United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

FRANK TEJEDA OUTPATIENT CLINIC, 

San Antonio, TX, Employer

__________________________________________

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Docket No. 21-1115

Issued: April 7, 2022

Appearances: Case Submitted on the Record

Brett Elliot Blumstein, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 15, 2021 appellant, through counsel, filed a timely appeal from a June 4, 2021 

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 her burden of proof to establish a respiratory

condition causally related to the accepted May 9, 2019 employment incident.

FACTUAL HISTORY

On June 6, 2019 appellant, then a 54-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that on May 9, 2019 she had an adverse reaction due to exposure to an unknown 

chemical pesticide/insecticide which was sprayed near her clinical work area while in the 

performance of duty. Hersupervisor, on the reverse side of the claim form, indicated that appellant

was injured in the performance of duty. Appellant stopped work on May 9, 2019 and returned on 

May 18, 2019. 

In a development letter dated June 12, 2019, OWCP notified appellant that the evidence 

submitted was insufficient to establish her claim. It advised her of the type of factual and medical 

evidence necessary to establish her claim and provided a questionnaire for her completion. OWCP 

afforded appellant 30 days to submit the requested evidence. 

In response, OWCP received a May 18, 2019 narrative statement wherein appellantrelated 

that on May 9, 2019 she walked into the hallway from her office and noticed a man carrying a 

container with a hose, which appeared to be a container for insect spray. Appellant told the man 

that she was allergic to chemicals and asked that he not spray in her workspace. The man

responded that the spray was synthetic. Shortly thereafter, appellant saw the man return to the 

clinical work area and sprayed coworkers’ office spaces across the hall from hers. She related that 

she developed headaches, nausea, vomiting, fatigue, upper respiratory signs and symptoms, 

scratchy throat, and laryngitis. Appellant further noted that she had previously been exposed to a 

chemical, which might have been WD-40 at the employing establishment. 

In a report dated May 15, 2019, Dr. Clayton Pullin, Board-certified in family practice, 

related that appellant was seen for an upper respiratory infection and laryngitis, which had been 

present for one week.

In reports dated June 13 and 14, 2019, Dr. Jeffery Wasetis, a family medicine and general 

medicine specialist, noted appellant’s history of chemical exposure and complaints of nausea, 

vomiting, diarrhea, and headache. In a narrative report dated June 14, 2019, he assessed that 

appellant had sustained chemical exposure at work, but that he suspected that her symptoms of 

nausea, vomiting, diarrhea, and headache were not work related. 

In a report dated June 17, 2019, Dr. James Bugg, III, a family medicine specialist, 

diagnosed chemical exposure at work with the extent of exposure unknown at that time. In a 

narrative report of even date, he related that appellant was seen for exposure to Alpine pesticide at 

her workplace. Appellant was taken off work due to her symptoms. Dr. Bugg diagnosed 

workplace chemical exposure with the extent of exposure unknown. Examination findings were 

detailed. In a duty status (Form CA-17) of even date, Dr. Bugg noted an injury date of May 9, 

2019 when appellant was exposed to sprayed chemical. He diagnosed exposure to hazardous 
3

chemicals with symptoms possibly related to pesticide exposure. Dr. Bugg released appellant to 

return to work on July 9, 2019 with restrictions of no exposure to the chemical Alpine. 

Dr. Wasetis, in a report dated June 19, 2019, noted that appellant was seen for a chief 

complaint of chemical exposure with nausea, vomiting and diarrhea in addition to upper 

respiratory symptoms. He provided an assessment of work-related chemical exposure and possibly 

work-related nausea, headache, diarrhea, and vomiting. Dr. Wasetis detailed appellant’s history

of injury and provided examination findings. Appellant related developing a cough after inhaling 

the pesticide sprayed in her office on May 9, 2019. Dr. Wasetis reported that appellant continued 

to have nausea. Appellant related that on June 13, 2019 she again developed nausea and diarrhea 

after being re-exposed to the chemical that day. Dr. Wasetis suggested a correlation between 

appellant’s symptoms and chemical exposure based on the recurrence of her symptoms following 

re-exposure to the chemical. He recommended removal from the environment. As to causation,

Dr. Wasetis opined that it appeared that appellant was sensitive to something in her workplace, 

which she strongly suggested was pesticide exposure.

In a report dated July 3, 2019, Dr. Bugg reiterated findings from his prior reports. He again 

diagnosed chemical exposure with symptoms possibly due to that exposure. Dr. Bugg 

recommended looking at non-exposure possibilities for appellant’s symptoms in light of the 

persistence of her symptoms and the atypical association of her continued symptoms with the 

actual application of the pesticide. 

By decision dated July 22, 2019, OWCP denied appellant’s claim as it found she failed to 

establish a causal relationship between a diagnosed medical condition and the accepted May 9, 

2019 employment incident. 

On August 2, 2019 appellant requested reconsideration and submitted additional evidence. 

In notes dated July 31, 2019, Dr. Bugg related that appellant had informed him that her 

claim was denied based upon his opinion that her condition was not work related. He indicated

that he reviewed herrecord and he thereafter explained that while he had related that hersymptoms

after her return to work did not appear to be caused by the remote spraying incident, her initial

symptoms were causally related to insecticide exposure as described by appellant. Dr. Bugg

opined that as appellant’s symptoms developed at the time of spraying, it was clear that her 

symptoms were attributable to her initial exposure. 

In encounter notes dated August 14 and September 18, 2019, Dr. Bugg reported appellant 

was doing well as her chemical exposure had improved. 

By decision dated November 26, 2019, OWCP denied modification. 

On October 13, 2020 appellant, through counsel, requested reconsideration. She submitted 

a September 29, 2020 report from Dr. John W. Ellis, Board-certified in family practice and 

environmental medicine. 

In the September 29, 2020 report, Dr. Ellis related that appellant was exposed to spraying 

of chemicals, which contained Dinotefuran. He noted that the spray more likely than not had an 

oil base for which the respiratory system is sensitive. Dr. Ellis concluded that appellant had 
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experienced a physiological response to chemicals at the employing establishment and must avoid 

any further environmental exposures. 

By decision dated November 16, 2020, OWCP denied modification.

On November 25, 2020 appellant, through counsel, requested reconsideration. 

By decision dated December 14, 2020, OWCP denied appellant’s request for 

reconsideration. 

On April 27, 2021 appellant, through counsel, requested reconsideration and submitted an

April 6, 2021 report from Dr. Ellis. 

In an April 6, 2021 narrative report, Dr. Ellis noted that he had examined appellant in his 

office that day. He reviewed the history of herinjury when she was exposed to a chemical pesticide 

spray at work on May 9, 2019. Dr. Ellis diagnosed respiratory tract sensitization from

environmental chemicals at work and chronic post-traumatic stress disorder (PTSD) due to her 

work injury. He noted that appellant was exposed to a chemical spray containing Dinotefuran, 

which was more likely than not an oil-based spray. Dr. Ellis explained that the respiratory system 

was extremely sensitive to oils and petrochemicals and that inhaling just a bit of petrochemicals 

was harmful and sensitized the lungs. He noted that appellant immediately developed eye and 

nose irritation and slight chest tenderness following exposure to the spraying of chemicals on 

May 9, 2019. Appellant also reported having headache, difficulty thinking, nausea, and vomiting 

that evening. Dr. Ellis further opined that appellant was temporarily totally disabled during the 

one-month period appellant’s treating physician placed her off work due to the chemical exposure. 

By decision dated June 4, 2021, OWCP denied modification. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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,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

3

Id.

4 A.B., Docket No. 20-1017 (issued June 11, 2021); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 

ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5 A.B., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, 

Sr., 40 ECAB 312 (1988). 

6 B.C., Docket No. 20-1501 (issued July 27, 2021); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., 

Docket No. 13-1402 (issued February 7, 2014); DeloresC. Ellyett, 41 ECAB 992 (1990).
5

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. The first component to be established 

is that the employee actually experienced the employment incident, which is alleged to have 

occurred.7 The second component is whether the employment incident caused a personal injury.8

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.9 The opinion of the physician must be based on a complete factual 

and medical background of the claimant, 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 the specific employment incident identified by the claimant.10

ANALYSIS

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

In support of her claim, appellant submitted multiple medical reports in which her treating 

physicians noted her symptoms following exposure to pesticide spray on May 9, 2019. 

In a July 31, 2019 report, Dr. Bugg related that appellant’s initial symptoms were causally 

related to insecticide exposure as she described. He opined that it has been clear throughout the 

time of the injury that her symptoms were attributable to her initial exposure. 

Also submitted were reports from Dr. Ellis dated September 29, 2020 and April 6, 2021 

wherein he diagnosed respiratory tract sensitization of environmental chemicals due to exposure 

to pesticide spay on May 9, 2019.

In an April 6, 2021 report, Dr. Ellis provided findings on examination and diagnosed 

respiratory tract sensitization. He attributed the diagnosed conditions to her exposure to pesticide 

spray on May 9, 2019. Dr. Ellis noted that appellant was exposed to a chemical spray containing 

Dinotefuran, which was more likely than not an oil-based spray. He explained that the respiratory 

system was extremely sensitive to oils and petrochemicals and that inhaling just a bit of 

petrochemicals was harmful and sensitized the lungs. 

The Board finds that the reports of Dr. Bugg and Dr. Ellis provide an affirmative opinion 

on causal relationship. Further, these opinions are based upon a complete factual history and 

medical background.

11

 While Dr. Bugg and Dr. Ellis’ report are insufficiently rationalized to meet 

7

Id.; Elaine Pendleton, 40 ECAB 1143 (1989).

8 A.B., supra note 4; K.L., Docket No. 18-1029 (issued January 9, 2019). See Shirley A. Temple, 48 ECAB 404, 

407 (1997); JohnJ. Carlone, 41 ECAB 354, 356-57 (1989).

9 A.B., id.; M.S., Docket No. 19-1096 (issued November 12, 2019); JacquelineM. Nixon-Steward, 52 ECAB 

140 (2000).

10 R.S., Docket No. 19-1484 (issued January 13, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11 E.P., Docket No. 20-0898 (issued February 17, 2021); S.C.,Docket No. 19-0920 (issued September 25, 2019).
6

appellant’s burden of proof to establish her claim, taken together they raise an uncontroverted 

inference between her respiratory tract sensitization and the accepted employment incident and, 

therefore, is sufficient to require OWCP to further develop the medical evidence and the case 

record.12

The Board notes that proceedings under FECA are not adversarial in nature and OWCP is 

not a disinterested arbiter. While the claimant has the burden of proof to establish entitlement to 

compensation, OWCP shares responsibility to see that justice is done. 13. The nonadversarial policy 

of proceedings under FECA is reflected in OWCP’s regulations at section 10.121.14 

The Board will, therefore, remand the case to OWCP for further development of the 

medical evidence. On remand OWCP shall prepare a statement of accepted facts (SOAF) and 

refer it, appellant, and the medical record to a specialist in the appropriate field of medicine for a 

second opinion on whether the accepted May 9, 2019 employment incident resulted in the 

diagnosed condition causally related to the accepted employment incident. If the physician opines 

that the diagnosed condition is not causally related, he or she must explain with rationale how or 

why the causation opinion differs from that of Dr. Bugg and Dr. Ellis. Following this and any 

other further development deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

12 K.S., Docket No. 19-0506 (issued July 23, 2019); D.W., Docket No. 17-1884 (issued November 8, 2018).

13 D.V., Docket No. 21-0383 (issuedOctober 4, 2021); H.T., Docket No. 18-0979 (issued February 4, 2019); John J. 

Carlone, 41 ECAB 354, 358-60 (1989).

14 20 C.F.R. § 10.121.
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ORDER

IT IS HEREBY ORDERED THAT the June 4, 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 7, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board