Robert F. Farmer
411 Pinewood Dr. NE
Bremerton, WA 98310
(360) 373-5136
June 24, 2004
The Honorable Norm Dicks
2467 Rayburn House Office Building
Washington, DC 20515
Re: My Workers' Compensation Claim for chronic myelogenous leukemia and chromosomal injury
File Number: A14-320904
ATTN: Paula Blake
Dear Representative Norm Dicks,
On March 19, 2004, Paula helped me with my workers' compensation claim in your Bremerton office. We discussed my issues about OWCP. I appreciate the quality of the attention she gave to me. I submitted a letter to OWCP requesting reconsideration based upon these issues. You received a response from OWCP on
March 23, 2004.
In this letter you were promised that I would receive the missing records for my FOIA request as quoted:
"Injury number 14-0104239 is located at the Federal Personnel Records Center. I have requested that the case file be retrieved from the Records Center, and a copy of the case file be sent to Mr. Farmer." I still have not received these file records.
Dr Dabe's Feb 16, 2004 letter
- copy enclosed:
From my doctor and his nurse I received a letter for OWCP dated June 11, 2004. It includes my doctor's Rationalized Medical Opinion letter dated February16, 2004 that was supposed to be sent to OWCP prior to the March 19, 2004. Please send these letters to OWCP and ask that it be included in the new request for a Merit Review based upon this February16, 2004 letter, and my March 19, 2004 letter.
OWCP May 4, 2004 letter - copy enclosed:
On May 4, 2004 OWCP declined my request for reconsideration, did not review the merits of my case, told me I have no more rights to request reconsideration, and that the Employees' Compensation Appeals Board (ECAB) is my only right of appeal. However, I find that a partial review of the merits was accomplished that ignored most of the content of my March 19, 2004 letter.
I disagree with the decision and will include this in another letter asking for a complete Merit Review for these reasons:
Statements from the May 4, 2004 decision:
1. Typographical errors
Statement from the May 4, 2004 decision:
"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."
My response:
These typographical errors were more than simple misspellings. The words were not misspelled and had completely different meanings. I knew they were errors because they didn't make sense. How did I know for sure what they meant? Please request OWCP to correct these errors as part of a Merit Review based upon these errors. These are gross errors that need to be corrected for the record for me to progress my appeals.
2. Newspaper clippings, medical texts and excerpts from publications
Statement from the May 4, 2004 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).
My response:
This is what the Kathleen D. Walker, 42 ECAB decision said:
"At the March 29, 1990 hearing, appellant submitted an article from a periodical. However, the Board has 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. William C. Bush, 40 ECAB 1064 (1989). "
OWCP has misquoted this ECAB decision. It doesn’t say a doctor in his medical opinion cannot cite scientific and medical studies. It was, on the contrary, logical for Dr Dabe to cite scientific and medical studies to make his opinion have probative value. These studies have been conducted by our own governmental public health agencies and even reported in the Report on Carcinogens mandated by Section 301 (b) (4) of the Public Health Services Act.
3. Causal relationship may not be inferred
Statement from the May 4, 2004 decision:
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].
My response:
The above is misquoted and taken out of context. These are the exact words in contest:
"An award of compensation may not be based on surmise, conjecture, speculation, or upon appellant's belief that his condition is employment related. The mere fact that a condition develops or progresses during a period of federal employment is in and of itself insufficient to entitle an employee to benefits under the Federal Employees' Compensation Act. 3 Additionally, 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. 4 Causal relationship may not be inferred but must be established by rationalized medical opinion evidence. Appellant failed to submit such evidence and, therefore, the Office properly denied his claim for compensation.
In the present case, appellant has alleged that his exposure to aircraft grease, lubricants, cleaning solvents, soaps, oils and gases, during the course of his federal employment, has caused his hives
2 Some words in this handwritten statement are illegible.
3 Wilbur D, Starks, 23 ECAB 85 (1971).
4 Primo T. Salta, 34 ECAB 1033 (1983). "
Also, I note that this ECAB is about allergies and not cancer. The connection is not logical. There is a very large difference between hives and leukemia.
"The issue is whether appellant has met his burden of proof to establish that his hives condition was caused by factors of his federal employment."
I protest that OWCP has made up their own version of what was written in ECAB decisions in response to my claims. They are changing the laws to make claims like mine almost impossible to file. Without access to the real copy of the ECAB decisions, an injured worker has little or no way to make a rebuttal.
Per the Constitution there are three separate branches of government, legislative, executive and judicial. Injured federal employees are denied access to the judicial branch. There is no judicial review of the actions of OWCP as part of the Executive branch of our government. If there were there would be much less unjust treatment of injured workers'. The only review of OWCP, under the executive branch, we have is through the legislative branch. I make my plea through you for this reason. Please be as aggressive as you can.
This is a very important point for me to make: Whenever my claims of exposures were investigated, the reports made light of the level and amount of exposures. I can prove otherwise with other documents including findings that have happened since I last was employed. The employer is covering up the serious nature of these incidents. The exposures were not light. They were often intense and extreme. I referenced them to OWCP in my March 19, 2004 appeal and in several other letters. The most significant is the letter from IFPTE President, Jim Adrian of 09/25/1991 Re-Roofing of Building 455.
Sincerely,
Robert F. Farmer