United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.J., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Savannah, GA, Employer

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Docket No. 17-1248

Issued: February 21, 2018

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant1

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 15, 2017 appellant, through counsel, filed a timely appeal from a November 29, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case.3

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.

3 Appellant submitted additional evidence on appeal after the November 29, 2016 decision was issued. The 

Board s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 

Therefore, the Board lacks jurisdiction to review this additional evidence for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1).
2

ISSUE

The issue is whether appellant met his burden of proof to establish an occupational 

disease in the performance of his federal employment duties. 

FACTUAL HISTORY

On October 21, 2015 appellant, then a 34-year-old property and procurement specialist 

assigned to the laundry unit, filed an occupational disease claim (Form CA-2) alleging that he 

developed chronic pneumonia and a weakened immune system as a result of his federal 

employment duties. He reported that his duties included taking inmates out on the rear dock 

once a week to clean the deck. This cleaning process included removal of pigeon feces. 

Appellant stopped work on April 24, 2014 and had been hospitalized 12 times since 

November 2014 for pneumonia. He reported that his lab results revealed that he had pigeon 

feces and feathers in his system which had weakened his immune system, resulting in chronic 

pneumonia. Appellant first became aware of his condition and of its relationship to his 

employment on February 19, 2015. He stopped work on April 30, 2014. On the reverse side of 

the claim form J.P., appellant’s supervisor, reported that appellant initially left work for an 

unrelated issue and his injury did not occur at work. 

In a September 14, 2015 medical report, Dr. Maria Rudisill Streck, a Board-certified 

allergy and immunology physician, related that appellant was under her care for a history of 

recurrent pneumonia and hypersensitivity pneumonitis. She explained that the hypersensitivity 

pneumonitis, which was an inflammatory condition in the lungs, was specifically related to 

pigeon droppings which he was exposed to at the workplace. Dr. Streck reported that appellant 

must avoid all exposure to bird droppings, which were detrimental to his health. 

In an October 30, 2015 memorandum, J.P. reported that appellant was assigned to the 

laundry department during the timeframe of his most recent alleged injury. Appellant’s

assignment was to monitor the daily operations of the laundry department which included 

supervising inmate workers in the operations of daily laundry duties. He noted that it had been 

identified that one day a week he, or another laundry staff member, was responsible for 

monitoring inmates clearing the rear dock which included trash pick-up as well as hosing off dirt 

and debris. Appellant reported having been required to clean pigeon feces off the rear dock yet

this was something that would be required by the inmates with staff supervision. Therefore, J.P.

reported no direct knowledge of appellant completing this task. However, if appellant was the 

only staff member in laundry to complete this task, he would have done it once per week. J.P. 

reported receiving statements from two staff members who worked during the same time frame 

with respect to their knowledge of any of appellant’s exposures. He noted that there was a 

memorandum instructing that the employees from laundry were responsible for cleaning of the 

rear dock every Tuesday. While J.P. was the supervisor during this timeframe, he was unaware 

of this directive, but did not dispute its existence. He reported that appellant’s last day of work 

was on April 23, 2014 when he reported a traumatic injury to his groin area under OWCP File
3

No. xxxxxx401.4 An FCI Williamsburg Daily Cleaning Procedures for Pigeon Droppings was 

submitted.

In an October 30, 2015 e-mail correspondence, C.M., a coworker, informed J.P. that 

about 9 to 12 months ago they were asked by Safety for Commissary, Laundry, Food Services, 

and Facilities to pick one day during the week to help clean the rear dock which consisted of 

making sure trash, cardboard, pallets, etc. was removed, swept, and washed off. 

In an October 30, 2015 memorandum, R.H., a material handler supervisor, reported that 

when he was transferred over to laundry, he was informed that there was a certain day that the 

laundry unit cleaned the back dock. He did not recall what they were required to clean as he had 

never cleaned the back dock.

In an October 30, 2015 memorandum, the employing establishment reported that 

appellant would have supervised the inmate detail cleaning the droppings and should not have 

been near the point of operation of the Taski machine. It reported that the process of daily 

cleaning of pigeon droppings entailed every precaution to ensure that employees were not 

exposed to any hazardous substances. A May 6, 2013 memorandum was submitted from the 

employing establishment which detailed that laundry was assigned to cleaning the rear dock on 

Tuesday of every week at 12:00 p.m. which consisted of sweeping the entire rear dock, including 

the compactor area. 

By letter dated November 25, 2015, OWCP informed appellant that the evidence of 

record was insufficient to support that he actually experienced the incident or employment factor 

alleged to have caused injury, that there was no diagnosis of any condition, and that there was no 

physician’s opinion as to the cause of his injury. It provided a development questionnaire for 

completion and requested that he submit a response in order to substantiate the factual basis of 

his claim. Appellant was afforded 30 days to provide the requested information. 

In another letter dated November 25, 2015, OWCP requested that the employing 

establishment provide additional information pertaining to appellant’s injury and occupational 

duties. 

An official position description for supervisor mail handler and procurement and property 

specialist was submitted.

In a December 21, 2015 memorandum, the employing establishment reported that it did 

not concur with appellant’s claim that he was exposed to pigeon feces while cleaning the rear 

dock area. It reported that the procedures in place for the cleaning of pigeon droppings were to 

remove any potential airborne hazard by wetting the surface area with a disinfectant, letting the 

solution stand for 10 minutes, then using an auto scrubber machine to apply additional solution, 

scrub the area, then vacuum up any debris. The auto scrubber was then emptied in the sanitary 

drain. The employing establishment reported that staff who supervise inmate workers cleaning 

these areas did so on an intermittent basis and should not be at the point of operation of the auto 

scrubber because inmate workers physically clean the area and were in close proximity to the 

 

4 The Board notes that the record contains no other information pertaining to this claim.
4

solution and debris. It noted that it did not have any reason to believe that appellant performed 

any task which resulted in his exposure to or contact with pigeon feces and feathers. Any task 

would have been performed by inmate workers with the staff member providing intermittent 

supervision. The employing establishment reported that cleaning the area daily prevented buildup, the airborne hazard was removed during the wetting process, and no personal protective 

equipment was required until the machine was emptied and cleaned, at which time latex gloves 

and goggles were utilized. It noted that additional personal protective equipment would be 

required if pressure washing overhead, however, such cleaning was not required and had not 

been conducted on the rear dock. 

By decision dated January 5, 2016, OWCP denied appellant’s claim finding that the 

evidence of record failed to establish that the occupational exposure occurred as alleged. It noted 

that he failed to respond to the November 25, 2015 OWCP questionnaire and provided no further 

statement or factual evidence as to how his federal employment duties caused or contributed to 

his condition. 

On January 13, 2016 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. 

In support of his claim, appellant submitted a January 3, 2016 narrative statement 

responding to OWCP’s developmental questionnaire. He alleged that his exposure occurred

from September 2013 to April 2014 when he was assigned once a week to supervise the inmates 

cleaning the dock area. Every Tuesday, appellant would take several inmates outside and would 

help them pick up trash and clean up pigeon feces by throwing buckets of water on the feces to 

make it wash down the storm drain. This would take 30 minutes to an hour. Appellant noted 

that the pigeons would roost up in the rafters covering the loading dock. For clean up, they 

would use brooms, dustpans, and empty buckets and were provided no protective gear other than 

gloves. Appellant explained he was admitted into the hospital for diabetic ketoacidosis and was 

diagnosed with a possible bacterial infection as a result of his high sugar level. He was again 

admitted in November 2014 for pneumonia and subsequently admitted 12 more times when he 

was eventually advised by his physician that he had pigeon feathers and feces in his lungs and 

blood. 

By letter dated February 5, 2016, the Occupational Safety and Health Administration 

(OSHA) requested that the employing establishment conduct a safety inspection at the workplace 

due to an alleged hazard reported: Employees and inmates are exposed to pigeon feathers, feces, 

and thick dust while performing cleanup of dock surfaces and are not provided with personal 

protective equipment. It noted that, while OSHA had not determined whether the hazard alleged 

existed and was not conducting an inspection at that time, it requested the employing 

establishment investigate the hazards and notify them of the situation. A response was requested 

by February 12, 2016. 

In a September 12, 2016 medical report, Dr. Bhatraphol Tingpej, Board-certified in 

infectious disease, reported that appellant has underlying Type 1 diabetes and was admitted to 

the hospital in November 2014 with diabetic ketoacidosis and severe pneumonia. He described 

appellant’s multiple hospitalizations due to recurrent respiratory symptoms, pneumonia, and 

hypoxemia. Dr. Tingpej reported that additional workup for recurrent pneumonia revealed his 
5

underlying immunodeficiency status namely hypogammaglobulinemia (low immunoglobin 

level) and underlying hypersensitivity pneumonitis specifically to pigeon droppings/feces and 

environmental molds. He noted review of the OSHA report regarding appellant’s exposure to 

pigeon droppings related to his workplace. Since November 2014, over the period of the past 21 

months, appellant had been significantly debilitated and was unable to return to work. 

Dr. Tingpej opined that appellant should avoid ongoing exposure to pigeon droppings and molds 

as this would aggravate his pneumonia symptoms. 

A hearing was held on September 14, 2016. Counsel argued that fact of injury was 

established as appellant was exposed to pigeon droppings. He argued that, at the least, the 

medical evidence supported an aggravation of a preexisting condition and objective testing 

confirmed that appellant had a hypersensitivity to pigeon feces and feathers. 

In a September 14, 2016 medical report, Dr. Streck provided a detailed medical history 

regarding appellant’s diabetes and respiratory conditions, noting that he was first hospitalized for 

pneumonia in November 2014. She reported that he last worked in April 2014 when he would 

take inmates weekly to clean pigeon droppings. Dr. Streck reported that lab work revealed an 

abnormal hypersensitivity to pneumonitis panel with elevated levels to pigeon droppings, phoma, 

penicillium, and Cladosporium. She diagnosed hypogammaglobulinemia, history of recurrent 

pneumonia, hypersensitivity pneumonitis panel positive to pigeon droppings, and Type 1

diabetes. February 20, 2015 lab results were also submitted which revealed findings of mixed 

feathers and pigeon droppings. 

By decision dated November 29, 2016, an OWCP hearing representative affirmed the 

January 5, 2016 decision finding that the evidence of record failed to establish that the 

occupational exposure occurred as alleged. 

LEGAL PRECEDENT

An employee seeking benefits under FECA

5 has the burden of proof 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 or specific condition for which compensation is claimed is causally related to the 

employment injury.6 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or occupational disease.7

In order to determine whether an employee actually sustained an injury in the 

performance of duty, OWCP begins with an analysis of whether fact of injury has been 

established. Generally, fact of injury consists of two components which must be considered in 

conjunction with one another. The first component to be established is that the employee 

 

5 Supra note 2. 

6 Gary J. Watling, 52 ECAB 278 (2001).

7 Michael E. Smith, 50 ECAB 313 (1999).
6

actually experienced the employment incident which is alleged to have occurred.8 The second 

component is whether the employment incident caused a personal injury and generally can be 

established only by medical evidence. 

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee must submit: (1) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; (2) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the employee.9

When an employee claims an injury in the performance of duty he or she must submit 

sufficient evidence to establish a specific event, incident, or exposure occurring at the time, 

place, and in the manner alleged. He or she must also establish that such event, incident, or 

exposure caused an injury.10 Once an employee establishes an injury in the performance of duty, 

he or she has the burden of proof to establish that any subsequent medical condition or disability 

from work, for which he claims compensation is causally related to the accepted injury.11

To establish that an injury occurred as alleged, the injury need not be confirmed by 

eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and 

circumstances and his subsequent course of action. In determining whether a case has been 

established, such circumstances as late notification of injury, lack of confirmation of injury, and 

failure to obtain medical treatment may, if otherwise unexplained, cast serious doubt on the 

employee’s statements. The employee has not met his or her burden of proof when there are 

such inconsistencies in the evidence as to cast serious doubt on the validity of the claim.12

ANALYSIS

The Board finds that this case is not in posture for a decision.13

In its November 29, 2016 decision, OWCP found that appellant had not established that 

the occupational exposure occurred as alleged. The Board finds, however, that the evidence of 

 

8 Elaine Pendleton, 40 ECAB 1143 (1989).

9 See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994). 

10 See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. 

§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41 

ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.

11 Supra note 7.

12 Betty J. Smith, 54 ECAB 174 (2002).

13 M.C., Docket No. 15-1915 (issued June 17, 2016).
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record is sufficient to establish that he was exposed to pigeon feces and feathers in his 

employment duties as a property and procurement specialist.

14

On his Form CA-1, appellant stated that he was required to take inmates outside on the 

rear dock once a week to clean, which included the removal of pigeon droppings. In his 

January 3, 2016 narrative statement, he explained that his exposure occurred from 

September 2013 to April 2014 as he was assigned once a week to supervise the inmates cleaning 

the dock area. Every Tuesday, appellant would take several inmates outside and help them pick 

up trash and clean up pigeon feces by throwing buckets of water on the feces to make it go down 

the storm drain. He noted that the pigeons would roost up in the rafters covering the loading 

dock. For clean up, they would use brooms, dustpans, and empty buckets and were provided no 

protective gear other than gloves. The employing establishment controverted the claim arguing 

that appellant was only required to supervise the cleanup and had not been exposed to pigeon 

feces since he stopped work in April 2014. 

The Board finds that appellant has provided sufficient detail to establish that an 

occupational exposure occurred as alleged.15 While the employing establishment controverted

the claim, they submitted evidence establishing that laundry, his unit, was assigned to cleaning 

the rear dock on Tuesday of every week. They further submitted an FCI Williamsburg Daily 

Cleaning Procedures for Pigeon Droppings, corroborating appellant’s allegations that cleanup of 

the dock included removal of pigeon droppings. The Board notes that, although he was not 

hospitalized until November 2014 for pneumonia, the record establishes that he was exposed to 

pigeon feces and feathers in his employment duties as a property and procurement specialist. As 

such, contrary to OWCP’s findings, appellant’s statements do not cast such inconsistencies as to 

doubt that the employment exposure occurred as alleged.16 Thus, the Board finds that, given the 

above referenced evidence, appellant has alleged with specificity that the occupational exposure 

occurred as alleged.17 

Given that appellant has established exposure to pigeon droppings and feathers in his 

employment as a property and procurement specialist, the Board finds that the first component of 

fact of injury, the claimed exposure, occurred as alleged.18 As such, the question becomes 

whether the medical evidence establishes a causal relationship between the claimed conditions 

and the identified employment exposure. Appellant has submitted medical evidence which has 

not been evaluated by OWCP. OWCP procedures specify that a final decision of OWCP must 

include findings of fact and provide clear reasoning which allows the claimant to understand the 

precise defect of the claim and the kind of evidence which would tend to overcome it.19 As it

 

14 A.R., Docket No. 15-1716 (issued November 17, 2015).

15 See B.B., 59 ECAB 234 (2007). An employee’s statement alleging that an incident or exposure occurred at a 

given time and in a given manner is of great probative value and will stand unless refuted by strong or persuasive 

evidence. 

16 A.J., Docket No. 12-0548 (issued November 16, 2012).

17 See Willie J. Clements, 43 ECAB 244 (1991).

18 James R. Flint, Docket No. 05-0587 (issued June 10, 2005).

19 See L.R., Docket No. 15-0255 (issued April 1, 2015); see also 20 C.F.R. § 10.126.
8

found that appellant did not establish fact of injury, it did not analyze or develop the medical 

evidence. Thus, the Board will set aside OWCP’s November 29, 2016 decision and remand the 

case to OWCP to enable it to properly consider all of the evidence.

20

 After further development 

as deemed necessary, OWCP shall issue a de novo decision on appellant’s occupational disease

claim.

CONCLUSION

The Board finds that the case is not in posture for decision. 

ORDER

IT IS HEREBY ORDERED THAT the November 29, 2016 decision of the Office of 

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

consistent with this decision.

Issued: February 21, 2018

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

 

20 T.F., Docket No. 12-0439 (issued August 20, 2012).