United States Department of Labor

Employees’ Compensation Appeals Board

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D.D., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, Tracy, CA, Employer

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Docket No. 19-1715

Issued: December 3, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On August 12, 2019 appellant, through counsel, filed a timely appeal from a May 14, 2019 

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

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 5 U.S.C. § 8101 et seq.
2

ISSUE

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

Fever spores in the performance of duty as alleged. 

FACTUAL HISTORY

On October 17, 2018 appellant, then a 36-year-old distribution process worker, filed an 

occupational disease claim (Form CA-2) alleging that he developed a severe lung infection 

causally related to factors of his federal employment. He advised that he first became aware of his 

condition on November 2, 2017 and attributed it to his federal employment on November 3, 2017. 

Appellant attributed his lung condition to exposure to “a plethora of dust during construction due 

to the lack of poor engineering controls and high winds.” He further maintained that the employing 

establishment failed to provide employees with personal protective equipment (PPE) or adequately 

assessed the work area to protect employee safety. Appellant stopped work on November 2, 2017 

and returned to work on January 2, 2018 in a temporary office position.

In an October 19, 2018 statement, appellant related that, in the fall of 2017, he had worked 

in a warehouse located across from an area where construction crews were digging into the ground 

and moving dirt using heavy equipment. He alleged that, during the construction, the bay doors 

of the warehouse were open and a significant amount dust blew into the warehouse. Management 

did not provide dust masks. Safety representatives advised that the bay doors should be closed if 

not in use and that dust masks should be provided, but few masks were available. Appellant began 

to feel sick a few weeks later. He was admitted to the hospital and diagnosed with 

coccidioidomycosis, also referred to as Valley Fever.

In a development letter dated October 17, 2018, OWCP notified appellant that the evidence 

submitted was insufficient to support his claim as there was no medical evidence containing a 

diagnosed condition due to his employment. It advised him of the type of factual and medical 

evidence needed, including a report from his attending physician explaining the causal relationship 

between those exposures and the claimed conditions. By separate letter of even date, OWCP also 

requested additional information from the employing establishment regarding the presence of 

harmful substances, including a statement from a knowledgeable supervisor on the accuracy of the 

employee’s allegations. It afforded both parties 30 days to respond.

Thereafter, OWCP received an April 3, 2018 letter from the employing establishment to 

the Department of Labor’s Occupational Safety and Health Administration (OSHA). It advised 

that an internal investigation had failed to substantiate allegations that multiple employees had 

become sick with Valley Fever since October 2017 from exposure to dust from soil and 

construction. The employing establishment indicated that its location within the state had reported 

cases of Valley Fever and that the organism traveled on the wind and was inhaled. It maintained 

that employees could voluntarily wear PPE and there was no reliable test to see if it was in the soil. 

In an internal employing establishment email dated September 11, 2018, S.E. advised D.B. 

that OSHA had investigated an employee’s complaint of Valley Fever. She forwarded an email 

that advised that there were no construction projects that had disrupted soil for six months prior to 

October 2017. From January 2016 to March 2017 there were six projects that disrupted the soil,
3

but the employing establishment used dust control methods. The email listed the applicable 

construction projects, including replacing a building elevator from August 2016 to December 22, 

2017 that required excavating 48 square feet.

On November 8, 2018 the employing establishment asserted that appellant had not

factually established his claim. It advised that there were no construction projects that had 

disturbed soil for six months prior to October 2017. The employing establishment, thus,

maintained that appellant had not been exposed to dust due to construction. It also challenged his 

allegations that he was not provided with PPE.

By decision dated November 28, 2018, OWCP denied appellant’s occupational disease 

claim. It found that he had not factually established exposure to Valley Fever from dust due to 

construction during the fall of 2017 or that he was not provided with PPE.

On December 27, 2018 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearing and Review. 

Thereafter, OWCP received a July 13, 2018 letter from OSHA, which informed the 

employing establishment that four cases of Valley Fever had been diagnosed in its employees in 

the last year and eight cases had been diagnosed since 1993. It asserted that the rate of Valley 

Fever in the general population was 25.3 cases by 100,000 people, but that the equivalent rate at 

the employing establishment was 571.00 per 100,000 people. OSHA recommended actions for 

the employing establishment to take to prevent Valley Fever, including making workers aware of 

the risk, providing training, minimizing soil disruption, implementing control methods to reduce 

airborne dust exposure, cleaning equipment, and providing a room for workers to change clothing. 

It noted that the coccidioides fungus was “prevalent in the area” around the employing 

establishment.

In a September 18, 2018 report, Dr. Dang Nguyen, an osteopath, advised that he was 

treating appellant for pulmonary coccidioidomycosis. He found that appellant should avoid dusty 

and windy areas.

In a witness statement dated March 16, 2019, K.M., a coworker, related that employees 

were told not to park cars in a particular area because of the dirt.3 She asserted that the bay doors 

were open because of the need to send and receive material and dirt blew directly into the building. 

There was also construction inside the building that blew dust around. Appellant looked sick and 

K.M. suggested that he go to a physician.

Appellant submitted a list of engineering projects by the employing establishment. It 

included elevator replacement at Building 16B from July 5, 2017 to October 12, 2018.

A telephonic hearing was held on March 18, 2019. Appellant related that there was 

construction at an empty lot across the street from his warehouse near the daycare center. He 

advised that the dirt was being moved in preparation for paving the area, and that employees were 

told not to park their vehicles in the vicinity because of the dirt. Appellant related that copious 

 

3 The introductory portion of K.M.’s statement is not legible.
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amounts of dirt came into the warehouse during that time and that they were unable to close the 

doors of the warehouse because of receiving freight. He tried to get dust masks, but only a few 

were available. 

In an April 15, 2019 email, Dr. Corwin John Hull, who works for the employing 

establishment and is Board-certified in occupational medicine, advised that at the hearing appellant 

had referenced a paving project across from a daycare center and diagonal to Warehouse 30. He 

indicated that the paving project was completed June 17, 2019. Dr. Hull asserted that the 

incubation period after exposure to coccidioides spores was 7 to 28 days and, thus, the employee’s 

exposure had occurred in October 2017. He maintained that the employing establishment took 

safety measures to reduce exposure to soil and dust and that an air quality study of Warehouse 30 

in September 2017 found particulars within OSHA’s permissible exposure limit. Dr. Hull asserted 

that the incident rate at the employing establishment for Valley Fever was not higher than in the 

general population if the timeline was from 1993 onward.

In an April 17, 2019 statement, the employing establishment again challenged that 

appellant had established exposure to Valley Fever spores from construction that had occurred in 

the fall of 2017. It noted that Dr. Hull related that the construction project appellant had identified 

as causing his condition was completed in June 2017 and, thus, could not have caused his illness 

in November 2017. The employing establishment indicated that Valley Fever was endemic to the 

area.

By decision dated May 14, 2019, OWCP’s hearing representative affirmed the 

November 28, 2018 decision. He found that appellant had not factually established the occurrence 

of the employment exposure alleged to have caused his condition.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim, including 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,5that 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.6 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7

 

4 Supra note 2.

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

153 (1989).

6

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

ECAB 312 (1988).

7 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).
5

In an occupational disease claim, appellant’s burden of proof 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.8

ANALYSIS

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

Appellant alleged that he contracted Valley Fever due to exposure to dust from construction 

while working at the employing establishment. He maintained that he worked in a warehouse 

located across from an area where constructions crews had dug into the ground and moved dirt 

with heavy machinery. Appellant asserted that dust blew in through the open bay doors of the 

warehouse. In a witness statement dated March 16, 2019, K.M., a coworker, indicated that there 

was construction across from their building and that the bay doors of the warehouse were 

consistently open so that material could be shipped and received. She indicated that the wind blew 

dirt into the building. Appellant looked unwell and K.M. advised that he should see a physician.

On July 13, 2018 OSHA confirmed that eight employees at the employing establishment 

facility had been diagnosed with Valley Fever since 1993, with four of these diagnoses occurring 

in the last year. It advised that the case rate for Valley Fever for the general population of the area 

was 25.3 cases per 100,000, but at the employing establishment the equivalent case rate in 2018 

was magnitudes higher at 571 per 100,000 workers. OSHA indicated that the coccidioides fungus 

that caused Valley Fever was prevalent in the area surrounding the employing establishment.

The employing establishment’s April 15, 2019 email from Dr. Hull confirmed that there 

was a storage area project where a large dirt lot located diagonally opposite warehouse 30 was 

prepared for paving with heavy equipment and then paved in June 2017. He opined that because 

the construction was completed by June 2017 appellant’s Valley Fever condition could not be 

attributed to that exposure due to the incubation period. However, in an April 3, 2018 letter, the 

employing establishment explained that there were no commercially available tests to detect 

liberated fungal spores in the soil. It noted that the organism traveled by wind and was inhaled.

As the record contains sufficient evidence to establish that appellant was exposed to Valley 

Fever spores while in the performance of duty, the Board finds that he has established that the 

occupational exposure occurred as alleged.

9

 Consequently, consideration of the medical evidence 

is necessary.10 The case will therefore be remanded to OWCP for evaluation of the medical 

evidence to determine whether there is a causal relationship between the claimed Valley Fever and 

 

8 S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

9 See M.B., Docket No. 19-1643 (issued July 20, 2020); L.G., Docket No. 19-0201 (issued June 26, 2019).

10 See D.S., Docket No. 19-0203 (issued June 3, 2019); M.D., Docket No. 18-1365 (issued March 12, 2019).
6

the accepted factors of appellant’s federal employment.11 Following this and other such further 

development as OWCP deems necessary, it shall 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 May 14, 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: December 3, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

11 See K.B., Docket No. 18-1548 (issued March 11, 2019).