United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.L., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Blythe, CA, Employer 

__________________________________________ 

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Docket No. 15-1328 

Issued: September 21, 2016 

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 H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 27, 2015 appellant filed a timely appeal from the December 10, 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 review the merits of this case.2

ISSUE 

The issue is whether appellant’s exposure to a known active case of tuberculosis (TB) 

caused an injury. 

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that following the issuance of the December 10, 2014 OWCP decision, appellant submitted 

new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued 

its final decision. See 20 C.F.R. § 501(2)(c)(1). 
2

FACTUAL HISTORY 

On October 23, 2014 appellant, a 34-year-old border patrol agent filed a traumatic injury 

claim (Form CA-1) alleging that he was exposed to a known active case of TB on 

January 23, 2014. He stated that he had a positive TB test in October 2014. Appellant added 

that a TB skin test in 2009 was negative. 

In a November 6, 2014 note, appellant’s supervisor confirmed that appellant was in the 

station processing room at the same time as, and in close proximity to, an apprehended subject 

during the period January 23 and 25, 2014 while the subject was in the station processing room 

and holding cells. The subject was later determined to have had an active case of TB at the time 

of appellant’s exposure. 

A TB screening record on October 30, 2014 indicated that appellant had a TB skin test 

with nine millimeters of induration on October 20, 2014 and 11 millimeters of induration on 

October 28, 2014. Appellant was interviewed for symptoms of TB, but was found to be 

currently asymptomatic. 

In a November 6, 2014 development letter, OWCP advised that exposure alone was 

insufficient to establish a work-related medical condition. It asked appellant to complete a 

questionnaire, asking specifically for a physician’s opinion supported by medical explanation as 

to whether his exposure resulted in the specific infection diagnosed, including a description of 

symptoms, the clinical course of treatment, and a description of his medical history. The 

questionnaire also asked appellant to list the existence of any nonemployment risk factors. By 

letter of even date, appellant informed OWCP that he had been in direct contact with the 

apprehended subject in the processing room, taking his fingerprints and questioning him for 

several hours to complete the required paperwork. He added that he was previously tested for 

TB at the academy in 2009 and his results were negative. 

Dr. Dat D. Nguyen, a Board-certified pulmonologist and county TB control officer, 

evaluated appellant to rule out active TB after his exposure to an index case in January 2014. He 

advised on October 20, 2014 that all testing was negative for active disease. It was determined, 

however, that appellant had a latent TB infection and was not contagious. Dr. Nguyen indicated 

that appellant may return to work on October 31, 2014 and that he would be followed throughout 

the recommended nine-month course of treatment for latent TB. 

In a decision dated December 10, 2014, OWCP denied appellant’s traumatic injury claim. 

It accepted that the exposure occurred as alleged, but denied the claim as the medical evidence 

was insufficient to establish a causally related diagnosis. In particular, OWCP noted that 

Dr. Nguyen did not offer a rationalized opinion, with objective findings, to explain how the 

latent TB was diagnosed. As all of the medical records indicated that appellant presented 

asymptomatically, it was not clear whether Dr. Nguyen used the tuberculin skin test, interferon 

gamma release assays, or some other test to confirm an infection. Appellant did not address 

whether he had previously received a vaccination for TB or whether he ever had the same or 

similar infection. OWCP explained that Dr. Nguyen needed to discuss these matters in order to 

explain a diagnosis and offer a reasoned opinion on its relationship to appellant’s employment. 
3

On appeal appellant argues that he is currently taking TB medication prescribed by the 

county health department and he strongly feels this should be provided by the employing 

establishment. 

LEGAL PRECEDENT 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of duty.3

 An employee seeking benefits under FECA 

has the burden of proof to establish the essential elements of his or her claim. When an 

employee claims that he or she sustained an injury in the performance of duty, he or she must 

submit sufficient evidence to establish that he or she experienced a specific event, incident, or 

exposure occurring at the time, place, and in the manner alleged. An employee must also 

establish that such event, incident, or exposure caused an injury.4

Simple exposure to a workplace hazard, such as an infectious agent, does not constitute a 

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

establishment therefore should not issue a Form CA-16 to authorize medical testing for an 

employee who has merely been exposed to a workplace hazard, unless the employee has 

sustained an identifiable injury or medical condition as a result of that exposure.5

An employing establishment may be required, under other statutes or regulations, to 

provide their employees with medical testing and/or other services in the situations described 

above.6

FECA does not authorize payment for preventive measures such as vaccines and 

inoculations, and in general, preventive treatment may be a responsibility of the employing 

establishment under the provisions of 5 U.S.C. § 7901. However, OWCP can authorize 

treatment for the following conditions, even though such treatment is designed, in part, to 

prevent further injury: (c) Conversion of tuberculin reaction from negative to positive following 

exposure to TB in the performance of duty. In this situation, the appropriate therapy may be 

authorized.7

As the Board noted in the case of Samuel Keim, Docket No. 04-357 (issued August 3, 

2004), OWCP has established special procedures for adjudicating cases of pulmonary TB. 

FECA Bulletin No. 95-20 (issued June 21, 1995) reiterated and expanded these procedures: 

“Background: While the incidence of TB in the general population had been on 

the decline for several decades, it began to rise again at the end of the 1980’s and 

 3

 5 U.S.C. § 8102(a). 

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

5

 20 C.F.R. § 10.303(a). 

6 Id. at § 10.303(b). 

7 Id. at § 10.313. 
4

continues to increase at the present time. Certain strains now prevalent are 

resistant to some or all of the drug treatments available. 

“These developments have heightened concern among agencies whose employees 

routinely come into contact with members of groups who have a statistically high 

risk of having TB. The CDC has identified certain kinds of workplaces to be high 

risk settings for TB infection. These settings include health care facilities, 

correctional institutions and drug treatment centers, among others. Employees, 

who may, therefore, have increased risk of exposure include doctors and nurses in 

hospitals administered by the Department of Veterans Affairs, agents of the U.S. 

Marshals Service and workers in the Federal prison system. 

“While the Act has long had procedures for addressing cases involving infectious 

diseases, including TB, it has recently come to our attention that they have not 

been uniformly followed in all district offices. This problem, along with the need 

to ensure that we consider the various circumstances under which exposure may 

occur, have led us to reiterate and expand our procedures in this area. 

“Action: 

1. The development letter to claimants for pulmonary diseases other than 

asbestosis (Exhibit 16 of PM Chapter 2.806) asks for a detailed description 

of the work-related exposure. This question continues to be valid, but 

where TB is claimed, it is not necessary to obtain the names of specific 

persons to whom the employee was exposed. Repeated exposure to 

populations such as prisoners, hospital patients and IV drug users is 

sufficient to establish work-related exposure. 

2. Claims Examiners must continue to inquire about nonwork exposure. 

However, if the claimant and the treating physician deny nonwork-related 

exposure and work-related exposure has been established, the case should 

be accepted if evidence of TB infection is present. 

3. If both nonwork-related and work-related exposure are involved, the 

amount and duration of exposure, as well as the length of time between 

alleged exposure and emergence of signs or symptoms, must be 

considered in determining whether the condition is work related (see PM 

Chapter 2.805.4b(2) for a discussion of this point). 

4. Evidence of TB infection includes a positive TB skin test. Other 

medical evidence required, as noted in MEDGUIDE Chapter 4.6, includes 

a chest x-ray, sputum tests and copies of preemployment physical 

examinations. 

5. Prophylactic treatment (INH therapy) may be authorized based on a 

positive skin test, even if the x-ray and/or sputum tests are negative. (If 

these latter two tests are positive, other forms of therapy will likely be 

employed as well.)” 
5

ANALYSIS 

Appellant’s workplace exposure is established at a specific point in time, with a specific 

known infected subject that he processed and was in the proximity for several days. OWCP 

accepted that he was exposed to a known case of active TB in the performance of duty on 

January 23, 2014. Appellant has therefore met his burden to establish that he experienced a 

specific event, incident, or exposure occurring at the time, place, and in the manner alleged. The 

question that remains is whether this workplace exposure caused an injury. 

The October 30, 2014 report of Dr. Nguyen, the pulmonologist, was the only medical 

report submitted to support appellant’s injury claim. He advised that all testing was negative for 

active disease, but he found that appellant had a latent TB infection, however, he was not 

contagious. He did not explain a basis for his finding. A TB screening record on October 30, 

2014 without explanation indicated that appellant had a TB skin test on two separate occasions, 

with nine millimeters of induration on October 20, 2014 and 11 millimeters of induration on 

October 28, 2014. Dr. Nguyen did not report whether this was a positive skin test or represented 

a conversion of tuberculin reaction from negative to positive following exposure to TB in the 

performance of duty. In addition, neither appellant nor Dr. Nguyen denied any nonwork-related 

exposure. 

Given appellant’s accepted workplace exposure and Dr. Nguyen’s diagnosis of latent TB 

infection, the Board will set aside the denial of appellant’s claim and remand the case for further 

development. Pursuant to the procedural manual, OWCP shall inquire about any nonworkrelated exposure to TB. Further, it shall inquire with Dr. Nguyen as to whether TB infection is 

present (latent or otherwise) as evidenced by a positive TB skin test he reported on 

October 20, 2014. After such further development as may be appropriate, OWCP shall issue a 

de novo decision on appellant’s injury claim. 

CONCLUSION 

The Board finds that this case is not in posture for decision. Further development is 

warranted. 
6

ORDER 

IT IS HEREBY ORDERED THAT the December 10, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further action. 

Issued: September 21, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board