United States Department of Labor

Employees’ Compensation Appeals Board

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T.M., Appellant

and

DEPARTMENT OF THE NAVY, MARINE 

CORPS LOGISTICS BASE, Albany, GA, 

Employer

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Docket No. 21-0556

Issued: April 13, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 25, 2021 appellant filed a timely appeal from a February 12, 2021 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 on appeal, appellant submitted 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 OWCP properly found that appellant’s occupational disease claim 

constituted a duplicate claim. 

FACTUAL HISTORY

On July 23, 2019 appellant, then a 64-year-old former heavy mobile equipment mechanic, 

filed an occupational disease claim (Form CA-2) alleging that he sustained sleep apnea and 

pulmonary disease causally related to factors of his federal employment. He attributed his 

condition to exposure to the chemical Turco 6776 Thin during the course of his federal 

employment. Appellant noted that he first became aware of his condition on October 4, 2002 and 

realized its relation to his federal employment on January 3, 2018. OWCP assigned OWCP File 

No. xxxxxx263.

Appellant had previously filed an occupational disease claim on December 12, 2002 

alleging that he had experienced chest pains, heart and eye problems, fatigue, and drowsiness 

causally related to chemical exposure to Turco 6776. OWCP assigned OWCP File No. 

xxxxxx738.

In OWCP File No. xxxxxx738, a nurse with the employing establishment’s clinic, on 

October 4, 2002 indicated that appellant believed that exposure to Turco 6776 had overexposed 

his central nervous system causing chest pains and breathing difficulties, including shortness of 

breath.

By decision dated March 17, 2003, issued under OWCP File No. xxxxxx738, OWCP 

denied appellant’s claim for sinus tachycardia causally related to the accepted employment factors. 

By decisions dated June 24, August 29, and November 26, 2003, and July 13, 2004, it denied 

modification of its finding that the evidence failed to establish that his condition of tachycardia 

was caused or aggravated by his employment.3

Under the current OWCP File No. xxxxxx263, in a development letter dated February 20, 

2020, 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 for 

his completion. By separate letter of the same date, OWCP also requested additional information 

from the employing establishment. It afforded both appellant and the employing establishment 30 

days to provide the requested information.

In a response dated March 11, 2020, appellant asserted that he had been exposed to the 

chemical Turco 6776 for 10 to 12 hours daily 5 to 7 days a week without being provided with 

respiratory protection or training. He indicated that the employing establishment provided him 

with a dust mask and upgraded the ventilation system. Appellant related that he also sustained 

chest pains, difficulty breathing, and tachycardia, and that the employing establishment had notice 

3 Appellant appealed to the Board. By decision dated February 14, 2005, the Board affirmed OWCP’s 2003 and 

2004 decisions denying his claim for an employment-related cardiac condition. Docket No. 04-2057 (issued 

February14, 2005). 
3

of these conditions on October 4, 2002. He maintained that he had learned on May 20, 2019 that 

his sleep apnea resulted from the chemical exposure. Appellant advised that his symptoms 

including his breath stopping during sleep, rapid heartbeat, and weakness. He indicated that he 

had filed a claim for chest pain and difficulty breathing on October 4, 2002, when the condition 

started, but was unaware that the reason was sleep apnea until May 14, 2019.

On March 6, 2020 the employing establishment described appellant’s work around the 

engine cleaning section. It advised that M.C., a former coworker of appellant who was now a 

supervisor, was unsure of the exact chemical used, but advised that the engine cleaning substance 

was used no more than one year.

In a report dated April 22, 2020, Dr. Robert V. Glover, Jr., Board-certified in 

cardiovascular disease, noted that appellant initially claimed that he was exposed on October 4, 

2002 to Turco 6776 Thin. Dr. Glover opined that the chemical exposure had caused an aggravation 

of paroxysmal supraventricular tachycardia (PSVT). Dr. Glover noted that a sleep study 

performed January 3, 2018 showed obstructive sleep apnea, and that appellant “now claims that 

the Turco 6776 Thin exposure causes dyspnea (shortness of breath...) and the sleep apnea or at 

least aggravates them.” He opined that more likely than not the chemical can cause or aggravate 

dyspnea by damaging tissues and that the “baseline shortness of breath could worsen the sleep 

apnea.” 

In a decision dated May 14, 2019, the Department of Veterans Affairs denied appellant’s 

claim for sleep apnea. It noted that he had a diagnosis of sleep apnea from September 15, 2005 to 

February 20, 2019, but found no connection with his military service.

By decision dated May 29, 2020, OWCP denied appellant’s compensation claim as 

untimely filed pursuant to 5 U.S.C. § 8122(a). It found that he had not filed his occupational 

disease claim within three years of December 13, 2004, the date of last exposure to the factors 

implicated as causing his condition, and that there was no indication that his supervisor had 

knowledge of the injury within 30 days. 

On June 1, 2020 appellant requested a review of the written record by a representative of 

OWCP’s Branch of Hearings and Review.

In a statement dated September 8, 2019, the employing establishment advised that 

appellant’s claim had been denied by OWCP in decisions dated March 17 and August 29, 2003. 

It noted that he had multiple open and closed claims.

By decision dated February 12, 2021, OWCP’s hearing representative affirmed the 

May 29, 2020 decision as modified to reflect that the basis for the denial was that appellant had 

filed a duplicate claim.4

4 The hearing representative reviewed factual and medical evidence from OWCP File Nos. xxxxxx203 and 

xxxxxx738, noting that medical evidence from the other claims included diagnoses of pulmonary problems and sleep 

apnea and, thus, determined that appellant’s current claim duplicated OWCP File Nos. xxxxxx203 and xxxxxx738. 

The hearing representative instructed OWCP, on remand, to combine OWCP File Nos. xxxxxx203 and xxxxxx738 

with the current claim.
4

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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 filed within the applicable time limitation 

period of FECA,6that an injury was sustained while in the performance of duty as alleged, and 

that any disability or specific condition for which compensation is claimed is causally related to 

the employment injury.7 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.8

In an occupational disease claim, appellant’s burden of proof requires submission of 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 employment factors identified by the employee.9

OWCP’s procedures contemplate that duplicate cases should not be created and that 

development should not occur under the duplicate case.10

ANALYSIS

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

In the current case, appellant has alleged that he sustained sleep apnea and a pulmonary 

condition causally related to his exposure to Turco 6776 Thin in the course of his federal 

employment. He advised that he learned in May 2019 that his sleep apnea was related to chemical 

exposure. As OWCP has not previously adjudicated whether appellant sustained sleep apnea or 

pulmonary disease causally related to factors of his federal employment, the Board finds that 

appellant’s claim for an occupational disease under OWCP File No. xxxxxx263 is not a duplicate 

of his claim in OWCP File No. xxxxxx738. Consequently, OWCP File No. xxxxxx263 will be 

5

Supra note 1.

6 F.H., Docket No. 18-0869 (issued January 29, 2020); S.B., Docket No. 17-1779 (issued February7, 2018); JoeD. 

Cameron, 41 ECAB 153 (1989).

7 L.C., Docket No. 19-1301 (issued January 29, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018); 

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

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

DeloresC. Ellyett, 41 ECAB 992 (1990).

9 T.W., Docket No. 20-0767 (issued January 13, 2021); S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 

59 ECAB 382 (2008).

10 See Federal (FECA) Procedure Manual, Part 1 -- Mail and Files, Creation of Cases, Chapter 1.400.7 

(February2000); see also S.W., Docket No. 16-0219 (issued April 5, 2016); W.M., Docket No. 09-1609 (issued 

April 5, 2010).
5

remanded to OWCP for a de novo review.11 Following this and such other development as deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the February 12, 2021 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: April 13, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

11 See generally J.M., Docket No. 16-1570 (issued May 24, 2018).