United States Department of Labor

Employees’ Compensation Appeals Board

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J.M., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

LAUGHLIN AIR FORCE BASE, Del Rio, TX, 

Employer

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Docket No. 23-0743

Issued: December 6, 2023

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

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 24, 2023 appellant filed a timely appeal from an April 6, 2023 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 his burden of proof to establish a pulmonary 

condition causally related to the accepted employment exposure.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On July 2, 2020 appellant, then a 62-year-old former painter, filed an occupational disease 

claim (Form CA-2) alleging that he sustained a respiratory condition due to factors of his federal 

employment including exposure to multiple chemicals without protective equipment. He noted 

that he first became aware of his condition and realized its relationship to his federal employment 

on November 1, 2000.3 Appellant remained employed as a painter supervisor through August 31, 

2019, when he retired from the employing establishment. An official position description dated 

October 31, 2006, notes that appellant’s job duties as a painter supervisor exposed him to epoxy, 

paint thinners, mineral spirits, methyl ethyl ketone, polyurethane paint, grease, oil, fuels, battery 

acid, cleaning solvents, slippery surfaces, high pressure air and engine noise, electrical energy, and 

dust.

In support of his claim, appellant provided a July 14, 2020 statement alleging that he had 

been issued improper or inadequate personal protective equipment (PPE). During operation of a 

bead-blast cabinet, which produced chromium dust, cadmium, and polyurethane dust, he alleged 

receivinga paper mask that did not offer adequate protection. Appellant used a half-face respirator 

while stripping paint from aircraft and aircraft parts with methylene chloride, as well as using 

polyurethane paint, and sanding. He alleged that environmental testing later established that this 

PPE did not filter out contaminants.

In an undated incident report received by OWCP on July 14, 2020, appellant noted that he 

had been hired by the employing establishment on August 17, 1989. He alleged that he had 

developed breathing problems due to workplace exposures to methyl ethyl ketone, polyurethane 

thinner, methylene chloride, epoxy primer, lacquer thinner, polyurethane paint, naphtha thinner, 

toluene thinner, acetone, plastic media, cadmium, and chromium. 

OWCP also received material safety data sheets for methyl ethyl ketone, base component

industrial coating, polyurethane thinner, stripper 18, and curing solution. 

Appellant submitted medical evidence from the employing establishment’s health unit. In 

an August 17, 1992 report, Dr. Gregory G. Gardner, an employing establishment family 

practitioner, opined that pulmonary function testing (PFT) performed on that date was within 

normal limits. In an August 5, 1993 report, Dr. Blake V. Chamberlain, an employing 

establishment emergency medicine specialist, found that PFT performed that day were within 

normal limits. In a July 26, 1995 report, Dr. Gardner opined that PFT performed on that date was

within normal limits. Appellant completed a respirator medical evaluation questionnaire 

2 Docket No. 21-1208 (issued February 6, 2023).

3

In a July 9, 2020 statement, appellant requested that OWCP change the date of injury noted on his July 2, 2020 

Form CA-2 from August 17, 1989 to November 1, 2000.
3

indicating complaints of shortness of breath, thick sputum, high blood pressure, and a heart 

problem for which he took medication.

In an October 19, 1998 exposure questionnaire, appellant alleged excessive exposure to 

metals, dusts or fibers, chemicals, fumes, chromium, cadmium, and methyl ethyl ketone. He 

alleged that the PPE provided by the employing establishment was inadequate. 

OWCP received laboratory test panels dated from November 3, 1999 through January 31, 

2019 from the employing establishment health unit, screening for cadmium exposure.

A December 13, 1999 occupational health examination requirements report acknowledged 

that employees in the corrosion control area where appellant worked were exposed to strontium 

chromate, zinc chromate, and chromic acid above the occupational exposure limit. These 

exposures necessitated a program of an annual PFT, chest x-rays, a physical examination, and 

exposure questionnaires.

In a September 13, 2001 fitness-for-duty examination report, Dr. Allan E. Ward, an 

employing establishment occupational medicine specialist, noted appellant’s complaints of 

intermittent right-sided chest pain that felt like pleurisy.

In a September 30, 2002 employing establishment health unit respirator questionnaire.

Dr. Lisa B. Firestone, an employing establishment physiatrist, indicated that appellant’s medical 

clearance or disqualification was on hold pending further evaluation. Appellant complained of 

chest pain, shortness of breath, and thick sputum production. 

A January 6, 2011 occupational health note indicated that workers exposed to chromic acid 

should have periodic physical examinations to detect incipient changes in the nostrils and 

respiratory tract.

In an April 26, 2016 report, Dr. Preston Moore, an employing establishment family 

practitioner, opined that appellant’s recent laboratory studies and PFT were within normal limits. 

In a development letter dated July 17, 2020, OWCP advised appellant of the deficiencies 

of his claim. It advised him of the type of medical and factual evidence needed, and provided a 

questionnaire for his completion. By separate development letter of even date, OWCP requested 

that the employing establishment provide comments from a knowledgeable supervisor regarding 

appellant’s allegations, including any history of hazardous exposures, the frequency and duration 

of such exposures, air sample results, safety data sheets for the relevant materials, and a description 

of the safety equipment provided. It afforded both parties 30 days to respond. 

On December 1, 2020 OWCP referred appellant, along with statement of accepted facts 

(SOAF), a copy of the case record, and a series of questions, to Dr. Lukena Karkhanis, a Boardcertified internist, allergist, and immunologist, for a second opinion evaluation regarding whether 

the identified occupational exposures had caused the claimed respiratory condition. The SOAF 

noted appellant’s date of injury as August 17, 1989 and that he “claimed working around loud 

aircraft and painting aircraft. Exposed to multiple of chemicals, which caused me to have 

breathing problems. Inaccurate respirator assigned.”
4

In a January 11, 2021 report, Dr. Karkhanis opined that PFT results obtained that day 

demonstrated a mild restrictive ventilator defect based on a mildly reduced forced vital capacity. 

She noted that appellant’s symptoms of difficulty getting air in at rest had worsened when wearing 

a surgical mask, and that the symptoms were atypical for asthma and lessened when walking. On 

examination, Dr. Karkhanis found that appellant’s pulmonary auscultation was within normal 

limits, with no crackles or wheezes. She diagnosed shortness of breath and cough after exposure 

to diisocyanates. Dr. Karkhanis opined that there was no objective evidence that diisocyanaterelated injury had any role in appellant’s current condition. She noted that appellant’s morbid 

obesity, obesity-related hypoventilation, and significant cardiac disease were alternative etiologies 

for his symptoms. Dr. Karkhanis recommended treatment for vocal cord dysfunction. She 

returned appellant to sedentary duty in a position that would allow him to walk around the room 

occasionally when he developed pulmonary symptoms while seated. 

By decision dated February 1, 2021, OWCP accepted that the alleged occupational 

exposures had occurred as described. It denied the claim, however, finding that the medical 

evidence of record was insufficient to establish that he sustained a pulmonary condition causally 

related to the accepted occupational exposures.

On March 15, 2021 appellant requested reconsideration. In an accompanying statement 

dated March 6, 2021, he contended that the factual evidence of occupational exposures was 

sufficient to establish his claim, and that Dr. Karkhanis did not discuss these exposures in her 

report.

Appellant submitted material safety data sheets for red and white urethane paint, and high 

solids Ura-Zen catalyst.

A September 19, 2013 occupational health examination requirements memorandum 

indicated that employees in the corrosion control unit where appellant worked were exposed to 

chromium VI and strontium chromate “over the action level.”

In a July 9, 2020 attending physician’s report (Form OWCP-20), Dr. David M. O’Brien, 

an employing establishment physician specializing in aerospace medicine, diagnosed asthma,

emphysema, or airway obstruction. He answered “Yes” in support of a causal relationship between 

the diagnoses and “[l]ack of proper respirator.”

Appellant also submitted copies of evidence previously of record.

By decision dated July 19, 2021, OWCP denied appellant’s request for reconsideration of 

the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

Appellant appealed to the Board. By decision dated February 6, 2023, the Board reversed 

the July 19, 2021 decision, finding that appellant had submitted new, relevant evidence on 

reconsideration, and remanded the case for a merit review.4

4

Supra note 2.
5

By decision dated April 6, 2023 OWCP denied modification. 

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 timely filed within the applicable time 

limitation of FECA,6that the claim was timely filed within the applicable time limitation of 

FECA,7that 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.8 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. 9

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, an employee 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.10

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.11 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 factors identified by the claimant. 12

5

Supra note 1.

6 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989).

7

Id.

8 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).

9 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).

10 See A.S., Docket No. 22-0861 (issued April27, 2023); A.S., Docket No. 19-1766 (issued March 26, 2020);R.G., 

Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); RubyI. Fish, 46 

ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

11 L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

12 B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 140 (2000). 
6

ANALYSIS

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

The SOAF provided to Dr. Karkhanis noted appellant’s date of injury as August 17, 1989. 

However, in a July 9, 2020 statement, appellant requested that OWCP change the date of injury 

noted on his July 2, 2020 Form CA-2 from August 17, 1989 to November 1, 2000. Moreover, the 

SOAF merely noted that appellant “claimed working around loud aircraft and painting aircraft. 

Exposed to multiple of chemicals, which caused me to have breathing problems. Inaccurate 

respirator assigned.” However, by decision dated February 1, 2021, OWCP accepted that 

appellant was exposed to paints in the performance of duty as alleged. 

OWCP’s procedures dictate that, when an OWCP district medical adviser (DMA), second 

opinion specialist, or referee physician renders a medical opinion based on a SOAF, which is 

incomplete or inaccurate, or does not use the SOAFas the framework in forming his or her opinion, 

the probative value of the opinion is seriously diminished or negated altogether. 13 As the SOAF 

provided to Dr. Karkhanis was incomplete, her opinion is of diminished probative value and 

cannot represent the weight of the medical evidence in this case.14

It is well established that proceedings under FECA are not adversarial in nature and while 

the claimant has the burden of proof to establish entitlement to compensation, OWCP shares the 

responsibility in the development of the evidence.15 Once OWCP undertook development of the 

evidence by referring appellant to a second opinion physician, it had the duty to secure an 

appropriate report addressing the relevant issues.16 As Dr. Karkhanis did not base her report on a

complete, accurate factual history, the case shall be remanded to OWCP for further development 

of the medical evidence.

On remand, OWCP shall prepare an updated SOAF, and then obtain a supplemental 

opinion from Dr. Karkhanis on the issue of causal relationship. After this and other such further 

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

CONCLUSION

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

13 C.C., Docket No. 22-0460 (issued October 12, 2022); R.W., Docket No. 19-1109 (issued January 2, 2020); 

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990).

14 Id.

15 M.B., Docket No. 21-0060 (issued March17, 2022); J.N., Docket No. 19-0215 (issued July 15, 2019); KathrynE. 

Demarsh, 56 ECAB 677 (2005).

16 Id.
7

ORDER

IT IS HEREBY ORDERED THAT the April 6, 2023 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded to OWCP for further proceedings 

consistent with this decision of the Board.

Issued: December 6, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board