G.T. and Department of Veterans Affairs, Veterans Administration Medical Center, North Las Vegas, NV (Board decision, June 18, 2013)

ECAB final decision. The Board affirmed OWCP’s denial of G.T.’s occupational disease claim based on alleged airborne or contact exposure at work. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

G.T., a VA nurse, reported respiratory and other symptoms she attributed to unidentified workplace agents. The Board found that her statements described where symptoms occurred but did not identify a specific substance or establish an exposure to it. She also submitted no medical report diagnosing a condition and explaining how work caused it. The Board held that the evidence did not establish an occupational disease claim and upheld OWCP’s denial.

Decision snapshot

• Authority: FECA proof of an occupational disease and medical causation.
• Outcome: January 8, 2013 occupational disease denial affirmed.
• Key point: The claim lacked substantiated exposure details and a reasoned medical diagnosis linked to work.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
G.T., Appellant
)
)
and ) Docket No. 13-822
) Issued: June 18, 2013
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, North Las Vegas, NV, Employer
)
__________ )

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

DECISION AND ORDER

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

JURISDICTION

On February 25, 2013 appellant filed a timely appeal from a January 8, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational disease claim. 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 the case.

ISSUE

The issue is whether appellant met her burden of proof to establish that she developed a medical condition causally related to factors of her federal employment.

FACTUAL HISTORY

On May 4, 2012 appellant then a 61-year-old nurse, filed an occupational disease claim, alleging that she began to experience an increase in respiratory distress, coughing, wheezing,

1
5 U.S.C. § 8101 et seq. burning and weeping eyes, increased blood pressure, dry mouth and metal taste on tongue as a result of exposure to and contact with harmful airborne agents in her workplace.

By letter dated May 24, 2012, OWCP informed appellant that further evidence was necessary to establish her claim. Appellant was advised that she should submit a statement describing in detail her employment exposure and a rationalized medical report explaining how a diagnosed condition was causally related to the alleged exposure. The employing establishment was also asked to provide further information regarding her claim.

By decision dated July 26, 2012, OWCP denied appellant’s claim on the grounds that she had failed to establish the fact of injury component of her claim, as she did not submit any evidence as requested.

On August 27, 2012 appellant requested reconsideration.

Along with her request, appellant submitted an undated statement in which she alleged exposure to airborne and contact with unidentified airborne agents in the building. She also noted that she did not have access to special respirator treatment during exposure to antineoplastic/biotherapy agents. Appellant also submitted a statement she wrote to Dean H. Miller, a nurse manager, dated September 21, 2012, requesting to be transferred to the 23:30- 0800 tour of duty, as well as a note which kept track of symptoms and blood pressure from September 10 to 12, 2012. She also explained that she was transferred to Unit 3B which was stressful to her.

In a statement that OWCP received on October 10, 2012, appellant related her symptoms following alleged exposure to the unidentified agents in various rooms in the workplace and her subsequent symptoms for the period April 23 to August 15, 2012.

By decision dated January 8, 2013, OWCP denied appellant’s claim on the grounds that she had not submitted evidence which substantiated a medical condition due to unidentified airborne or contact agents.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of proof to establish the essential elements of his or her claim by the weight of the evidence,2 including that he or she sustained an injury in the performance of duty and that any specific condition or disability for work for which he or she claims compensation is causally related to that employment injury.3 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

2
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).
3
G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2 compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the employee.4

As part of her burden, the employee must submit rationalized medical opinion evidence based on a complete factual and medical background showing causal relationship.5 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.6

ANALYSIS

The Board finds that appellant has submitted insufficient evidence to establish that she sustained a medical condition caused by her federal employment.

In its May 24, 2012 letter, OWCP advised appellant that it was her responsibility to provide a detailed description of her alleged employment exposure to workplace airborne or contact agents and to provide a physician’s opinion which included a medical explanation as to how work exposure caused, contributed to or aggravated a medical condition.

To establish a claim for compensation, the Board has explained that appellant must submit a statement which identifies the factors of employment that she believes caused her condition and submit medical evidence to establish her condition.7 The Board finds that she has alleged that she was exposed to airborne and/or contact agents at work, but she has not provided sufficient detail as to the nature of her exposure to meet her burden of proof. While appellant has provided statements detailing various rooms within the employing establishment in which she experienced symptoms, including respiratory distress, coughing, wheezing, burning eyes, increased blood pressure, dry mouth and, while she has alleged that she was transferred to different units within the employing establishment due to the alleged exposure, she has not provided any evidence to substantiate that she was exposed to any specific toxic compounds at work.8 The Board has explained that it is not enough to merely allege very generally that chemicals caused a condition. The employee must identify the specific compound that is implicated in the development of the alleged condition.9

The Board also finds that appellant failed to submit any medical documentation in support of her claim. The fact that the etiology of a disease or condition is obscure does not shift the burden of proof to OWCP to disprove an employment relationship.10 As there is no 4 See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).
5
Id.; Nancy G. O Meara, 12 ECAB 67, 71 (1960).
6
Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).
7
Donald W. Wenzel, 56 ECAB 390 (2005); Richard H. Weiss, 47 ECAB 182 (1995).
8
See Judith A. Peot, 46 ECAB 1036 (1995).
9
Id.
10
Supra note 8; see also Lucrecia M. Nielsen, 42 ECAB 583 (1991).

3 probative, rationalized medical report containing a diagnosis of appellant’s condition and rationale addressing how her claimed conditions were caused by her employment, she has not met her burden of proof in establishing that she sustained an occupational disease in the performance of duty causally related to factors of employment.

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 failed to meet her burden of proof to establish that she sustained a medical condition in the performance of duty causally related to factors of her federal employment

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated January 8, 2013 is affirmed.

Issued: June 18, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4