United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.D., Appellant 

and 

DEPARTMENT OF AGRICULTURE, FOREST 

SERVICE, Albuquerque, NM, Employer 

__________________________________________ 

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Docket No. 16-0745 

Issued: February 8, 2017 

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 March 7, 2016 appellant filed a timely appeal from a November 20, 2015 merit 

decision and a February 8, 2016 nonmerit 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. 

ISSUES 

The issues are: (1) whether appellant met his burden of proof to establish that he 

sustained an injury in the performance of duty; and (2) whether OWCP properly refused to 

reopen appellant’s case for further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). 

On appeal appellant contends that the medical evidence he submitted was the best he 

could do with his physician as she readily supplied the diagnosis of coccidioides infection, but 

was reluctant to offer an opinion as to how and where he contracted it or how his employment 

activities caused or aggravated his condition. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 12, 2015 appellant, a 53-year-old engineering equipment supervisor, filed an 

occupational disease claim, (Form CA-2) alleging that he contracted a coccidioides infection also 

known as Valley Fever, as a result of working at the Elk Ridge Archeological Site in Gila 

National Forest. He indicated that he first became aware of his condition on July 4, 2015 and 

related it to his federal employment on August 10, 2015. In a narrative statement, appellant 

stated that his federal duties required moving excavated soils and rocks on July 2, 2015 for six 

hours. He alleged that a few days later he became ill with fever, respiratory problems, joint 

aches, and fatigue. Appellant stated that he went to see a doctor and was informed that he had 

tested positive for coccidioides infection on August 10, 2015. 

Appellant submitted an August 3, 2015 report from Dr. Jennifer Agosta, a Board-certified 

internist, who found that he had tested positive for coccidioides infection. 

In an October 7, 2015 letter, OWCP advised appellant of the deficiencies of his claim and 

afforded him 30 days to submit additional evidence and respond to its inquiries. 

Subsequently, appellant submitted a position description and a narrative statement 

reiterating the factual history of his claim. 

In an October 15, 2015 statement, the employing establishment indicated that at the time 

of exposure appellant was supervising and assisting the back-filling of an excavated room block 

and the construction of a rock-filled gabion erosion protection wall to prevent damage to a 

compromised archeological site. It confirmed that appellant’s exposure was a one-time, six-hour 

exposure on or about July 2, 2015 to soil dust, as well as dust related to the machine and 

subsequent hand placement of rip-rap-type rock used to fill gabion wire baskets. 

In an August 3, 2015 report, Dr. Agosta asserted that appellant presented with a persistent 

cough that had lasted approximately one month and subjective intermittent fevers. She reported 

that appellant had been working on an archeological dig close to a second dig where two workers 

had been found with coccidioidal fever. On September 3, 2015 Dr. Agosta asserted that 

appellant had been tested for coccidioides based on reported exposure and his laboratory results 

came back indicating an immune response to coccidioides, indicating exposure to the virus. She 

concluded that appellant had been exposed to the coccidioides virus and showed a positive 

immune response, indicating infection. 

By decision dated November 20, 2015, OWCP denied appellant’s claim, finding that he 

failed to submit evidence containing a medical diagnosis in connection with the injury or events. 

On January 22, 2016 appellant submitted an appeal request form with a check mark 

indicating that he was requesting reconsideration. He did not submit any evidence in support of 

his request. 

By decision dated February 8, 2016, OWCP denied appellant’s request for 

reconsideration of the merits finding that he did not submit pertinent new and relevant evidence 

and did not show that OWCP erroneously applied or interpreted a point of law not previously 

considered by OWCP. 
3

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA2 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 FECA, and that an injury3

 was sustained in the performance of duty. These 

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

predicated upon a traumatic injury or an occupational disease.4

 

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

occupational disease claim, an employee must submit the following: (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.5

 

An employee’s statement that an injury 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.6 

Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement, 

however, must be consistent with the surrounding facts and circumstances and his subsequent 

course of action. An employee has not met his or her burden in establishing the occurrence of an 

injury when there are such inconsistencies in the evidence as to cast serious doubt upon the 

validity of the claim. Circumstances such as late notification of injury, lack of confirmation of 

injury, continuing to work without apparent difficulty following the alleged injury, and failure to 

obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement 

in determining whether a prima facie case has been established.7

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical evidence. The opinion of the physician must 

be based on a complete factual and medical background of the employee, must be one of 

reasonable medical certainty, and must be supported by medical rationale explaining the nature 

 2 Id.

3

 OWCP regulations define an occupational disease or illness as a condition produced by the work environment 

over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). 

4 See O.W., Docket No. 09-2110 (issued April 22, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004). 

5 See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); 

Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989). 

6 R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005). 

7 Betty J. Smith, 54 ECAB 174 (2002). 
4

of the relationship between the diagnosed condition and the specific employment factors 

identified by the employee.8

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant was working at an archeological site on July 2, 2015 when 

he was exposed to soil dust for a six-hour period. It denied his claim on the basis that the 

evidence failed to establish a medical diagnosis in connection with the injury or events. The 

Board finds that appellant has established fact of injury as Dr. Agosta provided a firm diagnosis 

of coccidioides infection. However, the Board finds that appellant failed to provide sufficientlyrationalized medical opinion evidence establishing that his condition was causally related to the 

accepted work activities. 

Dr. Agosta found that appellant had tested positive for coccidioides infection and asserted 

that appellant presented with a persistent cough that had lasted approximately one month with 

subjective intermittent fevers. She reported that appellant had been working on an archeological 

dig close to a second dig at which two workers had been found with coccidioidal fever. On 

September 3, 2015 Dr. Agosta asserted that appellant had been tested for coccidioides based on 

reported exposure and his laboratory results came back indicating an immune response to 

coccidioides, indicating exposure to the virus. She concluded that appellant had been exposed to 

the coccidioides virus and showed a positive immune response, indicating infection. Dr. Agosta, 

however, failed to provide a rationalized opinion explaining the mechanism of how factors of 

appellant’s federal employment, such as being exposed to soil dust for a six-hour period, caused 

or aggravated the diagnosed condition. Dr. Agosta noted that appellant’s condition occurred 

while he was at work, but such generalized statements do not establish causal relationship 

because they merely repeat appellant’s allegations and are unsupported by adequate medical 

rationale explaining how his physical activity at work actually caused or aggravated the 

diagnosed condition.9

 The mere fact that appellant’s symptoms arose during a period of 

employment or produced symptoms revelatory of an underlying condition does not establish a 

causal relationship between his condition and his employment factors.10 Consequently, 

Dr. Agosta’s reports are of limited probative value and insufficient to establish that appellant 

sustained an employment-related injury causally related to factors of his federal employment. 

On appeal appellant contends that the medical evidence he submitted was the best he 

could do with his physician as she readily supplied the diagnosis of coccidioides infection, but 

was reluctant to offer an opinion as to how and where he contracted it or how his employment 

activities caused or aggravated his condition. As appellant has not submitted any rationalized 

medical evidence to support his allegation that he sustained an injury causally related to factors 

of his federal employment, he has failed to meet his burden of proof to establish a claim for 

compensation. 

 8 See O.W., supra note 4. 

9 See K.W., Docket No. 10-98 (issued September 10, 2010). 

10 See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979). 
5

LEGAL PRECEDENT -- ISSUE 2 

Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as 

a matter of right; it vests OWCP with discretionary authority to determine whether it will review 

an award for or against compensation.11 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).12

To require OWCP to reopen a case for merit review under section 8128(a) of FECA, 

OWCP regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.13 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his application 

for review within one year of the date of that decision.14 When a claimant fails to meet one of 

the above standards, OWCP will deny the application for reconsideration without reopening the 

case for review on the merits.15

The Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record16 and the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.17

ANALYSIS -- ISSUE 2 

With his January 22, 2016 reconsideration request, appellant merely checked an appeal 

request form indicating that he was requesting reconsideration. He did not allege or demonstrate 

that OWCP erroneously applied or interpreted a specific point of law, or advance a relevant legal 

argument not previously considered by OWCP. Consequently, appellant was not entitled to a 

review of the merits of his claim based on the first and second above-noted requirements under 

section 10.606(b)(3).18

With respect to the third above-noted requirement under section 10.606(b)(3), appellant 

did not submit new evidence with his reconsideration request. As he did not show that OWCP 

 11 5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or 

against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a). 

12 See Annette Louise, 54 ECAB 783, 789-90 (2003). 

13 20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009). 

14 Id. at § 10.607(a). 

15 Id. at § 10.608(b). 

16 See A.L., supra note 13. See also Eugene F. Butler, 36 ECAB 393, 398 (1984). 

17 Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 

18 See supra note 13. 
6

erred in applying a point of law, advance a relevant legal argument not previously considered, or 

submit relevant and pertinent new evidence not previously considered by OWCP, the Board 

finds that OWCP properly denied his reconsideration request.19

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 that he 

sustained an injury in the performance of duty. The Board further finds that OWCP properly 

refused to reopen appellant’s case for further reconsideration of the merits pursuant to 5 U.S.C. 

§ 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the February 8, 2016 and November 20, 2015 

decisions of the Office of Workers’ Compensation Programs are affirmed. 

Issued: February 8, 2017 

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 

 19 See D.P., Docket No. 13-1721 (issued February 21, 2014).