United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.V., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, INDIAN HEALTH SERVICE, 

Polacca, AZ, Employer

__________________________________________

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Docket No. 18-1077

Issued: August 26, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

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 May 2, 2018 appellant filed a timely appeal from a March 21, 2018 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 over 

the merits of this case.

ISSUE

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

influenza in the performance of duty as alleged. 

FACTUAL HISTORY

On February 17, 2017 appellant, then a 56-year-old nurse specialist, filed an occupational 

disease claim (Form CA-2) alleging that she had contracted influenza during a court appearance

 

1 5 U.S.C. § 8101 et seq.
2

while in the performance of duty. She noted that she first became aware of her condition on 

March 7, 2016 and realized that it was caused or aggravated by her federal employment on 

December 28, 2016. Appellant stopped work on March 7, 2016 and returned to work on 

June 27, 2016.

With her claim, appellant submitted a February 18, 2016 subpoena which required her to 

appear before a grand jury on March 1, 2016. The employing establishment authorized her 

temporary-duty travel to Phoenix, Arizona to appear before the federal grand jury. Appellant also 

submitted a publication regarding influenza infections in Arizona from October 4, 2015 through 

October 1, 2016. It indicated that her home county of Navajo had 154 cases of influenza during

the week of February 28 through March 5, 2017 and the county of Maricopa, which includes the 

city of Phoenix, had 456 cases of influenza. 

In an undated statement, appellant noted that on March 1, 2016 she drove 320 miles in a 

government vehicle for a court appearance that afternoon, stopping in Flagstaff, Arizona and 

Anthem, Arizona along the way. She entered the courthouse along with a small crowd of young 

adults and children. Appellant asserted that the children were coughing and had runny noses. 

After she testified, she walked five blocks on crowded streets to the local office of the employing 

establishment, chatting with a district attorney for the duration of the walk. Appellant spoke with 

employees at the local office and stopped in a public bathroom before leaving. She stopped at 

several locations on the way to her hotel, and the next day, ate breakfast, and checked out. 

Appellant drove home and stopped at a public restroom along the way. On March 3 and 4, 2016

she returned to work and noticed that others were coughing. By March 5, 2016 appellant was 

coughing and had a runny nose, and by March 6, 2016, she was unable to get out of bed. She felt 

chills and had a fever, as well as heaviness on her chest with breathing. Appellant was admitted 

to the hospital on March 7, 2019 and discharged on March 9, 2016. She returned to part-time work 

in May 2016, but stopped work again on June 17, 2016 and requested a transfer to a lower altitude 

location due to breathing difficulties. Appellant was later hospitalized for a stroke in 

September 2016. She noted that she had smoked cigarettes on and off since she was a teenager 

and most recently smoked 5 to 10 cigarettes per day from sometime in 2015 through March 2016. 

Appellant asserted that she was possibly exposed to influenza when she went to Phoenix for work 

and that she now required supplemental oxygen. 

The record contains reports regarding appellant’s hospitalization from March 7 to 9, 2016 

for influenza B and hypoxia. In a report dated November 12, 2016, Dr. Kent A. Diehl, Boardcertified in family practice, evaluated her for chronic obstructive pulmonary disease (COPD), Type 

2 diabetes, and a recent cerebral vascular accident. He recommended that appellant transfer to a 

job at a lower altitude and with reduced hours.2

 

2 On November 30, 2016 Dr. Moshe Hasbani, a Board-certified neurologist, opined that appellant was totally 

disabled from work due to COPD, her cerebrovascular accident, uncontrolled diabetes, and need for oxygen treatment. 

The record contains additional medical reports addressing her current condition.
3

On February 10, 2017 Dr. Diehl related that appellant had been admitted to the hospital on 

March 7, 2016 after a three- or four-day history of an upper respiratory tract illness.3 He noted 

that she had traveled to Phoenix for work around the time she had become ill and had been exposed 

to children and people in crowded areas at the time of her trip. Dr. Diehl advised that appellant 

continued to require oxygen treatment since her hospitalization. He related, “There is reasonable 

causation to assume that [appellant] developed her influenza B infection while at work.”

In a March 13, 2017 development letter, OWCP informed appellant that the evidence 

currently of record was insufficient to support her claim. It advised her that she had not submitted 

sufficient evidence to establish that she actually experienced the employment factor(s) alleged to 

have caused injury. OWCP also requested that appellant submit medical evidence addressing 

whether the identified employment exposure resulted in a diagnosed condition. It provided a 

questionnaire for her completion. OWCP afforded appellant 30 days to submit additional 

evidence. 

In a response dated March 27, 2017, appellant described her travel to Phoenix from 

March 1 to 2, 2016 in response to a subpoena. She related that when she entered the courthouse 

she had to wait in the screening area for 10 minutes behind two adults and two small children who 

were coughing and touching items. Later, when appellant entered the courtroom, she was exposed 

to people coughing for over an hour. She noted that she may have been exposed to influenza in 

various environments including public restrooms, walking to and from the local office of the 

employing establishment in Phoenix, her hotel, and restaurants. Appellant asserted that at her local 

employing establishment, no one had been diagnosed with her strain of influenza in March 2016.

In a report dated March 31, 2017, Dr. Diehl related that appellant had been admitted to the 

hospital on March 7, 2016 for influenza B with acute hypoxic respiratory failure.4 He noted that 

she had traveled to Phoenix on a work-related trip on March 1 and 2, 2016. Appellant began 

feeling ill on March 4, 2016 and by March 5, 2016 she had shortness of breath and heaviness in 

her chest. Dr. Diehl related, “It is clear that [appellant] was exposed to influenza in Phoenix on 

March 1 or 2, [2016], as there was a high rate of influenza in that area at the time. She then 

developed her symptoms within one to four days of being exposed which fits with the influenza 

viral cycle or replication.” 

By decision dated May 31, 2017, OWCP denied appellant’s occupational disease claim. It 

found that she had not factually established that she had contracted influenza during her workrelated trip to Phoenix on March 1 to 2, 2016. OWCP noted that appellant had not established that 

she was exposed to any specific individuals with influenza. It further found that she had not 

submitted any medical evidence diagnosing a condition as a result of the alleged exposure. 

 

3 The record contains additional medical evidence, including a January 31, 2008 report regarding appellant’s right 

lower lobe pneumonia, possible COPD, and possible diabetes and medical evidence from 2015 through 2017 regarding 

her current condition.

4 Dr. Diehl noted that appellant had not been diagnosed with COPD when evaluated subsequent to her 

hospitalization, but instead hypoxia or hypoxemia most likely related to her pneumonia from influenza.
4

On June 28, 2017 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

A telephonic hearing was held on January 17, 2018. Appellant testified that official reports 

demonstrated that the number of confirmed cases of influenza in Phoenix was 169 percent greater 

than a typical influenza season. She further testified that, because of complications of the illness, 

she had an injury to her lungs. Appellant asserted that, as her health facility had no cases of 

influenza B in March 2016, she could only have come into contact with the infectious agent during 

her trip to Phoenix. The hearing representative held the record open for 30 days for the submission 

of additional evidence.

By letter dated February 16, 2018, appellant indicated that there was a widespread epidemic 

of influenza in 2016 and that one could be infected from up to 600 feet away by respiratory droplets 

or from touching inanimate objects. She noted that her employing establishment did not dispute 

that her illness occurred in travel. 

By decision dated March 21, 2018, OWCP’s hearing representative found that “it was 

stipulated that the record established” that the appellant was on approved travel status at the time 

of the reported exposure, however, affirmed the May 31, 2017 decision finding that appellant had 

not established that she was exposed to the influenza virus while in the performance of duty as 

alleged.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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,6that 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.7 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.8

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 

 

5 Supra note 1.

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

153 (1989).

7

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

ECAB 312 (1988).

8 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

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

identified by the employee.9

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact 

and make an award for or against payment of compensation.10 Section 10.126 of Title 20 of the 

Code of Federal Regulations provides that a decision shall contain findings of fact and a statement 

of reasons.11 The Board has held that the reasoning behind OWCP’s evaluation should be clear 

enough for the reader to understand the precise defect of the claim and the kind of evidence which 

would overcome it.12

ANALYSIS

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

Appellant alleged that she contracted influenza during authorized travel for work to 

Phoenix on March 1 and 2, 2016. While on travel status, she described exposure to children and 

adults who were coughing, as well as exposure to public areas and at the Phoenix office of the 

employing establishment. 

The Board has held that an employee on travel status or a temporary-duty assignment or 

special mission for his or her employer is in the performance of duty and under the protection of 

FECA 24 hours a day with respect to any injury that results from activities essential or incidental 

to the special duties.13 OWCP has already “stipulated” that appellant was on approved travel status

at the time of her reported exposure and was therefore in the performance of duty when she 

allegedly contracted influenza. The issue, consequently, is whether the medical evidence is 

sufficient to show that her diagnosed influenza was causally related to exposure while on approved 

travel. 

Section 8124(a) of FECA14 and section 10.126 of its implementing regulations15 require

that final decisions of OWCP contain findings of fact and a statement of reasons. A decision 

denying a claim should contain a correct description of the basis for the denial in order that the 

parties of interest have a clear understanding of the precise defect of the claim and the kind of 

 

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

10 5 U.S.C. § 8124(a).

11 20 C.F.R. § 10.126.

12 J.R., Docket No. 19-0746 (issued June 9, 2020); L.M., Docket No. 13-2017 (issued February 21, 2014); Federal 

(FECA) Procedure Manual Part 2 -- Claims, Disallowances Chapter 2.1400.5 (February 2013) (all decisions should 

contain findings of fact sufficient to identify the benefit being denied and the reason for the disallowance).

13 R.R., Docket No. 19-1026 (issued January 14, 2020); W.Y., Docket No. 09-2012 (issued July 16, 2010).

14 Supra note 10.

15 Supra note 11.
6

evidence which would overcome it.16 The Board finds that OWCP’s March 21, 2018 decision was 

incomplete as it failed to make findings regarding whether the medical evidence of record is 

sufficient to establish causal relationship between the diagnosed influenza and appellant’s travel. 

Consequently, OWCP has not fulfilled its responsibility under section 8124 of FECA and section 

10.126 of its implementing regulations.17 The case will therefore be remanded to OWCP for a 

proper decision, to include findings of fact and a statement of reasons, regarding whether the 

medical evidence is sufficient to establish causal relationship.

18

 Following any 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 March 21, 2018 decision of the Office of 

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

consistent with this opinion of the Board.

Issued: August 26, 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

 

16 O.M., Docket No. 19-0342 (issued November 15, 2019); Patrick Michael Duffy, 43 ECAB 280 (1991).

17 See L.D., Docket No. 19-0350 (issued October 22, 2019).

18 See S.C., Docket No. 19-1837 (issued June 9, 2020); A.C., Docket No. 17-1927 (issued April 12, 2018).