United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.H., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 15-0539 

Issued: September 21, 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 January 20, 2015 appellant filed a timely appeal from a January 12, 2015 nonmerit 

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

 Because more than 180 

days has elapsed between the last merit decision dated June 10, 2013 to the filing of this appeal, 

the Board lacks jurisdiction to review the merits of his claim pursuant to the Federal Employees’ 

Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.3

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for merit review 

of his claim under 5 U.S.C. § 8128. 

                                                             1

 The Board denied appellant’s request for oral argument by order dated July 24, 2015. 

2

 5 U.S.C. §§ 8101-8193. 

3

 The Board notes that appellant submitted additional evidence to the record following OWCP’s January 12, 2015 

decision. The Board’s jurisdiction is limited to a review of evidence which was before OWCP at the time of its final 

review. 20 C.F.R. § 501.2(c). 
2

FACTUAL HISTORY 

This is appellant’s third appeal before the Board.4 The facts pertinent to this appeal are set 

forth herein. Appellant, a 47-year-old administrative assistant, filed a Form CA-2 claim for 

benefits on November 20, 2012 alleging that he aggravated a preexisting allergy/respiratory 

condition after being exposed to irritants at a construction site adjacent to his workplace. On 

January 9, 2013 OWCP accepted the claim for allergic reaction to dust at worksite and 

bronchospasm. 

By letter dated January 22, 2013, the employing establishment requested that OWCP 

reconsider its acceptance of appellant’s claim. It contended that there was no causal relationship 

between the alleged exposure and the accepted conditions of allergic reaction to dust at worksite 

and bronchospasm. The employing establishment denied that appellant had sustained a 

bronchial spasm due to dust exposure from the adjacent construction site, stating that his 

physician’s note and diagnosis were received 25 days after the alleged exposure. It further stated 

that he did not provide a medical report which discussed the threshold of dust or allergen particle 

levels that negatively affected him. The employing establishment noted that appellant failed to 

relate that his home had been located in a construction zone since 2008, which contained many 

of the irritants to which he had attributed his accepted conditions. 

In a memorandum dated November 6, 2012, received by OWCP on May 1, 2013, an 

employing establishment study indicated that the General Services Administration had 

performed indoor air quality monitoring in three of the trailers at appellant’s worksite. The 

project involved area sampling for indoor air quality parameters including temperature, relative 

humidity, carbon dioxide, carbon monoxide, total volatile organic compounds, repairable dust, 

particulate characterization, viable fungi, and viable bacteria. The survey was conducted in 

response to occupancy concerns regarding indoor air quality. The employing establishment 

conducted an air sample test and provided the results of air samples taken in three of the office 

trailers and then compared this sample to outside air samples taken at that same location. The 

study concluded that there was no difference in the air quality inside appellant’s workplace and 

outside his workplace as all of the parameters measured were within standard indoor air quality 

guidelines. The employing establishment therefore asserted that he had not been exposed to any 

potentially harmful substances. 

In a May 8, 2013 letter, OWCP advised appellant that it had prematurely accepted his 

claim for allergic rhinitis and bronchospasms. It stated that it had received additional 

information; i.e., the air quality sample report, after the acceptance of his claim which indicated 

that there was no difference in the air quality inside his workplace and outside his workplace. 

In a May 16, 2013 report, Dr. David M. Luse, a specialist in internal medicine, noted that 

he had been treating appellant since September 6, 2012 for reactive airway disease that was 

triggered by construction that had begun several weeks prior to the initial examination. He noted 

that the earliest diagnosis of respiratory issues was made in May 2007, at which time appellant 

                                                             4

 The first appeal to the Board was Docket No. 14-545, which affirmed an OWCP decision denying merit review 

of the rescission of the claim. Appellant filed another appeal on August 14, 2014 Docket No. 14-1766. This second 

appeal was dismissed at his request on October 17, 2014. 
3

was diagnosed with allergic rhinitis and chronic sinusitis. Dr. Luse advised that appellant 

demonstrated significant expiratory wheezing bilaterally during his September 2012 

examination. Appellant did not return to the worksite and was reevaluated on October 1, 2012 at 

which time his symptoms had resolved. He returned to the worksite and began wearing a mask 

and using an air purifier. These measures, however, were ineffective and appellant’s symptoms 

soon returned. Appellant was exposed to dusty conditions, required to tour old buildings, and 

was exposed to outside irritants inside a trailer by workers from the outside. His symptoms 

returned each time he returned to the worksite. Dr. Luse noted that he last examined appellant 

on April 9, 2013. He opined that appellant should not be stationed in locations that exposed him 

to dust debris, high pollen counts, gas/chemical fumes, or other significant airborne irritants. 

Dr. Luse noted that, when appellant was not exposed to airborne irritants, he had no work 

limitations. 

In a statement dated May 22, 2013, received by OWCP on May 29, 2013 appellant 

alleged that the employing establishment unjustifiably controverted his claim and deliberately 

prevented OWCP from having access to factual and medical information pertaining to his claim. 

He alleged that management engaged in a conspiracy to rescind his compensation. Appellant 

asserted that management demonstrated bias against him by refusing to acknowledge and 

accommodate his long-term health issues, especially from August 4 through September 11, 2012, 

the period when his respiratory conditions were aggravated. He reiterated that his respiratory 

conditions were aggravated when he worked in a dusty working environment which contained 

contaminants. Appellant alleged that, despite the fact that he informed management that his 

allergy mask and purifier unit did not work and that his treating physician twice recommended 

that he be removed from the worksite, they directed/required him to drive golf carts and give 

tours in an extremely unhealthy working environment detrimental to his health. He asserted the 

air quality tests that management conducted were performed after his physicians recommended 

his removal from the St. Elizabeth’s construction site in early September 2012 and were 

therefore irrelevant to his contention that the worksite aggravated his respiratory conditions. 

In letters dated May 29 and June 6, 2013, the employing establishment rebutted 

appellant’s contentions. It denied that it deliberately obstructed his attempts to receive 

compensation and process his claim. Management indicated that appellant provided no 

documentation that he was exposed to asbestos at the worksite when asbestos was removed from 

the worksite in March 2011, 18 months prior to him filing his claim of exposure to asbestos and 

other contaminants. The employing establishment asserted that he did not state that he was 

actually exposed to anything specific and suffered a medical condition as a result. It stated that 

although appellant alleged that his treating physician recommended removal from the St. 

Elizabeth’s construction site in early September 2012 and air quality tests were performed after 

the fact, such tests were actually performed both prior to his arrival at the worksite as well as 

subsequently. Appellant did not, however, provide the results of these tests to his treating 

physician who issued this recommendation based on subjective complaints from him, not factual 

evidence. Management asserted that while he contended that his respiratory issues were 

activated when he was placed in a dusty working environment where air borne contaminates 

existed, he was exposed to contaminants at his home. The employing establishment stated that 

appellant worked in a facility that was in good condition, was only three years old, and received 

regular janitorial service and common area dusting. Appellant was also provided with a portable 
4

air purifier to operate within or adjacent to his workspace if needed and was not required to work 

outdoors for significant periods. 

By decision dated June 10, 2013, OWCP rescinded appellant’s claim, finding that the 

medical evidence did not support that his claimed conditions were causally related to exposure to 

contaminants at his worksite. Although his treating physician generally opined that he had 

recently been exposed to a large quantity of dust at his workplace, he did not provide objective 

medical reasoning for this opinion. OWCP therefore rescinded its acceptance of appellant’s 

claim because the requirements were not met for establishing that he sustained an injury and/or 

medical condition that arose during the course of employment and within the scope of 

compensable work factors under FECA. 

On June 24, 2013 appellant requested reconsideration. 

Appellant thereafter submitted several e-mails between himself and management from 

February and June 2013, which indicated that he provided tours of the worksite in August 2012 

and June 2013, described the worksite, and provided correspondence with management 

pertaining to his workers’ compensation claim. He also submitted copies of e-mails which were 

previously submitted to OWCP and were part of the present record. 

Appellant also submitted a copy of a May 13, 2013 memorandum from management and 

a handwritten diagram of the worksite documents pertaining to air quality tests, a reassignment 

request letter, and numerous inter-office memoranda. In addition, he submitted a September 23, 

2013 letter to management which contained numerous accusations of alleged management 

misconduct. 

By decision dated November 7, 2013, OWCP denied appellant’s application for review 

finding that it neither raised substantive legal questions nor included new and relevant evidence 

sufficient to require OWCP to review its prior decision. 

Appellant filed an appeal with the Board on January 13, 2014. In a June 18, 2014 

decision,5

 the Board affirmed OWCP’s November 7, 2013 decision. The complete facts of this 

case are set forth in the Board’s June 18, 2014 decision and are incorporated herein by reference. 

By letter dated October 8, 2014, appellant requested that OWCP reconsider the rescission 

of his claim. 

Appellant resubmitted e-mails between himself and management from February and 

June 2013, in addition to correspondence with his congressional representative. He submitted 

additional e-mails and letters which contained numerous accusations of misconduct on the part 

of management and alleged that management had conspired to cover up the fact that he had been 

exposed to contaminants and denied reasonable accommodations for his medical conditions. 

Appellant also submitted numerous additional e-mails from November 2013 to January 2015. 

None of these documents contained a medical report attributing his claimed conditions to 

exposure to contaminants during the claimed periods. 

                                                             5

 Docket No. 14-545 (issued June 18, 2014). 
5

In a letter dated September 23, 2014, appellant reiterated his allegations that management 

covered up the fact that air quality studies taken of the worksite were inadequate and failed to 

show that it contained a variety of samples that could produce an allergic reaction and expose 

him to contaminants. He also asserted that he was removed from the employing establishment 

based on OWCP’s erroneous decision. 

In a December 8, 2014 report, Dr. Ann E. Medinger, Board-certified in pulmonary 

medicine and internal medicine, reported that appellant had reactive airway disease, sleep apnea, 

rhinitis, sinusitis, and bronchitis which he initially contracted in 1990 while serving in New 

Orleans, Louisiana. She opined that this condition recurred in 1996 while he was working in 

Texas, in 2007 while he was working at the Pentagon during construction, and in 2012 while he 

was working at St. Elizabeth’s Hospital during construction. Dr. Medinger advised that each of 

these incidents was precipitated by appellant working in a hot dusty environment. She noted that 

he had symptoms of coughing, wheezing, and shortness of breath which were often associated 

with upper airway rhinitis, watery eyes, headache, and dark sputum. Dr. Medinger noted that 

appellant was asymptomatic as long as he avoided dusty environments. She advised that he was 

recently discharged from the employing establishment because he got sick with bronchitis while 

posted to dusty conditions at St. Elizabeth’s Hospital while the facility was under construction. 

On January 11, 2015 OWCP received a February 28, 2014 report from Dr. David 

Benderson, a Board-certified ophthalmologist. Dr. Benderson advised that he had treated 

appellant for glaucoma in both eyes. 

By decision dated January 12, 2015, OWCP denied appellant’s application for review as 

it neither raised substantive legal questions nor included new and relevant evidence sufficient to 

require OWCP to review its prior decision. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6

OWCP regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.7 Section 10.608(b) of OWCP 

regulations provide that when an application for reconsideration does not meet at least one of the 

three requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.8 

Evidence that repeats or duplicates evidence already in the case record has no evidentiary 

value and does not constitute a basis for reopening a case.9

                                                             6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.606(b)(2). 

8 Id. at 10.608 (b). 

9 Howard A. Williams, 45 ECAB 853 (1994). 
6

ANALYSIS 

Appellant has not established that OWCP erroneously applied or interpreted a specific 

point of law; nor has he advanced a relevant legal argument not previously considered by 

OWCP. The evidence he submitted is not pertinent to the issue on appeal. The Board has held 

that the submission of evidence which does not address the particular issue involved in the case 

does not constitute a basis for reopening the claim.10 The issue in this case is medical; i.e., 

whether appellant submitted medical evidence, based upon a proper factual basis, sufficient to 

establish that his claimed allergic reaction to dust at his worksite and his bronchospasm 

conditions were caused or aggravated by exposure to contaminants at his worksite. 

In her December 8, 2014 report, Dr. Medinger diagnosed reactive airway disease, sleep 

apnea, rhinitis, sinusitis, and bronchitis and indicated that these conditions were aggravated by 

working in hot, dusty environments at the employing establishment. This report, however, 

merely restates findings and conclusions contained in reports previously submitted, such as the 

May 16, 2013 report from Dr. Luse, and is cumulative and repetitive. Dr. Medinger’s report 

does not address the underlying issue in this case, that is whether the medical opinion regarding 

diagnosis and causal relationship was made upon an accurate factual background regarding 

appellant’s actual exposure to contaminants at work. 

Dr. Benderson’s February 28, 2014 report notes that appellant was treated for glaucoma, 

a condition that has never been claimed by him, and is not relevant to the issue in this case. 

Appellant also submitted numerous e-mails, correspondence, and memorandum from the 

employing establishment. While some of these documents generally pertain to the processing of 

his workers’ compensation claim, none of them contain evidence relevant to the issue in this 

case. Moreover, many of these documents were previously submitted.11 This evidence is 

therefore cumulative and duplicative.12 

On appeal appellant reiterates his argument below that management was biased against 

him, repeatedly and maliciously obstructed his efforts to receive compensation, and hampered 

his efforts to obtain supporting medical evidence. However, he has provided no corroboration or 

support for this contention. Appellant’s reconsideration request failed to show that OWCP 

erroneously applied or interpreted a point of law, nor did it advance a point of law or fact not 

previously considered by OWCP. OWCP did not abuse its discretion in refusing to reopen his 

claim for a review on the merits. 

                                                             10 See David J. McDonald, 50 ECAB 185 (1998). 

11 The Board notes that the evidence submitted by an employing establishment on the basis of their records will 

prevail over the assertions from the claimant unless such assertions are supported by documentary evidence. See 

generally Sue A. Sedgwick, 45 ECAB 211(1993). 

12 See Patricia G. Aiken, 57 ECAB 441 (2006). 
7

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for 

reconsideration on the merits of his claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the January 12, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 21, 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