United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Valdosta, GA, Employer
)
___________________________________________ )
J.S., Appellant

Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-529
Issued: September 21, 2009

Case Submitted on the record

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On December 16, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated October 29, 2008, which affirmed the denial of his
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the issue in
this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained an injury in the performance of duty, causally related to factors of his federal
employment.
FACTUAL HISTORY
On July 14, 2006 appellant, then a 45-year-old mail processing clerk, filed an
occupational disease claim alleging that he sustained low back pain at work. He noted that he
originally injured his back at work on while lifting boxes. Appellant first became aware of the
injury and its relation to his work on March 29, 1995. He stopped work on June 7, 2006. The

employing establishment indicated that appellant was last exposed to work conditions alleged to
have caused his claimed condition on June 7, 2006. The employing establishment controverted
the claim and noted instances in which appellant was disciplined.1
In a separate statement, appellant noted that he originally injured his back on March 29,
1995, while lifting boxes of mail. He alleged that since the original injury he was unable to do
normal things and activities without having pain and discomfort in the lower back, buttocks and
legs.
In reports dated August 17, 2006, Dr. Thomas Walsh, a Board-certified orthopedic
surgeon and treating physician, noted that on March 29, 1995 appellant was lifting heavy boxes
of mail and sustained a back injury. He stated that appellant “had trouble with it ever since.”
Dr. Walsh diagnosed L5-S1 degenerative disc disease, disc herniation and spinal stenosis.
Dr. Walsh related that appellant “feels that he continues to have problems from the same injury
site and that this continues to be problematic from the same injury.” He noted that the primary
pain source was from the degenerative disc and secondarily a pinched nerve. Dr. Walsh opined
that appellant’s current complaint was still related to the pain he had in 1995, which was related
to the lifting injury at work.
In a statement dated August 24, 2006, appellant noted working for the employing
establishment since February 7, 1984. His duties included lifting, carrying, stooping, bending
over and dragging mail items to various locations. Appellant also indicated that his duties
included unloading trucks of mail containers weighing over 700 pounds, using a hand jack as
well as manually pulling, pushing and tugging the hand jack to move it from one location to
another. He stated that his duties included constant standing, bending and lifting various parcels.
Appellant was required to stand and twist using his upper torso for prolonged periods of six to
eight hours a day to sort letters and flats.
In a February 16, 2007 decision, the Office denied appellant’s claim. It found that the
medical evidence did not establish that the claimed back condition was related to established
work-related events.2
On February 23, 2007 appellant requested a hearing, which was held on June 29, 2007.
On March 1 and July 30, 2007 his representative submitted arguments and medical evidence.
In a February 20, 2007 report, Dr. Walsh noted that appellant had a degenerative disc at
L5-S1 with central disc herniation causing spinal stenosis. He advised that this was consistent
with appellant’s complaints of low back pain with radiation into the right posterior thigh.
Dr. Walsh noted that appellant denied previous problems with his back until a lifting injury at
1

The record also reflects that appellant has an accepted claim for a March 29, 1995 back injury under claim File
No. xxxxxx409. That claim is not before the Board on the present appeal.
2

The Office initially denied the claim on October 26, 2007 finding that it was not timely filed within three years
of his injury. On February 1, 2007 an Office hearing representative reversed the Office’s decision finding that
appellant claimed an occupational disease that occurred over a number of years and that his claim was timely filed
within three years of his last exposure to injurious work factors. The hearing representative directed that the Office
address the merits of the claim.

2

work on March 29, 1995. Appellant related that his pain had become steadily worse since that
time. Dr. Walsh explained that appellant’s job duties required repetitive bending, lifting and
twisting activities as well as prolonged standing or sitting. These activities and positions
aggravated his back condition and caused pain. Dr. Walsh recommended an L5-S1 discectomy
with fusion, which would likely improve appellant’s back and leg pain by about 50 percent and
allow him to return to work. He explained that appellant had failed nonsurgical treatment and he
did not see any reason to expect that he would improve without surgery. Dr. Walsh advised that
appellant had elected not to pursue surgery and was therefore at maximum medical
improvement. He indicated that appellant was unable to work due to continued pain. Dr. Walsh
stated that appellant “most likely had a preexisting lumbar degenerative disc condition preceding
the 1995 event. However, it was aggravated by the lifting at work and continues to be further
aggravated as he ages over time. It is now bulging to the extent that it is pinching the nerve and
is causing increased pain.” In a May 31, 2007 report, Dr. Walsh opined that appellant had
12 percent whole body impairment.
In a September 11, 2007 decision, the Office hearing representative affirmed the
February 16, 2007 decision.
In a May 12, 2008 statement, appellant noted that he was unable to return to work as of
June 6, 2006 due to military injuries to his right knee, flare-ups of his back pain, loss of hearing
in his right ear, as well as hypertension vascular disease and headaches. He had stopped work on
June 6, 2006 and did not have a medical report contemporaneous with his work stoppage prior to
Dr. Walsh’s August 10, 2006 report. Appellant received treatment from chiropractors and
private physicians for his back pain at a Veteran’s hospital.
On September 10 and 11, 2008 appellant requested reconsideration. In an April 29, 2008
report, Dr. S. Terry Persaud, Board-certified in anesthesiology and pain medicine, noted that he
had treated appellant since February 22, 2008 for back and bilateral leg pain. He reviewed
appellant’s job description, which included lifting up 70 pounds, carrying 45 pounds or more and
strenuous physical exertion. Appellant related that his back pain began in 1993 after a lifting
accident and that he retirement in 2006. Dr. Persaud reviewed Dr. Walsh’s February 20, 2007
report, which stated that appellant’s preexisting lumbar degenerative disc condition was
aggravated by the lifting at work. He concurred with Dr. Walsh’s opinion, stating that
appellant’s condition “appears to be a chronic degenerative process which may have been
provoked and intensified with his work[-]related acclivities. Specifically, in discogenic disease
heavy lifting, repetitive bending, pushing, pulling and high[-]impact[-]type activities can
potentiate and provoke an underlying discogenic process. This can result in worsening of pain
and potentially lead to progression of the degenerative process.” Dr. Persaud concluded by
noting that “apparently his previous work[-]related activities involved strenuous exertion and this
may have exacerbated or aggravated his chronic underlying condition.”
By decision dated October 29, 2008, the Office denied modification of its September 11,
2007 decision.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. 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.6
ANALYSIS
Appellant alleged that he developed a back condition while performing his work duties as
a mail processing clerk. In the instant case, it is not disputed that his duties as a processing clerk
included lifting and carrying parcels, moving heavy mail containers in addition to prolonged
standing and walking, bending and twisting.
The Office denied appellant’s claim for compensation on the grounds that the medical
evidence was not sufficient to establish that his back condition was causally related to his
employment. The Board notes that the medical evidence submitted by appellant generally
supports that his preexisting degenerative disc disease condition was aggravated by his lifting
activities at work. On August 17, 2006 Dr. Walsh stated that appellant had a March 29, 1995
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

Id.

4

injury at work related to lifting heavy boxes of mail and that he “has had trouble with it ever
since.” He explained that appellant’s pain was due to a degenerative disc and pinched nerve,
which was related to the lifting injury at work. In a February 20, 2007 report, Dr. Walsh noted
that appellant had a degenerative disc at L5-S1 with a central disc herniation causing spinal
stenosis, which was consistent with his complaints of low back pain. He noted that appellant did
not report having any problems until a lifting injury in 1995. Since that time, the job duties
appellant performed aggravated his condition and caused pain. While Dr. Walsh opined that
appellant likely had preexisting lumbar degenerative disc before the 1995 event, it was further
aggravated by lifting at work. Although the Office found this report to be speculative, the Board
notes that Dr. Walsh opined that appellant’s condition had been aggravated by his work duties.
Dr. Walsh advised that appellant’s job duties required “repetitive bending, lifting and twisting
activities as well as prolonged standing or sitting. All of these activities and positions aggravate
his condition and cause pain that he cannot tolerate.”
Dr. Persaud concurred with Dr. Walsh in an April 29, 2008 report. Dr. Persaud reviewed
Dr. Walsh’s opinion, noted appellant’s history and job and explained that all of these job
activities and positions aggravated his condition and caused pain that he could not tolerate. He
noted that appellant’s previous work activities involved strenuous exertion and indicated that this
could have exacerbated or aggravated his chronic underlying condition.
Although these reports are not sufficiently rationalized to meet appellant’s burden of
proof in establishing his claim, they stand uncontroverted in the record and are sufficient to
require further development of the case.7
Proceedings under the Act are not adversarial in nature nor is the Office a disinterested
arbiter. While the appellant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.8
The Board will remand the case to the Office for referral to an appropriate medical
specialist for a rationalized medical opinion regarding whether appellant’s work duties caused or
aggravated an occupational low back condition. Following this and any other further
development as deemed necessary, the Office shall issue an appropriate merit decision on
appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

7

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

8

John W. Butler, 39 ECAB 852 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 29, 2008 is set aside and remanded for further
development in accordance with this decision of the Board.
Issued: September 21, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Memphis, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 11-826
Issued: October 13, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 15, 2011 appellant filed a timely appeal from the January 24, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the schedule award in this case.
ISSUE
The issue is whether appellant has more than a four percent binaural hearing loss for
which he received a schedule award.
FACTUAL HISTORY
On May 17, 2010 appellant, then a 58-year-old engineering equipment operator, filed a
claim for occupational disease alleging that he sustained hearing loss due to his federal

1

5 U.S.C. § 8101 et seq.

employment. He first became aware of his hearing loss on August 26, 1986 and continued to be
exposed to noise in his federal employment.
By letter dated May 21, 2010, OWCP advised appellant of the evidence necessary to
establish his claim.
On June 8, 2010 appellant submitted employing establishment audiogram records that
summarized his annual audiometric test results dating from 1976 to 2009. On June 21, 2010 he
submitted records and a statement detailing the conditions of his federal employment. Appellant
worked as a deckhand from April 1981 to July 1995, a winchman from July 1995 to
August 2003, and as an engineering equipment operator commencing August 2003. He asserted
that loud noise was present at all of his work locations.
On June 28, 2010 appellant’s employer responded and affirmed appellant’s noise
exposure, but indicated that personal protective equipment (PPE) has been available in his work.
On August 30, 2010 OWCP referred appellant and a statement of accepted facts to
Dr. Chester Allen Ruleman, Jr., a Board-certified otolaryngologist, for an audiometric
examination and evaluation. On September 22, 2010 audiometric testing of appellant was
conducted at Dr. Ruleman’s request. Testing at the frequency levels of 500, 1,000, 2,000 and
3,000 cycles per second revealed the following: right ear, 25, 30, 30 and 25 decibels; left ear, 30,
25, 35 and 30 decibels. Dr. Ruleman determined that appellant sustained mild progressive
bilateral sensorineural hearing loss due to noise exposure encountered in his federal employment.
He stated that the workplace exposures as described were of sufficient intensity and duration to
have caused the loss in question. Dr. Ruleman recommended that appellant wear noise
protection at work.
On October 8, 2010 appellant filed a claim for a schedule award.
By decision dated October 12, 2010, OWCP accepted that appellant sustained bilateral
sensorineural hearing loss due to workplace exposure to noise. It forwarded the case record to
the district medical adviser (DMA) for assessment of the percentage of permanent hearing loss.
In an October 12, 2010 memorandum, the medical adviser requested that Dr. Ruleman
review the record and address several issues: the discrepancy between the speech reception
threshold (SRT) and the puretone audiometry (PTA) values; tympogram values and whether the
pattern of hearing loss was typical for noise trauma.
In an October 20, 2010 letter, Dr. Ruleman explained that the discrepancy between the
SRT and the PTA score was not functional, and was mostly due to the redundancy of the speech
signal used by the SRT score. He stated that the audiogram “does reveal a mild sensorineural
hearing loss bilaterally,” and that the tympogram values were normal bilaterally.
On October 25, 2010 an OWCP medical adviser reviewed Dr. Ruleman’s reports and the
audiometric test of September 22, 2010. He concluded that, in accordance with the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides), appellant had a four percent binaural sensorineural hearing loss, with a date of

2

maximum medical improvement of September 22, 2010. OWCP’s medical adviser noted that
hearing aids were not authorized.
In a decision dated January 24, 2011, OWCP granted appellant a schedule award for a
four percent binaural sensorineural hearing loss. The period of the award ran for eight weeks
from September 22 to November 16, 2010.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides point out, losses below 25 dBA result in no impairment in the
ability to hear everyday speech under everyday conditions. The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss: the lesser
loss is multiplied by five, then added to the greater loss and the total is divided by six to arrive at
the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.5
The requirements of the evidence to be used in evaluating occupational hearing-loss
claims are defined by the Federal (FECA) Procedure Manual, which provides that employee
should undergo audiological evaluation and otological examination; that the audiological testing
precede the otologic examination; that the audiological evaluation and otologic examination be
performed by different individuals as a method of evaluating the reliability of the findings; that
the clinical audiologist and otolaryngologist be certified; that all audiological equipment
authorized for testing meet the calibration protocol contained in the accreditation manual of the
American Speech and Hearing Association; that the audiometric test results include both bone
conduction and pure-tone air conduction thresholds, speech reception thresholds and monaural
discrimination scores, and that the otolaryngologist’s report include the date and hour of

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

5

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

3

examination, date and hour of the employee’s last exposure to loud noise and a rationalized
medical opinion regarding the relationship.6
ANALYSIS
Appellant’s claim of occupational hearing loss was accepted by OWCP based on the
report of Dr. Ruleman, a Board-certified otolaryngologist.
An OWCP medical adviser applied OWCP’s standardized procedures to the
September 22, 2010 audiogram performed for Dr. Ruleman. Test results for the right ear at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibel losses of 25,
30, 30 and 25 decibels, respectively. These decibels were totaled at 110 and were divided by 4
to obtain an average hearing loss at those cycles of 27.5 decibels. The average of 27.5 decibels
was then reduced by 25 decibels (the first 25 decibels were discounted as discussed above) to
equal 2.5 which was multiplied by the established factor of 1.5 to compute a 3.75 percent
monaural loss of hearing for the right ear.7
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per
second revealed decibel losses of ear 30, 25, 35 and 30, respectively. These decibels were
totaled at 120 and were divided by 4 to obtain the average hearing loss at those cycles of 30
decibels. The average of 30 decibels was then reduced by 25 decibels (the first 25 decibels were
discounted as discussed above) to equal 5, which was multiplied by the established factor of 1.5
to compute a 7.5 percent hearing monaural loss for the left ear.
OWCP’s medical adviser proceeded to calculate binaural loss by taking the lesser loss,
3.75, multiplying it by 5 (18.75), then adding it to the greater loss of 7.5 (26.25). This amount
was divided by six to arrive at the amount of the binaural hearing loss of four percent after
rounding.
Under FECA, the maximum award for binaural hearing loss is 200 weeks of
compensation.8 Appellant is entitled to four percent of 200 weeks or 8 weeks of compensation,9
the amount granted in this case. There is no medical evidence conforming to OWCP’s standards
that support a greater impairment.

6

Joshua Holmes., 42 ECAB 231 (1991).

8

E.S., 59 ECAB 249 (2007).

9

It is well established, however, that, if calculations based on the monaural hearing loss result in greater
compensation, then the monaural hearing loss calculation should be used. The maximum number of weeks of
compensation for hearing loss in one ear is 52 weeks. The Board finds that the hearing loss in appellant’s left ear
should be rounded to eight percent, the nearest whole number. Eight percent of 52 weeks equals 4.2 weeks of
compensation. The right ear loss of 4 percent equals 2.08 weeks of compensation. Since the binaural loss results in
a greater number of weeks, OWCP properly based the award on binaural hearing loss.

4

CONCLUSION
The Board finds that appellant has failed to establish that he has more than four percent
binaural hearing loss.10
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 13, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

10

A claimant retains the right to file for a schedule award or increased schedule award, at any time, based on new
exposure or on medical evidence indicating progression of an employment-related condition, resulting in permanent
impairment or increased impairment.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.V., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
MEDICAL CENTER, San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-1356
Issued: December 6, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 22, 2016 appellant filed a timely appeal of a May 20, 2016 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 to
consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty on December 24, 2015.
FACTUAL HISTORY
On December 28, 2015 appellant, then a 59-year-old social worker, filed a traumatic
injury claim (Form CA-1) alleging that on December 24, 2015 at 6:10 a.m. she tripped and fell
sustaining abrasions to both knees and fracture of the humerus of her right arm. She listed the
1

5 U.S.C. § 8101 et seq.

location of the injury as “crosswalk from parking lot.” On the reverse of the Form CA-1,
appellant’s supervisor indicated that her regular work hours were from 7:00 a.m. until 3:30 p.m.
Dr. Matthew Perl, a physician Board-certified in emergency medicine, examined
appellant on December 24, 2015 and diagnosed proximal humerus fracture and knee abrasions.
He indicated that she fell at work.
Dr. Maneesh Bawa, a Board-certified orthopedic surgeon, examined appellant on
December 29, 2015. He noted that she had tripped and fallen on December 24, 2015 and
sustained a nondisplaced right proximal humerus fracture.
In a letter dated April 13, 2016, OWCP requested that appellant provide additional
factual evidence in support of her traumatic injury claim. It noted that she had established a right
proximal humerus fracture as a result of her trip and fall on December 24, 2015. However,
OWCP noted that it was not clear that appellant’s trip and fall occurred while she was in the
performance of duty as this incident took place at 6:10 a.m. and her duty shift did not begin until
7:00 a.m. It asked that she explain why she reported to work 50 minutes early and whether she
was in a work status at the time of her injury. OWCP also asked whether the parking lot where
appellant was injured was owned, controlled, or managed by the employing establishment. It
allowed 30 days for a response.
The employing establishment responded on April 25, 2016 and noted that appellant
arrived early on December 24, 2015 to secure a parking spot on base that was close to her office.
It noted that she usually arrived early for this reason, that there were limited parking spaces on
base and that many employees arrived early to park on employing establishment property. The
employing establishment confirmed that appellant fell on employing establishment owned,
controlled, and managed parking facilities. It further noted that security personnel patrolled the
parking lot to ensure that only employees were parked there.
In an April 25, 2016 statement, appellant explained that she had arrived early that day to
get parking in the employing establishment employee parking lot. She asserted that the lot was
totally filled by the time her shift officially began. Appellant claimed that she had planned to
start work early that morning as it was Christmas Eve and there would only be a half day of
work. She contended that she was injured on the employing establishment premises.
By decision dated May 20, 2016, OWCP denied appellant’s traumatic injury claim
finding that she was not in the performance of duty at the time her injury occurred at 6:10 a.m. as
her shift did not begin until 7:00 a.m. It noted that she explained that she had arrived early to
obtain a parking space, a matter of personal convenience, rather than to perform any workrelated function.
LEGAL PRECEDENT
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness, or mishap that might befall
an employee contemporaneous or coincidental with his or her employment; liability does not attach

2

merely upon the existence of any employee/employer relation.2 FECA provides for the payment of
compensation for disability or death of an employee resulting from personal injury sustained while
in the performance of duty.3 The term “in the performance of duty” has been interpreted to be the
equivalent of the commonly found prerequisite in workers’ compensation law, “arising out of and
in the course of employment.”4 “In the course of employment” deals with the work setting, the
locale, and time of injury.5 In addressing this issue, the Board has stated:
“In the compensation field, to occur in the course of employment, in general, an
injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in her master’s business; (2) at a place where she may reasonably be
expected to be in connection with the employment; and (3) while she was
reasonably fulfilling the duties of her employment or engaged in doing something
incidental thereto.”6
This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting but also a causal concept, that the employment caused the
injury, in order for an injury to be found to be arising out of the employment. The facts of the case
must show some substantial employer benefits or that an employment requirement gave rise to the
injury.7
ANALYSIS
The Board finds that appellant was not in the performance of duty at the time of her slip
and fall on December 24, 2015.
The factors considered in determining whether an employee arriving at work is in the
performance of duty are whether the injury occurred on the employing establishment’s premises,
the time interval before the work shift, and the activity at the time of the injury.8 Appellant has
established that she was injured on the employing establishment’s premises. The facts establish
that the incident occurred in a parking lot owned, controlled, maintained, and patrolled by the
employing establishment.

2

Minnie N. Heubner (Robert A. Heubner), 2 ECAB 20, 24 (1948); Christine Lawrence, 36 ECAB 422, 42324 (1985).
3

See Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.

4

James E. Chadden, Sr., 40 ECAB 312, 314 (1988).

5

Denis F. Rafferty, 16 ECAB 413, 414 (1965).

6

Carmen B. Gutierrez, 7 ECAB 58, 59 (1954).

7

See Eugene G. Chin, 39 ECAB 598, 602 (1988).

8

J.O., Docket No. 12-0266 (issued June 11, 2012); George E. Franks, 52 ECAB 474 (2001).

3

Appellant indicated that she slipped and fell at 6:10 a.m., 50 minutes before her work
shift began at 7:00 a.m. In T.F.,9 the employee sustained an injury when she tripped on a loose
floor tile 25 minutes before her work shift began at 6:00 a.m. She was on the premises of the
employing establishment in the vicinity of her work cubicle but was engaged in personal
activities. The Board affirmed the denial of compensability under FECA, noting that finding a
good parking place, drinking coffee, having breakfast, and putting her lunch away were personal
activities and not reasonably incidental to the work of the employing establishment. The Board
found that her presence at the premises some 25 minutes prior to the commencement of her work
shift did not constitute a reasonable interval under the circumstances.
Appellant has identified no employment-related activity involved in her arrival at 6:10
a.m. Both she and the employing establishment indicated that she arrived early to secure a
parking spot in the lot nearest her duty station. The Board finds that appellant’s activity of
securing a preferred parking spot was not reasonably incidental to her employment, but an
unrelated personal activity. The employing establishment did not obtain a substantial benefit
from appellant’s choice to arrive early and park in the lot closest to her duty station.10 The Board
finds that although appellant was injured on the employing establishment premises, the timing of
her injury, 50 minutes prior to the start of her work shift, and the lack of employing
establishment benefit from her early arrival establish that her injury did not occur in the
performance of duty. Although the claimant alleged that she had arrived early to begin work that
day, no evidence was provided to substantiate her contention that any work was performed.
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’s injury on December 24, 2015 did not occur in the
performance of duty.

9

Docket No. 09-154 (issued July 16, 2009). See also George E. Franks, id. and Myra L. Acosta, Docket No.
05-0821 (issued July 13, 2005) (when the Board found that early arrival was not in the performance of duty as there
was no employment-related activity involved in those early arrivals. Rather, the employees came to work early to
eat breakfast.
10

But see I.F., Docket No. 12-0192 (issued September 26, 2013) (finding that taking work home resulted in a
substantial benefit to the employing establishment).

4

ORDER
IT IS HEREBY ORDERED THAT the May 20, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
DEPARTMENT OF THE ARMY, CIVILIAN
PERSONNEL ADVISORY CENTER,
Fort Drum, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1386
Issued: January 22, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 5, 2018 appellant, through counsel, filed a timely appeal from a May 4, 2018 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury to his neck,
back, ribs, and left shoulder causally related to the accepted October 3, 2014 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior Board’s decision are incorporated herein by reference. The relevant facts are as
follows.
On October 14, 2014 appellant, then a 64-year-old telecommunications mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on October 3, 2014 he injured his neck, back,
ribs, and left shoulder in the performance of duty. He described his injury as occurring when a
rope he had used to pull a fiber optic cable through a conduit snapped, jerking his hand and arm.
The employing establishment did not controvert the claim.
Dr. Daniel G. DiChristina, a Board-certified orthopedic surgeon, on October 27, 2014
obtained a history of appellant injuring his cervical spine at work on October 3, 2014. On
examination, he found a positive impingement sign on the left and pain on palpation of the
trapezius. Dr. DiChristina diagnosed cervical sprain/strain, underlying degenerative disease, and
left shoulder sprain/strain following a prior rotator cuff repair. He noted that x-rays of the cervical
spine showed C3-7 degenerative disc disease and x-rays of the shoulder revealed a prior distal
clavicle excision.4
In a report dated November 25, 2014, Dr. DiChristina discussed appellant’s symptoms of
left shoulder and neck pain. He diagnosed osteoarthritis of the cervical spine and a lesion of the
superior glenoid labrum. Dr. DiChristina opined that the “incident [he] described is the competent
medical cause of this injury/illness” and that his complaints were also consistent with the
examination findings and history of injury.
By decision dated January 12, 2015, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish a diagnosed condition causally related to
the accepted October 3, 2014 employment incident. It found that he had not submitted medical
evidence sufficient to show that he had sustained osteoarthritis of the cervical spine, a superior
glenoid labrum lesion, or rotator cuff syndrome as a result of the October 3, 2014 employment
incident.
On March 27, 2015 Dr. DiChristina found that appellant had experienced “an injury to his
neck and left shoulder on the date of October 3, 2014 when a line jerked through his hand and
pulled his left shoulder in to significant extension and twisted his cervical spine.” He diagnosed
cervical sprain/strain with underlying degenerative disc disease and left shoulder sprain causing
rotator cuff tendinitis. Dr. DiChristina opined that his left shoulder and cervical condition resulted
3

Docket No. 16-1800 (issued February 21, 2017).

4

Dr. DiChristina opined that appellant was disabled from employment until November 27, 2014.

2

from the employment incident of October 3, 2014 and should be covered by workers’
compensation.5
On May 12, 2015 appellant requested reconsideration. In support of his request, he
submitted an undated authorization for examination and/or treatment (Form CA-16) from
Dr. Thaddeus M. Pajak, an osteopath.6 Dr. Pajak obtained a history of a whiplash injury from a
cord under tensile strength. He diagnosed brachial plexitis and checked a box marked “yes”
indicating that the condition was caused or aggravated by the described employment activity.
Dr. Pajak found that appellant could perform modified work.
By decision dated July 14, 2015, OWCP denied modification of its January 12, 2015
decision. It found that the medical evidence submitted was insufficiently rationalized to support
that the accepted employment incident caused or aggravated a diagnosed condition.
Dr. DiChristina, in a July 27, 2015 report, diagnosed cervical sprain, osteoarthritis of the
cervical spine, and rotator cuff syndrome. He opined that the incident described by appellant
caused the injury.7
On January 26, 2016 appellant, through counsel, requested reconsideration.
By decision dated April 25, 2016, OWCP denied appellant’s request for reconsideration,
finding that he had not raised an argument or submitted evidence sufficient to warrant reopening
his case for further merit review under 5 U.S.C. § 8128(a).
On May 2, 2016 appellant, through counsel, again requested reconsideration. With his
request, he submitted a February 17, 2015 operative report of his a rotator cuff repair performed
by Dr. John B. Savage, a Board-certified orthopedic surgeon.8
By decision dated July 15, 2016, OWCP denied modification of its July 14, 2015 decision.
It found that Dr. DiChristina failed to adequately explain how the accepted October 3, 2014
employment incident had caused or aggravated a diagnosed condition.
Appellant subsequently appealed to the Board. By decision dated February 21, 2017, the
Board affirmed the July 15, 2016 decision, finding that appellant had not submitted sufficient
medical evidence to establish causal relationship between a diagnosed condition and the accepted
employment incident.9

5

On April 27, 2015 Dr. DiChristina indicated that appellant was disabled from employment indefinitely.

6

The Form CA-16 was not signed by an authorized representative of the employing establishment.

7

On August 6, 2015 Dr. DiChristina found that appellant could resume modified employment.

8

Dr. Savage, on a March 2, 2016 return to work form, noted that appellant had sustained an injury at work in
October 2014 and found that he was totally disabled from work.
9

Supra note 3.

3

On February 5, 2018 appellant, through counsel, requested reconsideration. He submitted
a January 25, 2018 report from Dr. Neil Allen, a Board-certified internist and neurologist, in
support of his reconsideration request.
In a January 25, 2018 report, Dr. Allen indicated that he had reviewed appellant’s medical
records. He opined that his claim should be “updated to include the diagnosis of aggravation of
other spondylosis with radiculopathy, cervical region,” noting that he had no symptoms of either
condition before the October 3, 2014 employment incident. Dr. Allen indicated that the normal
aging process resulted in a loss of spinal disc height and facet joint narrowing, causing osteophytes
and bony overgrowth compressing the nerve roots. He advised that appellant had preexisting
spondylitic changes with neural foraminal narrowing, and that the acceleration/deceleration that
he had experienced had overstretched the ligaments of his spine and compressed the spinal nerves,
resulting in inflammation and irritation of the nerve root and aggravating his cervical spondylosis.
Dr. Allen also diagnosed a cervical and left shoulder sprain/strain. He related:
“When the rope snapped [appellant] was exposed to a rapid acceleration/
deceleration event. This rapid change in directional force causes the muscles of the
neck to strongly contract, shortening their length, in order to stabilize the spine and
prevent fracture and/or dislocation. [His] head continued to jerk sideways, against
said muscle contraction, as his arm was pulled by the rope resulting in microscopic
tearing of the shortened muscles, their associated tendons and surrounding spinal
ligaments….”
Dr. Allen explained that the same stress caused left shoulder sprain. He explained that the
shoulder is a ball and socket joint, held in place and stabilized by muscles, tendons, and ligaments
and that when the rope incident occurred it jerked appellant’s arm outward and a traction-type
stress was applied to the tendons, ligaments, and joint capsule of the shoulder. Dr. Allen further
explained that the strength of the rope far outweighs the strength of the said ligaments and tendons,
which resulted in microscopic, partial-thickness and even full-grade tearing of said structures
against the traction-type force. He concluded that appellant’s injuries from the October 3, 2014
incident were “both reasonable and expected based upon the mechanism described by [him] and
documented within his medical records.”
By decision dated May 4, 2018, OWCP denied modification of its February 21, 2017
decision. It found that Dr. Allen had failed to adequately explain how the October 3, 2014 work
incident affected preexisting cervical and left shoulder conditions. OWCP also noted that he had
not performed a physical examination, but instead had reviewed the medical records.
LEGAL PRECEDENT
An employee seeking benefits under FECA10 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
10

5 U.S.C. § 8101 et seq.

4

employment injury.11 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.12
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. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.13 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.14
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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.15
ANALYSIS
The Board finds that this case is not in posture for decision.
On prior appeal, the Board reviewed the evidence before OWCP at the time it issued its
July 15, 2016 decision and found that it was insufficient to establish that appellant sustained a
diagnosed condition causally related to the accepted October 3, 2014 employment incident. The
Board’s review of the previously submitted medical evidence of record is res judicata absent
further review by OWCP under section 8128(a) and therefore the prior evidence need not be
addressed again in this decision.16
Following the Board’s February 21, 2017 decision, appellant, through counsel, requested
reconsideration on February 5, 2018. In support of his request, he submitted a January 25, 2018
report from Dr. Allen. Dr. Allen reviewed appellant’s medical records. He noted the history of
injury based upon the medical records and the prior findings of the Board. Dr. Allen reported that
appellant was pulling a fiber optic cable through a conduit that was approximately 1,800 feet long
and a flat rope rated at 6,000 pounds tensile strength was attached to fiber cable to pull it through.
He noted that the rope broke, snagging appellant’s hand/arm and jerking/yanking it violently.
Dr. Allen acknowledged a past medical history of a prior left rotator cuff repair in 2013 and
explained that the medical records following the employment incident reflect ongoing neck and
11

See E.B., Docket No. 17-0164 (issued June 14, 2018); Alvin V. Gadd, 57 ECAB 172 (2005).

12

See P.S., Docket No. 17-0939 (issued June 15, 2018); Ellen L. Noble, 55 ECAB 530 (2004).

13

See V.J., Docket No. 18-0452 (issued July 3, 2018); Bonnie A. Contreras, 57 ECAB 364 (2006).

14

Id.

15

See H.B., Docket No. 18-0781 (issued September 5, 2018).

16

See E.C., Docket No. 17-1765 (issued January 24, 2018).

5

left shoulder complaints. He noted his review of clinical study reports, noting October 27, 2014
cervical spine and left shoulder x-rays.
Dr. Allen opined that the diagnoses of aggravation of other spondylosis with radiculopathy,
cervical region; sprain/strain of the cervical spine; and sprain/strain of the left shoulder. For each
diagnosis he provided an explanation as to the physiologic basis for his medical opinion. For the
diagnosis of aggravation of other spondylosis with radiculopathy, cervical region, Dr. Allen
explained in detail that in an individual with underlying spondylitic change and corresponding
narrowing of the neural foramen, as is the case with appellant, the “whiplash” incident would result
in overstretching of the spinal ligaments and compression of the existing spinal nerves. He noted
that such an incident ignites a local inflammatory reaction affecting both pain and irritation of
muscular tissue and symptomatology along the injured nerve root. Likewise, for the diagnosis of
strain/sprain of the cervical spine, Dr. Allen explained that when the rope snapped, appellant was
exposed to a rapid acceleration/deceleration event with a rapid change in directional force which
caused the neck muscles to strongly contract, shortening their length, in order to stabilize the spine
and prevent fracture or dislocation. He concluded that these forces resulted in microscopic tearing
of the shortened muscles, their associated tendons, and surrounding ligaments, resulting in the
cervical sprain/strain. Finally, as to the diagnosis of left shoulder sprain/strain, Dr. Allen described
the anatomy of the shoulder as a ball and socket joint held in place by muscles, tendons, and
ligaments. Again, noting the accepted employment incident previously accepted by the Board, he
explained how traction-type stress was applied to the shoulder resulting in microscopic, partialthickness, and even full-grade tearing. Dr. Allen noted that the medical records documented
symptoms following the accepted incident with the rope which were consistent with the typical
symptoms he would expect from such incident. He concluded that appellant’s injuries resulting
from the employment incident on October 3, 2014 were both reasonable and expected based upon
the mechanism described by the patient and as documented within the medical records.
The Board thus finds that the medical opinion of Dr. Allen is based upon a complete factual
history and medical background of appellant, is provided with reasonable medical certainty, and
provides a sufficient level of medical rationale explaining the nature of the relationship between
the diagnosed conditions and the accepted employment incident.17 The Board further finds that
the medical opinion of Dr. Allen is accurately premised upon the physical examinations conducted
by Dr. DiChristina and Dr. Pajak and that, under the facts as set forth in this case, a physical
examination is unnecessary for the limited purpose of providing a physiologic explanation of
whether the accepted employment incident resulted in appellant’s diagnosed medical conditions.
The Board has long held that factors such as the opportunity for and thoroughness of
examination performed by the physician, the accuracy and completeness of the physician’s
knowledge of the facts and medical history, the care of analysis manifested, and the medical
rationale expressed by the physician are all to be considered in determining the probative value
afforded a medical report.18 As Dr. Allen’s report was provided for the limited purpose of
providing a medical explanation linking the accepted employment incident and diagnosed
conditions, the Board finds that his report is relevant and persuasive evidence. The lack of an
17

See supra note 16.

18

See D.W., Docket No. 18-0123 (issued October 4, 2018); Melvina Jackson, 38 ECAB 443 (1987).

6

opportunity for examination, under the circumstances in this case where the medical record is welldeveloped and uncontested, does not outweigh the probative value of his detailed report as to the
issue of causal relationship.
The Board thus finds that the opinion of Dr. Allen is sufficient to require further
development of the record.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While a claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.19 On remand, OWCP
should refer appellant and the medical evidence of record to an appropriate specialist to obtain a
rationalized opinion regarding whether he sustained cervical spine and left shoulder conditions
causally related to the accepted employment incident on October 3, 2014.20 After such further
development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

19

See W.W., Docket No. 15-1130 (issued August 7, 2015); Phillip L. Barnes, 55 ECAB 426 (2004).

20

See M.K., Docket No. 17-1140 (issued October 18, 2017).

7

ORDER
IT IS HEREBY ORDERED THAT the May 4, 2018 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: January 22, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Drakesboro, KY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-563
Issued: October 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 23, 2008 appellant, through his attorney, filed a timely appeal from
February 15 and September 25, 2008 merit decisions of the Office of Workers’ Compensation
Programs denying his occupational disease claim. Pursuant to 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 established that he sustained a pulmonary condition
causally related to factors of his federal employment.
On appeal, counsel argues that the hearing representative erred in relying on the Office
referral physician instead of appellant’s attending physician. Alternatively, he contends that
there is a conflict in medical opinion.

FACTUAL HISTORY
On January 15, 2004 appellant, then a 60-year-old retired senior instrument mechanic,
filed an occupational disease claim alleging that he sustained occupational pneumoconiosis and
probable asbestosis causally related to factors of his federal employment. He retired on
July 26, 2002.1 Appellant related that from 1980 to 1993 he was exposed to coal dust, asbestos
and mercury performing maintenance on electronic instrumentation. He denied any history of
cigarette smoking.
On May 6, 2004 the employing establishment controverted the claim. It indicated that it
had not measured appellant’s specific exposure to coal dust or asbestos but noted that employees
in similar positions were exposed to around 0.3 to 0.7 milligrams per cubic meter of air of coal
dust “calculated as an [eight]-hour time weighted average.” The employing establishment
indicated that appellant was not exposed to asbestos above the safety levels set by the
Occupational Safety and Health Administration (OSHA).
In a report dated December 30, 2002, Dr. Glen Baker, a Board-certified internist with a
subspecialty in pulmonary disease, discussed appellant’s work exposure to coal dust, asbestos
and some mercury. He described symptoms of coughing, wheezing and difficulty breathing,
especially with exertion. Dr. Baker noted that appellant had no smoking history. He interpreted
an x-ray as revealing occupational pneumoconiosis, category 1/1 by x-ray and noted “with
[appellant’s] history of asbestos exposure, with both lower bases having irregular opacities, this
is suggestive of pulmonary asbestosis as the primary type of occupational pneumoconiosis.”
Dr. Baker found that pulmonary function tests (PFT) revealed a mild or minimal obstructive
deficit. He diagnosed occupational pneumoconiosis with probable pulmonary asbestosis and a
mild or minimal obstructive defect. Dr. Baker opined that appellant was disabled from any work
in a dusty environment.
By letter dated January 13, 2004, the employing establishment controverted appellant’s
claim, noting that he suffered from severe allergies and possible asthma.2 Appellant was also
“exposed to fumes and smoke from his mobile home catching on fire in which the entire home
was destroyed.” The employing establishment disputed that he was exposed to mercury. It
reiterated that it did not have specific monitoring information for coal dust or asbestos but
asserted that it was within established safety parameters.

1

Appellant related that he learned from a physician that he had an occupational lung disease on
December 13, 2002.
2

On April 21, 2004 Dr. Anne Roberts, Board-certified in preventive medicine, reviewed the medical evidence on
behalf of the employing establishment. She noted that there was no evidence that appellant was exposed to coal dust
or asbestos at levels that exceeded occupational safety standards set by OSHA. Dr. Roberts reviewed Dr. Baker’s
finding and concluded that there was “no evidence of impairment of pulmonary function” based on PFT and noted
that appellant was “diagnosed with pulmonary fibrosis at the time he was hired by [the employing establishment]
based on an x-ray taking at the time of his preemployment physical examination. Therefore, this condition was not
the result of appellant’s duties at [the employing establishment].”

2

By decision dated November 1, 2004, the Office denied appellant’s claim on the grounds
that he did not establish a medical condition due to the accepted work factors. On November 16,
2004 appellant requested an oral hearing. Following a preliminary review of the record, the
hearing representative vacated the November 1, 2004 decision. He directed the Office to prepare
a statement of accepted facts identifying the accepted exposure to coal dust and asbestos and
refer appellant for a second opinion examination.
On September 26, 2005 the Office referred appellant to Dr. Kenneth Anderson, an
internist with a subspecialty in pulmonary disease, for a second opinion examination.3 In a
report dated November 8, 2005, Dr. Anderson diagnosed a “[c]ough consistent with chronic
bronchitis with dyspnea on exertion. Pulmonary function tests are normal and chest radiograph
demonstrates abnormal findings. However, profusion is only 1/0, nondiagnostic.” Dr. Anderson
indicated that appellant’s symptoms may be due to nonemployment-related sleep apnea or a
cardiac condition. He found that appellant had a zero percent impairment based on the PFTs.
Dr. Anderson advised appellant to limit further exposure to offending agents because of his
abnormal chest x-ray.
By decision dated January 25, 2006, the Office found that appellant had not established
that he sustained a pulmonary condition due to his federal employment. On February 2, 2006
appellant requested an oral hearing. After a preliminary review, in a decision dated
December 20, 2006 a hearing representative set aside the January 25, 2006 decision. He found
that the statement of accepted facts provided to Dr. Anderson was deficient as it did not provide
appellant’s history of exposure to smoke in a house fire and his preexisting fibrosis. The hearing
representative further found that Dr. Anderson’s report was insufficiently rationalized.
In a supplemental report dated April 24, 2007, Dr. Anderson noted that an April 2, 2007
PFT showed an obstructive defect “more consistent with asthma.” He found that an x-ray
showed small opacities, 1/0 in the middle and lower lung zones. Dr. Anderson diagnosed
dyspnea with recent PFTs suggesting an asthmatic component most likely unrelated to
appellant’s employment. He also diagnosed a cough consistent with chronic bronchitis or due to
angiogenesis converting enzyme (ACE) inhibitors. Dr. Anderson found that the chest x-ray was
most likely “an insignificant finding because a diagnosis of asbestosis cannot be made without
abnormal pulmonary function tests.”
On May 16, 2007 the Office requested that Dr. Anderson address Dr. Baker’s findings.
In a May 31, 2007 response, Dr. Anderson noted that appellant had abnormal findings on chest
x-ray suggestive of asbestosis but no functional abnormality. He opined that he did not believe
that appellant “has a progressive interstitial lung disease based on [the] relative stability of his
pulmonary function tests.” Dr. Anderson noted that a high-resolution computerized tomography
(CT) scan could clarify the issue of the abnormal chest x-ray.

3

On April 3, 2005 Dr. Brent D. Brandon, a Board-certified radiologist and B-reader, interpreted the December 21,
2002 x-ray as showing parenchymal abnormalities consistent with pneumoconiosis and 1/2 small opacities. He
noted a prominence on the right and advised that appellant should rule out cancer.

3

By decision dated June 7, 2007, the Office denied appellant’s claim for an employmentrelated pulmonary condition. On June 14, 2007 appellant, through his attorney, requested an oral
hearing. After a preliminary review of the record, the hearing representative set aside the June 7,
2007 decision and remanded the case for the Office to refer appellant for a supplemental report
from Dr. Anderson following a high-resolution CT scan.
A high resolution CT scan of appellant’s chest, obtained on December 5, 2007, was
unremarkable. In a report dated December 23, 2007, Dr. Anderson indicated that a CT scan of
the chest showed no interstitial lung disease or pleural calcifications. He concluded that
appellant had no impairment based on the CT scan or pulmonary function studies.
By decision dated February 15, 2008, the Office denied appellant’s claim on the grounds
that the evidence was insufficient to show that he sustained an employment-related pulmonary
condition. On March 4, 2008 appellant, through his attorney, requested an oral hearing. At the
hearing, held on July 30, 2008, counsel argued that Dr. Anderson concluded that he had no
impairment rather than no occupational disease. He also questioned the usefulness of CT scans
in pneumoconiosis or occupational lung disease.
In a report dated August 19, 2008, Dr. Matthew A. Vuskovich, Board-certified in
preventive medicine, noted that there were no standards to evaluate pneumoconiosis by CT scan
and thus no way to establish a positive diagnosis. He further stated:
“X-ray and CT scan image appearances of pneumoconiosis are summation
images. This is in contrast to a real image such as a single cancer mass or a
foreign body image. The image of a single pneumoconiosis lesion is not
projected on the x-ray film. The image on the film represents a summation of the
lesions through the three-dimensional depth of the lung tissue, CT scans,
especially very thin slice high-resolution CT scans effectively “wash out” the
pneumoconiosis lesions because they visualize such a thin slice of the tissue. For
that reason the CT scan image ‘false negative’ rate is prohibitively high.
Therefore, a “negative CT” scan interpretation is meaningless.”
By decision dated September 26, 2008, the hearing representative affirmed the
February 15, 2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing 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 the Act, that the claim
was filed within the applicable time limitation, that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.5 These are the essential

4

5 U.S.C. §§ 8101-8193.

5

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

elements of each and every compensation claim regardless of whether the claim is predicated on
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) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;7 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;8 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.9
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.10 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,11 must be one of reasonable medical certainty12 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.13
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.14 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.15

6

See Ellen L. Noble, 55 ECAB 530 (2004).

7

Michael R. Shaffer, 55 ECAB 386 (2004).

8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

Beverly A. Spencer, 55 ECAB 501 (2004).

10

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

11

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

12

John W. Montoya, 54 ECAB 306 (2003).

13

Judy C. Rogers, 54 ECAB 693 (2003).

14

5 U.S.C. § 8123(a); see also Richard P. Cortes, 56 ECAB 200 (2004).

15

20 C.F.R. § 10.321.

5

ANALYSIS
Appellant filed an occupational disease claim alleging that he sustained occupational
pneumoconiosis and probable asbestosis due to factors of his federal employment. The Office
accepted that he was exposed to coal dust and asbestos in the course of his federal employment.
The issue, therefore, is whether the medical evidence establishes a causal relationship between
the claimed conditions and the identified employment factors.
Dr. Anderson, an Office referral physician, found that appellant had nondiagnosticfindings on x-ray of 1/0 profusion and a zero percent pulmonary impairment based on a PFT. In
a supplemental report dated April 24, 2007, he diagnosed dyspnea and interpreted a PFT as
showing asthma most likely unrelated to appellant’s employment. Dr. Anderson found no
functional abnormality after pulmonary testing and indicated that appellant was unable to render
a diagnosis of asbestosis absent an abnormal PFT. He interpreted a high-density CT scan,
obtained on December 5, 2007, as showing no interstitial lung disease or pleural calcifications.
Dr. Anderson again concluded that appellant had no impairment.
In a report dated December 30, 2002, appellant’s physician, Dr. Baker, diagnosed
occupational pneumoconiosis by x-ray with probable pulmonary asbestosis. He found a mild or
minimal obstructive deficit by PFT. On August 19, 2008 appellant submitted a report from
Dr. Vuskovich, who opined that high-density CT scans were of no value in diagnosing
pneumoconiosis.
The Board notes that Dr. Anderson, the Office referral physician, and Dr. Baker,
appellant’s attending physician, disagreed regarding the presence and etiology of the claimed
pulmonary conditions. Drs. Anderson and Vuskovich also disagreed regarding the value of a
high-density CT scan in diagnosing pneumoconiosis. 5 U.S.C. § 8123 states that if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.16 The case will be remanded to the Office to refer appellant to an impartial medical
examiner to determine whether he sustained pneumoconiosis and/or asbestosis in the
performance of duty. After this and such further development as is deemed necessary, the Office
shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

16

5 U.S.C. § 8123(a); Darlene R. Kennedy, 57 ECAB 414 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 25 and February 15, 2008 are set aside and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: October 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Savannah, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1248
Issued: February 21, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 15, 2017 appellant, through counsel, filed a timely appeal from a November 29,
2016 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.3

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
3

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence on appeal after the November 29, 2016 decision was issued. The
Board s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, the Board lacks jurisdiction to review this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease in the performance of his federal employment duties.
FACTUAL HISTORY
On October 21, 2015 appellant, then a 34-year-old property and procurement specialist
assigned to the laundry unit, filed an occupational disease claim (Form CA-2) alleging that he
developed chronic pneumonia and a weakened immune system as a result of his federal
employment duties. He reported that his duties included taking inmates out on the rear dock
once a week to clean the deck. This cleaning process included removal of pigeon feces.
Appellant stopped work on April 24, 2014 and had been hospitalized 12 times since
November 2014 for pneumonia. He reported that his lab results revealed that he had pigeon
feces and feathers in his system which had weakened his immune system, resulting in chronic
pneumonia. Appellant first became aware of his condition and of its relationship to his
employment on February 19, 2015. He stopped work on April 30, 2014. On the reverse side of
the claim form J.P., appellant’s supervisor, reported that appellant initially left work for an
unrelated issue and his injury did not occur at work.
In a September 14, 2015 medical report, Dr. Maria Rudisill Streck, a Board-certified
allergy and immunology physician, related that appellant was under her care for a history of
recurrent pneumonia and hypersensitivity pneumonitis. She explained that the hypersensitivity
pneumonitis, which was an inflammatory condition in the lungs, was specifically related to
pigeon droppings which he was exposed to at the workplace. Dr. Streck reported that appellant
must avoid all exposure to bird droppings, which were detrimental to his health.
In an October 30, 2015 memorandum, J.P. reported that appellant was assigned to the
laundry department during the timeframe of his most recent alleged injury. Appellant’s
assignment was to monitor the daily operations of the laundry department which included
supervising inmate workers in the operations of daily laundry duties. He noted that it had been
identified that one day a week he, or another laundry staff member, was responsible for
monitoring inmates clearing the rear dock which included trash pick-up as well as hosing off dirt
and debris. Appellant reported having been required to clean pigeon feces off the rear dock yet
this was something that would be required by the inmates with staff supervision. Therefore, J.P.
reported no direct knowledge of appellant completing this task. However, if appellant was the
only staff member in laundry to complete this task, he would have done it once per week. J.P.
reported receiving statements from two staff members who worked during the same time frame
with respect to their knowledge of any of appellant’s exposures. He noted that there was a
memorandum instructing that the employees from laundry were responsible for cleaning of the
rear dock every Tuesday. While J.P. was the supervisor during this timeframe, he was unaware
of this directive, but did not dispute its existence. He reported that appellant’s last day of work
was on April 23, 2014 when he reported a traumatic injury to his groin area under OWCP File

2

No. xxxxxx401.4 An FCI Williamsburg Daily Cleaning Procedures for Pigeon Droppings was
submitted.
In an October 30, 2015 e-mail correspondence, C.M., a coworker, informed J.P. that
about 9 to 12 months ago they were asked by Safety for Commissary, Laundry, Food Services,
and Facilities to pick one day during the week to help clean the rear dock which consisted of
making sure trash, cardboard, pallets, etc. was removed, swept, and washed off.
In an October 30, 2015 memorandum, R.H., a material handler supervisor, reported that
when he was transferred over to laundry, he was informed that there was a certain day that the
laundry unit cleaned the back dock. He did not recall what they were required to clean as he had
never cleaned the back dock.
In an October 30, 2015 memorandum, the employing establishment reported that
appellant would have supervised the inmate detail cleaning the droppings and should not have
been near the point of operation of the Taski machine. It reported that the process of daily
cleaning of pigeon droppings entailed every precaution to ensure that employees were not
exposed to any hazardous substances. A May 6, 2013 memorandum was submitted from the
employing establishment which detailed that laundry was assigned to cleaning the rear dock on
Tuesday of every week at 12:00 p.m. which consisted of sweeping the entire rear dock, including
the compactor area.
By letter dated November 25, 2015, OWCP informed appellant that the evidence of
record was insufficient to support that he actually experienced the incident or employment factor
alleged to have caused injury, that there was no diagnosis of any condition, and that there was no
physician’s opinion as to the cause of his injury. It provided a development questionnaire for
completion and requested that he submit a response in order to substantiate the factual basis of
his claim. Appellant was afforded 30 days to provide the requested information.
In another letter dated November 25, 2015, OWCP requested that the employing
establishment provide additional information pertaining to appellant’s injury and occupational
duties.
An official position description for supervisor mail handler and procurement and property
specialist was submitted.
In a December 21, 2015 memorandum, the employing establishment reported that it did
not concur with appellant’s claim that he was exposed to pigeon feces while cleaning the rear
dock area. It reported that the procedures in place for the cleaning of pigeon droppings were to
remove any potential airborne hazard by wetting the surface area with a disinfectant, letting the
solution stand for 10 minutes, then using an auto scrubber machine to apply additional solution,
scrub the area, then vacuum up any debris. The auto scrubber was then emptied in the sanitary
drain. The employing establishment reported that staff who supervise inmate workers cleaning
these areas did so on an intermittent basis and should not be at the point of operation of the auto
scrubber because inmate workers physically clean the area and were in close proximity to the
4

The Board notes that the record contains no other information pertaining to this claim.

3

solution and debris. It noted that it did not have any reason to believe that appellant performed
any task which resulted in his exposure to or contact with pigeon feces and feathers. Any task
would have been performed by inmate workers with the staff member providing intermittent
supervision. The employing establishment reported that cleaning the area daily prevented buildup, the airborne hazard was removed during the wetting process, and no personal protective
equipment was required until the machine was emptied and cleaned, at which time latex gloves
and goggles were utilized. It noted that additional personal protective equipment would be
required if pressure washing overhead, however, such cleaning was not required and had not
been conducted on the rear dock.
By decision dated January 5, 2016, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that the occupational exposure occurred as alleged. It noted
that he failed to respond to the November 25, 2015 OWCP questionnaire and provided no further
statement or factual evidence as to how his federal employment duties caused or contributed to
his condition.
On January 13, 2016 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
In support of his claim, appellant submitted a January 3, 2016 narrative statement
responding to OWCP’s developmental questionnaire. He alleged that his exposure occurred
from September 2013 to April 2014 when he was assigned once a week to supervise the inmates
cleaning the dock area. Every Tuesday, appellant would take several inmates outside and would
help them pick up trash and clean up pigeon feces by throwing buckets of water on the feces to
make it wash down the storm drain. This would take 30 minutes to an hour. Appellant noted
that the pigeons would roost up in the rafters covering the loading dock. For clean up, they
would use brooms, dustpans, and empty buckets and were provided no protective gear other than
gloves. Appellant explained he was admitted into the hospital for diabetic ketoacidosis and was
diagnosed with a possible bacterial infection as a result of his high sugar level. He was again
admitted in November 2014 for pneumonia and subsequently admitted 12 more times when he
was eventually advised by his physician that he had pigeon feathers and feces in his lungs and
blood.
By letter dated February 5, 2016, the Occupational Safety and Health Administration
(OSHA) requested that the employing establishment conduct a safety inspection at the workplace
due to an alleged hazard reported: Employees and inmates are exposed to pigeon feathers, feces,
and thick dust while performing cleanup of dock surfaces and are not provided with personal
protective equipment. It noted that, while OSHA had not determined whether the hazard alleged
existed and was not conducting an inspection at that time, it requested the employing
establishment investigate the hazards and notify them of the situation. A response was requested
by February 12, 2016.
In a September 12, 2016 medical report, Dr. Bhatraphol Tingpej, Board-certified in
infectious disease, reported that appellant has underlying Type 1 diabetes and was admitted to
the hospital in November 2014 with diabetic ketoacidosis and severe pneumonia. He described
appellant’s multiple hospitalizations due to recurrent respiratory symptoms, pneumonia, and
hypoxemia. Dr. Tingpej reported that additional workup for recurrent pneumonia revealed his
4

underlying immunodeficiency status namely hypogammaglobulinemia (low immunoglobin
level) and underlying hypersensitivity pneumonitis specifically to pigeon droppings/feces and
environmental molds. He noted review of the OSHA report regarding appellant’s exposure to
pigeon droppings related to his workplace. Since November 2014, over the period of the past 21
months, appellant had been significantly debilitated and was unable to return to work.
Dr. Tingpej opined that appellant should avoid ongoing exposure to pigeon droppings and molds
as this would aggravate his pneumonia symptoms.
A hearing was held on September 14, 2016. Counsel argued that fact of injury was
established as appellant was exposed to pigeon droppings. He argued that, at the least, the
medical evidence supported an aggravation of a preexisting condition and objective testing
confirmed that appellant had a hypersensitivity to pigeon feces and feathers.
In a September 14, 2016 medical report, Dr. Streck provided a detailed medical history
regarding appellant’s diabetes and respiratory conditions, noting that he was first hospitalized for
pneumonia in November 2014. She reported that he last worked in April 2014 when he would
take inmates weekly to clean pigeon droppings. Dr. Streck reported that lab work revealed an
abnormal hypersensitivity to pneumonitis panel with elevated levels to pigeon droppings, phoma,
penicillium, and Cladosporium. She diagnosed hypogammaglobulinemia, history of recurrent
pneumonia, hypersensitivity pneumonitis panel positive to pigeon droppings, and Type 1
diabetes. February 20, 2015 lab results were also submitted which revealed findings of mixed
feathers and pigeon droppings.
By decision dated November 29, 2016, an OWCP hearing representative affirmed the
January 5, 2016 decision finding that the evidence of record failed to establish that the
occupational exposure occurred as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific 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 on a traumatic injury or occupational disease.7
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
5

Supra note 2.

6

Gary J. Watling, 52 ECAB 278 (2001).

7

Michael E. Smith, 50 ECAB 313 (1999).

5

actually experienced the employment incident which is alleged to have occurred.8 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee 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 employee.9
When an employee claims an injury in the performance of duty he or she must submit
sufficient evidence to establish a specific event, incident, or exposure occurring at the time,
place, and in the manner alleged. He or she must also establish that such event, incident, or
exposure caused an injury.10 Once an employee establishes an injury in the performance of duty,
he or she has the burden of proof to establish that any subsequent medical condition or disability
from work, for which he claims compensation is causally related to the accepted injury.11
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury, and
failure to obtain medical treatment may, if otherwise unexplained, cast serious doubt on the
employee’s statements. The employee has not met his or her burden of proof when there are
such inconsistencies in the evidence as to cast serious doubt on the validity of the claim.12
ANALYSIS
The Board finds that this case is not in posture for a decision.13
In its November 29, 2016 decision, OWCP found that appellant had not established that
the occupational exposure occurred as alleged. The Board finds, however, that the evidence of

8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

10
See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
11

Supra note 7.

12

Betty J. Smith, 54 ECAB 174 (2002).

13

M.C., Docket No. 15-1915 (issued June 17, 2016).

6

record is sufficient to establish that he was exposed to pigeon feces and feathers in his
employment duties as a property and procurement specialist.14
On his Form CA-1, appellant stated that he was required to take inmates outside on the
rear dock once a week to clean, which included the removal of pigeon droppings. In his
January 3, 2016 narrative statement, he explained that his exposure occurred from
September 2013 to April 2014 as he was assigned once a week to supervise the inmates cleaning
the dock area. Every Tuesday, appellant would take several inmates outside and help them pick
up trash and clean up pigeon feces by throwing buckets of water on the feces to make it go down
the storm drain. He noted that the pigeons would roost up in the rafters covering the loading
dock. For clean up, they would use brooms, dustpans, and empty buckets and were provided no
protective gear other than gloves. The employing establishment controverted the claim arguing
that appellant was only required to supervise the cleanup and had not been exposed to pigeon
feces since he stopped work in April 2014.
The Board finds that appellant has provided sufficient detail to establish that an
occupational exposure occurred as alleged.15 While the employing establishment controverted
the claim, they submitted evidence establishing that laundry, his unit, was assigned to cleaning
the rear dock on Tuesday of every week. They further submitted an FCI Williamsburg Daily
Cleaning Procedures for Pigeon Droppings, corroborating appellant’s allegations that cleanup of
the dock included removal of pigeon droppings. The Board notes that, although he was not
hospitalized until November 2014 for pneumonia, the record establishes that he was exposed to
pigeon feces and feathers in his employment duties as a property and procurement specialist. As
such, contrary to OWCP’s findings, appellant’s statements do not cast such inconsistencies as to
doubt that the employment exposure occurred as alleged.16 Thus, the Board finds that, given the
above referenced evidence, appellant has alleged with specificity that the occupational exposure
occurred as alleged.17
Given that appellant has established exposure to pigeon droppings and feathers in his
employment as a property and procurement specialist, the Board finds that the first component of
fact of injury, the claimed exposure, occurred as alleged.18 As such, the question becomes
whether the medical evidence establishes a causal relationship between the claimed conditions
and the identified employment exposure. Appellant has submitted medical evidence which has
not been evaluated by OWCP. OWCP procedures specify that a final decision of OWCP must
include findings of fact and provide clear reasoning which allows the claimant to understand the
precise defect of the claim and the kind of evidence which would tend to overcome it.19 As it
14

A.R., Docket No. 15-1716 (issued November 17, 2015).

15
See B.B., 59 ECAB 234 (2007). An employee’s statement alleging that an incident or exposure occurred at a
given time and in a given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.
16

A.J., Docket No. 12-0548 (issued November 16, 2012).

17

See Willie J. Clements, 43 ECAB 244 (1991).

18

James R. Flint, Docket No. 05-0587 (issued June 10, 2005).

19

See L.R., Docket No. 15-0255 (issued April 1, 2015); see also 20 C.F.R. § 10.126.

7

found that appellant did not establish fact of injury, it did not analyze or develop the medical
evidence. Thus, the Board will set aside OWCP’s November 29, 2016 decision and remand the
case to OWCP to enable it to properly consider all of the evidence.20 After further development
as deemed necessary, OWCP shall issue a de novo decision on appellant’s occupational disease
claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 29, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: February 21, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

20

T.F., Docket No. 12-0439 (issued August 20, 2012).

8