United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.V., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL AIR 

SYSTEMS COMMAND, Pensacola, FL, 

Employer 

__________________________________________ 

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Docket No. 16-1853 

Issued: April 14, 2017 

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 19, 2016 appellant, through counsel, filed a timely appeal from an 

August 11, 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. 

 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. 
2

ISSUES 

The issues are: (1) whether appellant has established that he sustained the conditions of 

heavy metal toxicity, rectal carcinoma, aphasia, depression, and loss of speech causally related to 

exposure to heavy metals during the course of his federal employment; and (2) whether he has 

established hearing loss due to noise exposure at work. 

FACTUAL HISTORY 

On July 10, 2014 appellant, then a 79-year-old retired toolmaker, filed an occupational 

disease claim (Form CA-2) alleging that he sustained heavy metal toxicity, rectal carcinoma, 

speech problems, depression, hearing loss, and aphasia as a result of “prolonged daily exposure 

to metal dust [and] grinding as a tool [and] disc worker” and exposure to noise. He advised that 

he first became aware of the relationship between his condition and work factors on 

October 2, 2013. Appellant retired on June 1, 1987. The form indicated that his spouse and 

children were completing the necessary forms and statements in support of the claim due to his 

severe difficulty communicating. 

In a statement accompanying the claim, one of appellant’s children described in detail her 

father’s exposure to heavy metals shaping grinding wheels. She advised that her father related 

that the dust was “so bad he tried to hold his breath as long as he could....” Employees did not 

use respiratory protection during that time. Appellant’s daughter related: 

“It is my understanding that many of the different rocks were bonded together 

with harmful things such as lead and aluminum oxide, and many of the tools they 

ground, such as the tungsten carbide, produced exposure to cobalt and cadmium, 

not to mention that at the center of the grinding wheel there was a lead bearing, 

which they would put their finger in and spin as they tapped it on the grinding 

rock.” 

 Appellant’s daughter advised that, at age 60, appellant underwent a colostomy to treat 

rectal carcinoma. She asserted: 

 “When he was told he had rectal cancer, we never thought there may be a 

connection from work that may have contributed to this condition, such as lead 

poisoning as well as other heavy metals which are known to cause rectal cancer. 

To date, the buildings and shops listed above where my [father] worked have been 

torn down and are under study for biological hazard and contaminants.” 

 Appellant’s daughter maintained that he experienced depression due to his rectal 

carcinoma. Beginning six years ago, he experienced speech difficulties, an irregular heartbeat, 

and shortness of breath. Providers initially believed that appellant may have had a stroke. A 

speech therapist, however, advised that it might be work related and recommended testing for 

heavy metals. Blood tests revealed 14 heavy metals including “off the chart” levels of lead. 

Appellant’s daughter related, “Finally we started getting some answers to what has been a long 

journey to understanding what has caused many of his problems.” 
3

 In a report dated October 2, 2013, Dr. Tracey E. Pinkston, a Board-certified internist, 

diagnosed a progressive neurological disorder causing expressive aphasia such that appellant 

could not speak, write, or spell. She related that physicians performed comprehensive testing, 

but could not find the cause of his condition. Dr. Pinkston noted that appellant ground down 

heavy metals, including lead and aluminum, without a mask or respirator in his work for the 

employing establishment. She related: 

“Upon evaluation, [appellant] was found to have extremely high levels of lead 

(levels as high as 5 in blood) and aluminum (levels as high as 345 in urine). He 

was treated with chelation therapy for this heavy metal toxicity and had only 

slight improvements, probably because the neurological pathology was so 

advanced. The heavy metal toxicity from his work as metal work for [the 

employing establishment] is almost certainly the cause of his progressive 

neurologic speech disorder and aphasia” 

 By letter dated July 28, 2014, OWCP requested that the employing establishment address 

the accuracy of appellant’s allegations. It further asked that it provide his medical records and 

describe his work duties, exposure history, and any precautions taken to reduce exposure. In 

another letter of the same date, OWCP requested additional factual and medical information 

from appellant. 

 Appellant submitted literature regarding health problems created by using carbide tips. 

He also submitted results from February 28, 2014 audiometric testing, records relevant to his 

rectal carcinoma in 1993, and citations to studies showing a link between metal exposure and 

rectal cancer. 

 In a May 1, 2012 report, received by OWCP on October 7, 2014, Dr. Pinkston noted that 

appellant had a history of exposure to heavy metals at work. She discussed his symptoms of 

increasing loss of speech and test results showing that his “aluminum level was impressively 

elevated, as was his blood lead level.” Dr. Pinkston recommended chelation therapy. She 

advised that it was not certain that “heavy metal toxicity is the only cause of his speech loss” or 

that the treatment would help his symptoms. 

A May 9, 2012 urinalysis revealed high levels of aluminum, barium, mercury, tin, lead, 

and uranium. The results indicated that lead levels were more than three times the “upper 

expected limit” and that the mercury level “far exceeds the expected level for the general 

population.” Appellant also had significantly higher than usual levels of uranium. A 

September 26, 2013 urinalysis showed reduced levels of heavy metals, particularly aluminum 

and lead. 

In March and April 2014 progress reports, Dr. Pinkston described appellant’s treatment 

with chelation therapy. In an April 7, 2014 report, she noted that he was almost unable to speak 

at all. Dr. Pinkston diagnosed primary progressive aphasia and related that appellant “wants to 

pursue a workers comp[ensation-]type claim on the basis that the heavy metal toxicity may have 

caused it.” She advised that colon cancer was also “associated with heavy metal toxicity.” 

Dr. Pinkston diagnosed the toxic effect of other lead compounds and contact and exposure to 

other hazardous metals. 
4

 On May 19, 2014 appellant requested a copy of his medical records from the employing 

establishment. 

 An OWCP medical adviser reviewed the evidence on November 18, 2014. He noted that 

a March 27, 2010 audiogram revealed bilateral sensorineural hearing loss consistent with noise 

exposure, but he did not have audiograms or other medical evidence from the employing 

establishment. The medical adviser advised that appellant’s rectal carcinoma was unrelated to 

employment but that his neurological problem might be due to heavy metal exposure. He 

recommended a second opinion examination to determine if he had a neurological disease as the 

result of exposure to heavy metals at work. 

 OWCP, on December 16, 2014, requested that appellant submit evidence showing that he 

timely filed his claim for compensation. 

 By decision dated January 12, 2015, OWCP denied appellant’s occupational disease 

claim, finding that his claim was untimely filed under 5 U.S.C. § 8122. It determined that there 

was no evidence that he filed his claim within three years of the injury date or that his supervisor 

had actual knowledge of his injury within 30 days. 

 Appellant, on January 16, 2015, requested a telephone hearing before an OWCP hearing 

representative. 

 In a letter dated June 17, 2015, an individual related that appellant’s speech loss began in 

2007 and that physicians believed that it was caused by a stroke; however, his speech difficulties 

progressively increased and in 2012 he obtained treatment from Kathleen Smead, a speech 

language pathologist.3

 Ms. Smead for the first time “suggested that it was not stroke related, 

because a stroke would have caused immediate damage, and his speech loss progressed over a 

period of years.” She recommended an evaluation with Dr. Pinkston who, on May 1, 2012, 

diagnosed heavy metal exposure due to his employment. 

 Appellant submitted a January 11, 2012 report from Ms. Smead. The speech therapist 

advised that it was unclear whether appellant was “experiencing multiple small lesions or 

whether other factors, such as his history of high fever with convulsions and exposure to heavy 

metals as part of his occupational history, were playing a part.” 

 In a report dated December 22, 2014, received by OWCP on July 17, 2015, Dr. Pinkston 

diagnosed benign essential hypertension, other speech disturbance, aphasia, the toxic effect of 

other lead compounds, and unspecified hearing loss. 

At the telephone hearing, held on June 30, 2015, appellant’s daughter related that 

appellant was diagnosed with colon cancer 25 years ago and speech loss beginning in 2007. She 

had obtained a power of attorney for her father three or four years earlier. The daughter related 

that he and the family first became aware of the possible relationship between employment and 

his condition in 2012 after he sought treatment with a speech therapist. In May 2012 

Dr. Pinkston diagnosed exposure to heavy metal toxins due to his work. Appellant’s son 

 3

 The statement is not signed and the author is not otherwise identified. 
5

described the metals that he was exposed to in his work as a tool and die maker, including 

aluminum, beryllium, and tungsten carbide. He related that Dr. Pinkston advised that the metal 

accumulated in his bones. Appellant’s son noted that the employing establishment now 

undertook multiple precautions to prevent workers from inhaling the dust, including the use of 

special suits, solvents, and an air filtration system. He noted that the building where appellant 

worked was currently listed as a contaminated site. 

Following the hearing, appellant submitted a July 28, 2015 audiogram and blood test 

results. 

By decision dated September 9, 2015, an OWCP hearing representative set aside the 

January 12, 2015 decision. She found that the evidence supported that appellant should have 

been aware of the possible relationship between his conditions and claimed work factors on 

January 11, 2012, the date of the report from the speech pathologist. Appellant filed his claim on 

April 14, 2014, within the three-year time period. The hearing representative thus determined 

that appellant timely filed his claim for compensation. She further found that the medical 

evidence of record was sufficient to warrant further development. The hearing representative 

instructed OWCP to obtain from the employing establishment a list of the metals to which 

appellant had been exposed to at work and refer him for a second opinion examination to 

determine whether such exposure caused or aggravated a diagnosed condition. 

OWCP, in letters dated October 2 and November 9, 2015, requested that the employing 

establishment describe appellant’s metal exposure during the course of his employment. 

Appellant provided a list of metals to which he had been exposed at work, including 

aluminum, chromoly, brass, carbide cobalt, aluminum oxide, stainless steel, cadmium, nickel, 

chrome, black oxide coating, silver carbon inserts, high speed steel, tungsten carbide, cobalt, 

barium, tin, and stellite. 

In a report dated September 29, 2015, Dr. Ward Dean, an internist, discussed appellant’s 

history of working for almost 40 years as a tool and die maker with exposure to “high 

concentrations of metal particles and vapors, including lead, mercury, and aluminum.” At that 

time employees did not use any protection and the area was not ventilated. Dr. Dean described 

appellant’s history of aphasia and the 2012 postchelation urinalysis finding “extremely high 

levels of lead, with above-normal levels of mercury and aluminum.” (Emphasis in the original.) 

He noted that chelation improved his headaches and his performance of some activities of daily 

living. Dr. Dean advised that repeated blood tests showed that appellant’s lead levels decreased 

with therapy, but subsequently rose. He related, “The waxing and waning of [his] blood lead 

levels before and after each series of chelations is consistent with a significant heavy metal 

burden in his body due to his many years of exposure as a tool and die maker.” Dr. Dean 

recommended continued chelation infusions. 

OWCP prepared a statement of accepted facts noting his exposure to the metals appellant 

had listed in his statement. It referred him to Dr. Terry W. Taylor, who specializes in 

occupational medicine, for a second opinion examination. 
6

In a report dated March 16, 2016, Dr. Taylor reviewed the statement of accepted facts 

and appellant’s history of a neurological disorder with severe expressive aphasia. He noted that 

evaluations eliminated a stroke as the cause of his condition. Dr. Taylor diagnosed hypertension, 

elevated cholesterol, aphasia, anxiety with depression, bilateral hearing loss, and rectal 

carcinoma. He asserted that the diagnosed conditions were unrelated to exposure to heavy 

metals during the course of appellant’s employment. Dr. Taylor found that appellant was unable 

to perform his usual employment due to his hearing loss and inability to communicate but that 

the conditions were not related to his work. 

By decision dated August 11, 2016, OWCP denied appellant’s claim as the medical 

evidence failed to establish a diagnosed condition causally related to the identified work factors. 

It found that Dr. Taylor’s opinion represented the weight of the medical evidence. 

On appeal counsel argues that Dr. Dean evidenced knowledge of appellant’s work duties, 

addressed the objective findings of high lead, mercury, and aluminum in his system, and 

explained why the lead levels in his blood waxed and waned with chelation treatment. He notes 

that Dr. Dean and Dr. Pinkston both found that his work duties caused heavy metal toxicity. 

Counsel maintains that Dr. Taylor did not provide sufficient rationale for his opinion and thus it 

is of little probative value. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his 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.4 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.5

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;6

 (2) a 

factual statement identifying employment factors alleged to have caused or contributed to the 

presence or occurrence of the disease or condition;7

 and (3) medical evidence establishing 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.8

 4 Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989). 

5 See Ellen L. Noble, 55 ECAB 530 (2004). 

6 Michael R. Shaffer, 55 ECAB 386 (2004). 

7 Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001). 

8 Beverly A. Spencer, 55 ECAB 501 (2004). 
7

The medical evidence required to establish causal relationship generally is rationalized 

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

medical background of the claimant,9

 must be one of reasonable medical certainty10 explaining 

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

factors identified by the claimant.11 

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter.12 While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility to see that justice is done.13 Accordingly, once OWCP undertakes to 

develop the medical evidence further, it has the responsibility to do so in the proper manner.14 

The nonadversarial policy of proceedings under FECA is reflected in OWCP’s regulations at 

section 10.121.15

ANALYSIS -- ISSUE 1 

Appellant alleged that he sustained heavy metal toxicity, rectal carcinoma, aphasia, 

depression, and loss of speech due to exposure to a range of chemicals in his work as a tool and 

die worker. OWCP initially denied the claim as untimely. However, a hearing representative 

properly determined that the claim was timely filed as the first evidence attributing a condition to 

possible toxic metal exposure occurred in 2012 and he filed his claim in 2014, within the threeyear time period.16 

OWCP accepted that appellant was exposed to a range of heavy metals during the course 

of his employment. The issue, therefore, is whether the medical evidence established a causal 

relationship between the claimed conditions and the identified employment factors. 

On October 2, 2013 Dr. Pinkston diagnosed a progressive neurological disorder resulting 

in aphasia causing appellant to be unable to speak or write. She reviewed his history of grinding 

heavy metals without respiratory protection. Dr. Pinkston advised that testing showed 

exceedingly high levels of lead and aluminum in appellant’s system. She opined that heavy 

metal toxicity from working with metal was “almost certainly” the cause of his aphasia. In a 

report dated April 7, 2014, Dr. Pinkston diagnosed the toxic effect of other lead compounds and 

 9 Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001). 

10 John W. Montoya, 54 ECAB 306 (2003). 

11 Judy C. Rogers, 54 ECAB 693 (2003). 

12 Vanessa Young, 55 ECAB 575 (2004). 

13 See S.J., Docket No. 15-0029 (issued September 15, 2016); Jimmy A. Hammons, 51 ECAB 219 (1999). 

14 Melvin James, 55 ECAB 406 (2004). 

15 20 C.F.R. § 10.121. 

16 Section 8122(b) provides that, in latent disability cases, the time limitation does not begin to run until the 

claimant is aware or by the exercise of reasonable diligence should have been aware of the causal relationship 

between the employment and the compensable disability. 5 U.S.C. § 8122(b). 
8

exposure to other hazardous metals. She noted that heavy metal toxicity was also linked with 

colon cancer. 

In a report dated September 26, 2015, Dr. Dunn discussed appellant’s history of exposure 

to heavy metals including aluminum, lead, and mercury during his 40 years working as a tool 

and die maker in an unventilated area without protection. He noted that his lead levels decreased 

with chelation therapy but subsequently increased, which he indicated revealed a “significant 

heavy metal burden in his body due to his many years of exposure as a tool and die maker.” 

OWCP referred appellant to Dr. Taylor for a second opinion examination. On March 16, 

2016 Dr. Taylor noted that appellant had a history of severe expressive aphasia from a 

neurological disorder and that medical tests had ruled out a stroke as the cause of his condition. 

He diagnosed hypertension, elevated cholesterol, aphasia, anxiety with depression, bilateral 

hearing loss, and rectal carcinoma unrelated to exposure to heavy metals at work. Dr. Taylor 

advised that appellant was unable to work due to communication issues and hearing loss. 

Based on Dr. Taylor’s second opinion report, OWCP found that appellant failed to meet 

his burden of proof to establish a medical condition due to exposure to heavy metals. The Board 

finds, however, that the report of Dr. Taylor is insufficiently rationalized to constitute the weight 

of the evidence. Dr. Taylor provided conclusory answers to the questions posed by OWCP 

without any narrative explanation. He did not explain the effect of the objective testing showing 

the presence of heavy metals in appellant’s blood and urine or provide any rationale for his 

finding that the diagnosed conditions were unrelated to employment. The Board has held that 

medical conclusions unsupported by rationale are of little probative value.17 The certainty with 

which Dr. Taylor expressed his opinion cannot overcome the lack of medical rationale 

explaining the basis of that opinion.18 It is well established that proceedings under FECA are not 

adversarial in nature, nor is OWCP a disinterested arbiter. While the claimant has the burden to 

establish entitlement to compensation, OWCP shares the responsibility in the development of the 

evidence to see that justice is done. As OWCP undertook development of the evidence by 

referring appellant to a second opinion physician, it has the duty to secure an appropriate report 

addressing the relevant issues.19

The Board, therefore, will remand the case for OWCP to obtain a supplemental report 

from Dr. Taylor addressing whether the diagnosed conditions were caused or aggravated by 

appellant’s exposure to heavy metals in the course of his federal employment with supporting 

rationale. After this and any further development deemed necessary, it should issue a de novo

decision. 

 

 17 G.W., Docket No. 15-1646 (issued September 1, 2016); R.C., 58 ECAB 238 (2006). 

18 See G.W., id.; S.T., Docket No. 13-1079 (issued September 18, 2014). 

19 Peter C. Belkind, 56 ECAB 580 (2005). 
9

LEGAL PRECEDENT -- ISSUE 2 

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, that an injury was sustained in the performance of duty as alleged, and that any 

disabilities and/or specific conditions for which compensation is claimed are causally related to 

the employment injury.7 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8

Appellant has the burden of proof to establish by the weight of the reliable, probative, 

and substantial evidence that his hearing loss condition was causally related to noise exposure in 

his federal employment.9

 Neither the fact that the condition became apparent during a period of 

employment, nor the belief of the employee that the alleged hearing loss was causally related to 

noise exposure in federal employment, is sufficient to establish causal relationship.10

ANALYSIS -- ISSUE 2 

The Board finds that OWCP did not properly adjudicate appellant’s claim for noise 

exposure due to hearing loss. He alleged that he sustained hearing loss as a result of noise 

exposure while working as a tool and die operator. Appellant submitted audiograms in support 

of his claim. On November 18, 2014 an OWCP medical adviser noted that a March 27, 2010 

audiogram showed bilateral sensorineural hearing loss consistent with noise exposure. He noted 

that he did not have audiograms from the employing establishment. 

OWCP, in its August 11, 2016 decision, noted that Dr. Taylor found that appellant’s 

hearing loss was unrelated to his employment. It did not, however, separate his claim for hearing 

loss as a result of noise exposure from his claim for conditions arising as a result of exposure to 

heavy metals. On remand, OWCP should obtain audiograms and noise exposure information 

from the employing establishment relevant to appellant’s claim for noise-induced hearing loss.20 

It should then determine whether appellant timely filed his claim for hearing loss.21 If so, it 

should consider the medical evidence he submitted and, if it does not meet all its requirements 

for adjudication, refer him for an examination by a Board-certified otolaryngologist in 

accordance with its procedures.22 

 20 See N.S., 59 ECAB 422 (2008) (OWCP shares the responsibility in the development of the evidence, 

particularly when such evidence is of the character normally obtained from the employing establishment or other 

governmental source). 

21 See 5 U.S.C. § 8122. The Board has held that the issue of whether a claim was timely filed is a preliminary 

jurisdictional issue that precedes any determination on the merits of the claim. Charles Walker, 55 ECAB 

238 (2004). If the employing establishment, in connection with a recognized environmental hazard, has an 

employee testing program and a test shows the employee to have positive findings this should be accepted as 

constituting actual knowledge. Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3a(3)(c) 

(March 1993). 

22 Federal (FECA) Procedure Manual, id. at Chapter 2.800.9(a)(1) (June 2011); see also D.S., Docket No. 

16-0903 (issued September 8, 2016). 
10

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether appellant 

has established that he sustained the conditions of heavy metal toxicity, rectal carcinoma, 

aphasia, depression, and loss of speech causally related to exposure to heavy metals during the 

course of his federal employment. The Board further finds that the case is not in posture for 

decision regarding whether he sustained hearing loss due to noise exposure in the course of his 

federal employment. 

ORDER 

IT IS HEREBY ORDERED THAT the August 11, 2016 decision of the Office of 

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

consistent with this opinion of the Board. 

Issued: April 14, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board