J.B. and Department of the Army, U.S. Army Material Command, Texarkana, TX (Board decision, August 24, 2010)

ECAB final decision. The Board affirmed OWCP's November 19, 2009 denial of J.B.'s occupational disease claim. OWCP accepted the described workplace exposures, but the medical reports did not explain how those exposures caused or aggravated his diagnosed condition. The Board's decision binds OWCP and is generally not subject to court review under 5 U.S.C. § 8128(b). A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

J.B., an Army sandblaster, filed a claim after receiving diagnoses of malignant thymoma and right lung cancer. He attributed the conditions to dust and cadmium in his work area. OWCP accepted the work factors he described but found no medical explanation linking them to the diagnoses. A pathologist identified thymoma without offering a cause, and a thoracic surgeon stated that he could not conclude the condition was work related. The Board affirmed the denial because the record lacked a reasoned physician opinion on causation.

Decision snapshot

• Authority: Federal Employees' Compensation Act occupational disease causation standard.
• Outcome: November 19, 2009 occupational disease denial affirmed.
• Key point: Diagnoses and accepted exposure factors did not establish causation without a reasoned medical connection.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.B., Appellant
)
)
and ) Docket No. 10-451
) Issued: August 24, 2010
DEPARTMENT OF THE ARMY, U.S. ARMY
)
MATERIAL COMMAND, Texarkana, TX,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On December 7, 2009 appellant filed a timely appeal from a November 19, 2009 merit decision of the Office of Workers’ Compensation Programs that denied his 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 established he sustained an injury in the performance of duty causally related to his employment.

FACTUAL HISTORY

On June 25, 2009 appellant, a 59-year-old sandblaster, filed an occupational disease claim (Form CA-2) for thymoma and cancer in his right lung that he attributes to the fact that the “area I work in is contaminated with cadmium.” In a supplemental statement dated July 21, 2009, he alleged that he was exposed to sandblasting dust that he characterized as “hazardous.” Appellant also described his employment duties and his condition. Appellant submitted a June 17, 2009 note in which Dr. Richard E. Wood, a Board- certified thoracic surgeon, reported that a biopsy, conducted on May 6, 2009, revealed a pleural mass “consistent with thymoma.”

In a surgical report dated June 26, 2009 and a note dated August 5, 2009, Dr. Wood diagnosed malignant thymoma, right lung cancer. He noted that appellant has a history of “heavy exposure to asbestos but I cannot conclude that this is work related.”

On July 14, 2009 Dr. William Herlihy, a Board-certified pathologist, presented findings on examination and diagnosed a malignant thymoma.

By decision dated November 19, 2009, the Office denied the claim because, although it accepted the employment factors appellant deemed responsible for his condition, the medical evidence of record did not establish that his condition was caused by these employment factors.

LEGAL PRECEDENT

An employee seeking benefits under the Federal Employees’ Compensation Act1 has the burden of proof to establish the essential elements of his claim by the weight of the evidence,2 including that he sustained an injury in the performance of duty and that any specific condition or disability for work for which he claims compensation is causally related to that employment injury.3 As part of his burden, the employee must submit rationalized medical opinion evidence based on a complete factual and medical background showing causal relationship.4 The weight of medical evidence is determined by its reliability, its probative value, its convincing quality, the care of the analysis manifested and the medical rationale expressed in support of the physician’s opinion.5

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.6

1
5 U.S.C. §§ 8101-8193.
2
J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).
3
G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
4
Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).
5
Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).
6
See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

2
 Causal relationship is a medical issue and the medical evidence generally required to establish causal relationship is rationalized medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which includes a physician’s rationalized opinion on whether there is a causal relationship between the employee’s diagnosed condition and the compensable employment factors. The opinion of the physician must be based on a complete factual and medical background of the employee, 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 employee.

ANALYSIS

The Office accepted the employment factors appellant deemed responsible for his condition. Appellant’s burden is to demonstrate that these employment factors caused a medically-diagnosed condition. Causal relationship is a medical issue that can only be established by probative, rationalized medical opinion evidence. The Board that finds appellant has not submitted sufficient probative medical opinion evidence supporting his claim and, consequently, has not established he sustained an injury in the performance of duty causally related to his employment.

The reports signed by Drs. Herlihy and Wood have little probative value on the issue of causal relationship because they lack an opinion, supported by adequate rationale, explaining how the conditions they diagnosed were caused by the accepted employment factors.7

Dr. Herlihy’s July 14, 2009 pathology report diagnosed malignant thymoma, but offered no opinion regarding the cause of this condition.

Dr. Wood stated that, despite appellant’s “history of heavy exposure to asbestos,” he could not conclude that appellant’s condition was work related. Accordingly, this evidence does not establish the requisite causal relationship.

An award of compensation may not be based on surmise, conjecture or speculation.8 Neither the fact that appellant’s claimed condition became apparent during a period of employment nor his belief that his condition was aggravated by his employment is sufficient to establish causal relationship.9 The fact that a condition manifests itself or worsens during a period of employment10 or that work activities produce symptoms revelatory of an underlying condition11 does not raise an inference of causal relationship between a claimed condition and identified employment factors.

7
See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship have little probative value). 8 Edgar G. Maiscott, 4 ECAB 558 (1952).
9
D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).
10
E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).
11
D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

3
 Because appellant has not submitted medical opinion evidence that explains how the accepted employment factors caused or aggravated a firmly-diagnosed medical condition, the Board finds that appellant has not established the essential element of causal relationship.

CONCLUSION

The Board finds that appellant has not established he sustained an injury in the performance of duty causally related to his employment.

ORDER

IT IS HEREBY ORDERED THAT the November 19, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: August 24, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4