United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.B., Appellant

and

TENNESSEE VALLEY AUTHORITY, COAL & 

GAS OPERATIONS, PARADISE FOSSIL 

PLANT, Drakesboro, KY, Employer

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Docket No. 20-1142

Issued: December 31, 2020

Appearances: Case Submitted on the Record

Elizabeth A. Bruce, 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 May 12, 2020 appellant, through counsel, filed a timely appeal from a November 11, 

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.

ISSUE

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

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

 

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

FACTUAL HISTORY

On October 25, 2018 appellant, then a 68-year-old boilermaker, filed an occupational 

disease claim (Form CA-2) alleging that he developed occupational pneumoconiosis due to factors 

of his federal employment. He indicated that he first became aware of his condition and its relation 

to his federal employment on July 26, 2018. 

In support of his claim, appellant submitted a statement dated July 26, 2018, asserting that 

he had just been advised by a physician that he had an occupational lung disease that was related 

to his employment at the employing establishment. He noted that he last worked at the employing 

establishment in 2005.

Appellant also submitted a copy of his marked responses and answers to FECA Bulletin 

No. 85-22 “Evidence Required in Supporting a Claim for Asbestos-Related Illness,” where he 

indicated that he began working at the employing establishment on September 28, 1978 as a 

boilermaker in the Paradise fossil fuel steam generating plant and was exposed to coal dust, 

asbestos from insulation, welding smoke, welding fumes, and grinding dust eight hours a day, five 

days a week. He noted that he wore a paper mask except while welding. Appellant also indicated 

that he worked in the powerhouse where he was exposed to coal dust, asbestos from pipelines and 

boilers, flue gas, fly ash, welding fumes, grinding dust, and smoke. He used asbestos blankets 

while welding. Prior to his federal employment, appellant noted that he worked as a welder in the 

private sector from 1969 to September 27, 1978 and asserted that he was exposed to grinding dust, 

welding fumes, and welding smoke. Appellant also indicated that he smoked one or two packs of 

cigarettes per day for 15 to 20 years.

In an August 31, 2018 report, Dr. Glen Baker, a Board-certified pulmonologist and a 

National Institute for Occupational Safety and Health certified B reader, indicated that he 

examined appellant for possible dust-induced lung disease secondary to his federal employment. 

He noted appellant’s history of federal and private sector employment exposure and appellant’s

smoking history. Dr. Baker listed appellant’s symptoms of shortness of breath with dyspnea on 

exertion and shortness of breath during the night, almost daily cough, with no wheezing, and sleep 

apnea. On physical examination he found that appellant had 18 respirations per minute and that 

his lungs were clear to auscultation and percussion. Dr. Baker reviewed appellant’s June 15, 2018 

chest x-ray and found parenchymal abnormalities consistent pneumoconiosis in both lungs with a 

profusion of 1/1. He also provided the findings of August 31, 2018 pulmonary function studies 

and interpreted these findings as mild restrictive ventilatory defect. Dr. Baker diagnosed 

occupational pneumoconiosis secondary to coal dust exposure and asbestos exposure during his 

federal employment as well as mild restrictive ventilator defect due to occupational 

pneumoconiosis. He noted that appellant had a long history of dust exposure at the employing 

establishment and had x-ray changes consistent with either coal dust exposure or asbestos. 

Dr. Baker observed that appellant’s x-ray changes were very similar to that of coal workers’

pneumoconiosis in terms of the irregular opacities in the lower zones. He provided a permanent 

impairment rating of two percent.

In an October 30, 2018 development letter, OWCP requested that appellant submit 

additional evidence in support of his claim. It advised him of the type of factual and medical 

evidence needed and provided a questionnaire of his completion. By separate letter of even date, 

OWCP also requested additional information from the employing establishment. It afforded both 

parties 30 days to respond.
3

On December 4, 2018 the employing establishment responded and noted that appellant was 

employed for approximately 27 years. It noted that data of exposure to asbestos and coal dust for 

him was not available, but that assessments for boilermakers as the Paradise Fossil Plant

consistently demonstrated that personal exposures experienced by all workers were below 

occupational exposure limits. The employing establishment indicated that appellant did not 

perform insulating/abatement duties of asbestos as a boilermaker. It further noted that his position 

did not routinely require the use of respirators because dust levels were well below Occupational 

Safety and Health Administration established limits. On January 3, 2019 the employing 

establishment disputed appellant’s allegations of dust or asbestos exposure. However, it further 

noted that there was occasional work within the duties and responsibilities of a boilermaker where 

particulate levels could be elevated. The employing establishment indicated that boilermakers 

were expected to wear respiratory protection as needed.

On February 26, 2019 OWCP referred appellant, a statement of accepted facts (SOAF), 

and a list of questions to Dr. Harold Dale Haller, Jr., a Board-certified pulmonologist, for a second 

opinion examination.

In an April 8, 2019 report, Dr. Haller noted appellant’s employment exposure and 

symptoms. He reviewed the spirometry from Dr. Baker dated August 31, 2018 and found that, on 

review of the flow volume loops, the loops were inconsistent and demonstrated wholly 

unacceptable patient effort and should not be interpreted based on poor effort. On physical 

examination Dr. Haller found that appellant had difficulty breathing while lying down, awakened 

exhausted, had bloody sputum, experienced chest discomfort/tightness and excessive daytime 

sleepiness. He found it very unlikely that appellant had any significant pulmonary disease. 

Dr. Haller determined that appellant’s spirometry both at Dr. Baker’s office and on his 

examination were completely “unsatisfactory for interpretation due to inadequate effort.” He

found that the loops were totally variable and not consistent which was seen with lung disease. 

Dr. Haller opined that the pattern appellant presented was usually seen with test done for secondary 

gain. He noted that he did resistance and conductance maneuvers and that conductance was within 

normal limits suggesting no significant obstruction was present. Dr. Haller found on lung volume 

testing that appellant’s lung capacity was 105 percent of predicted which essentially ruled-out 

restriction. He opined that the interpretation of restriction by Dr. Baker was incorrect as it was 

based on spirometry alone rather than after formal lung volume testing. Dr. Haller determined that 

despite the suboptimal efforts from appellant there was no evidence of significant lung disease. 

He also disagreed with Dr. Baker’s finding of occupational pneumoconiosis category 1/1 on 

x-rays. Dr. Haller did not agree and recommended a high resolution chest computerized 

tomography (CT) scan. He noted that he did not find evidence on examination, lung function 

testing, or chest radiographs of asbestosis or asbestos exposure as he did not see evidence of 

physical changes or disease related to asbestos exposure. Dr. Haller concluded that appellant did 

not have any significant pulmonary disease and thus no work-related pulmonary conditions.

Dr. Haller included appellant’s spirometry which included test comments indicating good 

patient effort and cooperation and that the test met standards for reproducibility. The test 

concluded that appellant’s reduced volumes indicated a restrictive process. It noted that although 

flow rates were within normal limits, the over inflation and response to bronchodilators was 

characteristic of reactive airways.

By decision dated April 22, 2019, OWCP denied appellant’s occupational disease claim 

finding that he had not established a causal relationship between his diagnosed pulmonary disease 
4

and his accepted work factors. It found that Dr. Haller’s August 8, 2019 report established that 

appellant exhibited inadequate effort and no evidence of significant lung disease due to asbestosis 

or asbestos exposure. On May 2, 2019 appellant, through counsel, requested an oral hearing before 

an OWCP hearing representative.

A hearing was held on September 11, 2019. Appellant testified that he began working at 

the employing establishment as a boilermaker in the coal handling portion of the employing 

establishment where he was exposed to coal dust, grinding dust, and welding smoke on a daily 

basis. Appellant testified that he then worked in the powerhouse where he was exposed to fly ash, 

flue gas, coal dust, and grinding dust, welding fumes, and welding smoke, as well as asbestos. He 

used asbestos blankets for three or four years and was required to tear asbestos on the steam lines 

to weld them.

On September 5, 2019 appellant submitted a May 31, 2019 report from Dr. James B. Crum, 

an osteopath and B reader. Dr. Crum reviewed appellant’s June 15, 2018 x-rays and found 

classifiable parenchymal abnormalities consisting of small opacities in both lungs throughout the 

upper, middle, and lower zones with a profusion of 1/0. He determined that the shape was 

primarily “p” and secondarily “q” or rounded. Dr. Crum found no classifiable pleural 

abnormalities. He indicated that appellant’s x-rays demonstrated an atherosclerotic aorta and 

calcification in small pneumoconiosis opacities.

By decision dated November 22, 2019, OWCP’s hearing representative found that 

appellant had not established a causal relationship between his diagnosed pulmonary conditions 

and his accepted employment exposure. He found that the weight of the evidence was accorded 

to Dr. Haller.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence, 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, that 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.4 These are the essential elements of every compensation claim regardless of whether the 

claim is predicated upon a traumatic injury or an occupational disease.5

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 

 

3

Id.

4 K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019).

5

Id.; see also Elaine Pendleton, 40 ECAB 1143 (1989).
5

condition for which compensation is claimed; and (3) medical evidence establishing that the 

diagnosed condition is causally related to the identified employment factors.6

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.8 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s 

specific employment factor(s).9

Section 8123(a) of FECA in pertinent part that if there is disagreement between the 

physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician (known as a referee physician or impartial medical 

specialist) who shall make an examination.10 This is called a referee examination and OWCP will 

select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.11 When there exist opposing reports of virtually equal weight and rationale and the 

case is referred to an impartial medical specialist for the purpose of resolving the conflict, the 

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.12

ANALYSIS

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

Drs. Baker and Crum, in reports dated August 31, 2018 and May 31, 2019, respectively, 

reviewed appellant’s June 15, 2018 x-rays and found classifiable parenchymal abnormalities 

consisting of small opacities in both appellant’s lungs. Dr. Haller disagreed with the finding of 

pneumoconiosis category 1/1 on x-rays. He recommended a high resolution chest CT scan.

The Board finds that a conflict in the medical evidence exists between appellant’s treating 

physicians Drs. Baker and Crum, who found classifiable parenchymal abnormalities on x-rays and

Dr. Haller, who disagreed. These reports are of equal probative value. Drs. Baker and Crum

offered their assessments of appellant’s chest x-rays. Consequentially, the case must be referred 

 

6 R.G., Docket No. 19-0233 (issued July 16, 2019); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 

ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

7 T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8 M.V., Docket No. 18-0884 (issued December 28, 2018).

9 Victor J. Woodhams, supra note 6.

10 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009); M.S., 58 ECAB 328 (2007).

11 20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

12 S.T., Docket No. 16-1911 (issued September 7, 2017); G.B., widow of R.B., Docket No. 16-1363 (issued March 2, 

2017); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).
6

to an impartial medical specialist to resolve the existing conflict in the medical opinion evidence 

regarding whether appellant’s chest x-rays demonstrated parenchymal abnormalities. 

On remand OWCP shall refer appellant, along with the case file and a SOAF, to an 

appropriate specialist for an impartial medical evaluation and a report including a rationalized 

opinion as to whether appellant’s diagnosed pulmonary conditions are causally related to the 

accepted employment factors. Following this and other such further development as OWCP deems 

necessary, it shall issue a de novo decision regarding his claim for an employment-related 

pulmonary condition.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the November 11, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside. The case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: December 31, 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