dr. Baker concluded that 

appellant’s x-ray changes of early pulmonary asbestosis and symptoms of bronchitis were due to 

 2

 A “B” reader is a physician certified by the National Institute for Occupational Safety and Health (NIOSH) as 

demonstrating proficiency in classifying radiographs of the pneumoconiosis. Noah Ooten, 50 ECAB 283 (1999). 
3

his asbestos exposure as well as his exposure to coal dust, welding fumes, and welding smoke; 

“all of which together contributed to his occupational pneumoconiosis and bronchitis.” 

OWCP referred appellant and a statement of accepted facts listing his federal 

employment to Dr. Allan Goldstein, a Board-certified pulmonologist and B reader, for a second 

opinion evaluation. In a report dated November 8, 2013, Dr. Goldstein provided appellant’s 

description of his employment history and his exposure to asbestos on the brakes of cranes. He 

stated that appellant worked in a steam coal fire plant in 1979 and helped to remove asbestos 

without a mask. Dr. Goldstein noted that appellant reported that insulators replaced asbestos and 

that appellant was in the area when they replaced it. He also stated that all the steam lines were 

insulated with asbestos in the various places that appellant worked. Appellant reported shortness 

of breath for 15 years with multiple episodes of bronchitis and pneumonia. He stated that his 

cough caused him to break ribs on one occasion. Dr. Goldstein reviewed appellant’s x-rays on 

November 8, 2013 and found no abnormalities consistent with pneumoconiosis or any other 

condition. He did report fractured ribs on the left. Dr. Goldstein stated that the records from 

Dr. Baker showed an obstructive defect, but that there was no letter from Dr. Baker. He found 

that appellant had asbestos exposure with shortness of breath. Dr. Goldstein diagnosed 

hypertension, gout, thyroid disease, elevated cholesterol, cervical spine, and lumbar spine 

degenerative joint disease as well as sleep apnea. He stated that appellant’s pulmonary functions 

were consistent with asthma and that his symptoms were consistent with asthma. Dr. Goldstein 

stated that appellant had asthmatic bronchitis which was not related to his work. He noted that 

appellant had an alleged history of asbestos exposure, but that his chest x-ray did not meet the 

criteria for asbestosis and neither did his pulmonary functions, or his diffusing capacity. 

Appellant also failed to demonstrate rales on examination. 

By decision dated December 4, 2013, OWCP denied appellant’s claim for occupational 

pulmonary disease finding that the medical evidence did not establish a causal relationship 

between his diagnosed condition of asthmatic bronchitis and his employment. 

Counsel requested an oral hearing before an OWCP hearing representative on 

December 17, 2013. He submitted an x-ray report dated February 16, 2013 from Dr. Matthew A. 

Vuskovich, a physician Board-certified in preventative medicine and “B” reader, finding 

parenchymal abnormalities consistent with pneumoconiosis. Dr. Vuskovich found small 

opacities in the middle and lower zones with a profusion of 1/0. He did not find any other 

abnormalities. 

Appellant testified at the oral hearing on June 17, 2014 and listed his periods of 

employment at the employing establishment. Counsel argued that appellant’s 19-month 

employment at the employing establishment resulted in significant exposure that would produce 

or contribute to his occupational lung disease. He stated that both Drs. Baker and Vuskovich 

found x-ray evidence of occupational pneumoconiosis and that these reports were entitled to the 

weight of the medical evidence. In the alternative, counsel argued that there was a conflict of 

medical opinion evidence. 

The employing establishment responded on July 18, 2014 and argued that there was no 

evidence that appellant was ever exposed to any substance at a level in excess of OHSA 

permissible exposure limits. It stated that the scope of assessment proved that appellant was 
4

never exposed to respirable coal dust, total dust, or asbestos at a level that exceeded the 

permissible exposure limits. The employing establishment also stated that appellant, as a 

boilermaker, was not authorized to handle asbestos in any manner. It noted his report of using 

asbestos blankets as shields and could not deny this usage, but argued that this would not result 

in friable asbestos exposure. Counsel countered the employing establishment and noted that 

there were no studies specific to appellant and his initial work exposures. 

By decision dated September 4, 2014, an OWCP hearing representative found that 

Dr. Goldstein’s report was entitled to the weight of the medical evidence as it was based on 

appellant’s complete employment history. She found that Dr. Baker’s report was of diminished 

probative value as he did not distinguish between appellant’s periods of federal and nonfederal 

job exposure. 

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 alleged that he developed occupational pneumoconiosis with pulmonary 

asbestosis and bronchitis due to exposures during his federal employment. He reported his 

employment history of working at the employing establishment for intermittent periods 

beginning as a crane operator from March through November 1977. Appellant then worked at 

the employing establishment as a boilermaker from August 7, 1978 to March 16, 1979 and from 

September 15, 1981 through January 27, 1982. The employing establishment indicated that his 

total period of employment was 1.6 years out of his 35-year work history. During these periods 

of employment, appellant alleged that he was exposed to coal dust, welding fumes, dust, and 

asbestos. He also submitted medical evidence from Dr. Baker noting that he had a 35-year 

occupational history of exposure to coal dust, dust, and asbestos. Dr. Baker diagnosed 

 3

 20 C.F.R. § 10.5(q). 

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

occupational pneumoconiosis with pulmonary asbestosis and bronchitis based on appellant’s 

description of his employment exposures. 

OWCP referred appellant, a statement of accepted facts and a list of questions to 

Dr. Goldstein for a second opinion evaluation. Dr. Goldstein described appellant’s work history 

and examined x-rays dated November 8, 2013. He found that these x-rays demonstrated no 

abnormalities consistent with pneumoconiosis or any other condition. Dr. Goldstein did report 

fractured ribs on the left. Dr. Goldstein diagnosed a variety of nonemployment-related 

conditions and stated that appellant’s pulmonary functions and symptoms were consistent with 

asthma. He concluded that appellant had asthmatic bronchitis which was not related to his work. 

Dr. Goldstein noted that appellant had an alleged history of asbestos exposure, but that his chest 

x-ray did not meet the criteria for asbestosis and neither did his physical findings. 

The Board finds that Dr. Goldstein’s report is entitled to the weight of the medical 

evidence and his opinions do not support appellant’s claim for occupational pneumoconiosis 

with pulmonary asbestosis and bronchitis. Dr. Goldstein was supplied with an accurate factual 

history and was aware that appellant’s federal employment exposures were only a small part of 

his total work history. He did not find any clinical evidence of pneumoconiosis with pulmonary 

asbestosis. Dr. Goldstein further concluded that appellant’s asthma and bronchitis were not 

related to exposures in his federal employment. 

The Board finds that Dr. Baker’s findings and conclusions are of diminished probative 

value as he based his findings and conclusions on the understanding that appellant had a 35-year 

history of exposure to dust and asbestos in federal employment. As Dr. Baker’s report is not 

based on an accurate history of employment exposures it is of diminished probative value and is 

not sufficient to create a conflict with Dr. Goldstein’s report or to require additional development 

by OWCP. 

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 failed to meet his burden of proof in establishing a 

pulmonary condition due to exposures in his federal employment. 
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ORDER 

IT IS HEREBY ORDERED THAT the September 4, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 23, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board