United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.E., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS FEDERAL CORECTION 

INSTITUTION, Estill, SC, Employer

__________________________________________

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Docket No. 23-0484

Issued: September 8, 2023

Appearances: Case Submitted on the Record

Paul H. Felser, 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

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 23, 2023 appellant, through counsel, filed a timely appeal from a 

November 10, 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.

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 a medical condition 

causally related to the accepted February 23, 2020 employment exposure.

FACTUAL HISTORY

On February 25, 2020 appellant, then a 55-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on February 23, 2020 he developed sore throat, chest pain, 

clogged lungs and sinuses, and a pounding headache when he inhaled smoke from inmates who 

were smoking while in the performance of duty. He explained that. Appellant stopped work that 

day.

On February 24, 2020 the employing establishment issued an authorization for 

examination and/or treatment (Form CA-16). In an attending physician’s report, Part B of the 

February 24, 2020 Form CA-16, a physician with an illegible signature, noted that appellant 

inhaled smoke from an unknown substance on February 22, 2020. The physician noted that 

appellant’s influenza test was negative, that his examination was within normal limits, and that he 

was able to work light duty.3 The physician noted with a checkmark “Yes” that appellant’s 

condition was caused or aggravated by his employment activity.

In a February 24, 2020 report, Angela Higgs, a nurse practitioner, noted that appellant 

reported that on February 22, 2020 some inmates were smoking an unknown substance, which he 

indicated was not cannabis or cigarettes, he developed chest and head symptoms, and he vomited. 

An assessment of unspecified injury of bilateral lung injury was provided. 

In a February 27, 2020 report, which Dr. Kenneth Eugene, a family medical specialist

noted appellant’s symptoms and findings of dark urine, chest congestion, burning chest pain, and 

shortness of breath symptoms. A diagnosis of acute upper respiratory infection was provided. 

Appellant was referred to the pulmonary department for evaluation due to shortness of breath and 

inhalation exposure concerns. 

In a March 4, 2020 work status note, Dr. C. Dickens, a family medical specialist, reported 

a February 23, 2020 date of injury, noted appellant’s symptoms of shortness of breath and burning 

of the nose, and diagnosed other disorders of lung. Appellant was released to full duty.

In a development letter dated March 13, 2020, OWCP informed appellant of the 

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

afforded him 30 days to respond. OWCP also requested that the employing establishment provide 

any treatment notes it had in its possession directly to OWCP. 

In a March 4, 2020 report, Dr. Wayne Hodges, a family medical specialist, reported 

essentially normal examination findings. He diagnosed other disorders of lung and suggested that 

appellant seek treatment with a pulmonologist. 

3 On February 9, 2020 appellant tested positive for Influenza Flu A with negative x-rays and electrocardiogram 

(ECG).
3

In a March 19, 2020 duty status report (Form CA-17), a physician with an illegible 

signature, noted a February 23, 2020 date of injury and diagnosed shortness of breath and a sinus

condition.

By decision dated April 21, 2020, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record was insufficient to establish that his diagnosed conditions were 

causally related to the accepted February 23, 2020 employment incident.

On May 19, 2020 appellant, through counsel, requested a telephonic hearing before 

OWCP’s Branch of Hearings and Review. A hearing was held telephonically on August 3, 2020.

In a March 23, 2020 report, Dr. Maria C. Mascolo, specializing in critical care medicine, 

reported that a month ago appellant inhaled smoke from an unknown substance that several 

inmates were smoking. She reported appellant’s symptoms and medical treatment, noting that he 

never smoked, had not experienced any breathing problems, history of asthma or any ongoing 

medical problems. Dr. Mascolo provided an assessment of moderate persistent reactive airways 

disease without complication. She stated that she suspected that appellant’s symptoms were due 

to his smoke exposure a little over one month prior. 

In a June 23, 2020 report, Dr. Adam P. Campbell, a Board-certified otolaryngologist, 

reported that appellant never smoked and thathe denied recreational drug use. He noted the history 

of injury and indicated that appellant returned with multiple chemical sensitivity. Dr. Campbell 

performed a nasal endoscopy and provided assessments of septal deviation, chronic frontal 

sinusitis, dyspnea, hoarseness, cough, anosmia/hyposmia, inferior turbinate hypertrophy and 

atypical facial pain. 

By decision dated September 4, 2020, OWCP’s hearing representative affirmed OWCP’s 

April 21, 2020 decision.,

On August 11, 2021 appellant, through counsel, requested reconsideration. 

Evidence received in support of the reconsideration request included a February 28, 2020 

chest x-ray report, and a February 28, 2020 work excuse note signed by a registered nurse.

In a February 28, 2020 report, Dr. Jonathan Winstead, a Board-certified otolaryngologist, 

diagnosed and treated appellant for bronchitis after inhalation of an unspecified chemical at work. 

In an undated narrative report, Dr. Campbell noted that he treated appellant following a

February 23, 2020 exposure at work where an inmate was burning an unknown substance. He 

discussed appellant’s symptoms and opined that “I believe that this smoke exposure and inhalation 

may have been the exposure which could have sensitized [appellant] to develop a chemical 

sensitivity. I believe that he has developed multiple chemical sensitivity, also known as idiopathic 

environmental intolerance.” Dr. Campbell explained that sensitization occurs after multiple low 

dose exposures to a substance or after an acute exposure and that during the sensitization phase 

patients may complain of a multitude of possible symptoms. Based on appellant’s account of his 

exposure and when symptoms began, Dr. Campbell opined that “it appears that his condition may 

have been caused or exacerbated by the inhalation of smoke due to the burning of an unknown 

substance by an inmate while at work.” He indicated that it was not known what the substance 

was and further indicated that appellant may have been developing a sensitivity due to chronic 
4

exposure at subtoxic doses and that the more acute exposure could have exacerbated his condition, 

noting that there was no test for this, and it was unknown whether this was a temporary or 

permanent condition. Dr. Campbell further noted that appellant had indicated that inmates were 

often found burning different substances and that he has been exposed to this smoke previously. 

He opined that appellant could work in an environment which did not aggravate his chemical 

sensitivity to smoke, certain fragrances, and other chemicals such as cleaning solutions. 

OWCP also received an August 30, 2020 memorandum from the employing 

establishment’s health unit, which confirmed that in past years there were multiple incidents where 

staff found themselves responding to medical emergencies in smoke filled rooms where an inmate 

was suspected to be under the influence of an unknown substance. The memorandum also noted 

that appellant’s February 23, 2020 smoke exposure was such an incident.

By decision dated November 9, 2021, OWCP denied modification of its September 4, 2020 

decision.

On November 8, 2022 appellant, through counsel, requested reconsideration. 

OWCP received a June 1, 2020 progress report from Dr. Mascolo and a duplicate copy of

Dr. Campbell’s undated narrative report.

By decision dated November 10, 2022, OWCP denied modification of its November 9, 

2021 decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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,5that 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.6 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.7

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 is that the 

employee must submit sufficient evidence to establish that he or she actually experienced the 

employment incident at the time and place, and in the manner alleged. The second component is 

4

Id.

5 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).

6 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).

7 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).
5

whether the employment incident caused a personal injury and can be established only by medical 

evidence.8

The medical evidence required to establish causal relationship between a claimed specific 

condition and an employment incident is rationalized medical opinion evidence.9 A physician’s

opinion on whether there is causal relationship between the diagnosed condition and the implicated 

employment incident must be based on a complete factual and medical background.10 

Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical 

certainty, and must be supported by medical rationale, explaining the nature of the relationship 

between the diagnosed condition and appellant’s specific employment incident.11

ANALYSIS

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

condition causally related to the accepted February 23, 2020 employment exposure.

Appellant submitted multiple medical reports from Dr. Campbell who indicated that he 

treated appellant following a February 23, 2020 employment incident during which he was 

exposed to an inmate who was burning an unknown substance. In his June 23, 2020 report,

Dr. Campbell reported that appellant never smoked and denied recreational drug use and that he 

returned with multiple chemical sensitivity. Following a nasal endoscopy, Dr. Campbell provided 

assessments of septal deviation, chronic frontal sinusitis, dyspnea, hoarseness, cough, 

anosmia/hyposmia, inferior turbinate hypertrophy and atypical facial pain. He did not, however, 

provide an opinion on whether the accepted employment incident caused or contributed to the 

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

regarding the cause of an employee’s condition is of no probative value on the issue of causal 

relationship.12 In his undated narrative report, Dr. Campbell discussed appellant’s symptoms and 

diagnosed multiple chemical sensitivity also known as idiopathic environmental intolerance. He 

opined that the February 23, 2020 smoke exposure and inhalation “may have been” the exposure 

which “could have” sensitized appellant to develop a chemical sensitivity. He further opined that 

it appeared that appellant’s condition may have been caused or exacerbated by the inhalation of 

smoke due to the burning of an unknown substance by an inmate while at work. The Board has

held that medical opinions that are speculative or equivocal in nature are of diminished probative 

value.13 Dr. Campbell’s opinions, therefore, are insufficient to meet appellant’s burden of proof.

8 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L.,Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

9

S.S.,Docket No. 19-0688 (issued January 24, 2020); A.M.,Docket No. 18-1748 (issued April24, 2019); RobertG. 

Morris, 48 ECAB 238 (1996).

10 C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11 Id.

12 R.P., Docket No. 20-0891 (issued September 20, 2021); L.B., Docket No. 18-0533 (issued August 27, 2018); 

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

13 A.D., Docket No. 21-0510 (issued September 29, 2022); H.A., Docket No. 18-1455 (issued August 23, 2019).
6

OWCP also received several reports from Dr. Mascolo, which noted a proper history of 

injury and reported on appellant’s symptoms, noting that he never smoked, did not have a history 

of breathing problems, asthma, or any other ongoing medical problems. In a March 23, 2020 

report, Dr. Mascolo provided an assessment of moderate persistent reactive airways disease 

without complication. However, her opinion that she “suspected” that appellant’s symptoms are 

due to his smoke exposure a little over a month ago is speculative and equivocal in nature.

14

 

Dr. Mascolo’s opinion, therefore, is insufficient to meet appellant’s burden of proof.

The medical reports from Drs. Eugene, Dickens, Hodges, and Winstead failed to provide 

an opinion on causal relationship between appellant’s accepted February 23, 2020 employment 

injury and his diagnosed conditions.15 Thus these reports are insufficient to meet appellant’s 

burden of proof.

Appellant also submitted a February 24, 2020 attending physician’sreport from a physician 

with an illegible signature. The Board has held that a report that bears an illegible signature cannot 

be considered probative medical evidence because it lacks proper identification. 16 Thus, this report 

is of no probative value.

OWCP also received a February 24, 2020 report from a nurse practitioner. Certain 

healthcare providers such as nurses and nurse practitioners, however, are not considered

“physician[s]” as defined under FECA.17 Consequently, their medical findings and/or opinions 

will not suffice for purposes of establishing entitlement to FECA benefits.

As the medical evidence of record is insufficient to establish a medical condition causally 

related to the accepted February 23, 2020 employment exposure, 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.

14 See A.I.,Docket No. 22-1023 (issued February 28, 2023); D.D.,Docket No. 21-1029 (issued February 22, 2022).

15 A.H., Docket No. 18-1632 (issued June 1, 2020); D.K., Docket No. 17-1549 (issued July 6, 2018). 

16 K.C., Docket No. 18-1330 (issued March 11, 2019); R.M., 59 ECAB 690 (2008); D.D., 57 ECAB 734 (2006); 

Richard J. Charot, 43 ECAB 357 (1991).

17 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 5 U.S.C. § 8102(2) of FECA provides that the term physician includes 

surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within 

the scope of their practice as defined by State law. See K.C.,Docket No. 18-1330 (issued March 11, 2019); see also 

Roy L. Humphrey, 57 ECAB 238 (2005).
7

CONCLUSION

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

condition causally related to the accepted February 23, 2020 employment exposure.

18

ORDER

IT IS HEREBY ORDERED THAT the November 10, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 8, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

18 The Board notes that the employing establishment issued a Form CA-16 authorization for examination or 

treatment. A completed Form CA-16 authorization may constitute a contract for payment of medical expenses to a 

medical facility or physician, when properly executed. The form creates a contractual obligation, which does not 

involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the 

claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 

608 (2003).