United States Department of Labor

Employees’ Compensation Appeals Board

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L.T., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS CRISIS LINE, Atlanta, GA, 

Employer

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Docket No. 20-1499

Issued: August 18, 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 August 5, 2020 appellant filed a timely appeal from a July 22, 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.2

 

1 5 U.S.C. § 8101 et seq. 

2 The Board notes that appellant submitted additional evidence on appeal. 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 her burden of proof to establish chemical exposure 

while in the performance of duty on March 28, 2020, as alleged.

FACTUAL HISTORY

On March 31, 2020 appellant, then a 42-year-old health science specialist, filed a traumatic 

injury claim (Form CA-1) alleging that on March 28, 2020 at approximately 6:15 a.m. she had an 

asthma attack due to exposure to a substance sprayed from an aerosol can while in the performance 

of duty. She asserted that her coworker in the adjacent room sprayed the aerosol can twice, which 

elevated her heart rate and caused difficulty breathing with choking and coughing. Appellant noted 

that the fire department and paramedics were summonsed, and that her blood pressure elevated. 

On the reverse side of the claim form, E.E., a supervisor with the employing establishment,

acknowledged that appellant was injured while in the performance of duty.

In an undated work excuse note, an unidentifiable healthcare provider excused appellant 

from work on March 30, 2020 for severe allergies and indicated that she could return to work on 

April 6, 2020. In a separate undated work excuse note, Dr. Jahmal Hairston, a Board-certified in

otolaryngologist, excused appellant from work on April 3, 2020 and indicated that she could return 

to work on April 10, 2020 

In an undated witness statement, L.S., appellant’s supervisor, noted that on March 28, 2020 

appellant reached out to supervisors at approximately 6:06 a.m., alleging that someone sprayed an 

unknown substance next door triggering her asthma attack. She indicated that she, along with

other supervisors, immediately rushed to appellant’s office, but initially found no visible signs of 

distress. L.S. alleged that they could not smell anything in the room or the hallway. She attested 

that when they checked on appellant’s coworkers in the adjacent room, they explained that they 

had not sprayed anything but were using disinfecting wipes. L.S. related that appellant asserted 

that the smell was stronger than the wipes and that she heard something being sprayed. She 

observed that appellant took several long pauses as she reported having difficulty breathing. L.S. 

indicated that appellant initially refused to seek medical attention, but eventually requested

medical assistance. She noted that emergency medical services (EMS) promptly arrived and that 

the situation was resolved by 8:00 a.m.

In an April 10, 2020 witness statement, W.H., appellant’s coworker, noted that he was 

aware that aerosols had been used at the employing establishment.

In an April 13, 2020 e-mail, K.R., appellant’s coworker, noted that on March 28, 2020 she 

had left her office briefly and her managers came into her office to ask if someone sprayed 

something.

On April 15, 2020 the employing establishment controverted appellant’s claim, asserting 

that she had not submitted sufficient evidence to establish causal relationship.
3

In an undated work excuse note, an unidentifiable healthcare provider excused appellant 

from work on April 10, 2020 for severe allergies and indicated that she could return to work on 

April 17, 2020.

In an April 16, 2020 duty status report (Form CA-17), Dr. Hairston indicated that 

appellant’s asthma was triggered at work on March 28, 2020. He provided work restrictions.

In an April 30, 2020 development letter, OWCP noted that, when appellant’s 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 formally considering the merits of her claim. It reopened the claim for consideration and 

requested additional factual and medical evidence from appellant. OWCP provided her with a 

questionnaire for her completion and afforded her 30 days to respond.3

In a March 30, 2020 medical report, Dr. Hairston recounted that appellant reported that she 

had experienced an asthma attack at work on March 28, 2020 after her coworker sprayed an 

unknown substance in their workspace. He indicated that appellant’s long-term asthma pattern 

may be classified as moderately persistent and gradually developed over the years. Dr. Hairston 

noted that appellant experienced symptoms including wheezing, chest tightness, and shortness of 

breath, pain, as well as difficulty breathing. He opined that appellant’s asthma was triggered by 

an aerosol spray at work on March 28, 2020.

In an April 6, 2020 medical report, Dr. Hairston noted that appellant presented for follow 

up for treatment of asthma. He diagnosed allergic rhinitis, dyspnea, nasal hypertrophy, and 

asthma.

In an April 16, 2020 medical report, Dr. Hairston diagnosed allergic rhinitis, nasal 

hypertrophy, and nasal obstruction.

An April 20, 2020 computerized tomography (CT) scan of the paranasal sinuses revealed 

mucosal thickening of the maxillary and ethmoid sinuses, narrowing of the ostiomeatal units, nasal 

septal deviation, and mucosal hypertrophy of the turbinates narrowing the nasal air passageway.

In an April 21, 2020 medical report, Dr. Neil Persaud, a cosmetic, plastic, and 

reconstructive surgery specialist, noted that appellant presented for allergy evaluation. He 

indicated that appellant suffered an asthma episode on March 28, 2020.

In a May 4, 2020 medical report, Dr. Hairston diagnosed chronic sinusitis.

In a May 5, 2020 response to OWCP’s development questionnaire, appellant indicated that 

she had been experiencing ongoing asthmatic symptoms prior to the alleged employment incident. 

She asserted that her asthma was triggered, however, when D.H., her coworker, reported to work 

one hour before her shift and sprayed equipment. Appellant related that she heard a woman’s 

voice around 6:00 a.m. and then an aerosol can being sprayed twice at approximately 6:15 a.m. 

She attested that she began experiencing asthmatic symptoms, including shortness of breath, racing

 

3 On May 29, 2020 OWCP afforded appellant additional 30 days to submit the requested evidence.
4

heart, and difficulty breathing. Appellant noted that her supervisors arrived in her room 10 minutes 

later to inspect the situation. She asserted that her supervisors never inspected her coworker’s 

belongings to confiscate what was sprayed. 

By decision dated July 22, 2020, OWCP denied appellant’s claim, finding that she had not 

established the factual component of her claim. It concluded that the requirements had, therefore,

not been met to establish an injury as defined by FECA.

LEGAL PRECEDENT

An employee seeking benefits under FECA4has 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 

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 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.8 

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.9 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 

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

 

4 Supra note 1.

5 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). 

6 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).

7 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).

8 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).

9 See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).
5

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.10

ANALYSIS

The Board finds that appellant has met her burden of proof to establish chemical exposure 

while in the performance of duty on March 28, 2020. 

Appellant has consistently reported that on March 28, 2020 her asthma attack was triggered 

by chemical exposure while in the performance of duty. She has also reported that she experienced 

multiple symptoms, including asthma, as a result. Appellant submitted a detailed account of the 

March 28, 2020 employment incident in her May 5, 2020 response to OWCP’s development 

questionnaire, which is consistent with the account she provided on her claim form. 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 

On the reverse side of the claim form E.E., a supervisor with the employing establishment, 

acknowledged that appellant was injured while in the performance of duty and that the facts about 

the injury comported with statements from appellant and/or witnesses. Supervisor L.S. also 

explained that coworkers in the office next to appellant were using a disinfectant at the time. The 

Board further notes that appellant sought medical treatment on the morning of the alleged 

exposure. The history of the March 28, 2020 employment incident was also confirmed by 

Drs. Hairston and Persaud’s medical reports, which referenced the employment incident and noted 

their examinations contemporaneous to the said incident. For these reasons, the Board finds that 

this evidence of record is sufficient to establish that the alleged March 28, 2020 employment 

incident occurred as alleged.12 Appellant has, thus, established the factual component of fact of 

injury.13

As appellant has established that the claimed occupational exposure occurred, as alleged, 

the question becomes whether this exposure caused an injury.14 As OWCP found that appellant 

had not establish fact of injury, it did not evaluate the medical evidence. Thus, the Board will set 

aside OWCP’s July 22, 2020 decision and remand the case for consideration of the medical 

evidence of record.15 After any such further development as deemed necessary, OWCP shall issue 

 

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

11 Id.

12 C.R., Docket No. 20-1147 (issued January 5, 2021).

13 Id.

14 See J.C., Docket No. 18-1803 (issued April 19, 2019).

15 S.A., Docket No. 19-1221 (issued June 9, 2020).
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a de novo decision addressing whether appellant has met her burden of proof to establish an injury 

causally related to the accepted occupational exposure.16

CONCLUSION

The Board finds that appellant has met her burden of proof to establish chemical exposure 

while in the performance of duty on March 28, 2020. The Board further finds that this case is not 

in posture for decision regarding whether appellant has established an injury causally related to 

the accepted chemical exposure.

ORDER

IT IS HEREBY ORDERED THAT the July 22, 2020 decision of the Office of Workers’

Compensation Programs is reversed and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: August 18, 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

 

16 P.S., Docket No. 19-1818 (issued April 14, 2020).