United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.B., Appellant

and

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, FLOYD 

BENNETT FIELD, Brooklyn, NY, Employer

__________________________________________

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Docket No. 20-0797

Issued: August 5, 2021

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 February 27, 2020 appellant filed a timely appeal from a January 28, 2020 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 a 

chemical odor in the performance of duty on August 29, 2019, as alleged.

FACTUAL HISTORY

On September 16, 2019 appellant, then a 79-year-old park ranger, filed a traumatic injury 

claim (Form CA-1) alleging that on August 29, 2019 at approximately 11:00 a.m. her preexisting 

 

1 5 U.S.C. § 8101 et seq.
2

upper respiratory condition was triggered as a result of exposure to a chemical smell in her office 

while in the performance of duty.2 She explained that this exposure caused excessive coughing 

and wheezing. On the reverse side of the claim form her supervisor acknowledged that appellant 

was in the performance of duty when the injury occurred. Appellant stopped work on 

August 30, 2019.

Appellant submitted September 4, 2019 hospital discharge instructions, which noted that 

she was admitted to the hospital on August 31, 2019 and seen by Dr. Rabih Maroun, a Boardcertified pulmonologist. It provided instructions for treatment of chronic obstructive pulmonary 

disease (COPD) exacerbation.

In a September 27, 2019 letter, Dr. Betty Parisis, a family medicine specialist, noted that 

appellant was seen on September 11, 2019 following her September 4, 2019 discharge from the

hospital. She indicated that appellant was initially admitted to the hospital for recurrence of her 

COPD, which was triggered by overexposure to a chemical smell at work on August 29, 2019. 

Dr. Parisis noted that appellant had been receiving recurring emergency treatments for 

exacerbation of her COPD since March 5, 2015. She indicated that she could return to work on 

October 1, 2019 on a trial basis.

In an October 2, 2019 letter, the employing establishment indicated that appellant refused 

its offer of an alternative work assignment and “walked out” without a sufficient cause.

In an October 15, 2019 development letter, OWCP advised appellant that, when her claim 

was first received, it appeared to be a minor injury that resulted in minimal or no lost time from 

work and; therefore, payment of a limited amount of medical expenses was administratively 

approved without formal consideration of the merits of her claim. It had now reopened appellant’s

claim for consideration of the merits and informed appellant t of the deficiencies of her claim. 

OWCP advised her of the type of factual and medical evidence needed and provided a 

questionnaire for her completion. It afforded appellant 30 days to respond. No further evidence 

was received.

By decision dated November 15, 2019, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the August 29, 2019 employment incident 

occurred as alleged. It concluded, therefore, that the requirements had not been met to establish 

an injury as defined by FECA.

On November 25, 2019 appellant requested a review of the written record by a 

representative of OWCP’s Branch of Hearings and Review.

In an August 28, 2019 e-mail, appellant notified the employing establishment that she had 

to leave the office that day because of a paint smell, which caused excessive coughing. She 

explained that she did not want this to lead to another upper respiratory problem. In an August 29, 

 

2 Appellant has a previously accepted traumatic injury for temporary aggravation of upper respiratory tract 

hypersensitivity reaction under OWCP File No. xxxxxx427. She also previously filed a traumatic injury claim on 

February 20, 2019 for an asthma attack under OWCP File No. xxxxxx006. OWCP had administratively approved 

payment of a limited amount of medical expenses without formally adjudicating the merits of that claim.
3

2019 e-mail, appellant notified the employing establishment that she was still coughing and 

wheezing due to overexposure to the paint. She asserted that she could not return to work and 

requested teleworking.

By decision dated January 28, 2020, OWCP’s hearing representative affirmed OWCP’s 

November 15, 2019 decision. She additionally ordered that OWCP administratively combine the 

present case with appellant’s previous claims under OWCP File Nos. xxxxxx427 and xxxxxx006

as they also involved upper respiratory conditions.

LEGAL PRECEDENT

An employee seeking benefits under FECA3has 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,4that 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.5 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.6

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. There 

are two components involved in establishing fact of injury. First, the employee must submit 

sufficient evidence to establish that he or she actually experienced the employment incident at the 

time, place, and in the manner alleged. The second component is whether the employment incident 

caused a personal injury and can be established only by medical evidence.7 

An injury does not have to be confirmed by eyewitnesses in order to establish the fact that 

an employee sustained an injury in the performance of duty, but the employee’s statements must 

be consistent with the surrounding facts and circumstances and his or her subsequent course of 

action.8 The employee has not met his or her burden of proof of establishing the occurrence of an 

injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity 

of the claim. Such circumstances as late notification of injury, lack of confirmation of injury, 

continuing to work without apparent difficulty following the alleged injury, and failure to obtain 

 

3 Supra note 1.

4 F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. 

Cameron, 41 ECAB 153 (1989). 

5 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

6 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

Delores C. Ellyett, 41 ECAB 992 (1990).

7 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

8 See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).
4

medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements 

in determining whether a case has been established. An employee’s statement alleging that an 

injury occurred at a given time and in a given manner is of great probative value and will stand 

unless refuted by strong or persuasive evidence.9

ANALYSIS

The Board finds that appellant has met her burden of proof to establish that the August 29, 

2019 employment exposure occurred in the performance of duty, as alleged.

Appellant filed a traumatic injury claim alleging that her preexisting upper respiratory 

condition was triggered on the alleged date of injury as a result of exposure to a chemical smell in 

her office while in the performance of duty. The record also establishes that appellant promptly 

reported the onset of respiratory symptoms to the employing establishment in e-mails dated 

August 28 and 29, 2019 in which she asserted that she was exposed to a chemical smell at work

which caused to cough excessively. Additionally, appellant sought prompt medical care, first with

Dr. Maroun on August 31, 2019, who diagnosed COPD exacerbation. She subsequently sought 

care with Dr. Parisis on September 11, 2019. Dr. Parisis, in her September 27, 2019 letter,

confirmed that appellant had been admitted to the hospital for recurrence of her COPD

exacerbation, which was triggered by overexposure to a chemical smell at work on 

August 29, 2019. 

Appellant has provided a single account of the mechanism of injury, specifically that she 

was exposed to a chemical smell at work, which has not been refuted by any evidence in the 

record.10 As noted, an employee’s statement alleging that an injury occurred at a given time and 

place, and in a given manner is of great probative value and will stand unless refuted by strong or 

persuasive evidence.11 Further, the employing establishment acknowledged that appellant was 

injured in the performance of duty and concurred with her account of her injury. The Board has 

held that the employing establishment’s acknowledgment that the injury occurred in the 

performance of duty is sufficient, if consistent with the surrounding facts and circumstances, to 

establish that the exposure occurred, as alleged, and in the performance of duty.12 The Board, thus,

finds that given the above-referenced evidence, appellant has established with specificity that the 

August 29, 2019 exposure occurred at the given time, place, and in the manner alleged.

As appellant has established that the August 29, 2019 employment exposure factually 

occurred in the performance of duty, the question becomes whether this exposure caused an 

injury.13 Causal relationship is a medical issue and the evidence required to establish causal 

 

9 See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

10 See S.W., Docket No. 19-0653 (issued November 21, 2019).

11 Supra note 9. 

12 D.M., Docket No. 20-0314 (issued June 30, 2020).

13 S.W., supra note 10.
5

relationship is rationalized medical opinion evidence.14 The Board will, therefore, remand the case 

for consideration of the medical evidence. Following this and other such further development as 

deemed necessary, OWCP shall issue a de novo decision addressing whether appellant has met her 

burden of proof to establish a condition causally related to the accepted August 28, 2019

employment exposure.

CONCLUSION

The Board finds that appellant has met her burden of proof to establish that the August 29, 

2019 employment exposure occurred in the performance of duty, as alleged. The Board further 

finds that the case is not in posture for decision regarding whether she has established an injury 

causally related to the accepted August 29, 2019 employment exposure.

ORDER

IT IS HEREBY ORDERED THAT the January 28 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: August 5, 2021

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

 

14 A.C., Docket No. 18-0096 (issued January 21, 2020).