File Number: 14-320904
RECONAPPREVIEWDENIED-D-RECO
U.S. DEPARTMENT OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
PO BOX 8300 - DIST 14 SEATTLE
LONDON KY 40742-8300
Phone: (206) 398-8100
May 4, 2004
Date of Injury: 02/25/1993
Employee: Robert Farmer
ROBERT F. FARMER
411 PINEWOOD DR NE
BREMERTON, WA 98310
Dear Mr. Farmer:
Enclosed is a decision on your request for reconsideration, explaining the basis for the determination.
We have declined your request. We have not reviewed the merits of your case. Any further request for reconsideration must have been made within one year from the last merit decision dated March 19, 2003. Since this timeframe has already expired, you should be aware that OWCP will consider an untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The application must establish, on its face, that such decision was erroneous.
If you disagree with this specific decision, namely, our refusal to review our prior decision, you have the right to appeal to the Employees' Compensation Appeals Board (ECAB) for review of the decision (20 C.F.R. 10.625). This is your only right of appeal. No new evidence may be submitted to the Board (20 C.F.R. Part 501). Request for review by the Appeals Board should be made within 90 days from the date of this decision. To expedite the processing of your ECAB appeal, you may include a completed copy of the AB 1 form used by ECAB to docket appeals available on the Department of Labor Web Site at www.dol.gov/ecab. Please mark the outside of the envelope as "ECAB Appeal" and address your request to:
Employees' Compensation Appeals Board
200 Constitution Ave., N.W.
Room N-2609
Washington, D. C. 20210
For good cause shown, the Appeals Board may waive the failure to file within 90 days if application is made within one year from the date of the decision being appealed.
Sincerely,
Carol A. Larranaga
Senior Claims Examiner
Enclosure(s) Notice of Decision dated 5/04/2004
Pedro Rivarola
110 W Dayton Suite 205
Edmonds, WA 98020
Department of Navy
CO- Puget Sound Naval Shipyard
Code 1116-1
1400 Farragut Ave
Bremerton, WA 98314
File Number: 14-320904
RECONAPPREVIEWDENIED-D-RECO
Case Number: 140320904
Claimant Name: Robert F. Farmer
ISSUE:
The issue for determination is whether the claimant has submitted sufficient evidence in support of his application for reconsideration to warrant review of the case on its merits under 5 USC 8128.
REQUIREMENTS OF ENTITLEMENT:
Under 20 CFR 10.606, the application for reconsideration, including all supporting documents, must set forth arguments and contain evidence that either the office erroneously applied or interpreted a specific point of law, by advancing relevant legal argument not previously considered by the office, or by submitting relevant and pertinent evidence not previously considered by the office. Section 10.608(b) provides that where the request is timely, but fails to meet at least one of the standards described in 10.606(b)(2) or the request is untimely and fails to present any clear evidence of error, the office will deny the application for reconsideration without opening the case for a review of the merits.
BACKGROUND:
The history of this claim is well documented in previous decisions and will not be repeated in this decision.
On March 19, 2003, following merit review of the case, the office issued a denial of benefits because the medical evidence on file did not support a causal relationship between Mr. Farmer's chronic myelogenous leukemia and the work factors he alleged to have caused or contributed to his disease.
On March 19, 2004, Mr. Farmer disagreed with the decision and requested reconsideration. In addition to his statement, Mr. Farmer provided an occupational history record dated September 5, 1979 in support of his application for reconsideration.
By previous decision issued on January 23, 2002, the office accepted that Mr. Farmer filed a timely occupational disease claim alleging that factors of his employment at Puget Sound Naval Shipyard in Bremerton, Washington caused or contributed to his disease of chronic myelogenous leukemia. It is also accepted that he was exposed to exhaust fumes at work from 3/21/1993 to 9/01/1993 and for 4 hours on 2/19/1994.
However, the issue that needs to be resolved is whether the work duties and exposures at Puget Sound Naval Shipyard caused or contributed to Mr. Farmer's disease. Causal relationship is a medical issue.
DISCUSSION OF EVIDENCE:
No additional medical evidence has been proffered. Nor has Mr. Farmer provided clear evidence that the office erred in its previous decision so as to require a merit review of his claim.
Mr. Farmer identified typographical errors in the previous decision which he asserts made it difficult for him to understand. While the previous decision issued on
March 19, 2003 does contained misspelled words, it is clear from his discussion in his timely reconsideration request that Mr. Farmer understood the issues of the decision.
Mr. Farmer asserts Dr. Dabe's 01/21/2003 letter referred to studies that were specific that exposure to benzene is causal to leukemia. Mr. Farmer states that there are many scientific medical studies that show exposure to benzene is causal to leukemia and that Dr. Dabe cited only a couple of them to make his medical opinion have probative value.
The previous decision found that Dr. Dabe's 01/21/2003 report cited excerpts from medical studies and provided an opinion based on the studies that indicate that workers exposed to benzene have a greater risk of developing chronic myelogenous leukemia than those not exposed. The office found this without probative value because opinions based on such materials are of general application and not determinative of whether the specific claimed condition is related to the particular employment factor alleged to have caused the condition.
The Board had held that newspaper clippings, medical texts and excerpts from publications are of no evidentiary value in establishing the necessary causal relationship to establish that a claimed condition is related to an employee's federal employment as such materials are of general application and are not determinative of whether the specific condition claimed is related to the particular employment factors alleged by the employee.
Kathleen D. Walker, 42 ECAB
(Docket No. 91-0006, issued April 19, 1991).BASIS FOR DECISION:
A person seeking benefits under the Federal Employees' Compensation Act has the burden to establish the basic requirements of their claim. As part of this burden, 20 CFR §10.115(e) provides that "The medical condition for which compensation or medical benefits is claimed is causally related to the claimed injury, disease or death. Neither the fact that the condition manifests itself during a period of Federal employment, nor the belief of the claimant that factors of employment caused or aggravated the condition, is sufficient in itself to establish causal relationship."
The Employees' Compensation Appeals Board has ruled that "The fact that work activities may produce symptoms revelatory of an underlying condition does not raise an inference of causal relationship between the condition and the employment. Causal relationship may not be inferred but must be established by rationalized medical opinion evidence. While the opinion of a physician supporting causal relationship need not be one of absolute medical certainty, neither can such opinion be speculative or equivocal. The opinion should be one of reasonable medical certainty."
Norman E. Underwood, 43 ECAB (1992)
[Docket No. 91-1720, issued April 28].
Mr. Farmer has not provided any additional medical evidence that explains with reasonable certainty that his previous employment caused or contributed to his chronic myelogenous leukemia.
CONCLUSION:
Therefore, the application for reconsideration is denied as Mr. Farmer has not submitted sufficient evidence to warrant review of the case on its merits under 5 USC 8128.
In his statement, Mr. Farmer alleges that certain factors of his employment caused or contributed to an emotional condition. If Mr. Farmer believes he has an emotional condition related to his work exposure, then he may wish to consider filing a new occupational disease claim.
Carol A. Larranaga
Senior Claims Examiner