A.D. and Department of Justice, Drug Enforcement Administration (Board decision, March 26, 2025)

ECAB final decision. The Board affirmed OWCP's denial because no diagnosed medical condition was established in connection with the accepted exposure. A party may petition the Board for reconsideration within 30 days of issuance unless this 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

A DEA criminal investigator reported ear pain, ringing, and hearing loss after an airplane trip related to work. The Board found the medical evidence did not establish a diagnosed condition in connection with the accepted exposure. It upheld the claim denial.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Ear claim denied for lack of an established diagnosis.
• Key point: The record did not establish a qualifying medical condition linked to the exposure.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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A.D., Appellant
)
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and ) Docket No. 25-0324
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Issued: March 26, 2025
DEPARTMENT OF JUSTICE, DRUG
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ENFORCEMENT ADMINISTRATION,
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Metairie, LA, Employer
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__________ )

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 20, 2025 appellant, through counsel, filed a timely appeal from a January 28, 2025 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 this case.

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 met her burden of proof to establish a diagnosed medical condition in connection with the accepted May 8, 2024 employment exposure.

FACTUAL HISTORY

On May 21, 2024 appellant, then a 51-year-old criminal investigator, filed a traumatic injury claim (Form CA-1) alleging that on May 8, 2024 she sustained ringing and pain in her ear with hearing loss while in the performance of duty. She indicated that, while on an airplane returning home from work, her ears popped, followed by drainage and pain. On the reverse side of the claim form, the employing establishment acknowledged that appellant was injured in the performance of duty. Appellant did not stop work.

In a May 23, 2024 development letter, OWCP informed appellant of the deficiencies of her claim. It advised her of the type of factual and medical evidence needed to establish her claim and provided a questionnaire for her completion. OWCP afforded appellant 60 days to submit the necessary evidence.

OWCP thereafter received a May 22, 2024 after-visit summary and May 22 and June 3, 2004 attending physician’s reports (Form CA-20) signed by a certified nurse practitioner, noting high-frequency sensorineural hearing loss of left ear, left-sided tinnitus, and occupational exposure to noise. The nurse practitioner opined that appellant’s mild high-frequency sensorineural hearing loss of left ear was caused or aggravated by her employment activity at the shooting range on January 31, 2024, and recommended hearing aids. A May 22, 2024 audiogram was included, along with instructions for caring for temporomandibular joint (TMJ) syndrome.

In a follow-up development letter dated June 27, 2024, OWCP advised appellant that it had conducted an interim review, and the evidence remained insufficient to establish her claim. It noted that she had 60 days from the May 23, 2024 development letter to submit the requested necessary evidence. OWCP further advised that if the evidence was not received during this time, it would issue a decision based on the evidence contained in the record.

In a July 12, 2024 after-visit summary and a Form CA-20, Dr. Lauren Elder, a Board- certified family practitioner, diagnosed high-frequency sensorineural hearing loss left ear, otalgia, and left-sided tinnitus, which she opined was due to appellant’s January 31, 2024 occupational exposure to noise at a shooting range. A hearing aid for the left ear was recommended.

By decision dated August 1, 2024, OWCP denied appellant’s traumatic injury claim, finding that the evidence of record was insufficient to establish that the alleged exposure to noise occurred on May 8, 2024, as described. Thus, OWCP concluded that the requirements to establish an injury, as defined by FECA, had not been met.

On August 8, 2024, appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. An oral hearing was held on November 14, 2024, wherein appellant described the May 8, 2024 employment exposure.

OWCP received a December 15, 2024 report from a nurse practitioner; and a duplicate copy of the May 22, 2024 audiology report.

2
By decision dated January 28, 2025, OWCP’s hearing representative affirmed OWCP’s August 1, 2024 decision, as modified to find that appellant had established the May 8, 2024 exposure; however, the claim remained denied as she had not established a diagnosed medical condition in connection with the accepted employment exposure .3

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 timely filed within the applicable time limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that any disability or medical condition for which compensation is claimed is causally related to the employment injury. 5 These are the essential elements of each and every compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

To determine if an employee has sustained a traumatic injury in the performance of duty, OWCP begins with an analysis of whether fact of injury has been established. Fact of injury consists of two components that must be considered in conjunction with one another. The first component is whether the employee actually experienced the employment incident at the time and place, and in the manner alleged. 7 The second component is whether the employment incident caused an injury. 8

Causal relationship is a medical question that requires rationalized medical opinion evidence to resolve the issue. The opinion of the physician must be based on a complete factual and medical background, 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 incident identified by the claimant.9 Neither the mere fact that a disease or condition manifests itself during a period of employment, nor the belief that the disease or

3
The hearing representative noted that if appellant believed that her condition developed over a period of time, she may consider filing an occupational disease claim. 4 E.K., Docket No. 22-1130 (issued December 30, 2022); F.H., Docket No. 18-0869 (issued January 29, 2020);
J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989). 5 J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988). 6 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990). 7 B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).
8
T.H., Docket No. 19-0599 (issued January 28, 2020); M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989). 9 G.S., Docket No. 22-0036 (issued June 29, 2022); M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

3 condition was caused or aggravated by employment factors or incidents is sufficient to establish causal relationship. 10

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a diagnosed medical condition in connection with the accepted May 8, 2024 employment exposure.

In support of her claim, appellant submitted a July 12, 2024 report, wherein Dr. Elder, opined that appellant’s diagnosed conditions of high-frequency sensorineural hearing loss left ear, otalgia, and left-sided tinnitus were due to occupational exposure to noise which had occurred at the shooting range on January 31, 2024. As Dr. Elder opined that the diagnosed conditions were caused by a different alleged employment exposure, which predated the accepted May 8, 2024 employment exposure, her report is of no probative value and is insufficient to establish appellant’s claim.11

Appellant also submitted a May 22, 2024 audiogram. The Board, however, has held that diagnostic studies, standing alone, lack probative value. 12 Consequently, this evidence is insufficient to establish appellant’s claim.13

Appellant also submitted reports by a nurse practitioner. However, certain health care providers such as nurses, physician assistants, and physical therapists are not considered physicians under FECA and, therefore, are not competent to provide a medical opinion. 14 As such, this evidence is of no probative value and are insufficient to establish appellant’s claim.

As the medical evidence of record is insufficient to establish a diagnosed medical condition in connection to the accepted employment exposure, the Board finds that appellant has not met her burden of proof.

10
J.D., Docket No. 25-0007 (issued December 5, 2024); S.W., Docket No. 24-0302 (issued July 26, 2024);
T.M., Docket No. 22-0220 (issued July 29, 2022); S.S., Docket No. 18-1488 (issued March 11, 2019); see also J.L., Docket No. 18-1804 (issued April 12, 2019). 11 C.K., Docket No. 24-0196 (issued April 16, 2024); B.P., Docket No. 21-0872 (issued December 8, 2021).
12
K.A., Docket No. 23-613 (issued April 22, 2024); W.L., Docket No. 20-1589 (issued August 26, 2021);
A.P., Docket No. 18-1690 (issued December 12, 2019).
13
D.S., Docket No. 24-0888 (issued November 6, 2024); A.W., Docket No. 22-1196 (issued November 23, 2022);
S.W., Docket No. 21-1105 (issued December 17, 2021); W.L., id.
14
Section 8102(2) of FECA provides as follows: physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (May 2023); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); see also B.D., Docket No. 22-0503 (issued September 27, 2022) (nurse practitioners are not considered physicians as defined under FECA and their medical findings and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits); L.S., Docket No. 19-1231 (issued March 30, 2021) (nurse practitioners are not considered physicians as defined under FECA).

4
As the medical evidence of record is insufficient to establish a diagnosed medical condition in connection with the accepted May 8, 2024 employment exposure, the Board finds that appellant has not met her burden of proof.

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 met her burden of proof to establish a diagnosed medical condition in connection with the accepted May 8, 2024 employment exposure.

ORDER

IT IS HEREBY ORDERED THAT the January 28, 2025 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 26, 2025
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

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

5