United States Department of Labor

Employees’ Compensation Appeals Board

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R.A., Appellant

and

TENNESSEE VALLEY AUTHORITY, COAL & 

GAS OPERATIONS, PARADISE FOSSIL 

PLANT, Drakesboro, KY, Employer

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Docket No. 20-1612

Issued: June 21, 2021

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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 10, 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 

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.

 

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

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.

FACTUAL HISTORY

On November 27, 2018 appellant, then a 55-year-old scrubber board operator, filed an 

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

due to factors of his federal employment. He noted that he first became aware of his condition and 

its relation to his federal employment on September 4, 2018. Appellant did not stop work.

In support of his claim, appellant submitted a statement dated September 4, 2018, asserting

that he had 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 on July 18, 2018.

In answers referencing FECA Bulletin No. 85-33, “Evidence Required in Supporting a 

Claim for Asbestos-Related Illness,” accompanying his claim, appellant asserted that he began 

working at the employing establishment on July 20, 1987 as a public safety officer in the 

employing establishment. Initially, he was exposed to coal dust eight hours a day, five days a 

week. Appellant noted his federal positions included that of a conveyor car dump operator in the 

coal yard, operator’s maintenance training program, scrubber assistant unit operator, and scrubber 

board operation. In his subsequent positions, he indicated that he was exposed to coal dust, 

limestone dust, and asbestos from boilers and steam lines on a daily basis. Appellant advised that 

he wore paper masks occasionally. He asserted that he did not smoke.

In an October 10, 2018 report, Dr. Glen Baker, a Board-certified pulmonologist and 

National Institute for Occupational Safety and Health (NIOSH) certified B-reader, noted that he 

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

Dr. Baker indicated that appellant worked at the employing establishment for 31 years with 

exposure to asbestos, coal dust, odors, and fumes. He further noted that appellant had never 

smoked. Dr. Baker listed appellant’s symptoms of dyspnea on exertion for the past one to two 

years, occasional cough, and obstructive sleep apnea. On physical examination he found that 

appellant had 16 respirations per minute and that his lungs were clear to auscultation and 

percussion. Dr. Baker reviewed an August 16, 2018 chest x-ray which indicated occupational 

pneumoconiosis category 1/2. He also provided findings of October 5, 2018 pulmonary function 

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

occupational pneumoconiosis category 1/2, mild restrictive ventilatory defect based on pulmonary 

function testing, and obstructive sleep apnea. He opined that appellant’s occupational 

pneumoconiosis and mild restrictive defect was caused by asbestos and coal dust exposure at the 

employing establishment. Dr. Baker attributed appellant’s sleep apnea to obesity. He found that 

appellant had a permanent impairment rating of six percent.

In a December 3, 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, 
3

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

parties 30 days to respond.

On January 16, 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 a January 18, 2019 response to OWCP’s development questionnaire, the employing 

establishment noted that appellant was employed for approximately 31 years. It further indicated 

that data of exposure to asbestos and coal dust for appellant was not available, but that assessments 

for car dump operators at the employing establishment consistently demonstrated that personal 

exposures experienced by all workers were below occupational exposure limits. The employing 

establishment contended that appellant did not perform insulating/abatement duties of asbestos

and that his positions did not routinely require the use of respirators because dust levels were well 

below Occupational Safety & Health Administration (OSHA) established limits. It disputed 

appellant’s allegations of dust or asbestos exposure.

In a February 26, 2019 report, Dr. Haller noted appellant’s employment exposure and 

symptoms. He reviewed the spirometry from Dr. Baker dated October 5, 2018 and found no 

evidence of significant lung disease. Dr. Haller 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. He also disagreed with Dr. Baker’s finding of occupational pneumoconiosis category on 

x-rays. Dr. Haller recommended a high resolution chest computerized tomography (CT) scan to 

identify pneumoconiosis. Dr. Haller performed lung volume testing, and found that appellant’s 

lung volumes were well within normal limits and noted that appellant’s restrictions could be due 

to his obesity. He also noted that appellant’s diffusing capacity was normal, while even mild 

restrictive disease would result in a decreased diffusion capacity. On physical examination

Dr. Haller noted that appellant had no bloody sputum, chest discomfort, coughing, or shortness of 

breath. He found that appellant’s examination was generally normal, but that appellant did 

experience nasal congestion, sleep apnea, and had a history of dyspnea. Dr. Haller opined that it 

was very unlikely that appellant currently had any significant pulmonary disease.

By decision dated March 28, 2019, OWCP denied appellant’s occupational disease claim,

finding that Dr. Haller’s report was entitled to the weight of the medical evidence.

On April 2, 2019 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.

On May 7, 2019 appellant sought treatment due to shortness of breath. He underwent an 

electrocardiogram (EKG) and Allen’s test for arterial blood gas (ABG) results.

Following a preliminary review, by decision dated June 18, 2019, OWCP’s hearing 

representative found that the case was not in posture for a decision and remanded the claim for a 

supplemental report from Dr. Haller, including review of the May 7, 2019 test results.

On June 19, 2019 OWCP requested that Dr. Haller provide a detailed narrative report 

reviewing the May 7, 2019 ABG and EKG results and opining whether there was significant lung 

disease based on these studies.
4

In notes dated May 28 and August 23, 2019, Dr. Haller noted reviewing the ABG and EKG 

results from May 7, 2019 and found that these results did not change his diagnosis or impression 

of appellant’s conditions. He further noted that the EKG was in normal sinus rhythm.

By decision dated August 28, 2019, OWCP denied appellant’s occupational disease claim 

finding that Dr. Haller’s reports were entitled to the weight of the medical evidence and did not 

establish a medical condition as the result of his accepted employment exposures. On 

September 5, 2019 appellant, through counsel, requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.

On January 15, 2020 appellant testified before an OWCP hearing representative and 

described his employment exposures to coal dust, limestone dust, and asbestos. He noted that he 

had never smoked or experienced difficulty breathing prior to his employment. Counsel contended 

that there was a conflict of medical opinion evidence between the reports from Drs. Baker and 

Haller.

By decision dated March 31, 2020, 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 medical opinion 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, 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 

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

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

 

3

Id.

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

Haggerty, 45 ECAB 383, 388 (1994).

5 K.V., id., and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

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).
5

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 states 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 exists 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.

Dr. Baker, in his October 10, 2018 report, reviewed appellant’s August 16, 2018 chest 

x-ray and found occupational pneumoconiosis category 1/2. Dr. Haller disagreed with the finding 

of occupational pneumoconiosis 1/2 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 

physician, Dr. Baker, who found occupational pneumoconiosis 1/2 on x-rays and Dr. Haller, the 

second opinion physician, who disagreed. Drs. Baker and Haller both offered assessments of 

appellant’s chest x-rays and their reports are of equal probative value. Consequentially, the case 

must be referred to an impartial medical specialist to resolve the existing conflict in the medical 

opinion evidence regarding whether appellant’s chest x-rays demonstrated occupational 

pneumoconiosis 1/2.

 

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 See J.R., Docket No. 20-0903 (issued April 22, 2021); Victor J. Woodhams, supra note 6.

10 5 U.S.C. § 8123(a); see C.G., Sr., Docket No. 20-0808 (issued April 23, 2021); 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; C.G., Sr., id.; 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

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

in the appropriate field of medicine 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 March 31, 2020 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: June 21, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board