United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

O.B., Appellant 

and 

INDEPENDENT AGENCIES, U.S. EQUAL 

EMPLOYMENT OPPORTUNITY 

COMMISSION, Washington, DC, Employer 

__________________________________________ 

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Docket No. 15-0993 

Issued: November 16, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 30, 2015 appellant filed a timely appeal from a December 3, 2014 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 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. 

ISSUE 

The issue is whether appellant met her burden of proof to establish a pulmonary condition 

causally related to factors of her employment. 

 1

 Appellant timely requested an oral argument before the Board. By order dated October 5, 2015, the Board 

denied her request for oral argument as the arguments presented on appeal could be adequately addressed in a 

decision based on a review of the case record. 

2

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board. By decision dated October 4, 2012, and 

pursuant to a request by the Director of OWCP, the Board remanded appellant’s occupational 

disease claim for OWCP to further address the allegation regarding poor air quality in the 

workplace.3

 The facts of that decision are incorporated herein and the relevant facts are set forth 

below. 

On July 7, 2011 appellant, then a 57-year-old program analyst, filed an occupational 

disease claim (Form CA-2) alleging that she sustained asthma attacks and chronic respiratory 

problems due to exposure to naphthalene. She explained that a coworker was using mothballs in 

her home and exposed her to the chemical at work. Appellant first became aware of her 

condition on January 1, 2000 and realized it resulted from her employment on June 28, 2011. 

She stopped work on August 10, 2011. The employing establishment reported that appellant had 

been on leave on several occasions for various periods of time. It stated that she would be 

transferred to the Charlotte, NC district office effective August 28, 2011. 

Appellant reported that in 2000 she began to work at the Charlotte, NC district office of 

the employing establishment and experienced headaches, wheezing, and problems breathing. 

She attributed her symptoms to poor air quality in the building from constant construction and 

renovations. Appellant stated that several air quality tests were conducted which were positive 

for asbestos in her office. In 2011 she transferred to the Washington, DC district office but 

continued to experience respiratory issues when she was in the presence of her acting supervisor, 

Mary Burks. 

Appellant was treated by Dr. Carl A. Smart, a Board-certified internist specializing in 

pulmonary disease. In a July 29, 2011 report, Dr. Smart related that she had a history of sinus 

disease, bronchospasm, and shortness of breath. He stated that appellant was exposed to 

naphthalene and experienced increased shortness of breath and wheezing. Dr. Smart reported 

that he was concerned about the environment to which she was constantly exposed. 

In a September 15, 2011 report, Dr. Robert E. Harley, a Board-certified otolaryngologist, 

listed various procedures that had been performed and diagnosed left sinonasal polyposis, 

chronic pansinusitis, turbinate hypertrophy, asthma, perennial allergic rhinitis, and seasonal 

allergic rhinitis. 

By letter dated September 20, 2011, OWCP advised appellant that the evidence submitted 

was insufficient to establish the alleged employment factors or that she had sustained a 

diagnosed condition as a result of the alleged exposure to chemicals at work. 

On October 4, 2011 appellant provided a statement explaining that in June 2011 she was 

informed that her existing condition, which initially occurred in the Charlotte, NC district office, 

was exacerbated because of mothball vapors. She claimed that these vapors resulted in her 

surgery in April 2011 and ongoing sinus infections. Appellant stated that her disability was due 

to poor air quality in the Charlotte, NC and Washington, DC, district offices. She reported that 

 3

 Docket No. 12-1071 (issued October 4, 2012). 
3

the medical evidence proved that she experienced a respiratory reaction and complications when 

in the district office buildings. Appellant explained that her respiratory reactions were witnessed 

by Ms. Burks, Kendra Duckworth, and numerous coworkers. She claimed that she experienced 

headaches, sneezing, tightness in her chest, lethargy, and trouble speaking but these conditions 

went away when she was away from the triggers. Appellant explained that the testing done by 

the government was based upon a “normal” person and not a person with a compromised 

immune system. 

In a decision dated November 22, 2011, OWCP denied appellant’s occupational disease 

claim, finding that the evidence was insufficient to establish that she was exposed to a coworker 

who used mothballs or that exposure to vapors at work caused or contributed to her pulmonary 

conditions. 

Appellant filed an appeal before the Board. The Director of OWCP requested that the 

case be remanded as OWCP had failed to address appellant’s alleged exposure to poor air quality 

at work. The Board remanded the claim for OWCP to further develop the evidence as 

appropriate and adjudicate her claim in its entirety. 

By letter dated July 2, 2013, OWCP requested a detailed description from appellant of the 

employment factors she believed contributed to her injury and a narrative medical report from a 

physician explaining how she sustained a diagnosed condition as a result of the alleged 

employment factors. 

OWCP also requested additional information from the employing establishment 

regarding the accuracy of appellant’s statements. It requested a description of the harmful 

substances to which appellant could have been exposed, including the results of any air samples 

if available, a description of the circulation and ventilation of her work area, and whether 

precautions were taken to minimize effects of exposure. 

On July 16, 2013 appellant stated that she was forced to return to the Charlotte, NC 

district office in 2011 because the Washington, DC, district office could not accommodate her 

disability. Appellant clarified that the exposure to mothballs only caused an exacerbation of her 

condition from 2000 to 2012. She stated that she was now on retirement disability. 

Appellant submitted a January 24, 2012 report by Dr. Smart. Dr. Smart noted that he had 

treated her for approximately 12 years and that during that period of time she informed him that 

she had endured adverse work environments in the Washington, DC and Charlotte, NC district 

offices resulting in continuous treatment for respiratory asthma and lung diseases. He related 

that appellant remained in the same poor work environment and was restricted to certain areas of 

the building. Dr. Smart reported that when she returned to the Charlotte, NC district office in 

September 2011 she was allowed to have an air machine in her office and work from home two 

days per week. He noted that, since appellant returned to Charlotte, NC, he had treated her for a 

number of respiratory infections. Dr. Smart recommended that her work environment be 

changed in order to reduce her risk of recurrent pulmonary disease exacerbations. 

In a decision dated August 12, 2013, OWCP denied appellant’s occupational disease 

claim. It accepted that she was exposed to a coworker who used mothballs and to poor air 
4

quality in the workplace and that she was diagnosed with various pulmonary conditions, but 

denied her claim finding insufficient medical evidence to establish that her pulmonary conditions 

were causally related to her employment. 

By letter dated August 29, 2013, appellant requested an oral hearing regarding her claim. 

She questioned why her file did not contain any documents or statements from the Charlotte, NC 

district office regarding her office work environment. Appellant provided the names of various 

witnesses who could testify about her problems with poor air quality in the Charlotte, NC and 

Washington, DC district offices and her need for accommodation. 

On March 3, 2014 a telephone hearing was held. Counsel at that time4

 stated that he had 

never received any information from OWCP regarding the quality of air in the Washington, DC 

office even though appellant’s claim had been remanded to develop the issue of poor air quality. 

Mr. Harris contended that this information was essential to appellant’s claim and that he could 

not adequately move forward without such information. He also contended that the medical 

evidence, specifically, Dr. Smart’s August 1, 2011 report addressed that exposure in appellant’s 

work office led to her condition. 

Appellant testified that she worked in the Charlotte, NC district office until 2000 before 

she transferred to the Washington, DC, district office where she worked for over 10 years. She 

explained that the Washington, DC office was an open floor plan divided with cubicles. 

Appellant stated that it was not the whole building where she experienced these symptoms, but in 

specific areas, including her area, the supervisor’s area, and the disability director’s area. She 

related that she experienced asthma attacks, eyes burning, and headaches. Appellant stated that, 

although she had an air machine to assist with the open floor plan, it did not help with her 

symptoms. She received treatment from a variety of doctors from January to March 2011 and 

underwent surgery in April 2011. 

Appellant submitted various medical reports dated from 2008 to 2012. In a 

November 20, 2008 report, Dr. Richard E. Collins, Board-certified in allergy and immunology, 

stated that she had a history of chronic rhinitis symptoms and was allergic to dust and mold. He 

related that she had increasing rhinitis symptoms accompanied by headaches, sinus congestion, 

and recurrent sinus infections. Dr. Collins reported that appellant had mold and dust exposure at 

work and related her feelings that her symptoms were perennial in nature and increasing in 

intensity. He reviewed her history and provided examination findings. Dr. Collins also 

conducted an allergy skin test and reported that appellant was allergic to dust mites and mold. 

He diagnosed allergic rhinitis and chronic sinusitis. 

In reports dated August 1 to May 31, 2011, Dr. Smart noted that appellant had suffered 

from sinus and lung disease for many years. He opined that her lung disease had been 

“exacerbated and worsened, if not caused, by her exposure, primarily at work.” Dr. Smart 

explained that appellant initially worked in the Charlotte, NC district office and subsequently 

moved to the Washington, DC district office. He noted that she had been exposed to naphthalene 

which had led to recurrent sinus infections, bronchitis, and asthma exacerbation. Dr. Smart 

 4

 The record reflects that on October 27, 2014 Mr. Harris withdrew as counsel for appellant. 
5

recommended that appellant not be in an environment that risked any potential exposure that 

could be an irritation to the lungs. 

In reports dated from November 7, 2011 to October 16, 2013, Dr. Smart noted that 

appellant had moved back to Charlotte, NC from Washington, DC because her health 

accommodations were not being met. Appellant claimed that she was still being exposed to dust. 

Dr. Smart continued to examine her for complaints of sinus infection, wheezing, and postnasal 

drip. In a May 3, 2012 report, he noted that appellant was now out of work due to disability. 

Dr. Smart reported that there was some improvement with her sinus symptoms but she still 

experienced coughing and some shortness of breath. He opined that there was clearly an issue 

with exposure to environmental exposures. In a September 13, 2012 report, Dr. Smart reported 

that appellant still experienced increased shortness of breath, cough, and nasal drainage but that 

she has improved over the past several months since being removed from her work environment. 

In an April 9, 2013 progress note, he related her continued symptoms. Dr. Smart diagnosed 

acute bronchospasm, sinusitis, shortness of breath, asthma, and cough. He noted that appellant’s 

condition had been a long-standing issue and that her work environment had contributed to the 

condition. 

Appellant was also treated by Dr. Harley, who provided reports dated April 25, 2011 to 

May 21, 2013. Dr. Harley related that she experienced chronic sinus problems for the past five 

years. He reviewed appellant’s history and provided findings on examination. Dr. Harley 

diagnosed acute sinusitis, left nasal polyposis, chronic pensinusitis, turbinate hypertrophy, 

asthma, and perennial allergic rhinitis. 

In progress notes dated January 28, 2011 to October 10, 2013, Dr. Latimer A. Taylor, an 

internist, examined appellant for complaints of sore throat, loss of appetite, diffuse arthralgia, 

and ear discomfort. He related that she believed her work environment was causing breathing 

difficulties and stated that her work environment had not changed for the better. In a 

December 9, 2012 report, Dr. Taylor reported that appellant’s condition had improved since 

quitting her job in Washington, DC. Upon examination, he observed unlabored breathing and 

wheeziness in the lungs. Dr. Taylor diagnosed asthma, rectal bleeding, and unspecified 

menopausal and postmenopausal disorder. 

On November 26, 2012 appellant underwent an x-ray examination, which found no 

evidence of pulmonary disease and an April 4, 2011 computerized tomography (CT) report 

which found severe pansinusitis, postoperative changes, and questionable rounded masa in the 

apex of the left maxillary sinus. 

In a July 7, 2013 urgent care record, Dr. Ajsa Nikolic, a Board-certified family 

practitioner, examined appellant for complaints of dizziness, nausea, and vomiting. He reviewed 

her history and conducted an examination. Dr. Nikolic observed that appellant’s chest and lungs 

were within normal limits and found no wheezing, rhonchi, or auscultation. He reported that she 

had likely benign positional vertigo, but dizziness from hypertension was possible. Dr. Nikolic 

recommended that appellant follow up with her primary care physician that same week. 
6

On December 12, 2013 appellant underwent pulmonary function testing which revealed 

reduced forced expiratory volume/volume capacity, but normal volume capacity and total lung 

capacity, therefore, indicating asthma or chronic bronchitis. 

In a decision dated April 17, 2014, an OWCP hearing representative affirmed the denial 

of appellant’s claim. She noted that the employing establishment had not responded to the 

request for further information regarding appellant’s alleged exposures. The hearing 

representative, therefore, denied the claim on relationship, finding that the evidence was 

insufficient to establish how the alleged exposures caused appellant’s sinus and lung conditions. 

On October 15, 2014 OWCP received appellant’s reconsideration request. Appellant 

alleged that it had failed to acknowledge that her claim had been remanded by the Board to 

investigate claims of contaminants in the Washington, DC district office. 

Appellant provided a February 16, 2014 Environmental Studies report of the Charlotte, 

NC district office. The results demonstrated very low levels of asbestos and a very light 

covering of settled dust. The report concluded that routine building maintenance and custodial 

activities produced significantly elevated airborne asbestos exposures when surfaces were in 

excess of 100,000.00 square centimeters. 

Appellant submitted various documents from 2002 and 2003 regarding a grievance she 

filed against her employing establishment for failing to accommodate her disability of asthma. 

She also provided various letters and e-mails dated June to August 2011 regarding her request to 

transfer back to the Charlotte, NC district office because they could better accommodate her 

disability. 

In an undated statement, appellant’s son related appellant’s problems with asthma and 

difficulty breathing for over 10 years. He noted that despite her various requests and efforts to 

obtain an office at work because of her sinus and lung conditions, the employing establishment 

did not assist appellant. Appellant’s son stated that appellant also informed him of the negative 

attitude that appellant’s supervisor had towards her due to her disability, which added stress to 

appellant’s condition. He reported that she had sinus surgery in April 2011 and had to return to 

the Charlotte, NC district office in August 2011. Appellant’s son requested a resolution of 

appellant’s claim. 

By decision dated December 3, 2014, OWCP denied modification of the April 17, 2014 

decision, finding that specific details of exposure to allergens at work had not been documented 

and the medical evidence of record had not established that the diagnosed conditions were 

causally related to specific employment factors. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence5 including that he or she sustained an injury in the performance of duty and that any 

 5 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968). 
7

specific condition or disability for work for which she claims compensation is causally related to 

that employment injury.6 In an occupational disease claim, appellant’s burden requires 

submission of the following: (1) a factual statement identifying employment factors alleged to 

have caused or contributed to the presence or occurrence of the disease or condition; (2) medical 

evidence establishing the presence or existence of the disease or condition for which 

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is 

causally related to the employment factors identified by the employee.7

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.8

 The opinion of the 

physician must be based on a complete factual and medical background of the employee, 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 employee.9

 

ANALYSIS 

This case was previously remanded by the Board, upon a motion from the Director of 

OWCP, for remand to address appellant’s allegation of poor air quality which it had failed to do 

in its earlier decision. Upon remand,10 on July 2, 2013 OWCP requested additional information 

from the employing establishment and appellant regarding the air quality of the workplace, 

including results of air studies, and a description of circulation and ventilation in appellant’s 

work area, if available. Neither appellant nor the employing establishment responded to this 

request. 

Based upon appellant’s allegations, OWCP accepted that appellant was exposed to a 

coworker who used mothballs and to general poor air quality in the workplace, and, that she was 

diagnosed with various pulmonary conditions.11 The Board finds, however, that the medical 

evidence of record is insufficient to establish that appellant’s pulmonary conditions were caused 

or aggravated by factors of appellant’s federal employment. 

 6 M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 

ECAB 1143, 1145 (1989). 

7 R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000). 

8 I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007). 

9

 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 

10 See Donald L. Strain, Docket No. 94-2607 (issued January 14, 1997); Robert A. Redmond, 40 ECAB 

800 (1989). See also K.H., Docket No. 14-968 (issued July 6, 2015). 

11 In the absence of any response from the employing establishment, OWCP may accept appellant’s version of 

events as established. See W.M., Docket No. 07-1223 (issued September 10, 2007). See also T.C., Docket 

No 08-1497 (issued December 1, 2005). Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development 

of Claims, Chapter 2.800.5(d)(1) (June 2011). In this case, appellant has not specified the implicated employment 

factors with detail such as extent or duration. See generally Tracey P. Spillane, 54 ECAB 608 (2003). 
8

Appellant submitted various reports by Dr. Smart dated July 29, 2011 to 

October 16, 2013. Dr. Smart related that she had a history of sinus disease, bronchospasm, and 

asthma. He reported that appellant was exposed to naphthalene at work. In a May 31, 2011 

report, Dr. Smart opined that her lung disease had been “exacerbated and worsened, if not 

caused, by her exposure, primarily at work.” In a January 24, 2012 report, he explained that 

appellant worked in adverse environments in Charlotte, NC and Washington, DC, which resulted 

in continuous treatment for respiratory, asthma, and lung disease. Dr. Smart recommended a 

change in her work environment to reduce her risk of recurrent pulmonary disease exacerbations. 

In an April 9, 2013 report, he provided findings on examination and diagnosed acute 

bronchospasm, sinusitis, shortness of breath, asthma, and cough. Dr. Smart found that 

appellant’s condition had been a long-standing issue and that her “work environment had 

contributed to the significant degree to such.” 

Although he provided an opinion on causal relationship, the Board finds that Dr. Smart’s 

conclusion is unsupported by medical rationale demonstrating how appellant’s work 

environment caused or exacerbated her pulmonary condition.12 Dr. Smart fails to explain how 

any specific exposure to naphthalene at appellant’s workplace or any other exposure to poor air 

quality contributed to her recurrent pulmonary conditions. A physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

claimant’s specific employment factors.13 Dr. Smart did not relate specific exposures at 

appellant’s employment or explain how they caused her condition. The Board has found that a 

medical report is of limited probative value on the issue of causal relationship if it contains a 

conclusion regarding causal relationship which is unsupported by medical rationale.14 For these 

reasons, Dr. Smart’s opinion is insufficient to establish appellant’s claim. 

Appellant was also treated by Dr. Harley from April 25, 2011 to May 21, 2013. 

Dr. Harley noted that she experienced chronic sinus problems for the past five years and 

conducted an examination. He diagnosed left sinonasal polyposis, chronic pansinusitis, turbinate 

hypertrophy, asthma, perennial allergic rhinitis, and seasonal allergic rhinitis. Dr. Harley does 

not, however, provide any opinion on the cause of appellant’s various pulmonary conditions. 

The Board has held that medical evidence that does not offer any opinion regarding the cause of 

an employee’s condition is of limited probative value on the issue of causal relationship.15 

Likewise, Dr. Nikolic’s July 7, 2013 hospital record is also of limited value on the issue of causal 

relationship as he does not provide any opinion on the cause of appellant’s symptoms. 

In progress notes dated January 28 to October 10, 2011, Dr. Latimer examined appellant 

for complaints of sore throat, loss of appetite, diffuse arthralgia, and ear discomfort. He related 

that she believed her work environment was causing breathing difficulties and pointed out that 

 12 D.R., Docket No. 12-478 (issued July 23, 2012). 

13 See Victor J. Woodhams, supra note 9; see also S.D., 58 ECAB 713 (2007). 

14 T.M., Docket No. 08-975 (February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009). 

15 C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 

58 ECAB 149 (2006). 
9

her condition improved since leaving her job in Washington, DC. Dr. Taylor diagnosed asthma, 

rectal bleeding, and unspecified menopausal and postmenopausal disorder. The Board notes that 

he does not opine on the cause of appellant’s conditions but merely communicated her belief that 

her work environment caused her pulmonary conditions.16 Dr. Taylor’s reports, therefore, are 

insufficient to establish appellant’s claim. 

The additional medical evidence including the November 26, 2012 x-ray examination, 

December 12, 2013 pulmonary function testing, and the July 7, 2013 hospital record are likewise 

insufficient as there is no opinion on whether appellant’s employment caused or contributed to 

her pulmonary conditions. 

The Board finds that there is insufficient medical evidence to establish that appellant 

sustained a pulmonary condition causally related to her work environment. Accordingly, 

appellant did not meet her burden of proof to establish her claim. 

On appeal, appellant alleges that OWCP refused to consider the evidence she provided 

and had a bias against the evidence she submitted. She specifically stated that it overlooked the 

contradictions of the agency and failed to provide any evidence to show that they provided 

appellant with a safe work environment. The Board notes that appellant has the burden of proof 

to establish that her pulmonary conditions were causally related to exposures at work. Although 

appellant submitted medical evidence, none of the reports on the record were sufficiently 

rationalized to establish that any specific exposure to a coworker who used mothballs and any 

specific lack of air quality at work caused or contributed to her pulmonary conditions. 

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 that she 

sustained a pulmonary condition causally related to factors of her federal employment. 

 16 See P.K., Docket No. 08-2551 (issued June 2, 2009) (an award of compensation may not be based on a 

claimant’s belief of causal relationship). 
10

ORDER 

IT IS HEREBY ORDERED THAT the December 3, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 16, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board