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 

___________________________________________

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1660 

Issued: September 16, 2016 

Appearances: Case Submitted on the Record 

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 3, 2015 appellant filed a timely appeal from the July 24, 2015 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 appellant’s claim. 

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 before the Board.2 In a November 25, 2013 decision, the 

Board affirmed on August 9, 2012 decision 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. In a November 18, 2014 decision, the Board affirmed a 

May 29, 2014 decision, which denied modification of the August 9, 2012 decision of OWCP 

denying appellant’s claim. The Board found that appellant failed to submit rationalized medical 

evidence to establish an injury caused by the August 18, 2008 bug bite. The facts and history 

contained in the prior appeal are incorporated herein by reference. 

On March 28, 2015 appellant requested reconsideration and submitted new medical 

evidence from her treating physician, Dr. James DeVito, a Board-certified dermatologist. 

In a March 26, 2015 report, Dr. DeVito noted that on August 19, 2008 appellant was seen 

for evaluation of bug bites. He related that she believed that she might have fleas or other 

infestation. Appellant recalled having been bitten on her ankle at her workplace the day before. 

Dr. DeVito advised that during the period August 4 to 18, 2008 she had sensations of insects 

scurrying and biting on her body while she was in her cubicle at work. He related that on the 

morning of August 18, 2008 appellant went to work as usual and “was only there for a short time 

when the feeling that bugs were crawling all aver her body began yet again.” Dr. DeVito 

indicated that appellant related that “she felt a bite on her left ankle and upon looking down saw 

a red mark that looked as if something had bitten her.” He also noted that she indicated that she 

showed the bite to her supervisor and filed a report. Dr. DeVito noted that afterwards, appellant 

called his office to schedule an appointment but the earliest appointment was for the next day. 

He indicated that, upon examining her left ankle, “she presented with an erythematous papule 

consistent with an arthropod bite.” Dr. DeVito advised that although appellant complained there 

was sensation of movement on her scalp and hair, no lesions were noted. He indicated that his 

diagnosis at that time was infestation of mites/insects (arthropod assault). Dr. DeVito explained 

that the objective findings supporting the diagnosis were his clinical expertise. He also found 

that the history provided by appellant supported his diagnosis. An undated treatment from 

Dr. DeVito reported that appellant’s chief complaint was having fleas. 

By decision dated July 24, 2015, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA 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 FECA3 and that an injury was sustained in the performance of duty.4 These 

 2

 Docket No. 13-0827 (issued November 25, 2013); Docket No. 14-1691 (issued November 18, 2014). 

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

4 James E. Chadden, Sr., 40 ECAB 312 (1988). 
3

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

predicated upon a traumatic injury or an occupational disease.5

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 she actually experienced the 

employment incident at the time, place, and in the manner alleged.6

 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.7

Rationalized medical opinion evidence is generally required to establish causal 

relationship. The opinion of the physician must be based on a complete factual and medical 

background, 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

ANALYSIS 

Appellant has established that on August 18, 2008 she was bitten by an insect or other 

biting pest. However, the medical evidence provided by appellant is insufficient to establish that 

she sustained an injury as a result of the accepted August 18, 2008 incident. 

Appellant provided the March 26, 2015 report from Dr. DeVito in which he noted that on 

August 19, 2008 she was seen for evaluation of bug bites. She believed that she might have fleas 

or other infestation and recalled having been bitten on her ankle at her workplace the day before. 

From August 4 to 18, 2008, appellant had sensations of bugs scurrying and biting on her body 

while she was at work. Dr. DeVito related that on August 18, 2008 appellant was at work for a 

short time when she felt “that bugs were crawling all over her body began yet again.” Appellant 

related that something had bitten her leg. Dr. DeVito noted seeing her the next day where “she 

presented with an erythematous papule consistent with an arthropod bite” on her left ankle. 

Although appellant complained of a sensation of movement on her scalp and hair, no lesions 

were noted. Dr. DeVito diagnosed infestation of mites/insects (arthropod assault). He explained 

that the objective findings supporting the diagnosis were his clinical expertise, and that of the 

history given by the patient. 

The Board finds that Dr. DeVito did not sufficiently address how the employment 

exposure caused a particular diagnosed condition. Dr. DeVito noted an erythematous papule on 

her left leg consistent with an arthropod bite but did not adequately explain a medical condition 

due to the bug bite. As such, he did not provide a clear and firm diagnosis of a medical 

condition. 

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

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

7 Id. 

8 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989). 
4

Furthermore, while OWCP procedures recognize that, with certain “clear-cut” traumatic 

injuries, such as a fall from a ladder resulting in a broken leg, the record may require only an 

affirmative statement by a physician to establish causal relationship; this was not such a situation 

as the employing establishment controverted the claim.9

Based on the foregoing, the Board finds that appellant has failed to establish an injury 

caused by the August 18, 2008 incident. 

Appellant may submit evidence or argument with a written request for reconsideration 

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 to establish an injury in 

the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the July 24, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 16, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3 (January 2013).