United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.D., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL PROTECTIVE SERVICE, 

Washington, DC, Employer

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Docket No. 18-1596

Issued: June 18, 2019

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 August 15, 2018 appellant filed a timely appeal from a February 16, 2018 merit 

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 February 16, 2018, the date of OWCP’s last decision was 

August 15, 2018. Because using August 17, 2018, 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 August 15, 2018, 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 has met his burden of proof to establish various cancer 

conditions causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On August 25, 2015 appellant, then a 59-year-old special agent, filed an occupational 

disease claim (Form CA-2) alleging that he sustained a sinus condition and cancer causally related 

to exposure to airborne dust, smoke and particles while working in the vicinity of the World Trade 

Center (WTC) following the September 11, 2001 terrorist attacks. He noted that he first became 

aware of his claimed conditions on September 12, 2001 and realized their relation to his federal 

employment on August 18, 2015. Appellant further noted that he had reported his conditions to a 

September 11, 2001 WTC Health Program years prior and that they had recently certified “both 

cancers and inflamed/chronic sinus problems” as tied to the WTC attacks.

With his claim form, appellant submitted letters from Dr. John Howard, a Board-certified 

internist, serving in the capacity as administrator of the WTC Health Program. In an August 5, 

2015 letter, Dr. Howard informed appellant that the program had certified the condition of upper 

respiratory disease as covered for medical treatment. In an August 24, 2015 letter, he advised 

appellant that the WTC Health Program had certified payment of medical expenses for the 

additional conditions of secondary malignant neoplasm of the lung and malignant neoplasm of the 

rectosigmoid junction. 

The record contains progress reports regarding appellant’s treatment for metastatic colon 

cancer beginning in 2009.3 In 2015, appellant received treatment for recurrent colon cancer. 

Appellant, in a statement received February 8, 2016, described his employment history and 

noted that while working in the vicinity of the WTC he was exposed to dust, smoke, and other 

particulates that contained carcinogens. He cited news sources, medical publications, and experts 

that indicated that first responders at the WTC had an increased cancer risk due to exposure to 

“benzene, asbestos, pulverized building materials/glass, and cement dust.” Appellant related that 

he spent approximately 72 hours in the vicinity of the WTC. He advised that when he returned 

home from the WTC zone in 2001 he had experienced respiratory problems including a cough and 

a sinus condition. Appellant subsequently learned that other responders had experienced 

respiratory and sinus issues and reported his medical condition to the WTC Health Program, who 

reviewed his medical history. The WTC Health Program had certified that his cancers and sinus 

condition had resulted from his exposure to gas, smoke, dust, and carcinogens while working at 

the WTC. Appellant related that he was diagnosed with lung and abdomen cancer in 2008 and 

2009. 

 

3

In a March 31, 2009 progress report, Dr. David Patrick Ryan, a Board-certified oncologist, indicated that 

appellant’s December 5, 2008 colonoscopy had revealed colon cancer and that subsequent diagnostic studies had 

shown lung nodules. He noted appellant’s past medical history of exposure for 48 hours at Ground Zero without 

respiratory protection, upper respiratory complaints in late 2001 to early 2002, and an inguinal hernia repair in 2008. 
3

In a February 5, 2016 letter, Dr. Howard responded to an e-mail from appellant requesting 

a letter about his condition(s) through the WTC Health Program. He explained that for a health 

condition to be certified under the program, a physician associated with the Nationwide Provider 

Network “must first make a determination that an individual’s WTC exposure to airborne toxins, 

other hazards, or adverse conditions resulting from the September 11, 2001 terrorist attacks (9/11 

exposure) is substantially likely to be a significant factor in aggravating, contributing to, or causing 

an individual’s health condition.” Dr. Howard further explained that, based on the review of 

appellant’s exposure activities and medical records, the WTC Health Program physician believed 

that appellant’s conditions (chronic rhinitis, unspecified sinusitis, malignant neoplasm of the 

rectosigmoid, and secondary malignant neoplasm of the lung) were directly related to his WTC 

exposure. As such, the WTC Health Program approved certification of appellant’s conditions in 

August 2015. 

OWCP on July 14, 2016 referred appellant to Dr. Sonali Shah, a Board-certified internist 

and oncologist, for a second opinion examination. 

In a report dated July 29, 2016, Dr. Shah noted that appellant had initially experienced 

respiratory symptoms after working around the WTC in September 2001, but had attributed it to 

an allergy. She diagnosed metastatic colon cancer and discussed treatment options. Dr. Shah 

advised that there was no way to respond to questions about causation absent hypothetical and 

impossible clinical trials. She asserted that it was impossible to ascertain whether appellant’s colon 

cancer predated his exposure to carcinogens on September 11, 2001. Dr. Shah advised that studies 

which demonstrated an increase in cancer among firefighters exposed at the WTC had to be 

interpreted with caution. She related, “On the other hand, given the lack of data and continued 

need for long term follow-up it is also difficult to exclude that [appellant’s] condition was related 

to his governmental exposure as well. Often studies that are statistically nonsignificant initially 

become significant later with longer follow up.” Dr. Shah concluded that she was unable to opine 

that appellant’s metastatic colon cancer was directly aggravated by the specific factors of his 

federal employment.” She further related, “I am aware another WTC associated [physician] has 

stated [that appellant’s] condition is directly related to this exposure. My opinion does not 

contradict this other physician, and is solely my own opinion based on the evidence that is currently 

available to me at the time of this particular consultation.” 

OWCP determined that a conflict in medical opinion existed between Dr. Howard and

Dr. Shah regarding whether appellant sustained various cancer conditions cancer causally related 

to factors of his federal employment. It referred him to Dr. Ramesh Shivdasani, a Board-certified 

oncologist, for an impartial medical examination. 

In a report dated April 6, 2017, Dr. Shivdasani reviewed appellant’s history of respiratory 

symptoms after serving as a first responder at the WTC on September 11, 2001 and his medical 

treatment following his diagnosis of metastatic colon cancer. He diagnosed metastatic colon 

cancer with bilateral pulmonary wedge resections in 2010 and a left lobectomy and lingulectomy 

in November 2016. Dr. Shivdasani opined that it was impossible to definitively answer the 

question of whether appellant’s condition was caused or aggravated by his work as a first responder 

around the WTC area. He noted that colon cancer was a common condition with a long history 

prior to diagnosis, which “makes it difficult to estimate the increased rate of cancers in individuals 

exposed to the post-9/11 environment.” Dr. Shivdasani opined that a study showing increased 
4

cancer rates in firefighters exposed to debris and fumes after the WTC collapse had a confidence 

interval “indicating a lack of statistical confidence in the environmental triggers.” He asserted, 

“One certainly cannot rule out the possibility, but if the standard is ‘to a reasonable degree of 

likelihood,’ there is insufficient evidence to implicate this environmental exposure as the likely 

causative factor.” Dr. Shivdasani concluded that he could not “say with conviction that 

[appellant’s] condition was caused or aggravated by his exposure...” at the WTC.

By decision dated May 12, 2017, OWCP denied appellant’s occupational disease claim. It 

found that Dr. Shivdasani’s opinion constituted the special weight of the evidence and established 

that appellant’s condition was not caused or aggravated by the accepted work factor.

Appellant on June 7, 2017 requested an oral hearing before an OWCP hearing 

representative. During the December 12, 2017 telephonic hearing, he noted that a physician 

working for the Centers for Disease Control had found that his medical conditions were due to his 

exposure after the September 11, 2001 terror attacks. Appellant also asserted that OWCP had 

failed to consider that he sustained sinusitis and rhinitis due to his employment exposure. He noted 

that the opinion of both OWCP referral physicians were equivocal regarding whether his work 

exposure had caused his condition. 

By decision dated February 16, 2018, an OWCP hearing representative affirmed in part 

and set aside in part the May 12, 2017 decision. She found that the opinion of Dr. Shivdasani as 

the impartial medical examiner (IME) was well-reasoned and sufficient to carry the special weight 

of the medical evidence with regard to whether appellant sustained cancer causally related to the 

accepted workplace exposure. The hearing representative found, however, that OWCP failed to 

ask either Dr. Shah or Dr. Shivdasani to address the cause of appellant’s sinus/respiratory 

condition. She remanded the case for OWCP to prepare a statement of accepted facts more 

specifically describing appellant’s exposure to the identified work factors and to refer him for a 

second opinion examination to determine whether he sustained a sinus or upper respiratory 

condition due to the accepted work factors.

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 period of FECA,4that 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.5 These are the essential elements of each and every 

 

4 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).
5

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

occupational disease.6

In an occupational disease claim, appellant’s burden requires submission of the following: 

(1) a factual statement identifying employment factors alleged to have caused or contributed to the 

presence or occurrence of the disease or condition; (2) medical evidence establishing the presence 

or existence of the disease or condition for which compensation is claimed; and (3) medical 

evidence establishing that the diagnosed condition is causally related to the employment factors 

identified by the employee.7

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

relationship is rationalized medical opinion evidence. 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.8

FECA provides that if there is disagreement between an OWCP designated physician and 

an employee’s physician, OWCP shall appoint a third physician who shall make an examination.9 

For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

10

 Where OWCP has referred the case to an IME to resolve a conflict in the medical 

evidence, the opinion of such a specialist, if sufficiently well-rationalized and based upon a proper 

factual background, must be given special weight.11

ANALYSIS

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

cancer causally related to the accepted factors of his federal employment.

The Board initially finds that OWCP improperly determined that a conflict existed between

Dr. Howard and Dr. Shah. On August 4 and 24, 2015 Dr. Howard informed appellant that the 

WTC Health Program had certified that appellant had sustained upper respiratory disease, 

malignant neoplasm of the rectosigmoid junction, and a secondary malignant neoplasm of the lung 

as covered for medical treatment. On February 5, 2016 he related that the WTC had accepted 

appellant’s malignant neoplasm of the rectosigmoid and a secondary malignant neoplasm of the 

lung as due to his WTC exposure based on an opinion of a physician associated with the WTC 

Health Program, a review of his medical records, and his exposure history. Dr. Howard, however, 

 

6 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

7 R.M., Docket No. 18-0976 (issued January 3, 2019); P.D., Docket No. 17-1885 (issued September 17, 2018).

8 H.B., Docket No. 18-0781 (issued September 5, 2018).

9 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

10 Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

11 Gary R. Sieber, 46 ECAB 215, 225 (1994).
6

did not render his own opinion regarding causation, but instead summarized the findings by the 

WTC Health Program physician. Without an independent finding regrading causation, his report 

is of diminished probative value on the issue of causal relationship.12

OWCP referred appellant to Dr. Shah for a second opinion examination. In a report dated 

July 29, 2016, Dr. Shah advised that it was presently impossible to determine whether his

metastatic colon cancer was causally related to his exposure in the vicinity of the WTC around 

September 11, 2001. She asserted that she was unable to conclude that appellant’s colon cancer 

was “directly aggravated” by employment factors. Dr. Shah further advised, however, that her 

opinion should not be taken as contradicting the opinion of the WTC physician who found that the 

condition resulted from his exposure at the WTC. Her opinion on causal relationship is thus 

equivocal in nature and, consequently, of diminished probative value.13

Therefore, at the time of OWCP’s referral of appellant to Dr. Shivdasani, the record 

contained no conflict in medical opinion regarding whether appellant sustained metastatic colon 

cancer causally related to the accepted employment factors.14 Dr. Shivdasani’s report is thus that 

of an OWCP referral physician rather than an IME.

15

 Even though his report is not entitled to the 

special weight afforded to the opinion of an IME, it can be considered for its own intrinsic value 

and can still constitute the weight of the medical evidence.16

On April 6, 2017 Dr. Shivdasani reviewed appellant’s history of exposure to dust and 

fumes at the WTC on September 11, 2001 and his subsequent treatment for metastatic colon 

cancer. He asserted that it was impossible to definitively ascertain whether appellant’s cancer 

resulted from his employment exposure. Dr. Shivdasani noted that studies showing that 

firefighters exposed to fumes and dust at the WTC had increased cancer rates had a “lack of 

statistical confidence” in evaluating whether environmental triggers were the causative agent. He 

advised that he was unable to find with conviction that employment exposure in the vicinity of the 

WTC caused or aggravated appellant’s cancer. Dr. Shivdasani concluded that the evidence was 

insufficient to show environmental exposure as the likely causative factor to a reasonable degree 

of certainty. His opinion is based on a proper factual and medical history and he provided rationale 

for his opinion by explaining that studies were currently insufficient to establish environmental 

factors as the causative agent for appellant’s cancer. Thus, Dr. Shivdasani opinion is entitled to 

the weight of the medical evidence and establishes that appellant’s metastatic colon cancer was 

not caused or aggravated by the accepted employment exposure.17

 

12 See T.S., Docket No. 18-1501 (issued March 4, 2019). Moreover, the findings of other government agencies are 

not dispositive with regard to questions arising under FECA. See B.J. (W.H.), Docket No. 18-0910 (issued 

December 21, 2018).

13 S.F., Docket No. 18-1030 (issued April 5, 2019).

14 See generally C.F., Docket No. 17-0951 (issued June 11, 2018).

15 See R.H., Docket No. 17-1477 (issued March 14, 2018).

16 Id; see also F.R., Docket No. 17-1711 (issued September 6, 2018).

17 See R.T., Docket No. 17-2019 (issued August 24, 2018).
7

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 various cancer 

conditions causally related to the accepted factors of his federal employment.

ORDER

IT IS HEREBY ORDERED THAT the February 16, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 18, 2019

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