United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.N., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Marion, IL, Employer 

__________________________________________ 

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Docket No. 16-0238 

Issued: March 1, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

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 November 23, 2015 appellant, through counsel, filed a timely appeal from a June 15, 

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 this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish a lung condition 

causally related to factors of his federal employment. 

FACTUAL HISTORY 

On November 19, 2013 appellant, then a 46-year-old cook, filed an occupational disease 

claim (Form CA-2) alleging that on November 23, 2011 he first became aware of a sixmillimeter mass on his bronchial tube. He stated that on May 17, 2012 he first realized that his 

 1

 5 U.S.C. § 8101 et seq. 
2

condition was caused or aggravated by inhaling bird feces and debris while cleaning a nest at 

work. In an undated narrative statement, appellant related that in 2009 his supervisor ordered 

him to remove bird nests and feces from windows in the food service courtyard. As he 

supervised an inmate crew removing bird nests and feces with paint scrapers, he inhaled the 

waste when the inmates threw the nests to the ground. Appellant noted that in October 2010 he 

was diagnosed with pneumonia. Three months later, on two occasions, he was again diagnosed 

with the same condition. A computerized axial tomography (CAT) scan revealed a mass on his 

right lung. Appellant related that on October 21, 2011 he underwent a lobectomy to remove a 

bronchial tube and one quarter of the tissue from his right lung. 

By letter dated January 2, 2014, OWCP informed appellant of the deficiencies in his 

claim and afforded him 30 days to submit additional factual and medical evidence. It also 

requested that the employing establishment respond to appellant’s allegations and submit 

pertinent evidence. Appellant did not submit the requested evidence. 

In a March 17, 2014 decision, OWCP denied appellant’s occupational disease claim. It 

found that he failed to submit any medical evidence to establish that he had a medical diagnosis 

in connection with the claimed event and/or work factors. 

By letter dated March 21, 2014, appellant, through counsel, requested a telephone hearing 

with an OWCP hearing representative. The hearing was held on October 14, 2014. Appellant 

submitted additional evidence. In reports dated October 21, 2010 to February 16, 2012, 

Dr. James O. Alexander, a Board-certified family practitioner, provided appellant’s history and 

examination findings. He diagnosed right middle lobe (RML) pneumonia, epididymitis on the 

right, left lateral epicondylitis, a right middle lobe mass that was likely inflammatory, noncardiac 

chest pain, gastroesophageal reflux disease (GERD), acute bronchitis, hypertension, vertigo, 

atypical chest pain, left arm paresthesias, left neck pain, and an endobronchial lesion/growth. 

Appellant submitted various laboratory test results and diagnostic studies dated 

August 12 to December 14, 2011 that were either unsigned or from Dr. Chandrashek 

Padmalatha, a Board-certified pathologist, Dr. Justin R. Hodge, a Board-certified radiologist, or 

Dr. H.T. Youssef, a Board-certified radiologist. The reports addressed his lung, chest, abdomen, 

and pelvis conditions. Reports dated August 18, 2011 to January 3, 2012 from Southern Illinois 

Respiratory Disease Clinic contained illegible signatures. The reports provided examination 

findings and addressed appellant’s lung conditions. Appellant also provided evidence from a 

nurse practitioner and physician assistants. 

In a September 8, 2011 report, Dr. Kenneth E. Saum, a Board-certified thoracic surgeon, 

noted appellant’s history of recurrent pneumonia over the past year, reviewed his medical 

records, including a CAT scan, and provided examination findings. He believed that appellant 

had a broncholith adjacent to his middle lobe bronchus. Dr. Saum recommended a referral to an 

infectious disease specialist. In reports dated September 8 and 9, 2011, he provided appellant’s 

history and findings on examination. Dr. Saum provided an impression of broncholith, 

psuedonomas lung infection, pigeon lung exposure, and animal hide exposure. He addressed 

appellant’s treatment plan. In letters dated October 19 and December 2, 2011, Dr. Saum noted 

that appellant was scheduled for surgery on October 21, 2011 and following this surgery, he 

would be off work until January 2, 2012. In a report dated October 25, 2011, he provided a 
3

history that appellant initially presented with hemoptysis in 2010 and previous multiple bouts of 

pneumonia. Dr. Saum also provided a history of his medical treatment. He reported findings 

and a principle diagnosis of an October 21, 2011 fiber optic bronchoscopy with biopsies, a rigid 

bronchoscopy, and a right thoracotomy with a right middle lobectomy and multilevel intercostal 

nerve block. Dr. Saum’s secondary diagnoses included broncholith, hemoptysis, cluster 

headaches, history of gastrointestinal bleed, nephropathy secondary to injury, and history of 

pneumonias. He listed appellant’s discharge medications and instructions. 

In a November 5, 2014 report, Dr. Erica E. Kaufman, a Board-certified internist, 

provided appellant’s description of his work activities. She related that he was forced to clean up 

areas with a lot of pigeon feces without wearing a mask. Dr. Kaufman noted appellant’s 

subjective complaints of recurrent pneumonia and approximately six episodes of coughing and 

shortness of breath within 12 months. She provided examination findings and diagnostic test 

results. Dr. Kaufman diagnosed recurrent pneumonia due to bronchial narrowing from a 

calcified lymph node. She advised that the calcification was presumably due to a prior 

Histoplasma infection. Appellant’s pathology showed old granuloma without any organism 

seen. Dr. Kaufman opined that the described work activities were the direct and proximate cause 

of the diagnosed conditions. 

By decision dated December 23, 2014, an OWCP hearing representative affirmed the 

March 17, 2014 decision, finding that the medical evidence submitted failed to establish a causal 

relationship between the claimed medical conditions and the established work exposure. 

By letter dated March 26, 2015, appellant, through counsel, requested reconsideration 

and submitted additional medical evidence. In a May 17, 2012 letter, Dr. Kaufman reiterated her 

diagnosis of recurrent pneumonia and appellant’s frequency of episodes associated with this 

condition. She noted that a bronchoscopy showed a mass in the right middle bronchus. 

Dr. Kaufman noted Dr. Saum’s finding that the mass was due to a calcified lymph node from an 

old histoplasmosis infection. She advised that appellant was succumbing to recurrent 

pneumonias due to the bronchial narrowing. Operative room cultures from his October 21, 2011 

right middle lobectomy showed only methicillin resistant staphylococcus aureus. Appellant’s 

urine Histoplasma antigen was negative. He took 12 weeks of Iitraconazole as his clinical 

picture was most suspicious for a previous Histoplasma infection that caused a calcified lymph 

node, which caused postobstructive pneumonias. Dr. Kaufman noted that Histoplasma was 

endemic to the area and associated with bird and bat droppings. Appellant reported to her that he 

was required to clean up areas at work that had a large amount of bird droppings. Dr. Kaufman 

concluded that he was doing well postoperatively and no further infectious disease consultation 

was required. In a February 22, 2015 questionnaire, she reiterated her prior findings and opinion 

on causal relationship. Dr. Kaufman maintained that the most common cause of a calcified 

lymph node in the bronchial area, given appellant’s work exposure, was Histoplasma. 

In a June 15, 2015 decision, OWCP denied modification of the December 23, 2014 

decision. It found that the medical evidence submitted did not contain a rationalized medical 

opinion to establish a causal relationship between appellant’s diagnosed condition and the 

established work exposure. 

On appeal counsel contends that OWCP’s decision is contrary to fact and law. 
4

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden to establish 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 filed within the applicable time 

limitation; that an injury was sustained while 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.2 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.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 medical evidence required to establish a causal relationship is rationalized medical opinion 

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

background of the employee, must be one of reasonable 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 employee.4

 

ANALYSIS 

OWCP accepted the work factors that appellant supervised the cleaning and removal of 

bird nests and feces while working as a cook. The Board finds, however, that the medical 

evidence of record is insufficient to establish that he sustained a lung condition caused or 

aggravated by the accepted work factors. 

Dr. Kaufman’s May 17, 2012 and November 5, 2014 reports and a February 22, 2015 

questionnaire found that appellant had recurrent pneumonia as a result of cleaning up areas with 

pigeon feces. She reasoned that, given his work exposure, the diagnosed condition was due to 

bronchial narrowing from a calcified lymph node which was presumably due to a prior 

Histoplasma infection. However, Dr. Kaufman failed to explain the mechanism of injury by 

detailing how the established work factors would cause the diagnosed condition. The Board has 

consistently held that a medical opinion not fortified by rationale is of limited probative value.5

 

 2 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989). 

3 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989). 

4 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id. 

5 M.H., Docket No. 12-733 (issued September 5, 2012). 
5

Dr. Alexander’s reports dated October 21, 2010 to February 16, 2012 found that appellant 

had RML pneumonia, epididymitis on the right, left lateral epicondylitis, a right middle lobe 

mass that was likely inflammatory, noncardiac chest pain, GERD, acute bronchitis, hypertension, 

vertigo, atypical chest pain, left arm paresthesias, left neck pain, and an endobronchial 

lesion/growth. He did not provide any specific opinion addressing whether appellant’s 

diagnosed conditions were caused or aggravated by the established employment factors. 

Medical evidence which does not offer any opinion regarding the cause of an employee’s 

condition is of limited probative value.6

 

Dr. Saum indicated an impression of broncholith, psuedonomas, lung infection, and 

pigeon lung exposure. Similarly, his reports and the diagnostic test results from 

Drs. Padmalatha, Hodge, and Youssef are of limited probative value. The physicians addressed 

appellant’s medical conditions, including his lung conditions and disability for work, but failed 

to provide an opinion addressing whether the diagnosed conditions were caused or aggravated by 

the established employment factors.7

The reports from the physician assistants and a nurse practitioner have no probative 

medical value as physician assistants and nurse practitioners are not considered physicians as 

defined under FECA.8

Likewise, the unsigned laboratory test results and reports dated August 18, 2011 to 

January 3, 2012 from Southern Illinois Respiratory Disease Clinic with illegible signatures have 

no probative medical value. Reports that are unsigned or bear illegible signatures, lack proper 

identification, and cannot be considered probative medical evidence because they lack proper 

identification.9

Appellant’s belief that factors of employment caused or aggravated his condition is 

insufficient, by itself, to establish causal relationship.10 The issue of causal relationship is a 

medical one and must be resolved by probative medical opinion from a physician. The Board 

finds that there is insufficient medical evidence of record to establish that appellant’s lung 

condition was caused or aggravated by the established employment factors. Appellant did not 

meet his burden of proof. 

On appeal counsel contends that OWCP’s decision is contrary to fact and law. For the 

reasons stated above, the Board finds that counsel’s argument is not substantiated. 

 6 C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009). 

7 Id. 

8

 The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, 

and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2). See 

L.B., Docket No. 13-1253 (issued September 18, 2013) (physician assistants, physical therapists, and nurse 

practitioners do not qualify as physicians under FECA and, therefore, their medical reports do not qualify as 

probative medical evidence, unless such medical reports are countersigned by a physician). 

9 Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004). 

10 20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004). 
6

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 his burden of proof to establish a lung 

condition causally related to factors of his federal employment. 

ORDER 

IT IS HEREBY ORDERED THAT the June 15, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 1, 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