United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.T., Appellant 

and 

DEPARTMENT OF THE NAVY, SUPERVISOR 

OF SHIPBUILDING, Pascagoula, MS, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1669 

Issued: November 10, 2015 

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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On August 3, 2015 appellant filed a timely appeal from a June 3, 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 has met his burden of proof to establish a recurrence of a 

medical condition causally related to his accepted employment injury. 

On appeal, appellant contends that the evidence of record, including witness statements, 

establish that he was exposed to a hazardous work environment while working at the employing 

establishment resulting in his permanent work-related asthma and chronic obstructive pulmonary 

disease (COPD). He further contends that the employing establishment has the burden of proof 

to establish that his medical conditions are not work related, noting that it had failed to maintain 

 1

 5 U.S.C. § 8101 et seq. 
2

records of his hazardous exposure as required by federal regulations. Appellant submitted new 

medical evidence and believes that it establishes that he had healthy lungs prior to his 

employment with the Federal Government. 

FACTUAL HISTORY 

On October 23, 2007 appellant, then a 56-year-old production controller, filed an 

occupational disease claim (Form CA-2) alleging that on October 11, 2007 he first realized that 

his COPD was caused by years of exposure to fuel, water, sewage, asbestos, insulation, dust, air, 

paint waste, smoke, fumes, chemicals, and second-hand smoke while at work in the naval 

shipyard. He stated that no respiratory protection was provided to him. 

In a note dated October 26, 2007, Dr. Daniel H. Spriggs, a family practitioner, reported 

the results of lung capacity testing and diagnosed COPD. He opined that the diagnosed 

condition was “most likely” caused by smoking, but other environmental factors may have 

contributed to this disease. 

In a December 5, 2007 medical report, Dr. Marc S. Gottlieb, a Board-certified internist 

with subspecialty certification in pulmonary disease, noted appellant’s history and work 

exposure, and provided examination findings. He diagnosed COPD and asthmatic bronchitis. 

Dr. Gottlieb opined that “certainly some of this may well be work related.” 

In a February 7, 2008 decision, OWCP denied appellant’s claim as the medical evidence 

was speculative as to whether his diagnosed medical condition was causally related to his 

employment exposure to fumes, dust and other irritants when performing his job duties. 

By letter dated March 8, 2008, appellant, through counsel, requested a telephone hearing 

before an OWCP hearing representative. 

In a June 11, 2008 decision, an OWCP hearing representative set aside the February 7, 

2008 decision and remanded the case for referral to a second opinion physician to further 

develop whether there was a causal relationship between his diagnosed pulmonary conditions 

and the established work exposure. 

On June 30, 2008 OWCP referred appellant to Dr. Francisco J. Quinones, a Boardcertified internist with subspecialty certification in pulmonary disease. In his August 27, 2008 

report, Dr. Quinones opined that appellant’s asthma was temporarily related to his work 

exposure. 

By letter dated September 11, 2008, OWCP accepted appellant’s claim for temporary 

extrinsic asthma. 

On April 29, 2014 appellant filed a claim for a recurrence of medical condition causally 

related to his accepted employment injury. He alleged that he had an incurable disease. 

By letter dated June 25, 2014, OWCP advised appellant that no evidence had been 

received in support of his recurrence claim. It requested factual and medical evidence. 
3

In a July 8, 2014 letter, appellant contended that his work-related asthma and COPD were 

permanent conditions. 

Appellant submitted a May 17, 2010 report from Dr. Robert E. Percy, a Board-certified 

internist with a subspecialty in pulmonary disease. Dr. Percy diagnosed occupational asthma or 

extrinsic intermittent asthma and COPD. He related that appellant’s conditions were well 

controlled with medications and he did not appear to have to use an albuterol rescue inhaler on a 

regular basis. After reviewing a description of appellant’s work environment, Dr. Percy cleared 

him from a pulmonary standpoint to work in the described environment and believed that 

appellant would experience minimal symptoms, if any, from those working conditions. 

By decision dated July 29, 2014, OWCP denied appellant’s recurrence claim as he failed 

to submit sufficient medical evidence to establish a causal relationship between his current 

conditions and his established work exposure to fumes, dust and other irritants. 

In an August 11, 2014 letter, appellant, through counsel, again requested a telephone 

hearing and submitted statements from his coworkers regarding work duties and work exposure. 

In a March 16, 2015 progress note, Dr. Percy noted that appellant had not been seen since 

2012. He provided appellant’s history which included a recurrent problem of shortness of 

breath. Dr. Percy noted that his current episode started more than one year ago. He reported 

examination findings and reiterated his diagnosis of COPD. 

In a June 3, 2015 decision, an OWCP hearing representative affirmed the July 29, 2014 

decision. He found that appellant had failed to submit any probative medical evidence to 

establish a causal relationship between any active pulmonary condition and the accepted work 

exposure. The hearing representative noted that no physician had offered an active diagnosis of 

the accepted extrinsic asthma condition since 2010 and that appellant had failed to submit 

medical evidence of his care from 2010 to present as requested. 

LEGAL PRECEDENT 

A recurrence of a medical condition is defined as a documented need for further medical 

treatment after release from treatment for the accepted condition or injury.2

 Continuous 

treatment for the original condition or injury is not considered a recurrence of medical treatment 

nor is an examination without treatment.3

 

An employee who claims a recurrence of medical condition has the burden of proof to 

establish causal relationship by the weight of substantial, reliable, and probative evidence. This 

burden requires that an employee furnish medical evidence from a physician who, on the basis of 

a complete and accurate factual and medical history, concludes that the employee’s need for 

 2

 20 C.F.R. § 10.5(y). 

3 Id. 
4

additional medical care is causally related to the accepted injury and supports that conclusion 

with sound medical reasoning.4

ANALYSIS 

The Board finds that appellant has failed to establish a recurrence of his accepted medical 

condition. OWCP accepted that appellant sustained temporary extrinsic asthma while working 

as a production controller. On April 29, 2014 appellant filed a recurrence claim alleging that his 

current pulmonary conditions were causally related to the accepted condition. 

Dr. Percy’s May 17, 2010 report noted his review of a description of appellant’s work 

environment and released him to return to work in the same environment, explaining that he 

would experience minimal symptoms, if any. He noted that appellant had occupational asthma 

or extrinsic intermittent asthma and COPD, but stated that these conditions were well controlled 

with medications and it did not appear that appellant had to use an albuterol rescue inhaler on a 

regular basis. In a March 16, 2015 progress note, Dr. Percy reiterated his diagnosis of COPD. 

The Board notes that the COPD condition has not been accepted as employment related 

by OWCP. It was appellant’s burden of proof to establish causal relationship of the COPD 

condition.5

 Moreover, Dr. Percy did not explain or offer any medical rationale as to how his 

accepted temporary extrinsic asthma deteriorated over the years and resulted in the diagnosed 

pulmonary condition. The report and progress note are therefore insufficient to establish 

appellant’s claim. 

The Board finds that there is insufficient rationalized medical evidence of record to 

establish that appellant sustained a recurrence of a medical condition causally related to the 

accepted employment injury. Appellant did not meet his burden of proof. 

On appeal, appellant contends that the evidence of record, including witness statements, 

establish that he was exposed to a hazardous work environment while working at the employing 

establishment which resulted in his permanent work-related asthma and COPD. The Board finds 

that the weight of the medical evidence does not establish that appellant’s recurrence of a 

medical condition was causally related to his accepted temporary extrinsic asthma. 

Appellant further contends on appeal that the employing establishment has the burden of 

proof to establish that his disease is not work related, noting that it had failed to maintain records 

of his hazardous exposure as required by federal regulations. As stated, he has the burden of 

proof to establish a causal relationship between his accepted work exposure and the recurrence of 

his medical condition.6

 4 E.O., Docket No. 11-1099 (issued February 24, 2012); J.B., Docket No. 11-1410 (issued January 5, 2012). 

5 See Jaja K. Asaramo, 55 ECAB 200 (2004). 

6 See cases cited, supra note 4. 
5

The Board notes that appellant submitted new evidence with his appeal, but the Board’s 

review is limited to the evidence of record before OWCP at the time of its final decision.7 

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 to establish a 

recurrence of a medical condition causally related to his accepted employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the June 3, 2015 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: November 10, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 7

 20 C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).