United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

DEPARTMENT OF THE ARMY, ARMY 

CORPS OF ENGINEERS, Jacksonville, FL, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-1321

Issued: February 7, 2020

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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 28, 2019 appellant filed a timely appeal from an April 30, 2019 merit decision1 of 

the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the Federal Employees’

 

1 The Board notes that, during the pendency of this appeal, OWCP issued a June 14, 2019 nonmerit decision, which 

denied reconsideration of the April 30, 2019 merit decision that is the subject of the current appeal. The Board and 

OWCP may not simultaneously exercise jurisdiction over the same issue(s). 20 C.F.R. §§ 501.2(c)(3), 10.626. See 

W.D., Docket No. 19-1124 (issued October 22, 2019); Douglas E. Billings, 41 ECAB 880 (1990). Consequently, 

OWCP’s June 14, 2019 decision is set aside as null and void.

2 The record also contains an April 26, 2019 decision denying appellant’s request for reconsideration of a March 27, 

2002 decision that reduced his compensation to zero based on its finding that he had failed to cooperate with vocational 

rehabilitation as it was untimely and insufficient to demonstrate clear evidence of error. Appellant has not appealed 

this decision and thus it is not before the Board at this time. See 20 C.F.R. § 501.2(c).
2

Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.4

ISSUE

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

cardiomyopathy, persistent atrial fibrillation, and congestive heart failure as a consequence of his 

accepted employment injury.

FACTUAL HISTORY

This case has previously been before the Board.5 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On June 5, 1996 appellant, then a 42-year-old former hydrological technician, filed an 

occupational disease claim (Form CA-2) alleging that he sustained staphylococcus aureus and 

dermatitis herpetiformia causally related to factors of his federal employment. He stopped work 

on February 2, 1996, when he was removed from employment. 

Initially, by decisions dated October 7, 1996 and August 14 and December 3, 1997, OWCP 

denied appellant’s occupational disease claim, finding that he had failed to establish exposure to 

coliform bacteria in the course of his federal employment. 

Appellant appealed to the Board. By decision dated November 19, 1999, the Board 

reversed the August 14 and December 3, 1997 decisions.6 The Board found that appellant had 

established that he had sustained staphylococcus aureus and dermatitis herpetiformia due to 

exposure to coliform positive waste water while in the performance of duty.

By decision dated July 31, 2001, OWCP reduced appellant’s wage-loss compensation to 

zero as he had failed to participate in vocational rehabilitation under 5 U.S.C. § 8113(b). By

decision dated January 2, 2002, an OWCP hearing representative affirmed the July 31, 2001 

decision. Appellant subsequently requested reconsideration. By decision dated March 27, 2002, 

OWCP denied appellant’s request for reconsideration of the merits of his claim under 5 U.S.C. 

§ 8128(a). Appellant appealed to the Board. By decision dated August 27, 2002, the Board 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that following the April 30, 2019 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.

5 Docket No. 98-1039 (issued November 19, 1999); Docket No. 02-0986 (issued August 27, 2002); Order 

Dismissing Appeal, Docket No. 02-1763 (issued January 28, 2003); Docket No. 13-0211 (issued June 25, 2013).

6

Id.
3

affirmed the January 2 and March 27, 2002 decisions.7 The Board found that OWCP had properly 

reduced appellant’s wage-loss compensation to zero as he had failed to participate in vocational 

rehabilitation.

On February 22, 2006 OWCP indicated that it was expanding the acceptance of appellant’s 

claim to include streptococcal septicemia, dermatitis herpetiformis, contact dermatitis other agent, 

sebaceous cyst, and actinic keratosis.

By decision dated May 17, 2012, OWCP denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to demonstrate clear evidence of error. Appellant 

appealed to the Board. By decision dated June 25, 2013, the Board affirmed the May 17, 2012 

decision.8

On February 3, 2017 OWCP received a report dated January 18, 2017, from Dr. Bharat 

Upadhyay, a Board-certified internist and pulmonologist. He diagnosed nonrheumatic mitral valve 

regurgitation (MR) and dyspnea on exertion and noted that appellant had been hospitalized a week 

earlier. Dr. Upadhyay related, “I think his MR is due to [his] infection acquired through his skin 

infection, septicemia during [the] industrial injury leading to severe MR and [congestive heart 

failure] as a direct result of [the] industrial injury, and it should be part of this industrial injury.”

On February 10, 2017 Dr. Presad Chalasani, Board-certified in internal medicine and 

cardiovascular disease, discussed appellant’s history of recurrent staph dermatitis and bacteremia

and vascular heart disease and noted that he had previously undergone valve surgery. He 

diagnosed coronary artery disease, apparently severe recent MR, hyperlipidemia, hypertension, a 

positive perfusion scan, and valvular heart disease. Dr. Chalasani recommended a heart 

catheterization.

In a report dated December 7, 2017, Dr. Sabrina Akrami, an osteopath who specializes in 

cardiology, reviewed appellant’s history of severe MR and pulmonary hypertension.

9

 She noted 

that he had previously experienced severe aortic stenosis treated with a valve replacement and 

“ligation of the left atrial appendance and right atrial appendance, recurrent staph dermatitis.”

Dr. Akrami advised that appellant should have surgery performed at another facility given his 

high-risk status. She indicated that he had a history of “endocarditis sepsis valvular infections in 

the past.” Dr. Akrami diagnosed nonrheumatic MR, a prosthetic heart valve, dyspnea on exertion, 

and an aortocoronary bypass graft.

On January 4, 2018 Dr. Tomas D. Martin, Board-certified in thoracic and cardiovascular 

surgery, requested authorization from OWCP for a replacement of a mitral valve and aortic valve. 

On January 24, 2018 Dr. David I. Krohn, a Board-certified internist serving as a district 

medical adviser (DMA), noted that he had no medical records to review prior to 

 

7 Supra note 5. 

8

Id.

9 On March 7, 2017 Dr. William H. Heitman, Board-certified in thoracic and cardiovascular surgery, diagnosed 

nonrheumatic MR and recommended an MR repair or replacement. 
4

November 16, 2017. He opined that Dr. Akrami’s December 7, 2017 report was insufficient to 

establish that appellant required surgery due to his accepted employment injury.

In a development letter dated January 29, 2018, OWCP advised appellant that the evidence 

of record was insufficient to establish that a replacement of his mitral and aortic valve was 

medically necessary and causally related to his accepted conditions. It attached a copy of the 

DMA’s January 24, 2018 report for review by his physician. 

Thereafter, appellant submitted an April 24, 2018 letter, asserting that his streptococcal 

septicemia and post-traumatic wound infection had affected his aortic and mitral values. He 

indicated that he had undergone surgery on his aortic valve in December 2011 and his mitral valve 

in January 2018. 

In a development letter dated January 15, 2019, OWCP advised appellant that it had 

accepted streptococcal septicemia, dermatitis herpetiformis, actinic reticuloid and actinic 

granuloma, sebaceous cyst, actinic keratosis, post-traumatic wound infections, other specified 

inflammations of eyelid, and nonrheumatic mitral valve insufficiency due to his accepted 

employment injury. It noted that he had requested authorization for surgical replacement of his 

aortic valve and mitral value. OWCP indicated that the “procedures were associated with a heart 

condition” but that it had not accepted a heart condition as employment related. It requested that 

appellant submit a detailed report from his attending physician supported by rationale addressing 

whether he sustained an additional condition due to his employment injury. OWCP afforded 

appellant 30 days to provide the necessary evidence.

On February 9, 2019 appellant advised that he had a heart value replacement due to mitral 

valve insufficiency in January 2018. He asserted that he was initially diagnosed with the condition 

in February 2005. 

Thereafter, appellant resubmitted an April 19, 2010 report from Dr. Rogena Johnson, 

Board-certified in family medicine. Dr. Johnson related that appellant had developed methicillin 

resistant staphylococci (MRSA) from occupational exposure to a skin infection, and that the 

bacteria was the same as from his original infection. She related that he had severe aortic stenosis 

likely due to valve damage from the bacteremia. Dr. Johnson indicated that appellant’s mitral 

valve was also affected. She related that his “current cardiac condition is the direct result of his 

occupational exposure which led to bacteremia and valve damage.”

In a report dated July 2, 2012, Dr. Johnson diagnosed MRSA due to appellant’s 

employment work injury.

On February 11, 2019 Dr. Sambit Mondal, Board-certified in cardiovascular disease,

advised that a list of procedures performed, including the January 20, 2018 mitral valve 

replacement, were medically necessary. 

OWCP prepared a statement of accepted facts (SOAF) on February 15, 2019. It listed the 

accepted conditions as streptococcal septicemia, dermatitis herpetiformis, contact dermatitis other 

agent, sebaceous cyst, actinic keratosis, and a post-traumatic wound infection.
5

On February 15, 2019 OWCP requested that Dr. Krohn, the DMA, review the SOAF and 

the evidence of record and address whether the replacement of appellant’s aortic and mitral valves 

was medically necessary and causally related to the accepted employment injury. It advised that 

the accepted conditions were streptococcal septicemia, dermatitis herpetiformis, actinic reticuloid 

and actinic granuloma, sebaceous cyst, actinic keratosis, post-traumatic wound infections, other 

specified inflammations of eyelid, and nonrheumatic mitral valve insufficiency. 

In a report dated February 25, 2019, Dr. Krohn asserted that he had reviewed the medical 

evidence, including Dr. Akrami’s December 7, 2017 report. He found that her report was 

insufficient to show causal relationship between the mitral valve replacement and the work injury. 

Dr. Krohn noted that OWCP had not accepted bacterial endocarditis. He opined that the mitral 

valve replacement was medically necessary but that the medical evidence failed to support that it 

developed from his skin infection based on the lack of contemporaneous medical evidence 

showing valvular disease caused by his infection. Dr. Krohn further advised that MRSA, a staph 

infection, was a different bacteria than the accepted condition of streptococcal septicemia. He 

noted that OWCP could request an opinion from appellant’s cardiologist regarding whether 

endocarditis caused his valvular problems.

In a development letter dated March 19, 2019, OWCP again noted that the requested 

surgical authorization was associated with a heart condition and that it had not accepted a heart 

condition. It provided appellant with Dr. Krohn’s February 25, 2019 report and afforded him 15 

days to submit additional medical evidence supporting that he sustained a heart condition requiring 

various procedures due to his employment injury. 

Thereafter, appellant resubmitted a January 12, 2010 report from Dr. Brent M. Schillinger, 

a Board-certified dermatologist, who diagnosed staph folliculitis and cellulitis with “persistent 

underlying [s]taphylococcus [a]ureus.” He further resubmitted a hospital report dated 

December 21, 2011 from Dr. Patrick T. Mangonon, a Board-certified cardiothoracic surgeon, who 

noted that appellant had a history of “recurrent staph dermatitis” that had become invasive 

resulting in MRSA. 

By decision dated April 30, 2019, OWCP denied expansion of the acceptance of 

appellant’s claim to include a consequential heart condition. It found that he had not submitted

evidence sufficient to establish causal relationship between his ischemic cardiomyopathy, 

persistent atrial fibrillation, and congestive heart failure and his accepted employment injury. 

OWCP noted that appellant had only submitted a February 11, 2019 report from Dr. Mondal in 

response to its January 15 and March 19, 2019 development letters.

LEGAL PRECEDENT

The claimant bears the burden of proof to establish a claim for a consequential injury. As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, establishing causal relationship. The opinion must be 

one of reasonable medical certainty and must be supported by medical rationale explaining the 
6

nature of the relationship of the diagnosed condition and the specific employment factors or 

employment injury.10

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

relationship is rationalized medical evidence.11 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 causal 

relationship.12

In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, the question is whether compensability should be extended to a 

subsequent injury or aggravation related in some way to the primary injury. The rules that come 

into play are essentially based upon the concepts of direct and natural results and of the claimant’s 

own conduct as an independent intervening cause. The basic rule is that a subsequent injury, 

whether an aggravation of the original injury or a new and distinct injury, is compensable if it is 

the direct and natural result of a compensable primary injury.13

ANALYSIS

The Board finds that this case is not in posture for decision.

In its April 30, 2019 decision denying appellant’s claim for a consequential heart condition,

OWCP indicated that on January 4, 2018 his medical provider had requested expansion of his 

claim to include ischemic cardiomyopathy, persistent atrial fibrillation, and chronic systolic 

(congestive heart) failure. The record indicates that on January 4, 2018 Dr. Martin requested 

authorization from OWCP to perform a replacement of an aortic valve and mitral value.

In denying appellant’s request to expand acceptance of his claim to include a heart 

condition, OWCP asserted that it had accepted nonrheumatic mitral valve insufficiency, which is 

a heart condition. It listed the accepted conditions as streptococcal septicemia, dermatitis 

herpetiformis, actinic reticuloid and actinic granuloma, sebaceous cyst, actinic keratosis, posttraumatic wound infections, other specified inflammations of eyelid, and nonrheumatic mitral 

valve insufficiency. OWCP did not acknowledge that it had accepted staphylococcus aureus as 

employment related. 

OWCP further indicated that appellant had only submitted a February 11, 2019 report from

Dr. Mondal in response to its January 15 and March 19, 2019 requests for additional evidence. 

Appellant, however, submitted an April 19, 2010 report from Dr. Johnson, who opined that 

appellant had MRSA due to his skin infection, noting that the bacteria was the same as found 

 

10 K.W., Docket No. 18-0991 (issued December 11, 2018).

11 G.R., Docket No. 18-0735 (issued November 15, 2018).

12 Id.

13 K.S., Docket No. 17-1583 (issued May 10, 2018); Arthur Larson & Lex K. Larson, The Law of Workers’

Compensation § 3.05 (2014).
7

originally. Dr. Johnson found that he had valve damage and aortic stenosis which she attributed 

to his employment exposure. Appellant had also submitted a January 18, 2017 report from

Dr. Upadhyay, who diagnosed mitral valve regurgitation and opined that it was causally related to 

appellant’s employment injury of septicemia. Dr. Upadhyay asserted that the work injury directly 

led to congestive heart failure and mitral valve condition.

While not discussed in the April 30, 2019 decision, OWCP had further developed the issue 

of whether appellant required a mitral valve and aortic valve replacement as a consequence of his 

employment injury by referring the evidence to a DMA, Dr. Krohn. It had provided him with a 

SOAF that listed the accepted conditions as streptococcal septicemia, dermatitis herpetiformis, 

actinic reticuloid and actinic granuloma, sebaceous cyst, actinic keratosis, and post-traumatic

wound infections. OWCP had advised Dr. Krohn on February 15, 2019 that it had also accepted 

other specified inflammations of eyelid and nonrheumatic mitral valve insufficiency due to the 

employment injury.

In a February 25, 2019 report, Dr. Krohn opined that the medical evidence was insufficient 

to establish causation between the mitral valve replacement and appellant’s employment injury. 

He indicated that he had reviewed the accepted conditions in the SOAF of streptococcal 

septicemia, dermatitis herpetiformis, contact dermatitis, actinic keratosis, and post-traumatic 

wound infection. Dr. Krohn asserted that the mitral valve replacement was medically necessary,

but that it had not resulted from his skin infection. He further noted MRSA, a staph infection, was 

a different bacteria than the accepted condition of streptococcal septicemia. However, OWCP 

failed to advise Dr. Krohn that it had accepted that appellant sustained staphylococcus aureus due 

to appellant’s employment injury. It is also unclear whether Dr. Krohn was aware that OWCP had 

accepted mitral valve insufficiency as employment related. OWCP’s procedures and Board 

precedent dictate that when an OWCP medical adviser, second opinion specialist, or referee 

physician renders a medical opinion based on a SOAF which is incomplete or inaccurate or does 

not use the SOAF as the framework in forming his or her opinion, the probative value of the 

opinion is seriously diminished or negated altogether.14

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 of proof to establish entitlement 

to compensation, OWCP shares the responsibility in the development of the evidence to see that 

justice is done.15 Once it undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case.16 Accordingly, the 

Board finds that the case must be remanded to OWCP.17

On remand OWCP should clarify the accepted conditions and prepare an updated SOAF. 

It should then refer the case record, together with the SOAF, to a second opinion physician to 

 

14 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990). See also M.D., Docket No. 18-0468 (issued September 4, 2018); Paul King, 54 ECAB 356 (2003).

15 S.S., Docket No. 18-0397 (issued January 15, 2019).

16 Id.; see also R.M., Docket No. 16-0147 (issued June 17, 2016).

17 J.T., Docket No. 18-1300 (issued March 22, 2019).
8

determine whether appellant’s claim should be expanded and whether he required an aortic and 

mitral valve replacements due to his accepted employment injury. Following this and any further 

development deemed necessary, OWCP should issue a de novo decision.

CONCLUSION

The Board finds that the case is not in posture for decision. 

ORDER

IT IS HEREBY ORDERED THAT the April 30, 2019 decision of the Office of Workers’

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

with this decision of the Board.

Issued: February 7, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board