D.G. and Department of the Navy, Naval Station, Norfolk, VA (Board decision, October 7, 2015)

ECAB final decision. The Board affirmed OWCP’s July 22, 2014 denial of D.G.’s occupational disease claim. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. 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

D.G., a Navy third officer, claimed she contracted mononucleosis aboard the USS Whitney after a large group embarked. She suggested exposure through shared dishes or utensils. The Board found that the submitted forms were signed by nurses, not qualifying physicians under FECA, and did not establish a medical link between shipboard conditions and the illness. It affirmed the occupational disease claim denial.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Occupational disease claim denial affirmed.
• Key point: A claimed shipboard exposure required qualifying medical evidence linking the illness to employment conditions.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.G., Appellant
)
)
and ) Docket No. 15-0068
) Issued: October 7, 2015
DEPARTMENT OF THE NAVY,
)
NAVAL STATION, Norfolk, VA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On October 14, 2014 appellant filed a timely appeal from a July 22, 2014 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.

ISSUE

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

FACTUAL HISTORY

On May 9, 2014 appellant, then a 23-year-old third officer assigned to the USS Whitney, filed an occupational disease claim (Form CA-2) alleging that after a large staff embarkation of the North Atlantic Treaty Organization (NATO) on the USS Whitney she sustained

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5 U.S.C. § 8101 et seq. mononucleosis. Appellant explained that she was initially diagnosed with strep throat, but that her condition worsened and she was diagnosed with mononucleosis. She first became aware of her claimed condition on May 2, 2014 and of its relationship to her employment on May 6, 2014.

Appellant submitted a form report signed by Susan Gust, a registered nurse, dated May 12, 2014. Ms. Gust noted that appellant’s illness began with a sore throat, swollen tonsils, and some fatigue on May 2, 2014. She noted that tests were positive for mononucleosis, and that appellant had been taken off duty and referred to a physician for further care. Ms. Gust concluded that appellant had possibly experienced exposure on the ship.

By letter dated May 27, 2014, OWCP requested that appellant submit additional factual and medical evidence in support of her claim. It noted that appellant had submitted no medical evidence from a physician providing a medical diagnosis or an opinion as to how the diagnosed condition was caused by factors of appellant’s employment.

In a statement dated May 28, 2014, appellant noted that she had boarded the USS Whitney on January 23, 2014 but was forced to depart the ship on May 9, 2014. She noted that NATO staff had embarked on her vessel in April 2014 and in May 2014 in Gaeta, Italy and Lisbon, Portugal. Appellant stated that she first noticed her symptoms on May 2, 2014 and that her exposure might have occurred due to improperly washed silverware or dishes.

Appellant submitted a May 29, 2014 form report signed by Vivian Paskowski, a registered nurse. In this form report, Ms. Paskowski related that appellant had mononucleosis, that her liver function was being monitored, and that she continued to have fatigue and malaise. She also noted that appellant may have experienced exposure while at work on a ship.

On June 3, 2014 appellant requested compensation for leave without pay (Form CA-7) from May 30 to June 14, 2014.

By letter dated June 10, 2014, OWCP informed appellant that no action could be taken on her claim for compensation until it had accepted her claim for occupational disease. It noted that the evidence of record was insufficient to establish her claim and that medical evidence needed to be from a qualified physician rather than a nurse practitioner.

Appellant submitted another form report signed by Ms. Paskowski on June 10, 2014 wherein she related that appellant had been seen with improved symptoms. She was advised that she could return to light-duty work.

On June 20, 2014 appellant returned to full-time regular duty with no restrictions.

On June 24, 2014 appellant also requested compensation for leave without pay (Form CA-7) for the period June 15 to 22, 2014.

By letter dated June 27, 2014, OWCP reiterated that it could take no action on her new claim for leave without pay until it had accepted her claim for occupational disease. It again requested medical evidence sufficient to establish her claim. OWCP asked appellant to provide relevant medical evidence from a qualified physician to support her claim for work-related injury and periods of disability. No additional information was received.

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 By decision dated July 22, 2014, OWCP denied appellant’s claim. It noted there was no medical evidence from a physician establishing that any medical condition was caused by factors of her federal employment.

LEGAL PRECEDENT

An employee seeking benefits under FECA 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.2 These are the essential elements of every compensation claim regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3

While injuries occurring to employees at their residences are not generally compensable, the Board notes that if an employee is required or expected to live in quarters or premises furnished or made available by his or her employer and is injured during the reasonable use or occupancy of such premises, such injuries have been held to have occurred in the performance of duty and to be compensable. This rule has been referred to as the “Bunkhouse rule.”4

To establish that an injury was sustained in an occupational disease claim, an employee 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 employee 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.5

ANALYSIS

Appellant alleged that she sustained mononucleosis during her service on the USS Whitney when a large NATO contingent embarked her ship. She claimed that she might have been exposed to mononucleosis on the ship through dirty silverware or dishes at that time. She claimed disability from May 30 to June 22, 2014. The Board finds that she has failed to submit sufficient medical evidence from a qualified physician to establish a medical condition causally related to her employment.

2
Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
3
Michael E. Smith, 50 ECAB 313, 315 (1999).
4
See Edmond B. Wagoner, 39 ECAB 758 (1988); see also Jimmy T. Vest, Docket No. 01-157 (issued October 25, 2001).
5
Leslie C. Moore, 52 ECAB 132 (2000).

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 In support of her claim, appellant submitted three form reports signed by registered nurses, dated May 12 and 29, and June 10, 2014. Nurses do not qualify as physicians under FECA and, therefore, their reports do not qualify as probative medical evidence supportive of a claim for federal workers’ compensation.6 Therefore, these reports do not constitute probative medical evidence establishing that appellant had been diagnosed with the claimed medical condition. Appellant has not established that she sustained an injury as she did not submit any medical evidence in support of her claim.

The Board finds that appellant has failed to establish that her diagnosed condition resulted from employment factors.

In a similar case, where an employee was serving aboard a ship and claimed to have contracted jaundice while being on the ship, the Board affirmed that even where claimants are required to live on ships, a claimant must first establish causal relationship through evidence that the illness was caused by conditions of the employment.7 Here, appellant has failed to establish the connection between conditions of the employment and the mononucleosis.

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 did not meet her burden of proof to establish a medical condition causally related to factors of her federal employment.

6
See 5 U.S.C. § 8101(2); M.B., Docket No. 12-1695 (issued January 29, 2013).
7
See John A. Squashie, 6 ECAB 363 (1953).

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 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated July 22, 2014 is affirmed.

Issued: October 7, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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