United States Department of Labor

Employees’ Compensation Appeals Board

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M.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

BROOKLYN HEALTH & HUMAN SERVICES, 

Brooklyn, NY, Employer

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Docket No. 18-1522

Issued: April 22, 2019

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 3, 2018 appellant, through counsel, filed a timely appeal from a February 12, 

2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

 

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

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

ISSUE

The issue is whether appellant has met his burden of proof to establish that his reactive 

airway disease (RAD), allergic rhinitis, and bronchial asthma were caused or aggravated by the 

accepted June 4, 2014 employment incident. 

FACTUAL HISTORY

On June 20, 2014 appellant, then a 32-year-old staff pharmacist, filed a traumatic injury 

claim (Form CA-1) alleging that on June 4, 2014 he experienced shortness of breath, difficulty 

breathing, chest tightness, cough, dizziness, and clogged nose while in the performance of duty. 

He attributed his symptoms to chemicals and fumes used to clean and wax the floors in his work 

area that day. Appellant did not stop work. 

Appellant was treated in the employing establishment emergency room on June 4, 2014 by

Dr. Hasmatul M. Islam, an emergency medicine physician, who diagnosed a hypersensitivity 

reaction and provided bronchodilator therapy. 

In a July 23, 2014 note, Dr. Magdi S. Sourour, a Board-certified internist and 

pulmonologist, reported that appellant was exposed to cleaning chemicals on June 4, 2014 while 

at work. He provided an impression of cough variant asthma/status post chemical bronchitis “most 

likely” due to exposure to cleaning chemicals in the pharmacy. The July 23, 2014 spirometry 

report indicated a mild restriction, premedication. 

Several reports with accompanying spirometry test results were received from Dr. Alan J. 

Schecter, a Board-certified pulmonologist. In a July 31, 2014 report, Dr. Schecter noted the 

history of the June 4, 2014 chemical exposure incident and that appellant’s symptoms (a chronic 

cough) returned after he completed his prescribed medication. Appellant was noted as being both 

a lifetime nonsmoker and a current every day smoker. Dr. Schecter indicated that the July 31, 

2014 pulmonary function study suggested mild asthma. He assessed appellant “likely with” mild 

asthma induced by chemical burn cough and nasal congestion “likely” also related to chemical 

burn. 

In a September 4, 2014 report, Dr. Schecter noted that a pulmonary function study showed 

normal function with slight decline from previous study. Appellant was noted to be an every day 

smoker. Dr. Schecter provided an assessment of possible asthma, though it was not clear if his 

symptoms were typical, and a diagnosis of intrinsic asthma, unspecified. In October 6 and 

November 3, 2014 reports, he diagnosed asthma. Dr. Schecter noted that appellant was never a 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the February 12, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
3

smoker and that appellant’s pulmonary function studies were normal. He also indicated, in his 

October 6, 2014 report, that appellant’s cough may not be related to asthma. In a February 5, 2015 

report, Dr. Schecter reported that appellant had probable asthma though his pulmonary functions 

had always been near normal. He diagnosed asthma, mild persistent, with acute exacerbation. 

A copy of a February 5, 2015 spirometry report was provided. 

Several reports with accompanying spirometry testing were received from Dr. Sourour. In 

May 11 and August 28, 2015 treatment reports, he reported a date of injury of June 4, 2014, noted 

examination findings and provided an impression of occupational asthmatic cough due to chemical 

exposure. Both of the May 11 and August 28, 2015 spirometry tests revealed normal results 

premedication. In October 21 and November 16, 2015 reports, Dr. Sourour diagnosed 

occupational exposure -- recurrent bronchial asthma. The October 21, 2015 spirometry test 

revealed normal results premedication. 

In a November 18, 2015 report, Dr. Sourour noted appellant’s persistent cough and 

wheezing started on June 4, 2014 after he was exposed to chemical cleaning agent on the floor of 

the pharmacy where he worked. Appellant was given bronchodilator therapy in the emergency 

room and discharged. Dr. Sourour indicated that appellant’s past medical history was negative for 

bronchial asthma, allergic rhinitis, and diabetes mellitus and that he never smoked or drank. He

summarized appellant’s visits, noting that his physical examinations were consistent with recurrent 

bronchospasms. Dr. Sourour indicated that appellant’s condition most likely would last several 

years and that he needed to be followed up on a regular basis as he developed a secondary bacterial 

infection. He opined that the final diagnosis was reactive airway distress syndrome, occupational 

asthma, secondary to exposure to chemical fumes from cleaning agents he was exposed to at his 

workplace on June 4, 2014. Appellant also diagnosed chronic recurrent sinusitis and chronic 

reactive tracho-bronchitis with bronchospasm. 

In a January 21, 2016 letter, counsel argued that Dr. Sourour’s November 18, 2015 report 

established appellant’s claim. 

In a February 10, 2016 treatment note, Dr. Sourour reported new reactivation of RAD. 

A February 10, 2016 spirometry indicated mild restriction premedication. In a July 13, 2016 note,

Dr. Sourour diagnosed status post RAD syndrome, obstructive lung disease, chronic trachecitis, 

and allergic rhinitis. The July 13, 2015 spirometry report indicated normal spirometry results 

premedication. 

By development letter dated October 12, 2016, OWCP advised appellant that he initially 

filed a claim for a traumatic injury which originally appeared to be for a minor injury resulting in 

minimal or no lost time. It advised him that his claim was reopened because the medical bills 

exceeded $1,500.00. OWCP advised appellant that exposure alone was insufficient to establish a 

work-related medical condition and that the medial evidence did not substantiate the diagnoses 

provided. It informed him of the type of factual and medical evidence needed to support his claim, 

and provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the 

requested evidence. 

In a November 8, 2016 statement, appellant responded to OWCP’s development letter. He 

noted that the June 4, 2014 work incident was a onetime event when the floors of the pharmacy 

were stripped and waxed. Appellant indicated that he had inhaled the fumes of the toxic chemicals 
4

for five hours as he was the only person on duty and could not leave the pharmacy unattended. He 

also asserted that he never smoked. A Safety Data Sheet for the chemicals involved in the cleaning 

agents used was provided. 

By decision dated November 18, 2016, OWCP denied appellant’s claim, finding that it was 

insufficient to establish an injury causally related to the accepted employment incident. It noted 

that there was conflicting factual and medical evidence regarding whether he was a smoker and if 

smoking could be a factor in the development of the diagnosed conditions. 

OWCP continued to receive additional evidence. In February 24 and October 10, 2016 

reports, Dr. Sourour diagnosed RAD after exposure to cleaning agent, and bronchial asthma. In 

his October 10, 2016 report, he also noted “severe irritating secondary to exposure to cleaning 

material and detergents and chlorine base.” October 10, 2016 spirometry testing was within 

normal limits. In a December 14, 2016 report, Dr. Sourour noted that appellant was seen for RAD, 

allergic rhinitis, and bronchial asthma. 

On November 10, 2017 appellant, through counsel, requested reconsideration and provided

a December 29, 2016 report from Dr. Schecter who indicated that an error was made in appellant’s 

electronic medical records dated July 31 and September 4, 2014, which documented appellant as 

a current smoker. He contended that, since appellant’s first office visit, he had indicated that 

appellant did not smoke. Counsel argued that Dr. Schecter’s December 29, 2016 report confirmed

that appellant was not a smoker. 

OWCP received additional reports from Dr. Sourour. In an October 11, 2017 report,

Dr. Sourour indicated that spirometry premedication indicated moderate obstruction possible 

concomitant restrictive defect. He provided an impression of RAD secondary to chemical and 

dust exposure and allergic rhinitis. A copy of the October 11, 2017 spirometry report was 

provided. In a January 26, 2018 report, Dr. Sourour diagnosed RAD secondary to chemical 

exposure, allergic rhinitis, and bronchial asthma. He noted that the spirometry indicated mild 

restriction premedication. 

By decision dated February 12, 2018, OWCP denied modification of its November 18, 

2016 decision. It found that, while the evidence indicated that appellant was not a smoker, there 

was no well-reasoned medical opinion which explained how his chemical/dust exposure on one 

day either caused or aggravated the diagnosed conditions of RAD, allergic rhinitis, and bronchial 

asthma. 

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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 

 

4 Supra note 2.
5

employment injury.5 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.6

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. There 

are two components involved in establishing fact of injury. First, the employee must submit 

sufficient evidence to establish that he or she actually experienced the employment incident at the 

time, place, and in the manner alleged.7

Second, the employee must submit medical evidence to establish that the employment 

incident caused a personal injury.8

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

opinion evidence sufficient to establish such causal relationship. The opinion of the physician 

must be based on a complete factual and medical background, 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

ANALYSIS

The Board finds that appellant has not established that his RAD, allergic rhinitis, and 

bronchial asthma conditions were causally related to the accepted June 4, 2014 employment 

incident. 

In a June 4, 2014 emergency room report, Dr. Islam initially noted appellant’s symptoms 

after the employing establishment floor was cleaned. While he diagnosed a hypersensitivity 

reaction, he did not provide a firm diagnosis of a particular medical condition10 or offer a specific 

opinion as to whether the accepted June 4, 2014 employment incident caused or aggravated 

appellant’s condition.11 Thus, Dr. Islam’s report is insufficient to meet appellant’s burden of 

proof. 

 

5 T.H., Docket No. 17-747 (issued May 14, 2018); C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine 

Pendleton, 40 ECAB 1143 (1989).

6 T.H., id.; S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 

153 (1989).

7 See K.R., Docket No. 18-1388 (issued January 9, 2019); V.J., Docket No. 18-0452 (issued July 3, 2018); Bonnie A. 

Contreras, 57 ECAB 364 (2006).

8

Id. 

9 T.H., Docket No. 18-1736 (issued March 13, 2019); I.J., 59 ECAB 408 (2008). 

10 Deborah L. Beatty, 54 ECAB 340 (2003) (in the absence of a medical report providing a diagnosed condition 

and a reasoned opinion on causal relationship, appellant has not met her burden of proof).

11 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
6

OWCP received a series of reports from Dr. Sourour. In a July 23, 2014 report,

Dr. Sourour reported that appellant was exposed to cleaning chemicals on June 4, 2014 while at 

work and that the spirometry report indicated a mild restrictions premedication. He provided an 

impression of cough variant asthma/status post chemical bronchitis “most likely” due to exposure 

to cleaning chemicals in the pharmacy. As he couched his impression in terms as “most likely,” 

Dr. Sourour’s opinion on causal relationship is speculative in nature. The Board has held that 

medical opinions that are speculative or equivocal in character are of diminished probative value.12 

Additionally, Dr. Sourour did not explain why or how exposure to cleaning chemicals would have 

caused or contributed to appellant’s diagnosed condition. A medical report is of limited probative 

value on the issue of causal relationship if it contains a conclusion regarding causal relationship 

which is unsupported by medical rationale.13 Thus, Dr. Sourour’s report is of limited probative 

value and is insufficient to establish appellant’s claim.

In reports from May 11, 2015 through November 16, 2016, Dr. Sourour provided 

impressions of occupational asthmatic cough and recurrent bronchial asthma due to occupational 

exposure, although the spirometry tests taken on those dates were within normal limits. In his 

November 18, 2015 report, he indicated that appellant’s persistent cough and wheezing started on 

June 4, 2014 after his exposure to chemical cleaning agents at the employing establishment. 

Dr. Sourour opined that appellant’s diagnoses of reactive airway distress syndrome, occupational 

asthma, were secondary to exposure to chemical fumes from cleaning agents he was exposed to at 

his workplace on June 4, 2014. In so far as his opinion regarding causal relationship appears to be 

based on the fact that appellant’s past medical history was negative for the diagnosed conditions, 

the Board has held that an opinion that a condition is causally related because the employee was 

asymptomatic before the injury is insufficient, without sufficient rationale, to establish causal 

relationship.14

In subsequent reports Dr. Sourour reiterated appellant’s diagnoses, but did not explain the 

reasons how appellant’s diagnosed conditions were caused by the June 4, 2014 employment 

incident.15 The Board has held that a report is of limited probative value regarding causal 

relationship if it does not contain medical rationale explaining how a given medical 

condition/disability was related to employment factors.16 Therefore, these reports of Dr. Sourour 

are insufficient to establish appellant’s claim. 

OWCP also received reports from Dr. Schecter. In his initial report of July 31, 2014,

Dr. Schecter noted the history of appellant’s June 4, 2014 chemical exposure and that his July 31, 

2014 pulmonary function study suggested mild asthma. He assessed appellant “likely with” mild 

asthma induced by chemical burn, as well as cough and nasal congestion “likely” also related to 

 

12 See V.B., Docket No. 17-1847 (issued April 4, 2018); D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 

ECAB 206 (2004).

13 See V.B., id; S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued 

February 6, 2009).

14 K.P., Docket No. 17-1145 (issued November 15, 2017); T.M., id.

15 See G.G., Docket No. 13-0573 (issued May 17, 2013). 

16 See Y.D., Docket No. 16-1896 (issued February 10, 2017).
7

chemical burn. However, this opinion is again speculative in nature.

17

 Dr. Schecter did not explain 

with certainty how or why the employment-related chemical exposure would have resulted in a 

chemical burn, or otherwise caused or contributed to appellant’s diagnosed conditions.18 For these 

reasons, his report is insufficient to meet appellant’s burden of proof. 

In his other reports, Dr. Schecter either assessed probable asthma, asthma, or intrinsic 

asthma, unspecified. However, he failed to offer a medical opinion addressing whether the 

diagnosed conditions were caused or aggravated by the accepted employment incident. The Board 

has found that medical evidence that does not offer an opinion regarding the cause of an 

employee’s condition is of no probative value on the issue of causal relationship.19

The spirometry tests of record are also insufficient to establish appellant’s claim. The 

Board has held that reports of diagnostic tests lack probative value as they do not provide an 

opinion on causal relationship between his employment duties and a diagnosed condition.20

The Board finds that appellant has not submitted rationalized, probative medical evidence 

sufficient to establish that his diagnosed RAD, allergic rhinitis, and bronchial asthma conditions 

were causally related to the accepted employment incident. As such, appellant has not met his 

burden of proof. 

As appellant has not submitted rationalized medical evidence establishing that his RAD, 

allergic rhinitis, and bronchial asthma were caused or aggravated by the accepted June 4, 2014 

employment incident, the Board finds that he has not met his burden of proof.

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 his RAD, 

allergic rhinitis, and bronchial asthma were causally related to the accepted June 4, 2014 

employment incident. 

 

17 See supra note 13.

18 See supra note 14.

19 See supra note 11. 

20 See K.V., Docket No. 18-0723 (issued November 9, 2016).
8

ORDER

IT IS HEREBY ORDERED THAT the February 12, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 22, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board