United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.H., Appellant

and

DEPARTMENT OF AGRICULTURE, ANIMAL 

& PLANT HEALTH INSPECTION SERVICE, 

Raleigh, NC, Employer

__________________________________________

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Docket No. 19-0633

Issued: January 8, 2020

Appearances: Case Submitted on the Record

Daniel F. Read, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 30, 2019 appellant, through counsel, filed a timely appeal from a January 8, 

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.3

 

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.

3 The Board notes that following the January 8, 2019 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.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish that his left foot 

necrotizing fasciitis was causally related to the accepted factors of his federal employment. 

FACTUAL HISTORY

On May 16, 2018 appellant, then a 50-year-old biological science technician, filed an 

occupational disease claim (Form CA-2) alleging that he contracted necrotizing fasciitis (flesh 

eating bacteria) as a result of factors of his federal employment including working in contaminated 

water. He indicated that he first became aware of his condition and that it resulted from factors of 

his federal employment on May 1, 2018. Appellant stopped work on May 4, 2018. 

In a May 16, 2018 development letter, OWCP informed appellant that the evidence of 

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

necessary to support his claim and also provided a questionnaire for completion. OWCP afforded 

appellant 30 days to respond. 

In a separate development letter of even date, OWCP requested additional information 

from the employing establishment regarding appellant’s employment duties and whether it 

concurred with his allegations.

Appellant responded to OWCP’s development letter in a statement dated June 6, 2018. He 

explained that he worked in eight different counties, in different beaver swamps. Appellant 

believed that he had been exposed to necrotizing fasciitis sometime in April or May 2018. He 

noticed that his left foot was a little red and puffy on May 1, 2018. Appellant reported that he 

worked alone and that he had never experienced anything like this before.

Appellant submitted emergency room records dated May 6, 2018 by Dr. Mark Worthen, a 

Board-certified family physician. He recounted that about two weeks prior appellant had 

developed redness in his left foot, which began to creep up his leg. Appellant indicated that he 

simultaneously experienced a sudden gush of foul-smelling fluid mixed with blood from the lateral 

aspect of his foot and between the fourth and fifth metatarsals so he sought treatment in the 

emergency room. Dr. Worthen noted that appellant had a history of diabetes mellitus and 

hypertension. He also related that appellant worked in murky water and that occasionally the 

murky water leaked into appellant’s boot and soaked his foot. Upon examination of appellant’s 

left foot, Dr. Worthen observed an ulcer on his left lateral foot near the metaphalangeal (MP) joint 

and a deep ulcer between the fourth and fifth toes. He also noted redness and induration of the 

skin extending to just below the knee. Dr. Worthen diagnosed diabetic ulcer of the midfoot and 

worsening cellulitis and abscess of the left leg. He related that a May 6, 2018 left foot x-ray 

revealed subcutaneous emphysema in the forefoot, worrisome for necrotizing infection. 

Dr. Worthen referred appellant to another hospital with a higher level of care.

A May 7, 2018 left foot computerized tomography (CT) scan showed extensive soft tissue 

emphysema, more than would be expected given the open wounds, necrotizing fasciitis/

gangrene/phlegnon with anaerobic organism in the differential, and generalized subcutaneous soft 

tissue edema. 
3

OWCP also received hospital records dated May 8 to 14, 2018. In a May 8, 2018 

admission report, Dr. Dwan Varner, a Board-certified internist, noted that appellant worked in 

murky swamp waters and that the water often leaked into his boot soaking his foot. Appellant 

reported that two weeks prior, he had noticed redness in his left foot that traveled up to his left leg. 

Dr. Varner recounted a history of diabetes mellitus and hypertension. Upon physical examination 

of appellant’s left foot, he observed erythema, swelling, and drainage between the fourth and fifth 

toes. Dr. Varner assessed “diabetic ulcer of midfoot associated with diabetes mellitus due to 

underlying condition, with necrosis of muscle [and] necrotizing fasciitis.” He recommended 

surgical intervention. In a May 14, 2018 discharge summary report, Dr. Varner noted discharge 

diagnoses of necrotizing fasciitis, cellulitis of the left lower leg, diabetic ulcer of midfoot 

associated with diabetes mellitus due to underlying condition, with necrosis of muscle and 

necrotizing fasciitis, diabetes mellitus, and hypertension. 

In a May 8, 2018 operative report, Dr. Lawrence N. Larabee, a Board-certified orthopedic 

surgeon, noted a preoperative diagnosis of necrotizing fasciitis of the left foot lateral side and 

plantar aspect. He reported appellant’s employment history working in the swamps and medical 

history of uncontrolled diabetes. Dr. Larabee noted that appellant underwent emergency surgery, 

which resulted in left midfoot amputation to include the third, fourth, and fifth toes and left midfoot 

debridement.

In a June 18, 2018 work status note, Dr. Jamie Udwadia, a Board-certified physiatrist, 

noted that appellant was to remain out of work.

By decision dated July 26, 2018, OWCP denied appellant’s occupational disease claim. It 

accepted that appellant worked in water as part of his employment duties and that he had a 

diagnosis of necrotizing fasciitis, but denied his claim finding that the medical evidence of record 

was insufficient to establish causal relationship between his diagnosed medical condition and the 

accepted employment factors.

On October 17, 2018 appellant, through counsel, requested reconsideration. Counsel noted 

that appellant’s final discharge diagnosis from the hospital was for necrotizing fasciitis and that 

appellant had described how he worked in filthy water and had a blister on his foot. He argued 

that Dr. Larabee provided a positive opinion that it was “highly probable” that given the nature of 

appellant’s work, he contracted the infection at work. Counsel further contended that appellant 

only had to prove that his work factors contributed in any way to his condition in order to establish 

a workers’ compensation claim. 

In an accompanying statement, appellant explained that he worked with all the soil and

water offices in nine counties. He related that he trapped beavers and removed beaver dams. 

Appellant asserted that he worked in different types of water and swamps where there was trash, 

dead deer carcasses, and other dead animals in the water. He explained that water would get into 

his boot through holes from briers, sticker bushes, and beaver sticks and that sometimes water 

would go over his waders into his boots. Appellant noted that he only went into the water when 

working for the employing establishment. He acknowledged that it was difficult to know where 

he caught necrotizing fasciitis, but he thought that he got this problem when he had a blister on his 

left foot in the spring of 2018. Appellant indicated that his blister broke, which left the skin a little 

raw, and then it got wet in the swamp. 
4

In a May 29, 2018 progress note, Dr. Udwadia indicated that he treated appellant for left 

foot full-thickness open wound. He reviewed appellant’s history of injury and noted that he 

underwent a partial amputation of the left foot and debridement. Dr. Udwadia reported appellant’s 

active diagnoses as necrotizing fasciitis, diabetic ulcer of midfoot associated with diabetes mellitus 

due to underlying condition with necrosis of muscle, diabetic neuropathy, and diabetes mellitus. 

In an October 11, 2018 letter, Dr. Larabee related a history of diabetes mellitus 2 and a 

work history of spending a lot of time in murky and unclear water. He noted that appellant first 

presented in the emergency room on May 6, 2018 after noticing redness in his left foot for the prior 

two weeks and heavy bleeding and pus that morning. Dr. Larabee reported that on May 8, 2018 

he performed a debridement and partial amputation of appellant’s left foot, to include amputation 

of appellant’s fifth, fourth, and third toes. He noted that the pre and postoperative diagnosis was 

necrotizing fasciitis of the left foot. Dr. Larabee explained that necrotizing fasciitis was tissue 

death caused by bacterial infection. He indicated that bacteria typically entered the body through 

a cut or scrape. Dr. Larabee related that appellant had callouses on his feet, which were common 

in diabetics with neuropathy, and that appellant was probably predisposed to skin breakage and 

infection due to his diabetes. He further opined that appellant’s work “greatly increased his risk 

of developing bacterial infections.” Dr. Larabee noted that appellant’s feet remained wet for 

extended periods of time, which promoted bacteria growth, and that he worked in contaminated 

and unhealthy water for extended periods of time. He also explained that considering appellant’s 

broken blister in the spring of 2018 and working with water inside his boots, it was “highly 

probable” that this infection was contracted while working in unclean water with wet feet. 

Appellant submitted progress notes by Teddle Gore, a family nurse practitioner, dated 

August 19, 2016 to April 25, 2017. She recounted appellant’s treatment for type 2 diabetes 

mellitus with diabetic polyneuropathy and hypertension. 

By decision dated January 8, 2019, OWCP denied modification of the July 26, 2018

decision. 

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 timely filed within the applicable time 

limitation of FECA,5that 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 

 

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). 
5

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

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

disease claim, a claimant must submit: (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 claimant.8 

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

relationship is rationalized medical opinion evidence.9 The opinion of the physician must be based 

on a complete factual and medical background of the employee, 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 specific employment factors identified by the employee.10

In any case where 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.11

ANALYSIS

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

In support of his claim appellant submitted numerous medical reports relating to a left 

lower extremity condition which developed in April or May 2018. Those medical reports provide 

consistent diagnoses relating to the left lower extremity and indicate that appellant described 

employment duties requiring working in an environment causing his lower extremities to 

frequently become wet with water containing bacteria and other contaminants.

Included in the medical reports submitted were reports from Dr. Larabee, who consistently 

opined that appellant’s necrotizing fasciitis was due to his employment exposures to wet 

environments containing bacteria while working as a biological science technician. Dr. Larabee 

explained that necrotizing fasciitis was tissue death caused by bacterial infection and he indicated 

that bacteria typically entered the body through a cut or scrape. He explained that due to his

 

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).

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

9 A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 

238 (1996).

10 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 

ECAB 345, 352 (1989).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).
6

diabetic neuropathy appellant had callouses on his feet. Dr. Larabee therefore noted that appellant 

was probably predisposed to skin breakage and infection due to his diabetic condition. He opined 

that appellant’s work had greatly increased his risk of developing bacterial infections. Dr. Larabee 

further opined that appellant’s feet remained wet for extended periods of time while working, 

which promoted bacteria growth, and that he worked in contaminated and unhealthy water for 

extended periods of time. He explained that, considering appellant’s broken blister in the spring 

of 2018 and working with pond water inside his boots, it was highly probable that this infection 

was contracted while working in unclean water with wet feet. 

Accordingly, the Board finds that Dr. Larabee provided an affirmative and rationalized 

opinion on causal relationship. Dr. Larabee identified employment factors which appellant 

consistently claimed had precipitated his necrotizing fasciitis, identified physical findings upon 

examination and treatment, and provided a rationalized opinion citing to the facts of the case. 

Thus, the Board finds that Dr. Larabee’s opinion is sufficient to require further development of the 

record.12

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

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

responsibility in the development of the evidence.13 OWCP has an obligation to see that justice is 

done.14

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

evidence of record to an appropriate Board-certified physician. The chosen physician shall provide 

a rationalized opinion addressing whether the diagnosed left lower extremity 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 provide rationale explaining 

the opinion. Following this and any other further development as deemed necessary, OWCP shall 

issue a de novo decision on appellant’s claim.

CONCLUSION

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

 

12 J.J., Docket No. 19-0789 (issued November 22, 2019); J.G., Docket No. 17-1062 (issued February 13, 2018);

A.F., Docket No. 15-1687 (issued June 9, 2016). See also John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne,

29 ECAB 820 (1978).

13 A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J. 

Cantrell, 34 ECAB 1233, 1237 (1983).

14 R.B., Docket No. 18-0162 (issued July 24, 2019); K.P., Docket No. 18-0041 (issued May 24, 2019).
7

ORDER

IT IS HEREBY ORDERED THAT the January 8, 2019 merit 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: January 8, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board