United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.B., Appellant 

and 

DEPARTMENT OF LABOR, OFFICE OF 

WORKERS’ COMPENSATION PROGRAMS, 

Lakewood, CO, Employer 

__________________________________________ 

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Docket No. 15-323 

Issued: April 17, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 27, 2014 appellant filed a timely appeal from the June 2, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction to review this nonmerit decision. Since more than 180 days has elapsed between the 

last merit decision on March 13, 2013 and the filing of this appeal, the Board lacks jurisdiction to 

review the merits of the claim. 

ISSUE 

The issue is whether OWCP, by its June 2, 2014 decision, properly declined to review the 

merits of appellant’s claim pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 26, 2012 appellant, 58-year-old claims examiner, filed an occupational 

disease claim alleging that her occupational exposure to multiple respiratory irritants at the 

Denver Federal Center, Building 53, had caused respiratory and consequential medical 

conditions. She first became aware of her disease or illness on February 2, 2011. 

Appellant submitted office e-mails on such topics as closed bathrooms, the pulling up of 

wet carpeting, the digging of a hole outside appellant’s window, an influx of gnats, and the smell 

of a coworker’s hand cream or microwave popcorn. 

Appellant also submitted the results of diagnostic testing. She submitted reports from 

physicians such as Dr. Ronald C. Balkissoon, a staff physician and associate professor in 

pulmonary medicine. Dr. Balkissoon diagnosed increased upper and lower airway irritation 

related to workplace exposures as well as possible pertussis exposure; rule out possibilities of 

hypersensitivity pneumonia purported workplace exposure to mold; and suboptimally managed 

obstructive sleep apnea due to poor tolerance of a continuous positive airway pressure mask. He 

related that appellant had a history of chronic cough, but began to feel dramatically worse in 

January 2011 when she moved into a new work environment, which she described as being “very 

toxic.” 

OWCP received an indoor air quality survey dated February 4, 2013. 

In a decision dated March 13, 2013, OWCP denied appellant’s occupational disease 

claim. It found that the evidence was insufficient to establish that the events occurred as alleged. 

OWCP explained that appellant must provide a factual basis for her claim by supporting her 

allegations with probative and reliable evidence to confirm that the employment factors actually 

occurred. Although appellant alleged that multiple respiratory irritants were immediately 

apparent, that the building was toxic and slated for destruction, that there was visible dust on 

work surfaces, that there were kitchen and coworkers’ odors, that there was delivery truck 

exhaust and second-hand cigarette smoke, and that she was exposed to internal and external 

construction and the spraying of chemicals, the record contained no objective findings to support 

the exposures she described. 

OWCP found that the e-mails mentioning many of the same irritants contained no 

probative and reliable evidence that the irritants actually existed. Similarly, medical statements 

based on appellant’s description of workplace irritants did not establish a factual basis for her 

claim. OWCP noted that the General Services Administration conducted indoor air quality 

surveys in Building 53 in 2012 and 2013. The results of the surveys revealed that the air quality 

exceeded all industry standards for air quality. OWCP found that the results of these surveys 

contradicted appellant’s claim that her workplace was toxic and raised doubt about the accuracy 

of her claim. 

Further, evidence showed that the building in which appellant worked was a “green” 

building. It carried a Leadership in Energy and Environmental Design certification, an 

independent, third-party verification that the building was designed and built using strategies 

aimed at achieving high performance in the areas of human and environmental health, 
3

sustainable site development, water savings, energy efficiency, material selection, and indoor 

environmental quality. 

OWCP found that the factual evidence surrounding the alleged employment factors and 

workplace exposure was inconsistent, vague, and contradictory to much of the evidence in the 

file. “As a result the factual aspects of your claim cannot be established.” In addition, OWCP 

found that appellant did not submit any objective medical evidence to establish that the 

diagnosed medical conditions were causally related to the employment factors alleged. 

Therefore, even if appellant established the factual portion of her claim, she must still establish 

the element of causal relationship. 

Appellant requested reconsideration, received by OWCP on March 10, 2014. She argued 

that OWCP ignored evidence in making its decision and failed to apply the standard of Horace 

Langhorne, 29 ECAB 820 (1978). Appellant also submitted evidence that the building where 

she worked was once a munitions manufacturing building. She submitted an April 18, 2006 

memorandum from the Nuclear Regulatory Commission (NRC) indicating that Building 53 was 

not required to submit a decommissioning plan before being released for unrestricted use. The 

memorandum also indicated that the materials license authorized the Environmental Protection 

Agency (EPA) to possess small quantities of radioactive material for instrument calibration and 

sample analysis and that radioactive material was used at Building 53 from 1973 to 2003. 

Further, a Final Status Survey Report indicated that no incidents involving spills or releases of 

radioactive material occurred during the 30-year operational history of Building 53. Appellant 

also submitted a grainy black and white image purportedly showing dust that had collected on a 

desktop behind equipment. She submitted a similar image showing a warehouse room with 

cubicles. Appellant asserted that the “green” configuration caused severe coughing and 

respiratory illness: “There is uninhibited circulation of the building stench; coworkers’ smoking, 

personal scent, and eating odors; and office dust, and carpet fibers. The dust and odors are 

circulating from every direction into my face.” 

Appellant also submitted additional medical evidence. On August 15, 2013 

Dr. Francine G. Andrews, Board-certified in allergy and immunology, reported that she last saw 

appellant in May 2013 due to continued and worsening respiratory symptoms triggered by 

ongoing irritant/allergen exposures in her work environment. Dr. Andrews noted that appellant 

had severe tracheobronchomalachia with vocal cord dysfunction, which could not be treated with 

medication. Appellant also had asthma, which was difficult to treat because inhaled asthma 

medications trigger exacerbation of tracheobronchomalachia. Dr. Andrews recommended 

monitoring for possible short-term removal from the workplace to see if appellant’s respiratory 

infection could resolve and worsening tracheobronchomalachia condition could be stabilized, 

during which time she could telework as health permitted. 

On May 6, 2014 Dr. Andrews noted that appellant’s symptoms improved in her home 

environment where she was able to strictly control her environment. Appellant’s work efficiency 

improved as well. Dr. Andrews commented that OWCP’s denial of compensation was invalid. 

She noted that air tests were irrelevant to appellant’s condition: “Even small amounts of dust, 

odors, and allergens trigger paroxysmal coughing episodes because of tracheobronchomalachia. 

Again, it is impossible for [appellant] to avoid these triggers in the open office environment.” 

Dr. Andrews explained that this was a condition that was uncommon and different from asthma 
4

and typical allergy patients. It was obvious from the descriptions of the work environment 

supplied by appellant, as well as pictures of the work environment, that there were numerous 

sources of irritants and allergens. 

In a decision dated June 2, 2014, OWCP denied appellant’s reconsideration request. It 

found that the evidence did not show that OWCP erroneously applied or interpreted a point of 

law, as the Langhorne case did not involve the issue of whether the work factor occurred. 

OWCP found that the evidence such as the picture of her desk and cubicle, the descriptions of 

the buildings use nearly 70 years ago, and the NRC report showing compliance with all standards 

of radioactivity was cumulative and thus substantially similar to evidence or documentation that 

was already contained in the case record and previously considered. This evidence was not 

relevant in establishing a work factor such as airborne exposure actually occurred. OWCP also 

found that Dr. Andrews’ reports did not present any new and pertinent evidence to support that a 

work factor had caused injury. It found this evidence to be cumulative and repetitive of previous 

medical reports submitted. 

Appellant argues on appeal that OWCP ignored evidence in its March 13, 2013 and 

June 2, 2014 decisions. She asserted that the Langhorne standard was applicable. Appellant also 

asserted that the new factual and medical evidence was not repetitive, but was responsive to the 

bases for denial. The NRC report, she asserts for example, proved the stench and filth of a 

building used as an EPA laboratory for 30 years, a building that should have been demolished. 

LEGAL PRECEDENT 

OWCP may review an award for or against payment of compensation at any time on its 

own motion or upon application.2 An employee (or representative) seeking reconsideration 

should send the request for reconsideration to the address as instructed by OWCP in the final 

decision. The request for reconsideration, including all supporting documents, must be in 

writing and must set forth arguments and contain evidence that either: (1) shows that OWCP 

erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument 

not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.3

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP decision for which review is sought.4

 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or argument that meets at 

least one of these standards. If reconsideration is granted, the case is reopened and the case is 

reviewed on its merits. Where the request is timely, but fails to meet at least one of these 

standards, OWCP will deny the request for reconsideration without reopening the case for a 

review on the merits.5

 2

 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.606. 

4 Id. at § 10.607(a). 

5 Id. at § 10.608. 
5

ANALYSIS 

OWCP received appellant’s reconsideration request within one calendar year of its 

March 13, 2013 merit decision denying her occupational disease claim. The request is therefore 

timely. The question that remains is whether the request met at least one of the three standards 

for obtaining a merit review of her case. 

Appellant did not argue that OWCP erroneously applied or interpreted a specific point of 

law. She did not identify a specific point of law or explain how OWCP erroneously applied or 

interpreted it. Appellant alleged that OWCP ignored evidence, but this is not apparent from 

OWCP’s decision. 

Appellant instead advanced the legal argument that OWCP should have applied the 

Board’s holding in Langhorne. In Langhorne, however, the issue of occupational exposure was 

not at issue. OWCP accepted that all employees with shipboard duties were exposed to variable 

noise levels up to 126 decibels for different lengths of time. The question in Langhorne was 

whether this exposure caused the claimant’s hearing loss. The claimant’s physician supported a 

causal relationship between occupational exposure to loud noise and the claimant’s hearing loss 

as evaluated in 1976, but he provided no rationale for his conclusion. An OWCP medical 

adviser negated causal relationship, noting that the claimant’s exit audiogram, prior to his 

retirement in 1960, revealed normal hearing. Although the medical evidence supporting that the 

claim was insufficient to discharge the claimant’s burden of proof, the Board found that it 

constituted sufficient evidence in support of the claim to require further development of the 

record by OWCP. As a medical adviser negated causal relationship, the Board remanded the 

case for referral to an impartial medical specialist. 

Appellant’s case differs significantly. OWCP did not accept the alleged occupational 

exposure. Indeed, it found that the evidence was insufficient to establish that the events occurred 

as alleged. OWCP explained that appellant must provide a factual basis for her claim by 

supporting her allegations with probative and reliable evidence to confirm that the employment 

factors actually occurred, but the record contained no objective findings to support the exposure 

she described. It found that the factual aspect of appellant’s claim was not established. 

OWCP also found that the medical opinion evidence was insufficient because physicians 

relied on the unestablished history that appellant was reporting to them. The Board finds that the 

circumstances of this case are sufficiently distinguishable from Langhorne and therefore she has 

failed to advance a relevant legal argument. 

A claimant may obtain a merit review of his or her case by submitting relevant and 

pertinent new evidence not previously considered by OWCP. Evidence that appellant’s building 

was once a munitions manufacturing building does not establish that she was exposed to any 

respiratory irritants arising from that prior use. Likewise, the fact that small quantities of 

radioactive material were once authorized for instrument calibration and sample analysis in 

Building 53 does not establish that she was exposed to any radiation arising from that use, 

particularly when evidence also indicated that no incidents involving spills or releases of 

radioactive material occurred during the 30-year operational history of Building 53. 
6

The pictures that appellant submitted are not relevant to the issue of this case. It is 

impossible to discern the dust that she alleged had collected on a desktop behind equipment. The 

open configuration of the office cubicles does not establish that appellant was, in fact, exposed to 

respiratory irritants. That remains a mere allegation unsupported by objective factual evidence. 

OWCP found that appellant failed to establish a factual basis for her claim. However, appellant 

did not support her reconsideration request with objective factual evidence establishing her 

exposure to respiratory irritants. 

Appellant submitted additional medical evidence. However, Dr. Andrews’ reports are 

cumulative insofar as she based her opinion on the unestablished exposure that appellant 

described. Her opinion accepts as factual the very thing appellant has failed to establish, namely, 

ongoing irritant/allergen exposures in her work environment. Although Dr. Andrews explained 

that, even small amounts of dust, odors, and allergens could trigger paroxysmal coughing 

episodes, appellant submitted no objective evidence with her reconsideration request to establish 

that she was, in fact, exposed to even small amounts of such irritants or allergens. It was obvious 

to Dr. Andrews, from the description of the work environment supplied by appellant, but as 

OWCP found, appellant had submitted no probative and reliable evidence to confirm that the 

employment factors actually occurred. 

The Board finds that appellant’s reconsideration request failed to meet any of the 

standards for obtaining a merit review of her case. Accordingly, the Board will affirm OWCP’s 

June 2, 2014 decision denying that request. 

CONCLUSION 

The Board finds that appellant’s March 10, 2014 reconsideration did not meet the 

standard for obtaining a merit review of her case. Thus, OWCP properly declined to reopen her 

case for a review of the merits of her claim. 
7

ORDER 

IT IS HEREBY ORDERED THAT the June 2, 2014 decision of the Office of Workers’ 

Compensation Programs is hereby affirmed. 

Issued: April 17, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board