S.M. and Department of Homeland Security, Transportation Security Administration, Union, NJ (Board decision, February 20, 2018)

ECAB final decision. The Board affirmed OWCP’s June 14, 2017 denial of an eye condition claim. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

S.M. claimed a right eye retinal condition and cataract from exposure to a workplace ultraviolet screening lamp. OWCP accepted the exposure but denied a causal link to the diagnosed conditions. The Board found that an ophthalmologist’s report did not support the claimed link and that other statements were not probative medical evidence. It affirmed the denial.

Decision snapshot

• Authority: 5 U.S.C. § 8101.
• Outcome: June 14, 2017 decision affirmed; medical causation not established.
• Key point: The accepted light exposure was not enough without reasoned medical evidence linking it to the eye conditions.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.M., Appellant
)
) Docket No. 17-1756
and ) Issued: February 20, 2018
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Union, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 14, 2017 appellant, through counsel, filed a timely appeal from a June 14, 2017 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 the claim.

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 her burden of proof to establish a right retinal condition and right cataract due to accepted occupational exposures on or before September 3, 2013.

FACTUAL HISTORY

On April 21, 2016 appellant, then a 48-year-old program assistant, filed an occupational disease claim (Form CA-2) alleging that on or before September 30, 2013, exposure to an ultraviolet (UV) blue-light lamp used to examine security markings on passenger credentials caused a right epiretinal membrane (ERM), resulting in loss of visual acuity, loss of depth perception, double vision, visual distortion, photophobia, dizziness, and headaches. She argued that UV light exposure accelerated her condition because the average epiretinal membrane patient was diagnosed at approximately 75 years of age, and her symptoms began at age 47. Appellant’s supervisor noted that appellant was last exposed to the UV lamp on February 9, 2014, when she was reassigned from the screening unit to an administrative assistant position.

In a July 29, 2016 letter, OWCP requested that appellant submit additional factual and medical evidence in support of her claim, including factual evidence to establish the alleged exposure to UV light and a narrative report from her attending physician with an explanation of how and why UV light exposure at work would cause an epiretinal membrane. It afforded her 30 days to submit such evidence.

In response, appellant submitted an August 22, 2016 letter, in which she alleged exposure to the UV screening lamp for at least one hour a day, five days a week, for two years while performing required traveler credential checks. She noted that the employing establishment had changed to a larger-sized lightbulb that did not fit properly within the lamp housing. “A large part of the bulb was exposed and stuck out the bottom of the lamp.” Visual distortions in appellant’s right eye led her to seek treatment in September 2013. Appellant underwent a vitrectomy in May 2014 and cataract removal on August 19, 2016.

By decision dated October 19, 2016, OWCP denied appellant’s claim. It accepted that the claimed exposure to UV occurred as alleged, but found that appellant failed to establish an injury or condition causally related to these exposures as she submitted no medical evidence in support of her claim.

In a letter dated and received on November 1, 2016, appellant, through counsel, requested a telephonic oral hearing before a representative of OWCP’s Branch of Hearings and Review. At the hearing, held May 11, 2017, counsel indicated that appellant would submit additional medical evidence. The hearing representative held the record open for 30 days.

In a May 31, 2017 letter, counsel submitted an October 12, 2013 inquiry to the employing establishment from a passenger, who was also a physician, asserting that the unshielded UV bulbs used by the security screeners at the employing establishment created a “definite risk for developing cataracts and/or retinal damage.” The employing establishment responded in a November 5, 2014 e-mail that “the spiral UV bulbs in the lamps that are currently being utilized do in fact extend out of their housing. In order to prevent any occupational hazards, we are in

2 the process of exploring alternate bulbs or lamps that will meet the needs of security and safety for TSA [the employing establishment] employees and the traveling public.”

Counsel also provided a March 6, 2017 report from Dr. Ronald H. Krasney, a Board- certified ophthalmologist, reviewing unspecified medical records and a statement from appellant. Dr. Krasney did not examine appellant. He noted that she underwent a laser-assisted in situ keratomileusis (LASIK) procedure on an unspecified date prior to the retinal and cataract surgeries. Dr. Krasney explained that while ERM onset was generally age related, he had seen several patients who developed an ERM in their forties. He noted that appellant’s complaints of headaches and dizziness were “issues not generally associated or reported” with an ERM. Dr. Krasney concluded that, while ultraviolet light was a “potential contributor” to cataract formation, a “comprehensive medical literature search” revealed no association between UV light exposure and ERM. He noted that appellant’s attending ophthalmic surgeon opined that the cause of appellant’s ERM was unknown. Dr. Krasney posited that the retinal surgery may have hastened the development of appellant’s cataract.

By decision dated June 14, 2017, OWCP’s hearing representative affirmed OWCP’s October 19, 2016 decision, finding that Dr. Krasney’s opinion clearly negated any causal relationship between the claimed ERM and UV light exposure at work. She found that as the medical evidence of record did not support the claimed causal relationship, it did not warrant further development by OWCP.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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 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 on a traumatic injury or an occupational disease.5

An occupational disease is defined as a condition produced by the work environment over a period longer than a single workday or shift.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; (2) 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

3
Supra note 2.
4
Joe D. Cameron, 41 ECAB 153 (1989).
5
See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).
6
20 C.F.R. § 10.5(q).

3 establishing that the diagnosed condition is causally related to the employment factors identified by the claimant.

The medical evidence required to establish causal relationship is generally 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.7

ANALYSIS

Appellant alleged a right ERM and right cataract developed due to exposure to a UV blue-light screening lamp on or before September 30, 2013. OWCP accepted that these exposures occurred at the time, place, and in the manner alleged, but denied the claim as the medical evidence was insufficient to establish causal relationship.

In support of her claim, appellant provided a March 6, 2017 report from Dr. Krasney, a Board-certified ophthalmologist. He explained that appellant’s attending ophthalmologic surgeon opined that the etiology of appellant’s ERM was unknown, and that a thorough review of medical literature revealed no association between ERM and UV light exposure. Dr. Krasney commented that exposure to UV light could contribute to cataract formation, but that the ERM surgery could also have a causal role. He noted that appellant also underwent a LASIK procedure. Dr. Krasney provided medical rationale negating a causal relationship between the accepted UV light exposure and the development of ERM. Therefore, his opinion cannot meet appellant’s burden of proof.8

The Board notes that insofar as the October 12, 2013 customer assertions about UV light were apparently made by a physician who was a passenger, that these comments do not constitute probative medical evidence. There is no evidence of record that the type of lamp observed by this customer was identical to that utilized by appellant. Also, there is no evidence that the customer medically assessed or examined appellant at any time.

As appellant failed to submit sufficient rationalized medical evidence setting forth the pathophysiologic mechanisms by which the accepted UV light exposures would cause the claimed right ERM and cataract, she failed to meet her burden of proof to establish causal relationship.

On appeal counsel contends that OWCP’s June 14, 2017 decision is contrary to fact and law. As set forth above, appellant did not submit sufficient medical evidence to meet her burden of proof to establish causal relationship.

7
Solomon Polen, 51 ECAB 341 (2000).
8
Deborah L. Beatty, 54 ECAB 340 (2003).

4
 Appellant may submit additional 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 right retinal condition and right cataract due to accepted occupational exposures on or before September 3, 2013.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated June 14, 2017 is affirmed.

Issued: February 20, 2018
Washington, DC

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

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

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

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