United States Department of Labor

Employees’ Compensation Appeals Board

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J.W., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, FEDERAL 

CORRECTION INSTITUTION, Fort Dix, NJ, 

Employer

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Docket No. 20-1249

Issued: February 9, 2021

Appearances: Case Submitted on the Record

Aaron B. Aumiller, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 1, 2020 appellant, through counsel, filed a timely appeal from a March 31, 2020

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

 

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

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.3

ISSUE

The issue is whether appellant has met his burden of proof to establish a medical condition

causally related to the accepted employment exposure.

FACTUAL HISTORY

On May 7, 2017 appellant, then a 38-year-old computer specialist, filed an occupational 

disease claim (Form CA-2) alleging that he experienced respiratory symptoms including shortness 

of breath and chronic cough due to exposure to cement dust containing silica during construction 

at his office beginning in July 2016. He noted that he first became aware of his condition and 

realized that it was caused or aggravated by his federal employment on February 15, 2017. 

Appellant did not immediately stop work. 

Appellant underwent a computerized tomography (CT) scan of the temporal bones on 

October 11, 2016, which revealed marked leftward nasal septal deviation, right middle third oncha 

bullosa, left maxillary sinus mucosal thickening, mucous retention cysts, and mild mucosal 

thickening in the ethmoid air cells. A March 14, 2017 x-ray of the chest revealed no evidence of 

acute cardiopulmonary abnormality.

On March 20, 2017 Dr. Ben J. Kochuveli, a Board-certified family practitioner, diagnosed 

weekly nose bleeds year round, allergic rhinitis, chronic sinusitis, and potential silica exposure due 

to cement dust. He noted that the baseline chest x-ray was negative. In an April 12, 2017 

addendum report, Dr. Kochuveli indicated that appellant underwent pulmonary function studies

on April 11, 2017 and was diagnosed with silica exposure. He indicated that the pulmonary 

function studies revealed borderline mild obstruction based on a borderline low forced expiratory 

volume in one second (FEV1)/slow vital capacity (SVC) ratio and FEV1 90 percent of predicted.

In a narrative statement dated May 7, 2017, appellant reported commencing work at the 

information technology department in July 2016. He indicated that his office was located in the 

server room of the west administration building, which was undergoing construction to modify the 

existing server room, by encasing it in a cinder block wall. Appellant worked in this post during 

the construction period, which began in July 2016 and continued through April 2017. He indicated 

that his office was in a confined work space without ventilation. Appellant reported exposure to 

silica, which affected his lungs, sinuses, and head and caused severe sinus headaches, chronic dry 

cough, and shortness of breath. He indicated that the construction was performed by federal 

inmates that lacked the knowledge of Occupational Safety Health Administration (OSHA) 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the March 31, 2020 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.
3

regulations. Appellant further noted that the construction included a cement machine located in 

the building. He advised that an outside contractor removed asbestos floor tiling from the server 

room and informed him that the amount of dust present was at dangerous levels and contained 

silica.

In a June 29, 2017 development letter, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence necessary to establish his claim and provided a questionnaire for his completion. In a 

separate development letter of even date, OWCP requested that the employing establishment 

provide additional information regarding appellant’s exposure to potentially harmful substances, 

and comments from a knowledgeable supervisor regarding the accuracy of his statements. It 

afforded both parties 30 days to respond.

In response to the development letter, appellant submitted a July 16, 2017 statement and 

reiterated the details of his silica exposure while working in the server room during construction. 

He asserted that the employing establishment willfully failed to comply with OSHA standards. 

Appellant noted that he was exposed to concrete dust containing crystalline silica for months 

during construction while working in the server room without a ventilation system. He indicated 

that dust was visible on all work surfaces in the air and on some of the server equipment. Appellant

performed computer/server maintenance while being exposed to the hazardous materials and was 

not informed of hazards. He indicated that he had no known exposure to irritants outside his job. 

Appellant related that his silica condition began in early August 2016 with chronic severe sinus 

headaches, chronic dry cough, and shortness of breath. He reported no known pulmonary 

condition or known allergies and indicated that he smoked cigarettes from 2003 to 2005.

On July 25, 2017 an employing establishment environmental and safety compliance 

official, responded to OWCP’s development letter and challenged appellant’s allegations. The 

official disagreed with assertions that the employing establishment willfully violated OSHA 

standards relating to respirable crystalline silica and noted that the employing establishment 

implemented a crystalline silica plan, although not required to do so, and hired an environmental 

contractor to conduct testing and provide expertise on how to safely perform construction. 

Additionally, plastic barriers were put in place along with a negative pressure fan to limit the 

exposure to employees. The official advised that all inmates involved in construction duties 

received job orientation on all aspects of their assignment including safety. The official indicated 

that appellant failed to immediately report hazards to the safety manager and when he did notify 

the safety manager all protocols were in place. Additionally, the safety manager offered appellant 

the option to move to another office in a different building until construction was complete. The 

official further indicated that appellant did not request reasonable accommodation, but when he 

expressed concerns to the safety manager about the construction in his workplace he was advised 

that he could move to another location. The official further noted that staffing shortages did not 

affect appellant’s workload and he generally performed his required duties in accordance with 

expectations.

The employing establishment submitted a news release from OSHA dated April 6, 2017,

indicating that it was delaying enforcement of a crystalline silica standard in the construction 

industry. In a June 26, 2017 memorandum entitled, “Safe Work Environment” the employing 

establishment established procedures to insure a safe environment for staff and inmates related to 
4

asbestos, lead, and silica issues in the workplace before, during, and after any renovation, 

construction, or repair. OWCP also received a position description for an information technology 

specialist.

In a September 7, 2017

4

report, Dr. Kochuveli noted evaluating appellant on March 20, 

2017 and opined that he was completely asymptomatic and had a negative chest x-ray on 

February 22, 2017. He diagnosed allergic rhinitis and returned him to work without restrictions.

By decision dated January 22, 2018, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish the implicated employment factors. It explained 

that he failed to provide results of air sample testing in the areas where he worked or provide 

witness statements supporting his exposure to crystalline silica. OWCP concluded, therefore, that 

appellant had not met the requirements to establish that he sustained an injury as defined by FECA.

On January 22, 2019 appellant, through counsel, requested reconsideration. He submitted 

a witness statement from T.K., a retired computer specialist, who confirmed that office 

construction began in July 2016 and appellant’s office was located in the server room. T.K. 

indicated that, during appellant’s absence, she would monitor the server room for extended periods 

and at times her breathing became labored and she experienced chronic coughing. She further 

noted that breathing protection was not required. In another witness statement dated August 16, 

2018, J.J., a retired computer services manager and appellant’s supervisor in July 2016, indicated 

that appellant was required to stay in the server room on and off for about eight months while 

renovations were implemented. He verified that the server room lacked proper ventilation and 

there was a substantial amount of dust accumulated daily after construction. J.J. further verified 

that staff were not required to wear any form of respiratory masks or ventilation device.

By decision dated March 14, 2019, OWCP modified the January 22, 2018 decision, finding 

that appellant had established that the employment exposure occurred as alleged. The claim 

remained denied, however, as the medical evidence of record was insufficient to establish causal 

relationship between a diagnosed medical condition and the accepted employment exposure.

On January 14, 2020 Dr. Sarah M. Lyon, a Board-certified pulmonologist, treated 

appellant for shortness of breath with exertion and chronic cough, which he attributed to silica dust 

exposure. Appellant reported extensive silica exposure in 2016 for eight to nine months while 

working in a computer server room without respiratory mask protection. Dr. Lyon indicated that 

the pulmonary function study done in May 20195revealed normal spirometry; however, it also 

showed evidence of small airway disease. She indicated that from 2017 through 2019 there was 

nonsignificant reduction in his FEV1, which remained normal. Dr. Lyon noted that evidence 

supported that workers with chronic silica exposure even within OSHA limitations and with 

normal chest imaging have worsening pulmonary function associated with silica exposure. She

further noted that workers exposed to silica may have normal spirometry and have a range of 

pulmonary test abnormalities.

 

4 Although Dr. Kochuveli dated his report September 7, 2018, this appears to be a typographical error.

5 This report is not in the record before the Board.
5

Dr. Noam A. Cohen, a Board-certified otolaryngologist, treated appellant on February 24, 

2020 for symptoms consistent with chronic rhinosinusitis. Appellant reported that, four years 

prior, he was exposed to substantial amounts of cinder block dust. Dr. Cohen noted that a paranasal 

sinus computerized tomography (CT) scan on May 16, 20196 demonstrated mucosal thickening of 

his ostial meatus complexes bilaterally and opacification of his right frontoethmoidal recess and 

anterior ethmoid cavities bilaterally. He opined that these findings were consistent with hindered 

mucociliary clearance. Dr. Cohen noted thatstudies from the Work Trade Center workers revealed 

that exposure to aerosolized particulate debris hinder mucociliary clearance and can contribute to 

chronic rhinosinusitis.

On February 28, 2020 appellant, through counsel, requested reconsideration.

By decision dated March 31, 2020, OWCP denied modification of the March 14, 2019

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA7 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 timely filed within the applicable 

time limitation period of FECA,8that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally related 

to the employment injury.9 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.10

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit 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 identified employment factors.11

 

6

Id.

7 Supra note 2.

8

Id.

9 E.W., Docket No. 19-1393 (issued January 29, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989); L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 

40 ECAB 312 (1988).

10 L.C., id.; R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., id.

11 20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued 

February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990). 
6

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.12 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.13 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.14

In a case in which a preexisting condition involving the same part of the body is present 

and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.15

ANALYSIS

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

On January 14, 2020 Dr. Lyon treated appellant for shortness of breath and chronic cough 

attributed to extensive silica exposure, which occurred in 2016 while he was working in a computer 

server room without respiratory mask protection. She indicated that a pulmonary function study 

done in May 2019 revealed normal spirometry; however, it also showed some evidence of small 

airway disease. Dr. Lyon opined that evidence from studies demonstrated that workers with 

chronic silica exposure, even within OSHA limitations, and with normal chest imaging, have 

worsening pulmonary function associated with silica exposure. Similarly, he treated appellant on 

February 24, 2020 for symptoms consistent with chronic rhinosinusitis, which developed after he 

was exposed to substantial amounts of cinder block dust while at work. Dr. Cohen noted that a 

May 16, 2019 paranasal sinus CT scan demonstrated mucosal thickening of his ostial meatus 

complexes bilaterally and opacification of his right frontoethmoidal recess and anterior ethmoid 

cavities bilaterally. He opined that these findings were consistent with hindered mucociliary 

clearance. Dr. Cohen further noted studies of workers from the World Trade Center revealed that 

exposure to aerosolized particulate debris hindered mucociliary clearance and could contribute to 

chronic rhinosinusitis.

The Board finds that the reports of Drs. Lyon and Cohen, when read together, are sufficient 

to require further development of the medical evidence to see that justice is done.16 Drs. Lyon and 

Cohen are Board-certified physicians in pulmonology and otolaryngology, respectively, and are

 

12 See T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J. 

Woodhams, 41 ECAB 345, 352 (1989).

13 J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14 A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000). 

15 E.W., supra note 9; Gary L. Fowler, 45 ECAB 365 (1994). 

16 J.H., Docket No. 18-1637 (issued January 29, 2020); X.V., Docket No. 18-1360 (issued April 12, 2019).
7

qualified in their field of medicine to render rationalized opinions on the issue of causal 

relationship. They relied upon a proper history of injury and provided a pathophysiological 

explanation as to how the accepted factors of his federal employment were sufficient to have 

caused the diagnosed conditions. The Board has long held that it is unnecessary that the evidence 

of record in a case be so conclusive as to suggest causal connection beyond all reasonable doubt. 

Rather, the evidence required is only that necessary to convince the adjudicator that the conclusion 

drawn is rational, sound, and logical.17 

It is well established that proceedings under FECA are not adversarial in nature and, while 

appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.18 

On remand OWCP shall refer appellant, a statement of accepted facts, and the medical 

record to a specialist in the appropriate field of medicine. The chosen physician shall provide a 

rationalized opinion as to whether the diagnosed conditions are causally related to the accepted 

factors of appellant’s federal employment. If the physician opines that the diagnosed conditions 

are not causally related, he or she must explain, with rationale, how or why the opinion differs 

from that of Drs. Lyon and Cohen. After this and other such further development as deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

 

17 C.C., Docket No. 18-1453 (issued January 28, 2020).

18 K.P., Docket 18-0056 (issued January 27, 2020); see also A.P., Docket No. 17-0813 (issued January 3, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the March 31, 2020 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 9, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board