United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.W., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Montgomery, AL, Employer 

__________________________________________ 

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Docket No. 17-0155 

Issued: May 12, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 31, 2016 appellant filed a timely appeal from a September 2, 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 her burden of proof to establish an injury in the 

performance of duty. 

FACTUAL HISTORY 

On March 14, 2016 appellant, then a 58-year-old medical records technician, filed an 

occupational disease clam (Form CA-2) alleging that she sustained headaches; high blood 

 1

 5 U.S.C. § 8101 et seq. 
2

pressure; a sinus condition; red, itchy, and watery eyes; congestion; lightheadedness; nausea; a 

runny nose; dizziness; aggravation of rheumatoid arthritis; lumbar spine conditions; wheezing; 

allergies; blurred vision; and sensitivity to light in the course of her employment. She attributed 

these conditions to working in a particular building. Appellant first became aware of the 

conditions and of their relationship to her federal employment on December 29, 2015. She 

stopped work on December 29, 2015 and returned to work on March 1, 2016. 

By letter dated March 29, 2016, OWCP advised appellant of the evidence necessary to 

establish her claim. It noted that she had not submitted any evidence in support of her claim, and 

afforded her 30 days to submit additional evidence and to respond to its inquiries. 

By letter dated April 5, 2016, the employing establishment noted that employees had 

been complaining of respiratory complications after working in a newly-constructed building. 

An indoor air quality investigation was undertaken on February 9, 2016. An industrial hygienist 

collected air samples to compare them to outdoor air and air from surrounding offices and 

clinical areas. Sampling conducted on this date demonstrated that the airborne particulate counts 

inside the area alleged to be affected were at least as low as outside air and surrounding areas. 

The industrial hygienist also examined information regarding air quality from a computerized 

system capable of monitoring levels of temperature, humidity, and carbon dioxide, which were 

also within normal ranges. A third party company had previously measured levels of various 

potentially harmful airborne chemicals and particulate matter, finding that results for all 

substances were below permissible limits set by the Occupational Safety and Health 

Administration (OSHA). The employing establishment submitted the results from each of these 

studies to the case record. 

On April 4, 2016 appellant responded to OWCP’s inquiries. She noted that merely 

entering the building would trigger her conditions, and that the quality of the air was causing her 

health problems. In an attached letter, appellant noted that she had previously experienced 

exposure to mold at another location, which resulted in similar conditions. 

By report dated February 10, 2016, Dr. David Thrasher, Board-certified in internal 

medicine and pulmonary disease, noted that appellant experienced environmentally-induced 

asthma from exposure at the employing establishment. He noted that she was working at the 

newly constructed employing establishment facility and was having problems with her breathing. 

Appellant had been moved from several sites at work, but the moves did not help. Dr. Thrasher 

also noted that she did not seem to have problems on weekends when she was not at work. He 

reported that the results of a pulmonary function test were “very disturbing,” and provided his 

impression of a severe obstructive lung disease. A chest x-ray revealed no infiltrate. 

By decision dated May 10, 2016, OWCP denied appellant’s claim for compensation. It 

found that she had not submitted factual evidence to support the allegation that her work 

environment caused her claimed conditions. OWCP also noted that a series of environmental 

studies had found no evidence of poor air quality. 

On June 7, 2016 appellant requested reconsideration of OWCP’s May 10, 2016 decision. 
3

By decision dated September 2, 2016, OWCP reviewed the merits of appellant’s claim. 

It accepted that she had established the factual component of fact of injury, but denied 

modification the basis that she had not established a causal relationship between the alleged work 

factors and her diagnosed conditions. 

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, that the claim was filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific condition for which compensation is claimed is causally related to the 

employment injury.2

 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or occupational disease.3 

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 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant.4

With respect to the first component of fact of injury, the employee has the burden of 

establishing the occurrence of an injury at the time, place, and in the manner alleged, by a 

preponderance of the reliable, probative, and substantial evidence.5 An employee’s statement 

alleging that an injury occurred at a given time and in a given manner is of great probative value 

and will stand unless refuted by strong or persuasive evidence.6

ANALYSIS 

Whether an injury occurs in the performance of duty is a preliminary issue before the 

merits of the claim are adjudicated.7

 The Board finds that appellant has not established that an 

injury occurred in the performance of duty as alleged. The environmental studies of record 

 2 Gary J. Watling, 52 ECAB 278-79 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

3 Michael E. Smith, 50 ECAB 313, 315 (1999). 

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

5 William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979). 

6 D.B., 58 ECAB 464, 466-67 (2007); Robert A. Gregory, 40 ECAB 478, 483 (1989). 

7 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999). 
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provided by the employing establishment, cast serious doubt upon the validity of the claim.8 As 

such, appellant has not met her burden of proof. 

An employee’s statement alleging that an injury occurred at a given time, place, and in a 

given manner is of great probative value and will stand unless refuted by strong or persuasive 

evidence.9 Herein, appellant’s allegation of exposure to poor air quality has been refuted by 

strong and persuasive evidence. The environmental study conducted by an industrial hygienist 

and a third party company found that there were no problems with air quality within her work 

area. An indoor air quality investigation of the premises was undertaken on February 9, 2016, at 

which time an industrial hygienist collected air samples to compare them to outdoor air, air from 

surrounding offices, and clinical areas. Sampling conducted on this date demonstrated that the 

airborne particulate counts inside the area alleged to be affected were at least as low as outside 

air and surrounding areas. The industrial hygienist also examined information regarding air 

quality from a computerized system capable of monitoring levels of temperature, humidity, and 

carbon dioxide, which were also within normal ranges. A third party had previously measured 

levels of various potentially harmful airborne chemicals and particulate matter, finding that 

results for all substances were below permissible limits set by OSHA. The employing 

establishment submitted the results from each of these studies to the case record. 

Because the record contains objective evidence which cast serious doubt on appellant’s 

alleged work factors, the probative value of her own allegation regarding this work factor is 

diminished. As such, she has not submitted sufficient evidence to establish the factual portion of 

her claim.10

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 established that she sustained an injury in the 

performance of duty. 

 8 See G.V., Docket No. 08-0655 (issued March 17, 2009). 

9 Id.

10 Id. 
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ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 2, 2016 is affirmed, as modified. 

Issued: May 12, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board