United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Tomah, WI, Employer

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Docket No. 18-1486

Issued: April 15, 2019

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 July 24, 2018 appellant filed a timely appeal from a February 7, 2018 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish an occupational 

disease causally related to the accepted factor of her federal employment.

FACTUAL HISTORY

On April 7, 2017 appellant, then a 47-year-old clinical application coordinator, filed an 

occupational disease claim (Form CA-2) alleging that she developed an atelectasis due to possible 

black mold exposure at work. She noted that she first became aware of her claimed condition on 

December 7, 2016 and related it to her federal employment on March 16, 2017. Appellant did not 

stop work. 

OWCP received a duty status report (Form CA-17) and a medical release for work form 

dated April 10, 2017 from Dr. Brian Withers, an osteopathic physician specializing in family 

medicine. Dr. Withers noted an injury date of March 16, 2017 and released appellant to return to 

work without restrictions on April 10, 2017. On the Form CA-17 he noted respiratory exposure 

to toxic black mold and provided a diagnosis of mold exposure. Dr. Withers reported clinical 

findings of atelectasis vs. fibrosis, improving shortness of breath, cough, and light headedness. 

In a development letter dated April 24, 2017, OWCP informed appellant that additional 

information was necessary to establish her claim, including a detailed description of the 

employment-related factors that she believed caused or contributed to her condition. Appellant 

was also instructed as to the rationalized medical evidence establishing causal relationship. OWCP

provided a questionnaire for her completion and afforded her 30 days to submit the requested 

information. By separate letter of the same date, it requested that the employing establishment 

respond to appellant’s allegations and provide information regarding her alleged workplace 

exposure. 

In response to OWCP’s April 24, 2017 development letter, appellant submitted factual and 

medical evidence including her statement and a copy of e-mail correspondence from coworkers 

describing the mold problems at their worksite. 

In a March 16, 2017 Tomah Memorial Hospital emergency department report and nurse’s 

notes from Ashley Path, nurse practitioner, and Amy DeLange, a nurse, appellant’s diagnosis was 

listed as sinusitis maxillary. 

Dr. Withers, in a progress note dated April 10, 2017, detailed appellant’s complaints. 

Appellant related developing pulmonary issues after being exposed to black mold in an air 

conditioning unit near her work area. A review of x-ray interpretations revealed atelectasis versus 

fibrosis. Under impression/report/plan, Dr. Withers noted possible sticky buttress or other mold 

exposure. He noted an abnormal x-ray interpretation, that appellant was currently working in 

another building, and a follow-up x-ray would be performed in two months. Dr. Withers reported 

that if appellant continued to have lung problems she would be referred to either a pulmonologist 

or her primary care physician for treatment. 
3

A June 12, 2017 x-ray interpretation noted mold exposure and reported no acute 

abnormality. Under findings, it reported unchanged linear atelectasis or fibrosis anteriorly. 

In a June 12, 2017 form report, Dr. Withers released appellant to return to work that day

and noted “improving mold exposure.” 

Dr. Withers, in a June 12, 2017 report, observed that appellant had not experienced 

symptoms since she began working at a different worksite. He noted physical examination 

findings. A review of two x-ray interpretations revealed clear lungs, with unchanged linear 

atelectasis and anterior fibrosis. Under impression, Dr. Withers noted “mold exposure” and 

discharged appellant with no work restrictions. In an addendum he recommended follow-up x-ray 

evaluation be performed in a year regarding the atelectasis versus fibrosis found on her x-ray 

interpretations. 

By decision dated October 5, 2017, OWCP denied appellant’s occupational disease claim. 

It found the factual evidence sufficient to establish mold exposure as an employment factor, but 

found the medical evidence failed to contain a medical diagnosis causally related to the accepted 

employment factor. 

Subsequent to the denial of appellant’s claim, OWCP received additional evidence. 

A March 16, 2017 x-ray report noted findings of right mid lung and left lower lobe 

atelectasis versus fibrous. 

On December 12, 2017 appellant requested reconsideration and submitted an October 17, 

2017 report, wherein Dr. Withers detailed her symptoms and noted that she had been exposed to 

mold at her worksite. Dr. Withers opined that it appeared that appellant’s symptoms were 

attributable to mold exposure based on her improvement after removal from the work environment. 

He noted that she had been seen twice for symptoms related to mold exposure and that an x-ray 

interpretation showed atelectasis versus fibrosis. Appellant became asymptomatic after removal 

from exposure to mold in the work environment. 

By decision dated February 7, 2018, OWCP denied modification of its prior decision, 

finding that the medical evidence was insufficient to establish a diagnosed medical condition in 

connection with the accepted employment factor due to exposures at work. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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 timely filed within the applicable 

time limitation period of FECA, that the injury was sustained while in the performance of duty as 

alleged, and that any disability or specific condition for which compensation is claimed are 

 

3 Supra note 1.
4

causally related to the employment injury.4 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.5

OWCP’s regulations define the term “[o]ccupational disease or illness” as a condition 

produced by the work environment over a period longer than a single workday or shift.6 To 

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

an employee 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 employee.7

Causal relationship is a medical issue and the medical evidence 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

The Board finds that appellant has not met her burden of proof to establish an occupational 

disease causally related to the accepted factor of her federal employment. 

In support of her claim appellant submitted various reports from Dr. Withers, who noted 

findings consistent with either atelectasis versus fibrosis, which he attributed to black mold 

exposure at work. Dr. Withers attributed her symptoms to black mold exposure at work because 

her symptoms improved after she was removed from being exposed to the black mold at work. 

Although this opinion supported causal relationship, the Board finds that it fails to provide medical 

rationale explaining the basis for his conclusion regarding the casual relationship between 

appellant’s work exposure to black mold and a diagnosed medical condition.10 The Board has held 

that the mere fact that her symptoms arise during a period of employment or produce symptoms 

revelatory of an underlying condition does not establish a causal relationship between her

 

4 5 U.S.C. § 8101(1); S.C., Docket No. 18-1242 (issued March 13, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

5 M.H., Docket No. 18-1737 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

6 20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, 

Chapter 2.800.2(b) (June 2011).

7 M.D., Docket No. 18-1365 (issued March 12, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

8 M.S., Docket No. 18-1280 (issued March 12, 2019); D.I., 59 ECAB 158 (2007).

9

Id., see also P.S., Docket No. 18-1222 (issued January 8, 2019).

10 See D.C., Docket No. 17-1982 (issued July 11, 2018); T.M., Docket No. 08-0975 (issued February 6, 2009) (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).
5

condition and Dr. Wither’s employment factors.11 Lacking thorough medical rationale on the issue 

of causal relationship, the Board finds that his reports are insufficient to establish that appellant

sustained an employment-related injury. 

Appellant also submitted diagnostic testing reports in support of her claim, but these 

diagnostic tests do not address the etiology of her pulmonary condition. The Board has held that 

reports of diagnostic tests lack probative value as they do not provide an opinion on causal

relationship between her employment factors and a diagnosed condition.12 

OWCP also received a report signed by a nurse practitioner and nurse. However, under 

FECA,13 the reports of a nonphysician, including nurse practitioners and nurses, do not constitute 

probative medical evidence.14

As the record does not contain a rationalized opinion explaining causal relationship 

between appellant’s diagnosed condition and the accepted employment exposure, the Board finds 

that she has not met her burden of proof.

On appeal, appellant asserts that the building she worked in was also found to have bat 

guano in addition to the mold. She asserts that her symptoms and permanent lung scarring are 

directly related to her exposure to bat guano and mold. As explained above, the Board finds that 

the medical evidence of record is insufficient to establish the claim.

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 an occupational 

disease causally related to the accepted factor of her federal employment.

 

11 See M.B., Docket No. 17-1999 (issued November 13, 2018); D.C., id.; R.H., Docket No. 07-2256 (issued 

March 3, 2008). 

12 See C.F., Docket No. 18-1156 (issued January 22, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

13 5 U.S.C. 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.404; C.P., Docket No. 17-0042 (issued December 27, 2016); 

David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006); Roy L. Humphrey, 57 ECAB 238 (2005). 

14 Certain healthcare providers such as physician assistants, nurse practitioners, physical therapists, and social 

workers are not considered physicians as defined under 5 U.S.C. § 8101(2). Consequently, their medical findings 

and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits. However, a report from a 

physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified 

physician. See M.F., Docket No. 17-1973 (issued December 31, 2018).
6

ORDER

IT IS HEREBY ORDERED THAT the February 7, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 15, 2019

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