United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.M., Appellant

and

DEPARTMENT OF THE NAVY, 

PHILADELPHIA NAVAL SHIPYARD, 

Philadelphia, PA, Employer

__________________________________________

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Docket No. 17-1253

Issued: January 2, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 18, 2017 appellant filed a timely appeal from a May 4, 2017 merit 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 to 

consider the merits of the case.

ISSUE

The issue is whether appellant has established that he developed cancer of his larynx

causally related to his employment-related asbestosis.

FACTUAL HISTORY

On January 13, 2012 appellant, then a 59-year-old retired welding inspector/nondestructive test inspector, filed an occupational disease claim (Form CA-2) alleging that he 

 

1 5 U.S.C. § 8101 et seq.
2

developed pleural asbestosis as a result of exposure to asbestos during his federal employment. 

He noted that he worked on naval ships every day from 1974 until his retirement on

May 31, 1996. Appellant alleged that he first became aware of his claimed condition and its 

relation to his federal employment on March 10, 2011.

On October 17, 2012 OWCP accepted appellant’s claim for asbestosis, and authorized 

appropriate treatment. The record also reflects that he received service-connected disability 

compensation benefits from the Department of Veterans Affairs for 60 percent disability due to 

asymptomatic asbestosis since August 1, 2011.

On March 7, 2013 appellant filed a claim for a schedule award (Form CA-7). By letter 

dated June 13, 2013, OWCP informed him that he was entitled to a schedule award for 64 

percent combined impairment of his lungs due to asbestosis. However, it noted that as appellant 

had received benefits from the Department of Veterans Affairs for the same time period, he must 

make an election between the schedule award and his benefits from the Department of Veterans 

Affairs. An election letter is not contained in the case record. However, the record reflects that 

OWCP did not pay appellant compensation for a schedule award.

On April 1, 2015 appellant filed an occupational disease claim (Form CA-2) alleging that 

he suffered from vocal cord cancer as a result of exposure to asbestos fiber and dust while 

working aboard many different naval ships at the employing establishment from 1975 to 1996.2 

In a statement received by OWCP on April 16, 2015, appellant noted that his federal 

employment duties required him to inspect ship areas such as the boilers and pipes which 

contained asbestos fibers and dust. He noted that, from 1970 to 1974, he served aboard the USS 

Sierra AD-18 as an E-3 fireman. From 1975 to 1980 appellant worked for the employing 

establishment as a metals inspector in the nondestructive testing department where he was 

exposed to asbestos dust and fibers, and that from 1980 through 1996 he was present on a weekly 

basis rather than a daily basis and was exposed to asbestos while checking on the various ship 

engines and fire rooms aboard the ships.

In a February 3, 2015 report, Dr. Nadir Ahmad, a Board-certified otolaryngologist, noted 

that appellant was referred for evaluation of left vocal cord lesion. He noted that appellant’s 

microlaryngoscopy with biopsy of the left anterior true vocal cord revealed squamous papilloma 

with no dysplasia. Dr. Ahmad noted that appellant had related developing a raspy voice in 

October 2014 and that it had worsened over time. He indicated that appellant quit smoking over 

24 years ago. Dr. Ahmad recommended a repeat microlaryngoscopy with biopsy, noting concern 

that there may be underlying dysplasia or early malignancy.

On February 18, 2015 Dr. Ashleigh Allen, a Board-certified pathologist, interpreted a 

surgical pathology report as showing: (a) vocal cord, left anterior lesion anterior portion, biopsy 

-- squamous cell carcinoma with focus suspicious for invasion; (b) vocal cord, left anterior 

 

2 OWCP initially assigned OWCP File No. xxxxxx568 to this claim. However, because appellant alleged the 

same employment factors contributed to his vocal cord cancer, OWCP combined this claim with the current claim 

and closed File No. xxxxxx568.
3

lesion, posterior portion, biopsy -- squamous cell carcinoma with focal invasion; and (c) vocal 

cord, left anterior lesion, medial portion, biopsy -- portion of dysplastic squamous mucosa.

In a May 18, 2015 report, Dr. Gregory Kubicek, a Board-certified radiation oncologist, 

opined that appellant had laryngeal cancer and that asbestos had been related to several types of 

cancer including laryngeal cancer. He noted that a 2006 report by the National Institutes of 

Health reported that asbestos exposure was determined to be a cause of laryngeal cancer and that

the cancer risk was dependent on the duration of the exposure. Dr. Kubicek noted that due to 

asbestos exposure, appellant had a more than double risk of developing laryngeal cancer 

compared to workers not exposed to asbestos. He further noted that it was impossible to say 

with any one individual whether or not the cancer was asbestos related or related to some other 

etiology. However, given the connection between appellant’s diagnosis of laryngeal cancer and 

his asbestos exposure, Dr. Kubicek opined that it was reasonable to assume that exposure to this 

known carcinogen was related to his cancer diagnosis.

By letter dated July 14, 2015, OWCP informed appellant that further factual and medical

information was necessary to support his claim. It afforded him 30 days to submit this additional

information.

Appellant subsequently responded to the development letter, noting that he had not 

smoked in over 40 years. With his response, appellant resubmitted medical reports already of 

record, as well as new reports from Dr. Ahmad. In his February 13, 2015 report, Dr. Ahmad 

related that he performed a direct microlaryngoscopy with excisional biopsy of the left true vocal 

cord lesion and rigid esophagoscopy. In a July 20, 2015 report, he noted that appellant was 

under his care for oncologic surveillance for his history of left true vocal fold squamous cell 

carcinoma treated with radiation therapy earlier this year. Dr. Ahmad also noted that appellant

had a history of chronic asbestos exposure in the past. He indicated that there had been many 

reports linking asbestos with laryngeal cancer. Dr. Ahmad opined, “While I am not able to say 

that asbestos definitely was related to the development of his laryngeal cancer, I think it is both 

reasonable to assume and plausible that his chronic asbestos exposure, a known carcinogen, was 

related to the development of his cancer and likely played a role in his carcinogenesis.”

By decision dated November 13, 2015, OWCP denied appellant’s claim for laryngeal 

cancer, finding that he failed to meet the criteria establishing that the condition is causally related 

to his employment-related asbestosis. On December 14, 2015 it received his request for review 

of the written record by an OWCP hearing representative.

By decision dated April 21, 2016, OWCP’s hearing representative affirmed OWCP’s

November 13, 2015 decision. She determined that the medical evidence was insufficient to 

establish causal relationship. 

In an October 30, 2016 medical report, Dr. Steven E. Landenheim, a Board-certified 

otolaryngologist, reviewed appellant’s medical history. He noted that appellant was a former 

smoker who previously smoked an average of 15 cigarettes a day for 20 years, but had not 

smoked for more than 25 years. Dr. Landenheim noted that appellant’s use of alcohol was 

nominal. He discussed appellant’s exposure to asbestos during his work as a fireman for the 

Navy from 1970 to 1974, while at the employing establishment from 1974 to 1996, and during a 
4

yearlong home renovation project in 1976. Dr. Landenheim opined that based on appellant’s 

medical history, history of asbestos exposure, and social history, it was his opinion, within a 

reasonable degree of medical certainty, that his asbestos exposure while serving in the military, 

working at the employing establishment, and during his home renovation project, were

substantial contributing factors to his development of cancer of the larynx.

In a November 14, 2016 report, Dr. Arthur L. Frank, a Board-certified internist 

specializing in occupational medicine, reviewed appellant’s records. He noted that appellant 

smoked less than one pack per day for approximately 20 years from the 1960s to the 1980s. 

Dr. Frank described appellant’s exposure to asbestos during his military service, his work for the 

employing establishment, and in his home renovation work. He indicated that appellant was 

diagnosed in February 2015 with cancer of the vocal cords, which was treated with radiotherapy. 

Dr. Frank noted that, based upon the review of the material sent to him, within a reasonable 

degree of medical certainty, appellant had developed two asbestos-related conditions First, he 

developed asbestos-related pleural disease, also called pleural asbestosis. Secondly, Dr. Frank

noted that appellant developed a carcinoma of the larynx and this would have been caused by his 

exposures to asbestos in combination with his habit of cigarette smoking. He opined that the 

cumulative exposure that appellant had to asbestos would have contributed to this developing 

disease. Dr. Frank noted that the National Academy of Sciences found that asbestos caused

laryngeal cancer.

In a decision dated May 4, 2017, OWCP denied modification of its April 21, 2016

decision. It determined that although appellant’s physicians opined that exposure to asbestos 

was a contributing factor to the diagnosed cancer of the larynx, the medical evidence of record 

supported the fact that appellant had smoked for 20 years and that this was the cause of the 

cancer in his larynx. The hearing representative indicated that appellant was diagnosed with two 

conditions, i.e., asbestosis caused by his employment factors and already approved by OWCP as 

compensable, and cancer in his larynx (throat/vocal cord cancer) as a result of smoking for 20 

plus years. He opined that appellant’s physician did not provide a precise opinion as to how 

appellant’s employment exposure to asbestos caused the throat cancer and not some other

nonwork-related condition, such as smoking cigarettes. The hearing representative concluded 

that the fact that appellant had asbestosis did not imply that asbestos was responsible for any 

other ailment he may have.

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 the 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.3 These are the essential elements of each and every 

 

3

Joe D. Cameron, 41 ECAB 153 (1989). 
5

compensation claim regardless of whether the claim is predicated on a traumatic injury or an 

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. 

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

causal relationship is rationalized medical opinion evidence. Rationalized medical opinion 

evidence must include a physician’s rationalized opinion on the issue of whether there is causal 

relationship between the claimant’s diagnosed condition and the implicated 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.5

ANALYSIS

Appellant established that he was exposed to asbestos during the course of his federal 

employment. OWCP accepted that, as a result of this exposure, he developed asbestosis. 

However, it rejected appellant’s claim that his asbestos exposure during his federal employment 

resulted in his diagnosed cancer of the larynx. 

The Board finds that appellant has not met his burden of proof to establish that his cancer 

of the larynx was causally related to his employment-related asbestosis. The opinions of

appellant’s treating physicians, Dr. Ahmad and Dr. Kubicek are speculative and therefore cannot 

establish causal relationship.6 Dr. Ahmad performed a direct microlaryngoscopy with excision 

biopsy on appellant’s true vocal cord lesion and rigid esophagoscopy on February 13, 2015. In a 

July 20, 2015 report, he indicated that, while he was unable to conclude that appellant’s asbestos 

exposure definitely related to the development of his laryngeal cancer, it was “reasonable to 

assume” that this chronic exposure to asbestos, a known carcinogen, was related to the 

development of his cancer and “likely” played a role in his carcinogenesis. The Board has found 

that the terminology “reasonable to assume” is speculative and equivocal in nature.7 The Board 

 

4 See Irene St. John, 50 ECAB 521 (1999).

5

Id.

6 Lourdes Harris, 45 ECAB 545, 547 (1994). 

7 R.M., Docket No. 12-1880 (issued January 28, 2013).
6

has also found that the use of the term “likely” renders an opinion speculative in nature.8 

Dr. Ahmad’s opinion is therefore speculative and of limited probative value. 

Similarly, Dr. Kubicek noted that, while appellant had laryngeal cancer, it was impossible 

to say with any one individual whether or not the cancer was asbestos related or related to some 

other etiology. Given the connection between appellant’s diagnosis of laryngeal cancer and his 

asbestos exposure, it was reasonable to assume that exposure to his known carcinogen was 

related to his cancer diagnosis. As previously noted, a medical opinion stated in terminology of 

a reasonable assumption is speculative and equivocal.9 Medical opinions that are speculative or 

equivocal are of diminished probative value.10 Accordingly, Dr. Kubicek’s opinion is also 

speculative. Neither Dr. Ahmad nor Dr. Kubicek provided an opinion on causal relationship 

with a reasonable degree of medical certainty, their opinions are therefore of limited probative 

value.

11

 

Dr. Allen merely interpreted a surgical pathology report as showing vocal cord 

carcinoma. However, he did not provide an opinion on causal relationship. Accordingly, this 

diagnostic study is of limited probative value.12

On reconsideration appellant submitted two new medical reports. In an October 30, 2016 

report, Dr. Landenheim reviewed appellant’s medical, employment, and social histories. He 

noted that appellant smoked approximately 15 cigarettes a day for 20 years, but that he had not 

smoked for over 25 years. Dr. Landenheim noted nominal alcohol use. He discussed appellant’s 

asbestos exposure during his military service from 1970 to 1974, during his federal employment 

from 1974 to 1996, and during a yearlong home renovation project. Dr. Landenheim concluded 

that all three of these exposures to asbestos were substantial and constituted contributing factors 

to appellant’s cancer of the larynx. Similarly, Dr. Frank also reviewed appellant’s records. He 

discussed appellant’s smoking history and exposure to asbestos during his military service, work 

for the employing establishment, and his home renovation project. Dr. Frank noted that, within a 

reasonable degree of medical certainty, appellant had developed two asbestos-related conditions: 

asbestos-related pleural disease, which was related to his federal employment; and carcinoma of 

the larynx, which was related to his exposure to asbestos in combination with his cigarette 

smoking. The Board finds that neither of these opinions are sufficient to establish causal 

relationship between appellant’s laryngeal cancer and his exposure to asbestos during his federal 

employment. Although Dr. Landenheim and Dr. Frank discussed appellant’s asbestos exposure 

during his federal employment as well as other potential contributing factors including asbestos 

exposure during appellant’s military service, asbestos exposure during his home renovation 

project, and his smoking history, these physicians did not provide a rationalized medical 

explanation as to how appellant’s employment-related asbestosis was the cause of his vocal cord 

 

8 See C.O., Docket No. 16-0918 (issued August 1, 2016). 

9 Supra note 6. 

10 Id. 

11 Id.

12 G.M., Docket No. 14-2057 (issued May 12, 2015). 
7

carcinoma. These opinions are conclusions, not rationalized medical opinions. A mere 

conclusion without the necessary rationale explaining how and why the physician believes that 

appellant’s accepted injury resulted in a diagnosed condition is insufficient to meet his burden of 

proof.13 Without explaining how physiologically appellant’s employment-related asbestosis 

caused or contributed to his diagnosed condition, the physicians’ opinions regarding causal 

relationship are of limited probative value.14

An award of compensation may not be based on surmise, conjecture, speculation, or on 

the employee’s own belief of causal relation.15 As appellant has not submitted medical evidence 

sufficient to establish causal relationship between his employment-related asbestosis and his 

cancer of his larynx, he has failed to meet 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 established that he developed cancer of his larynx 

causally related to employment-related asbestosis.

 

13 C.S., Docket No. 17-0399 (issued June 19, 2017). 

14 J.S., Docket No. 17-0967 (issued August 23, 2017). 

15 D.D., 57 ECAB 734 (2006). 
8

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated May 4, 2017 is affirmed.

Issued: January 2, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board