D.D. and Department of Homeland Security, Border Patrol, Chula Vista, CA (Board decision, July 19, 2012)

ECAB final decision. The Board affirmed OWCP's November 16, 2011 denial of D.D.'s occupational disease claim. A party may petition the Board for reconsideration within 30 days of issuance unless the order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.D., a Border Patrol seized property specialist, developed a pulmonary fungal infection and attributed it to dust blown from construction next to his work site. The Board accepted that he encountered dirt and dust particles there. It found no testing or other evidence showing the particles contained the fungus, and the record did not establish the extent of exposure. His physician diagnosed the infection but did not give an opinion connecting it to the workplace dust. The Board therefore affirmed OWCP's denial for lack of evidence of the claimed exposure and medical causation.

Decision snapshot

• Authority: FECA occupational disease proof requirements, including 20 C.F.R. § 10.115(e) and (f).
• Outcome: November 16, 2011 occupational disease claim denial affirmed.
• Key point: Proof of dust at work did not establish exposure to a particular fungus or medically link the infection to work.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.D., Appellant
)
)
and ) Docket No. 12-512
) Issued: July 19, 2012
DEPARTMENT OF HOMELAND SECURITY,
)
BORDER PATROL, Chula Vista, CA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On January 10, 2012 appellant filed a timely appeal from a November 16, 2011 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 over the merits of this case.2

ISSUE

The issue is whether appellant has established a pulmonary infection causally related to his federal employment.

1
5 U.S.C. § 8101 et seq.
2
On appeal, appellant submitted additional medical evidence. The Board’s review of evidence is limited to evidence that was before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c)(1). FACTUAL HISTORY

On May 20, 2011 appellant, then a 50-year-old seized property specialist, filed an occupational disease claim (Form CA-2) alleging that he sustained a coccidioidomycosis infection as a result of his federal employment.3 He alleged that he was exposed to dirt particles while at work from a construction site in a neighboring lot. Appellant stated that the wind would blow the particles into the seizure lot and the soil in the area was known to have the pathogen causing coccidioidomycosis.

Appellant submitted a hospital report noting that he was admitted on September 13, 2010 with respiratory symptoms. The discharge diagnosis was coccipneumonia. Appellant also submitted a March 15, 2011 note from Dr. Mark Johnson, a Board-certified internist, diagnosing coccidioidomycosis.

By letter dated June 30, 2011, OWCP requested additional evidence with respect to his compensation claim. In a letter dated July 21, 2011, a supervisor stated that appellant’s job duties included inventory inspection of all seized motor vehicles. He stated that from February 2010 to February 2011 there was construction on the lot next to the seizure lot, and dirt and dust particles were carried over the seizure lot. According to the supervisor, the particles may have contained the coccidioides pathogen, but no precautions had been taken. In an undated statement, appellant noted that construction on the neighboring site began in April or May 2010. He worked three to four hours a day and believed the particles contained the pathogen causing coccidioidomycosis.

Appellant submitted reports from Dr. Johnson dated October 28, 2010 to April 12, 2011.
In an October 28, 2010 report, Dr. Johnson provided a history noting that appellant had traveled to the Middle East, Australia and Japan. He diagnosed coccipneumonia. In a report dated July 28, 2011, Dr. Johnson stated that appellant had been diagnosed with severe bilateral pulmonary coccidioidomycosis in September 2011 [sic] based on chest computed tomography, serum results and immunodiffusion testing.

By decision dated November 16, 2011, OWCP denied appellant’s claim for compensation. It found that the factual evidence established only exposure to dust particles, and the medical evidence was insufficient to establish causal relationship between the diagnosed condition and employment factors.

LEGAL PRECEDENT

A claimant seeking benefits under FECA has the burden of establishing the essential elements of his claim by the weight of the reliable, probative and substantial evidence, including that an injury was sustained in the performance of duty as alleged and that any specific condition or disability claimed is causally related to the employment injury.4

3
Coccidioidomycosis is a systemic fungal infection. See Western Journal of Medicine, August 1993, 153-71.
4
20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

2
 To establish that an injury was sustained in the performance of duty, a claimant must submit: (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 diagnosed condition is causally related to the employment factors identified by the claimant.5

Causal relationship is a medical question that can generally be resolved only by rationalized medical opinion evidence.6 A physician’s opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed condition and the implicated employment factors must be based on a complete factual and medical background of the claimant.7 Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment factors.8

ANALYSIS

With respect to the factual allegations, appellant stated that he was exposed to dirt and dust particles from a neighboring construction site while he was performing his job duties. A supervisor indicated that there was construction in the adjacent lot, which appellant stated had begun in April or May 2010 to February 2011. The wind blew particles over the work site. The record therefore would support a finding that appellant was exposed to dirt and dust particles during this time frame; however, there were no soil tests submitted to confirm the presence of coccidioidomycosis.

The Board notes that the extent of the exposure is not clear from the record. Appellant generally indicated that he worked three to four hours a day, but he did not provide a detailed description of the work site, the neighboring site, discuss whether the exposure was intermittent or constant, or provide other relevant information. As noted, there was no probative evidence submitted with respect to any specific pathogen in the particles. The supervisor provided no indication that the employing establishment had tested the soil at the work site or had any specific evidence regarding the coccidioides fungus.

As to the medical evidence, there is no medical opinion relating the diagnosed coccidioidomycosis to appellant’s exposure in his federal employment. Dr. Johnson did not discuss exposure at work to dust or dirt particles, or provide an opinion on causal relationship. The Board notes that any medical opinion on causal relationship must be based on a complete

5
Ruby I. Fish, 46 ECAB 276, 279 (1994).
6
See Robert G. Morris, 48 ECAB 238 (1996).
7
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
8
Id.

3 and accurate history and must be supported by medical rationale. In the absence of such evidence, appellant has not met his burden of proof.9

The Board finds that appellant did not meet his burden of proof. The factual evidence establishes exposure to dust and dirt particles, but does not establish exposure to any specific pathogen or mold spores. In addition, the medical evidence does not provide a rationalized medical opinion on causal relationship between any diagnosed condition and the employment exposure.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not established a pulmonary infection casually related to his federal employment.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated November 16, 2011 is affirmed.

Issued: July 19, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

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

9
See Gilbert Banks, Sr., 30 ECAB 271 (1978) (claimant alleged coccidioidomycosis causally related to exposure in federal employment, but submitted no probative medical evidence on causal relationship).

4