United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Dallas, TX, 

Employer 

__________________________________________ 

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Docket No. 17-0677 

Issued: September 13, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 26, 2017 appellant filed a timely appeal from an August 1, 2016 decision of 

the Office of Workers’ Compensation Programs (OWCP).1

 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

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from August 1, 2016, the date of OWCP’s last decision, was 

January 28, 2017. Since using February 3, 2017, the date the appeal was received by the Clerk of the Appellate 

Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date 

of the U.S. Postal Service postmark is January 26, 2017 rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant met her burden of proof to establish asbestos-related lung 

cancer causally related to factors of her federal employment. 

FACTUAL HISTORY 

On January 21, 2016 appellant, then a 64-year-old retired general clerk, filed an 

occupational disease claim (Form CA-2) alleging that she sustained breathing problems and lung 

cancer as a result of exposure to asbestos and dust over the course of 27 years working at the 

employing establishment. She first became aware of her claimed condition on January 18, 2013 

and of its relationship to her employment on March 18, 2013. Appellant explained that she had 

not filed her claim within 30 days because she did not have all the relevant information. A 

supervisor noted that appellant had retired on June 27, 2014. 

In a report dated March 18, 2013, Dr. Mitchell Magee, a Board-certified thoracic 

cardiovascular surgeon, diagnosed appellant with an incidental finding of a speculated right 

upper lobe lung mass with increased risk factors for lung cancer, significantly impaired lung 

function, adenocarcinoma of the right upper lobe of the lung, hypertension, hyperlipidemia, longstanding history of tobacco use, and a remote history of tuberculosis in 1974. 

In an undated statement, appellant noted that she had surgery on March 13, 2013 and that 

it was determined that she had lung cancer. She expressed her opinion that her condition was 

due to exposure to asbestos and dust, and that she had been exposed eight hours per day for five 

days per week while at work. 

By letter dated March 21, 2016, OWCP requested that appellant submit additional factual 

and medical evidence in support of her claim. It noted that she had not submitted sufficient 

evidence to substantiate that her diagnosed lung cancer was caused or aggravated by factors of 

her federal employment. OWCP afforded appellant 30 days to submit additional medical 

evidence. 

In a letter dated April 8, 2016, Dr. Paul S. Worrell, a Board-certified osteopath, noted that 

on December 5, 2012 appellant was evaluated with a chest x-ray and that, after further inspection 

via a computerized tomography (CT) scan a lung mass was noted. Attached to this letter, 

appellant submitted her own statement dated April 18, 2016 in which she noted that no 

preoperation biopsy was performed due to the size of the mass, and that the mass had been 

removed through surgery. She wrote, “There was no invasion to the lymph nodes tested. I was 

truly blessed and I did not have to have chemo nor radiation, so there are no oncology reports, 

notes, etc.” 

In a surgical pathology consultation report dated March 18, 2013, Dr. Magee noted that 

his final microscopic diagnosis postsurgery and excision was an adenocarcinoma. 

OWCP prepared a statement of accepted facts (SOAF) on June 2, 2016. In the SOAF, it 

noted that it had accepted that the floors in the building where appellant worked contained 
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asbestos during her tenure. OWCP further noted that the employing establishment concurred 

with appellant that no protective precautions were taken. 

By letter dated July 15, 2016, appellant requested an update on her claim’s status. 

By decision dated August 1, 2016, OWCP denied appellant’s claim for compensation. It 

found that she had not submitted any medical evidence containing a medical diagnosis in 

connection with exposure to asbestos in the course of her federal employment, explaining, 

“Medical evidence was received indicating that you suffer from a pulmonary condition. 

However, there is no evidence that the pulmonary condition from which you suffer is asbestosrelated.” 

LEGAL PRECEDENT 

An employee seeking benefits under FECA 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.3

 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or occupational disease.4

 

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.5 

The claimant has the burden of establishing by the weight of reliable, probative, and 

substantial evidence that the condition for which compensation is sought is causally related to a 

specific employment incident or to specific conditions of employment.6

 An award of 

compensation may not be based on appellant’s belief of causal relationship. Neither the mere 

fact that a disease or condition manifests itself during a period of employment nor the belief that 

the disease or condition was caused or aggravated by employment factors or incidents is 

sufficient to establish a causal relationship.7

 3 Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

4 Michael E. Smith, 50 ECAB 313, 315 (1999). 

5 Victor J. Woodhams, 41 ECAB 345 (1989). 

6 Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996). 

7 P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997). 
4

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

establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether 

there is a causal relationship between the claimant’s diagnosed condition and the compensable 

employment factors. The opinion of the physician must be based on a complete factual and 

medical background of the claimant, must be one of reasonable medical 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 claimant.9 The weight of 

medical evidence is determined by its reliability, its probative value, its convincing quality, the 

care of analysis manifested, and the medical rationale expressed in support of the physician’s 

opinion.10

ANALYSIS 

Appellant alleged that she developed lung cancer due to asbestos exposure during her 

federal employment. OWCP accepted that appellant was a federal civilian employee who filed a 

timely claim and that the employment factors occurred as alleged. It denied her claim because 

she had not submitted sufficient medical evidence containing a medical diagnosis in connection 

with her claimed injury. 

The Board finds that appellant did not submit sufficient medical evidence to establish a 

medical diagnosis of asbestos-related lung cancer. The medical evidence of record does not 

address appellant’s alleged asbestos exposure at her workplace as a risk factor for her general 

diagnosis of adenocarcinoma. 

In a report dated March 18, 2013, Dr. Magee diagnosed appellant with an 

adenocarcinoma of the right upper lobe of the lung. In a surgical pathology consultation report 

dated March 18, 2013, he noted that his final microscopic diagnosis, postsurgery and excision, 

was an adenocarcinoma. However, Dr. Magee did provide a firm diagnosis of asbestos-related 

lung cancer. The medical opinion of a physician does not have to reduce the cause or etiology of 

a disease or condition to an absolute certainty, but neither can such opinion be speculative or 

equivocal.11 The risk factors noted by Dr. Magee included long-term tobacco usage, 

hypertension, hyperlipidemia, and tuberculosis, but asbestos exposure was not mentioned. As 

previously noted, the medical evidence must establish that the employment factors identified by 

the claimant were the proximate cause of the condition for which compensation is claimed.12

Lung cancer is a very broad diagnosis with many potential etiologies, but the only 

etiology claimed as work-related by appellant was not noted by any physician. The lung cancer 

 8 Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005). 

9 Leslie C. Moore, 52 ECAB 132, 134 (2000). 

10Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959). 

11 See J.B., Docket No. 11-1082 (issued March 14, 2012). 

12 Supra note 5. 
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diagnosis therefore appears to be for a coincidental condition with several other potential causes 

not including exposure to asbestos. The Board finds that appellant has not established a 

diagnosis of asbestos-related lung cancer. 

As appellant has not submitted rationalized medical evidence containing a diagnosis of 

asbestos-related lung cancer, she has not submitted sufficient evidence to establish the medical 

component of fact of injury. 

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 her burden of proof to establish that she 

sustained asbestos-related lung cancer causally related to factors of her federal employment. 

ORDER 

IT IS HEREBY ORDERED THAT the August 1, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 13, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board