United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, CHARLOTTE 

PROCESSING & DISTRIBUTION CENTER, 

Charlotte, NC, Employer

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Docket No. 22-0883

Issued: December 7, 2023

Appearances: Case Submitted on the Record

Erik B. Blowers, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On May 24, 2022 appellant, through counsel, filed a timely appeal from a February 8, 2022 

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.

ISSUE

The issue is whether appellant has met his burden of proof to establish a medical condition 

causally related to the accepted employment exposures.

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

FACTUAL HISTORY

On November 4, 2019 appellant, then a 52-year-old tractor trailer operator, filed an 

occupational disease claim (Form CA-2) alleging chronic bilateral nasal obstruction with 

hypertrophy of both interior nasal turbinates, and chronic rhinitis due to factors of his federal 

employment includingcontinuous exposure to engine fumes and secondhand tobacco smoke at his 

workplace during the previous 12 years. He noted that he first became aware of his condition and 

realized its relation to his federal employment on September 27, 2019. Appellant did not stop 

work. 

In a September 27, 2019 report, Dr. Robert Harley, a Board-certified otolaryngologist

recounted appellant’s complaints of chronic bilateral nasal obstruction. Since 2007, appellant had 

worked 10- to 12-hour shifts as a tractor trailer driver for the employing establishment and had 

been exposed to secondhand smoke from other drivers who used the same vehicle during prior 

work shifts. On examination, Dr. Harley noted moderate bilateral inferior turbinate hypertrophy,

a Mallampati score of 3, enlarged tonsils, and mild tongue base enlargement. He opined that 

appellant’s moderate bilateral inferior turbinate hypertrophy had “more likely than not been caused 

and aggravated by continued exposure to toxic fumes and secondhand smoke. ” Dr. Harley 

recommended that appellant avoid exposure to vehicle exhaust fumes and secondhand smoke. He 

recommended bilateral submucous resection of the inferior turbinates.

In a development letter dated November 14, 2019, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence needed and 

provided a questionnaire for his completion. In a separate development letter of even date, OWCP 

requested that the employing establishment provide additional information, including comments 

from a knowledgeable supervisor and an explanation of what potentially harmful substances 

appellant had been exposed to. It afforded both parties 30 days to respond.

In response, the employing establishment submitted a December 9, 2009 statement 

confirming that appellant worked 40 hours a week as a tractor trailer operator. Employees were 

offered respiratory masks to minimize exposure. Appellant had been assigned to a single vehicle 

that was not to have been utilized by a smoker to avoid having fumes in the vehicle. The employing 

establishment contended that employees were not allowed to smoke in any postal vehicle. It also 

provided an official position description dated November 16, 2002 for appellant’s tractor trailer 

operator job. 

By decision dated December 18, 2019, OWCP denied appellant’s occupational disease 

claim, finding that the evidence submitted was insufficient to establish that the implicated 

employment exposure occurred as described. Consequently, it found that the requirements had 

not been met to establish an injury as defined by FECA. 

On January 9, 2020 appellant, through counsel, requested reconsideration.

In a January 9, 2020 statement, appellant asserted that he had been required to share 

multiple vehicles with multiple drivers as there was a shortage of available vehicles. He contended 

that many of the drivers with whom he shared vehicles had smoked tobacco products during their 

shifts, which left secondhand smoke in the vehicle. Additionally, appellant alleged that many of 

the vehicles were in poor condition such that dangerous fumes recirculated into the truck.
3

Appellant submitted a September 9, 2019 report, wherein Dr. Harley recounted that 

appellant drove trucks for 10 to 12 hours at a time with exposure to engine fumes and secondhand 

tobacco smoke. He had never smoked. On examination Dr. Harley observed continued moderate 

bilateral inferior turbinate hypertrophy. He diagnosed hypertrophy of both inferior nasal turbinates

and chronic rhinitis. Dr. Harley recommended that appellant avoid secondhand tobacco smoke 

and vehicle exhaust fumes. He again recommended surgical submucous resection of the inferior 

turbinates.

By decision dated April 8, 2020, OWCPmodified its prior decision to accept that appellant 

was exposed to secondhand tobacco smoke and vehicle fumes in the course of his federal 

employment, as alleged. However, the claim remained denied as the medical evidence of record 

was insufficient to establish causal relationship between the diagnosed conditions and the accepted 

employment exposure.

On December 18, 2020 appellant, through counsel, requested reconsideration.

Appellant submitted additional evidence. In an October 16, 2020 report, Dr. Harley opined 

that appellant had developed chronic nasal congestion, facial pressure, and refractory rhinorrhea 

due to occupational exposures to vehicle exhaust, engine smoke, transmission fluid leaks, coolant 

leaks, oil leaks, smokestack problems, and secondhand tobacco smoke from cigarettes, cigars, and 

vapes used by other drivers. Additionally, he referenced three published medical studies that 

supported that chronic exposure to secondhand tobacco smoke affected the sinonasal mucosa, 

resulting in chronic rhinosinusitis. Dr. Harley explained that principles discussed in the articles 

applied to appellant’s specific factual situation. 

By decision dated March 18, 2021, OWCP denied modification of its April 8, 2020 

decision. 

On August 23, 2021 appellant, through counsel, requested reconsideration.

OWCP subsequently received a May 22, 2021 report, wherein Dr. Harley opined that 

appellant “developed chronic nasal obstruction after prolonged exposure to airborne irritants 

including tobacco smoke and engine fumes.” Dr. Harley noted that appellant had undergone 

bilateral submucous resection of the inferior nasal turbinates on April 26, 2021 as his chronic nasal 

obstruction had been refractory to oral antihistamines and topical nasal steroids. He explained that 

the results of the three medical studies noted in his October 16, 2020 report supported that 

appellant’s chronic exposure to secondhand tobacco smoke had increased his risk of chronic 

sinusitis and had a deleterious effect on his sinonasal mucosa.

By decision dated February 8, 2022, 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 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 

3

Id.
4

time limitation period 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

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.7

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.8 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. 9

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a medical 

condition causally related to the accepted employment exposures.

In his September 9 and 27, 2019 and October 16, 2020 reports, Dr. Harley provided a 

history of the accepted employment exposures to vehicle fumes and secondhand tobacco smoke. 

He opined that these exposures caused and aggravated bilateral inferior turbinate hypertrophy with 

chronic nasal obstruction and refractory rhinorrhea, necessitating surgical resection on 

April 26, 2021. Dr. Harley, however, failed to provide medical rationale explaining how the 

accepted employment exposures physiologically caused or aggravated any of the diagnosed 

conditions. The Board has held that medical evidence that does not offer an opinion regarding the 

case of an employee’s condition or disability is of no probative value on the issue of causal 

relationship.10 Therefore, these reports are insufficient to establish appellant’s claim. 

4 C.D., Docket No. 20-0858 (issued November 30, 2020); R.M., Docket No. 20-0342 (issued July 30, 2020); J.P., 

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

5 V.P., Docket No. 20-0415 (issued July 30, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 

312 (1988).

6

20 C.F.R. § 10.115; S.A., Docket No. 20-0458 (issued July 23, 2020); L.M., Docket No. 13-1402 (issued 

February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

7 R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);Ruby I. 

Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

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

9 G.R., Docket No. 21-0695 (issued June 2, 2022); B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. 

Moore, 52 ECAB 132 (2000).

10 F.S., Docket No. 22-0070 (issued June 14, 2023); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., 

Docket No. 17-1549 (issued July 6, 2018).
5

Additionally, in reports dated October 16, 2020 and May 22, 2021, Dr. Harley referenced 

medical studies generally supporting causal relationship between exposure to secondhand tobacco 

smoke and the development of chronic rhinorrhea and nasal congestion. The Board has held, 

however, that reliance on medical literature is of diminished probative value in resolving medical 

questions unless a physician shows the applicability of the general medical principles discussed in 

the articles to the specific factual situation at issue in the case.11 As such, this evidence is also

insufficient to meet appellant’s burden of proof.12

As the medical evidence of record is insufficient to establish causal relationship between a 

medical condition and the accepted employment exposures, the Board finds that appellant has not 

met his burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a medical 

condition causally related to the accepted employment exposures.

11 L.S., Docket No. 22-0023 (issued March 1, 2023); S.J., Docket No. 20-0896 (issued January 11, 2021); R.G., 

Docket No. 18-0917 (issued March 9, 2020); T.S., Docket No. 18-1518 (issued April17, 2019); K.U., Docket No. 15-

1771 (issued August 26, 2016); Roger D. Payne, 55 ECAB 535 (2004).

12 See A.P., Docket No. 19-0224 (issued July 11, 2019). 
6

ORDER

IT IS HEREBY ORDERED THAT the February 8, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 7, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board