United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.Q., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Columbus, NM, Employer

__________________________________________

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Docket No. 21-1284

Issued: March 22, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 August 25, 2021 appellant, through counsel, filed a timely appeal from an August 10, 

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 his burden of proof to establish an injury in the 

performance of duty, as alleged.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

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

follows. 

On June 28, 2019 appellant, then a 65-year-old retired assistant port director, filed an 

occupational disease claim (Form CA-2) alleging that he developed non-smokers emphysema due 

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

first realized its relationship to his federal employment on March 27, 2019. On the reverse side of 

the claim form D.C., an assistant port director for the employing establishment, noted that 

appellant retired, effective August 31, 2018.

In a development letter dated July 19, 2019, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of medical and factual evidence necessary to establish his 

claim and provided a questionnaire for his completion. In a separate development letter of even 

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

both parties 30 days to submit the necessary information.

In a memorandum dated August 8, 2019, D.C. responded on behalf of the employing 

establishment reporting that appellant’s position at the employing establishment was primarily a 

supervisory and administrative position that did not require constant exposure to the elements. He 

noted that the port area was surrounded by open desert with the associated dust and wind. D.C. 

provided a position description for an assistant port director.

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

finding that the evidence of record failed to establish the alleged factors of his employment. It 

specifically noted that he failed to respond to OWCP’s request for a detailed statement regarding 

how his federal employment caused or contributed to his claimed condition. OWCP, therefore, 

concluded that the requirements had not been met to establish an injury as defined by FECA.

On September 25, 2019 appellant requested reconsideration. By decision dated 

October 29, 2019, OWCPdenied hisrequest for reconsideration of the merits of his claim pursuant 

to 5 U.S.C. § 8128(a).

On April 8, 2020 appellant, through counsel, requested reconsideration.

In reports dated June 7, 2019 through February 3, 2020, Dr. Juan Fernandez, a Boardcertified pulmonologist, diagnosed interstitial lung disease, post-influenza syndrome, and history 

of deep vein thrombosis and pseudo aneurysm. In a July 24, 2019 report, he indicated that a 

3 Docket No. 20-1477 (issued March 25, 2021).
3

computerized tomography (CT) scan of appellant’s chest4 showed panlobular emphysema. 

Dr. Fernandez opined that etiology was “most likely to be related to his previous job/work 

environment” since he did not have a history of smoking.

By decision dated June 30, 2020, OWCP denied modification of the August 28, 2019 

decision.

Appellant timely appealed to the Board. By decision dated March 25, 2021, the Board 

affirmed the June 30, 2020 decision, finding that appellant had not met his burden of proof to 

establish an injury in the performance of duty, as alleged.5

On May 14, 2021 appellant, through counsel, requested reconsideration.6

Appellant submitted a completed OWCP’s development questionnaire dated May 5, 2021. 

He indicated that he believed he developed emphysema while working as a customs inspector from 

1988 to 2018. Appellant explained that his primary duty was inspecting vehicles coming inbound 

from Mexico. He reported that he worked an average of 64 hours per day and inspected an average 

of 2,080 vehicles per week. Appellant asserted that he was exposed to and had contact with car 

exhaust fumes from vehicular traffic, air pollution, and weather elements, such as dust. He 

indicated that outside of his federal employment, he had limited exposure to vehicle exhaust fumes

and dust. Appellant explained that he first noticed his condition changing in early 2015 when his 

stamina and endurance declined and he developed a persistent cough. He noted that, at that time,

doctors attributed his symptoms to the cold and flu. Appellant reported that he was finally 

diagnosed in 2019 when he suffered respiratory distress and had to go to the hospital.

In an August 10, 2021 decision, OWCP denied modification of the June 30, 2020 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA7 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 

4 A January 8, 2020 chest CT scan showed parenchymal distortion with mild subpleural reticulation suggestive of 

an interstitial lung disease, stable 5.0 mm partly calcified nodule in the right upper lobe, moderate generalized 

centrilobular emphysema in the upper lobe, and persistent small loculated right pleural effusion. A plethysmography 

report of even date revealed moderate restrictive lung defect, increased airway resistance, and a decrease in diffusing 

capacity.

5

Supra note 3.

6 Although appellant claimed to be filing a request for reconsideration from the Board’s March25, 2021 decision, 

OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject 

matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R. 

§ 501.6(d). Although the March 25, 2021 Board decision was the last merit decision, the June 30, 2021 OWCP 

decision is the appropriate subject of possible modification by OWCP.

7

Id.
4

limitation of FECA,8that 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.9 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.10

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

disease claim, a claimant must submit: (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 claimant.11 

ANALYSIS

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

Appellant has alleged that he developed emphysema due to factors of his federal 

employment. OWCP initially denied his claim finding that he had failed to establish that the 

employment factors occurred as alleged. It specifically noted that appellant failed to respond to 

OWCP’s request for a detailed statement regarding how his federal employment caused or 

contributed to his claimed condition. By decision dated March 25, 2021, the Board affirmed the 

denial of his claim.

Following the Board’s March 15, 2021 decision, appellant submitted his response to 

OWCP’s July 19, 2019 development questionnaire. He asserted that he developed emphysema 

while working as a customs inspector for the employing establishment from 1988 to 2018. 

Appellant explained that, as a customs inspector, he worked an average of 64 hours per day and 

inspected an average of 2,080 vehicles per week arriving inbound from Mexico. He indicated that 

he was exposed to car exhaust fumes from vehicular traffic, air pollution, and weather elements. 

OWCP’s procedures provide that a description of job duties will almost always be required 

to adjudicate an occupational disease claim.12 It further notes that a claimant should usually be 

asked to describe the physical and environmental requirements of the job, and the supervisor or 

injury compensation specialist should review that statement and provide comments if there is any 

8 D.D., Docket No. 19-1715 (issued December 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 

59 ECAB 178 (2007); JoeD. Cameron, 41 ECAB 153 (1989). 

9 Y.G., Docket No. 20-0688 (issued November 13, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018); 

R.C., 59 ECAB 427 (2008); James E.Chadden, Sr., 40 ECAB 312 (1988).

10 C.H., Docket No. 19-1781 (issued November 13, 2020); 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). 

11 T.M., Docket No. 20-0712 (issued November 10, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); 

R.H., 59 ECAB 382 (2008).

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7b(2). 

(June 2011)
5

disagreement.13 While the employing establishment responded to OWCP’s July 19, 2019 

development letter, the Board notes that it provided information regarding appellant’s employment 

duties as an assistant port director and provided a position description for an assistant port director. 

Appellant, however, has not attributed his pulmonary condition to his employment duties as an 

assistant port director, but to his employment as a customs inspector from 1988 to 2018. The 

Board notes that OWCP did not request further information, including his position description as 

a customs inspector from 1988 to 2018, from the employing establishment addressing appellant’s 

contentions that he was exposed to vehicle fumes and/or environmental conditions. For this 

reason, the Board finds that the case must be remanded for further development of the factual 

evidence.14 

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

the claimant has the responsibility to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence, particularly when such evidence is of the 

character normally obtained from the employing establishment.

15

 OWCP has an obligation to see 

that justice is done.16 

On remand OWCP should obtain a detailed statement from the employing establishment 

indicating whether it concurred with appellant’s allegations and a position description for a 

customs inspector. If the employing establishment fails to respond to a request for comments on 

appellant’s allegations, OWCP’s claims examiner may accept the statements as factual. 17 

Following this and any 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 Id. 

14 See D.C., Docket No. 21-0231 (issued August 27, 2021) (case was remanded because the employing 

establishment did not provide a detailed statement indicating whether it concurred with appellant’s allegations); see 

also M.T., Docket No. 18-1104 (issued October 9, 2019) (case was remanded for OWCP to obtain a statement from 

the employing establishment addressing appellant’s allegations regarding harassment at work).

15 D.O., Docket No. 20-0006 (issued September 9, 2020); R.A., Docket No. 17-1030 (issued April 16, 2018); 

Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

16 S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); WilliamJ.

Cantrell, 34 ECAB 1233, 1237 (1983).

17 Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.800.5d(1) (June 2011). See also L.B., Docket 

No. 17-1671 (issued November 6, 2018).
6

ORDER

IT IS HEREBY ORDERED THAT the August 10, 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: March 22, 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