United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.C., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TEXAS SERVICE CENTER, Dallas, TX, 

Employer 

__________________________________________ 

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Docket No. 16-1572 

Issued: January 24, 2017 

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 July 29, 2016 appellant filed a timely appeal from a February 3, 2016 merit 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 over the merits of this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish kidney failure causally 

related to exposure to mold at the employing establishment. 

On appeal appellant asserts that his constitutional rights to due process and fundamental 

fairness were violated by OWCP in its consideration of his claim. He maintains that OWCP 

decisions were based on evidence not provided to him, that he was held to a heightened 

 1

 5 U.S.C. § 8101 et seq. 
2

evidentiary standard, and that OWCP made incorrect assumptions. Appellant concludes that the 

medical evidence of record establishes his claim. 

FACTUAL HISTORY 

On May 15, 2015 appellant, then a 43-year-old attorney, filed an occupational disease 

claim (Form CA-2) alleging that exposure to mold at the 7701 North Stemmons Freeway, Dallas, 

Texas (hereinafter 7701 Stemmons) employing establishment facility caused acute kidney 

failure. He noted that he was admitted to Baylor University Hospital in August 2014 and 

maintained that the medical evidence ruled out other possible causes for his condition. The 

employing establishment commented that appellant no longer worked at 7701 Stemmons as he 

had been transferred to another location. It indicated that appellant’s work assignment had not 

changed.2

 

In a separate statement, appellant reported that he was not feeling well on August 13, 

2014 and went to see his personal physician, Dr. Shari Gamarnik, a Board-certified family 

physician, who performed tests. Dr. Gamarnik called him the next day with test results and 

informed him to immediately report to the emergency room at Baylor Hospital for admission, 

where he was treated by Dr. Christopher Hebert, Board-certified in internal medicine and 

nephrology. Appellant continued that, although improved, he had permanently lost at least half 

of his healthy kidney function and that testing ordered by Dr. Hebert had ruled out all causes 

with the exception of exposure to mold. He noted that, following his illness, the employing 

establishment had conducted an investigation and concluded that the 7701 Stemmons facility had 

an unacceptable amount of toxic mold. 

An undated “supervisor’s narrative,” completed by appellant’s unidentified first-line 

supervisor, noted that he (the supervisor) worked at the Vermont Service Center, where appellant 

had worked until May 2014 when he transferred to the Texas Service Center. The supervisor 

related that appellant worked at the 7701 Stemmons facility until hospitalization on August 14, 

2014 and teleworked until another workstation was secured. The supervisor noted that asbestos 

and mold were identified at the 7701 Stemmons facility in June 2014, and mold testing to 

identify remediation needs had occurred. 

By letter dated June 3, 2015, OWCP informed appellant of the evidence needed to 

establish his claim. It indicated that it had received his personal statement and a statement from 

the employing establishment. 

Evidence submitted includes a September 25, 2014 mold report indicating that mold 

spores were found in appellant’s 7701 Stemmons office. An occupational safety and health 

report dated December 13, 2014 noted that an inspection was performed at 7701 Stemmons from 

 2

 The Board notes that appellant had an additional claim before the Board, adjudicated by OWCP under File No. 

xxxxxx135. In that case, appellant claimed employment-related disability caused by an accepted coccyx contusion 

and parasitic infestation acquired during Peace Corps service in 1997. In an October 2, 2000 decision, the Board 

remanded appellant’s case to OWCP to determine the period appellant was disabled due to the accepted conditions. 

Docket No. 99-1531 (issued October 2, 2000). The instant case was adjudicated under File No. xxxxxx057. 
3

December 9 to 11, 2014.3

 The report indicated that testing for mold was positive and, as a result 

of suspected exposure to mold, an unidentified employee had sustained a debilitating illness and 

had been permanently removed from 7701 Stemmons. The report concluded that a mold and 

asbestosis remediation project was ongoing, but acknowledged that significant work remained to 

be done to bring the building to an acceptable condition. A leave analysis documented 

appellant’s leave from pay period 5 in 2014 to pay period 9 in 2015. 

In a July 1, 2015 declaration, appellant indicated that he transferred from Vermont to 

Texas in May 2014 where he worked at 7701 Stemmons until August 2014. He related that 

many tests and exploratory procedures were conducted while he was hospitalized, all of which 

ruled out a cause of his kidney failure, but that exposure to mold had not been ruled out and was 

the only remaining possible cause. Appellant indicated that he continued to be treated by 

Dr. Hebert. He maintained that his only exposure to mold was at 7701 Stemmons. 

The record includes numerous reports of appellant’s hospitalization at Baylor University 

Medical Center where he was admitted through the emergency department on August 14, 2014 

and was diagnosed with acute renal failure and hypertension. On the day of admission, appellant 

was seen by Dr. Hebert. Dr. Hebert noted the onset of an acute kidney injury. He reported that 

the etiology was puzzling, not nephrotic, with only minimal blood in urine and no casts reported, 

and that the renal ultrasound was unremarkable. Dr. Hebert advised that progressive glomerular 

nephritis could not be ruled out, but that testing for anti-neutrophil cytoplastimic and antinuclear 

antibodies was negative. He advised that appellant possibly had tubulointerstitial nephritis and 

uveitis syndrome, but noted that appellant did not complain of any eye pain or change in visual 

acuity, and this condition was very rare and more commonly associated with the pediatric 

population. Dr. Hebert ordered a renal biopsy and steroid medication. An ultrasound-guided 

renal biopsy was performed on August 15, 2014. Dr. Daniel Savino, Board-certified in anatomic 

and clinical pathology, advised that the biopsy was abnormal due to the presence of multiple 

nonnecrotic granulomas. He reported that stains for acid-fast bacilli and fungi were done in 

pathology and found to be negative. 

Appellant was followed daily by Dr. Joseph N. Khalil, an internist, while hospitalized. 

Dr. Khalil noted that testing for mosquito and tick borne illness was negative. Appellant was 

discharged on August 18, 2014. At discharge, Dr. Khalil noted that a Quantiferon gold test was 

sent with added fungal stain, which was pending. Appellant was to follow-up with Dr. Hebert. 

Discharge diagnoses were acute kidney injury, fatigue, acute conjunctivitis, and malaise. 

Appellant also submitted laboratory results dated March 6, 2015 consisting of a complete blood 

count and comprehensive metabolic panel. 

Dr. Hebert provided outpatient treatment notes dated August 26, 2014 to April 14, 2015. 

In each report he recorded vital signs, provided a review of systems, and diagnosed 

granulomatous interstitial nephritis and nephropathy, not specified as acute or chronic, with other 

specified pathological lesion in kidney. Dr. Hebert also provided results of laboratory tests 

including renal function panel, urinalysis, and basic metabolic panel. These indicated that 

 3

 The report identified three Dallas area facilities used for employing establishment operations: 7701 N. 

Stemmons Freeway, 8001 N. Stemmons Freeway, and 4141 N. Saint Augustine Drive in Mesquite, Texas. 
4

appellant’s estimated glomerular filtration rate (EGFR) was low. A publication explaining 

EGFR was included. 

In correspondence dated April 17, 2015, Dr. Hebert noted that appellant had been his 

patient since August 2014 with acute kidney injury and that kidney biopsy done while appellant 

was hospitalized revealed granulomatous interstitial nephritis. He advised that this type of 

kidney disease was a rare histologic diagnosis, present in less than one percent of native renal 

biopsies, and had been associated with certain medications, autoimmune diseases, crystalline 

deposits, certain malignancies, and several types of infection. Dr. Hebert related that in 

appellant’s case, following thorough blood testing and extensive work-up, medications, 

autoimmune diseases, crystalline deposits, and certain malignancies were ruled out. He 

continued that the most common infectious causes were typically related to mycobacteria and 

fungi, noting that appellant’s early blood tests essentially ruled out mycobacterial infection, 

leaving the one possibility of a fungal infection or exposure as the one etiology that was very 

difficult to completely eliminate. Dr. Hebert concluded: 

“Although we have not determined that an occupational exposure has directly 

resulted in the development of this disease process, it is hard to completely 

attribute this to coincidence given how rare of a disease state it already is. For 

that reason, I have advised him to avoid buildings or known occupational 

exposures to various types of fungi. My hope is that you will cooperate with him, 

and assist us with this recommendation.” 

By decision dated August 27, 2015, OWCP denied appellant’s claim. It found that 

appellant established the claimed exposure to mold, but the medical evidence submitted was 

insufficient to establish that his diagnosed kidney condition was causally related to the 

employment exposure. 

Appellant timely requested a hearing, that was held on December 10, 2015. At the 

hearing he indicated that he had not received all mold testing documentation. Appellant asserted 

that since every other cause of his kidney condition had been ruled out, it must be due to mold. 

The hearing representative advised him of the exact medical evidence needed to establish causal 

relationship between mold exposure and the diagnosed condition. She also noted that Dr. Khalil 

indicated that a Quantiferon gold laboratory test was pending and asked that appellant submit the 

results. The record was held open for 30 days. 

In correspondence dated January 11, 2016 addressed to an OWCP hearing representative, 

appellant maintained that Dr. Hebert’s opinion was not speculative and was sufficient to 

establish that his kidney failure was caused by occupational exposure to mold. 

By decision dated February 3, 2016, OWCP’s hearing representative affirmed the 

August 27, 2015 decision. She agreed that the record established that appellant was exposed to 

mold at the employing establishment, but found that the medical evidence of record did not 

establish that his kidney condition was caused by the occupational exposure. The hearing 

representative found that Dr. Hebert did not comment on the degree of appellant’s exposure and 

also found his opinion to be speculative. 
5

LEGAL PRECEDENT 

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

essential elements of his or her claim including the fact that the individual is an employee of the 

United States within the meaning of FECA, and that the claim was timely filed within the 

applicable time limitation period of FECA.4

 When an employee claims that he or she sustained 

an injury in the performance of duty,5

 he or she must submit sufficient evidence to establish that 

he or she experienced a specific event, incident, or exposure occurring at the time, place, and in 

the manner alleged.6

 The employee must also establish that such event, incident, or exposure 

caused an injury.7

 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8

OWCP regulations define the term “occupational disease or illness” as a condition 

produced by the work environment over a period longer than a single workday or shift.”9

 To 

establish that an injury was sustained in the performance of duty in an occupational disease 

claim, a claimant must submit the following: (1) medical evidence establishing the presence or 

existence of the disease or condition for which compensation is claimed; (2) a factual statement 

identifying employment factors alleged to have caused or contributed to the presence or 

occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the claimant. The medical 

opinion 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 claimant.10 

Causal relationship is a medical issue, and the medical evidence required to establish a 

causal relationship is rationalized medical evidence.11 The opinion of the physician must be 

based on a complete factual and medical background of the claimant, 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.12 Neither the mere fact that a disease or condition manifests itself during a period 

 4

 5 U.S.C. § 8101(1); L.M., Docket No. 16-0143 (issued February 19, 2016); B.B., 59 ECAB 234 (2007). 

5 Id. at § 8102(a). 

6 J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007). 

7 Id. 

8 R.H., 59 ECAB 382 (2008). 

9

 20 C.F.R. § 10.5(ee). 

10 Roy L. Humphrey, 57 ECAB 238 (2005). 

11 Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

12 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 
6

of employment nor the belief that the disease or condition was caused or aggravated by 

employment factors or incidents is sufficient to establish causal relationship.13

ANALYSIS 

OWCP accepted that appellant was exposed to mold when he worked at 7701 Stemmons. 

However, the Board finds that the medical evidence submitted is insufficient to establish the 

claim. The medical evidence submitted to support a claim for compensation should reflect a 

correct history, and the physician should offer a medically sound explanation of how the claimed 

work event caused or aggravated the claimed condition.14 No physician did so in this case. 

In an April 17, 2015 report, Dr. Hebert noted treating appellant since August 2014 for 

acute kidney injury and that kidney biopsy done while appellant was hospitalized revealed 

granulomatous interstitial nephritis. He advised that this type of kidney disease was a rare 

histologic diagnosis, present in less than one percent of renal biopsies and had been associated 

with certain medications, autoimmune diseases, crystalline deposits, certain malignancies, and 

several types of infections. Dr. Hebert related that, in appellant’s case, thorough blood testing 

and extensive work-up ruled out medications, autoimmune diseases, crystalline deposits, and 

certain malignancies as the cause of appellant’s kidney condition. He continued that the most 

common infectious causes were typically related to mycobacteria and fungi, noting that 

appellant’s early blood tests essentially ruled out mycobacterial infection, leaving the one 

possibility of a fungal infection or exposure as the only etiology that was very difficult to 

completely eliminate. Dr. Hebert concluded: 

“Although we have not determined that an occupational exposure has directly 

resulted in the development of this disease process, it is hard to completely 

attribute this to coincidence given how rare of a disease state it already is. For 

that reason, I have advised him to avoid buildings or known occupational 

exposures to various types of fungi. My hope is that you will cooperate with him, 

and assist us with this recommendation.” 

The mere fact that a condition manifests itself during a period of employment does not 

raise an inference that there is a causal relationship between the two.15 Moreover, opinions 

which are speculative or equivocal are of diminished probative value.16 The opinion of a 

physician supporting causal relationship must be one of reasonable medical certainty that the 

condition for which compensation is claimed is causally related to a claimant’s federal 

employment and such relationship must be supported with affirmative evidence, explained by 

 13 Dennis M. Mascarenas, 49 ECAB 215 (1997). 

14 D.D., Docket No. 13-1517 (issued April 14, 2014). 

15 R.L., Docket No. 15-0946 (issued October 19, 2015). 

16 See S.E., Docket No. 15-1759 (issued January 8, 2016) (finding that opinions such as the condition is probably 

related, most likely related, or could be related are speculative and diminish the probative value of the medical 

opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (finding that medical opinions which are speculative or equivocal 

are of diminished probative value). 
7

medical rationale and be based upon a complete and accurate medical and factual background of 

the claimant.17 Dr. Hebert’s April 17, 2015 report has no clear supporting opinion on causal 

relationship. 

Also submitted were many laboratory tests, procedure notes, and hospital records. These 

did not provide a physician’s opinion on the cause of any diagnosed conditions. Likewise, 

Dr. Khalil merely discussed appellant’s hospital course. The Board has long 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.18 

As to appellant’s assertion on appeal that OWCP applied an incorrect evidentiary 

standard, as noted, the Board has long held that to support causal relationship, the opinion of the 

physician must be based on a complete factual and medical background of the claimant, 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.19 

It is appellant’s burden to establish that the claimed kidney condition is causally related 

to factors of his federal employment. He submitted insufficient evidence to show causal 

relationship between the accepted occupational exposure to mold and the claimed condition. 

As to appellant’s assertion on appeal that his constitutional rights to due process and 

fundamental fairness were violated, the Supreme Court has held that constitutional questions are 

unsuited to resolution in administrative hearing procedures.20 As the Board is an administrative 

body, it does not have jurisdiction to review a constitutional claim such as that made by 

appellant. Federal courts retain jurisdiction over decisions under FECA where there is a charge 

of a violation of a clear statutory mandate or where there is a constitutional claim.21 

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 did not meet his burden of proof to establish that his 

kidney failure was caused or aggravated by exposure to mold at the 7701 Stemmons facility. 

 17 A.D., 58 ECAB 149 (2006). 

18 G.M., Docket No. 14-2057 (issued May 12, 2015); C.B., Docket No. 09-2027 (issued May 12, 2010); Willie M. 

Miller, 53 ECAB 697 (2002). 

19 Supra note 12. 

20 See Johnson V. Robinson, 415 U.S. 361 (1974) and cases cited therein. 

21 Robert F. Stone, 57 ECAB 292 (2005). 
8

ORDER 

IT IS HEREBY ORDERED THAT the February 3, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 24, 2017 

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