United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.B., Appellant

and

FEDERAL HOUSING FINANCE AGENCY, 

Washington, DC, Employer

__________________________________________

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Docket No. 18-1548

Issued: March 11, 2019

Appearances: Case Submitted on the Record

Jessica Rogers, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 8, 2018 appellant, through counsel, filed a timely appeal from a March 1, 2018 

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

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish that she sustained 

a respiratory condition in the performance of duty, as alleged. 

FACTUAL HISTORY

On June 24, 2015 appellant, then a 57-year-old administrative office manager, filed a 

traumatic injury claim (Form CA-1) alleging that, on June 15, 2015, she experienced respiratory 

problems, headaches, coughing, wheezing, chest tightness, and asthma after working in an area

that had been flooded with water. She stopped work on June 16, 2015.

Dr. Jan Iffat, Board-certified in family medicine, evaluated appellant on June 17, 2015. 

She diagnosed an exacerbation of mild intermittent asthma and released her to resume work 

without limitations.

On June 26, 2015 Dr. Alia Malik, Board-certified in family medicine, related that appellant 

had sustained an exacerbation of asthma beginning June 2015 following the collapse of a ceiling 

at her place of employment.3 She found that her difficulty breathing had lessened, but that she 

continued to experience “headache and nasal congestion whenever she goes into the office.”

Dr. Malik noted that the employing establishment had cleaned the ceiling after the collapse and 

was currently cleaning up the mold. She diagnosed allergic rhinitis and intermittent asthma.

In a report dated August 3, 2015, Dr. Erik C. Osborn, a Board-certified internist, obtained 

a history of appellant experiencing shortness of breath, dyspnea on exertion, fatigue, 

lightheadedness, chest pressure, and difficulty concentrating after a ceiling collapsed at work. He 

found wheezing on examination. Dr. Osborn recommended that appellant use a continuous 

positive airway pressure (CPAP) machine.

Dr. Malik, on September 28, 2015, evaluated appellant for an exacerbation of asthma. She 

indicated that humidity “seem[ed] to trigger her symptoms....” Dr. Malik noted that appellant had 

not worked since July 2015. She diagnosed persistent asthma with exacerbation.

In a report dated October 21, 2015, Dr. Malik diagnosed severe, persistent asthma with an 

acute exacerbation and unspecified allergic rhinitis. She found that appellant could return to work 

without limitations. In an October 23, 2015 note, Dr. Malik related that her symptoms had begun 

after a ceiling at work collapsed in June 2015.

An analysis of the air quality in appellant’s work space, performed on December 23, 2015,

revealed the presence of fungal spores at a lower level than in the outside air. 

 

3 Dr. Malik, on June 29, 2015, opined that appellant had asthma and should “avoid mold as it exacerbates her 

symptoms.” She noted that another physician had excused her from work from June 17 to 19, 2015.
3

Appellant, in a January 11, 2016 e-mail message, requested that the employing 

establishment evaluate her cubicle as the carpet had a moldy smell and the ceiling tiles had black 

spots.

In a report dated January 13, 2016, Apex Companies (Apex) related that on October 13, 

2015 it had inspected an area of the employing establishment around Suite 112, including office 

1126, after a water leak from a sprinkler pipe on October 12, 2015. Subsequent to blowing the 

area with fans, it had obtained moisture readings. Apex advised that a green reading meant the 

area was dry and a yellow or red reading indicated the presence of moisture. It had measured 

drywall readings and carpeting in cubicle areas as red zone moisture readings. Apex recommended 

that the employing establishment add blower fans, replace drywall, and possibly replace carpeting. 

Apex related that it had performed a follow-up inspection on December 23, 2015. It found 

that the moisture meter readings taken of the carpeting and drywall were in the green zone in all 

affected areas. Apex submitted air samples to send to a laboratory for analysis. It determined that 

the indoor concentration of mold spores was significantly less than the mold spores from outdoor 

air samples, which by industry practice meant that the air quality was acceptable. Apex advised 

that the indoor air had low concentration of Myxomycetes spores that were not present in the 

outdoor air. It indicated that such spores were “common indoors and are associated with indoor 

plants, rotting lumber, and in conjunction with dust.” Apex summarized the results from the 

laboratory analysis. It noted that it had not observed water damage or mold growth in the affected 

area, and that the carpeting, ceiling tiles, and drywall in appellant’s work area were in the green 

zone. Apex advised that its findings were valid only for the date and time that it performed its 

service.

On February 5, 2016 Dr. Rodrigo C. Hurtado, Board-certified in allergy and immunology, 

noted that appellant had asthma by history that had worsened after she was exposed to water 

damage in her office at work on two occasions. He noted that after June 2015 she had used 

bronchodilators and nebulizers that had failed to control her condition unless she avoided her work 

space. Dr. Hurtado diagnosed allergic asthma.

In a progress report dated March 17, 2016, Dr. Hurtado opined that appellant had 

experienced asthma, multiple sinus infections, and extreme fatigue following floods in her office 

area in two separate locations. He indicated that she had received treatment in the emergency 

room approximately six times and was on several medications. Dr. Hurtado diagnosed asthma and 

immunodeficiency.

On March 23, 2016 Dr. Hurtado evaluated appellant after she had worked in the office for 

the previous three days.

4

 On examination he found bilateral wheezing and decreased airflow with 

no rales. Dr. Hurtado advised that a pulmonary function test (PFT) showed severe obstruction and 

that her forced expiratory volume had “drastic[ally] dropped from last week.” He diagnosed

asthma. 

 

4 Dr. Hurtado, on March 25, 2016, noted that appellant’s symptoms had lessened after she had been off work for

two days. He diagnosed asthma and rhinosinusitis.
4

In a report dated July 25, 2016, Dr. Osborn found that appellant had severe asthma and 

allergies that required medication. He related, “[Appellant’s] allergies and asthma have become 

worse since her workplace exposures. The environmental report has been reviewed and clearly 

shows that the environment of her workplace is making her asthma and her allergies worse. Due 

to her asthma, it is better that she avoids the workplace.”

Dr. Malik, in an August 16, 2016 letter, indicated that appellant had a history of mild

allergies and asthma until a ceiling collapsed at her work location on June 16, 2015. Her symptoms 

increased at work even with medication. Dr. Malik noted that appellant had used leave under the 

Family and Medical Leave Act (FMLA) “to allow her to fully recover until her office was moved 

to a new building.” She continued to have symptoms in the new building, which “was old and had 

a lot of dust, prompting her to go to the ER [emergency room].” Dr. Malik related that even with 

medication appellant had wheezing, shortness of breath, a cough, and hoarseness, and noted that 

she had experienced a syncopal event in a metro station in April 2016. She advised that appellant 

should avoid her work environment as it triggered her allergies and asthma. 

On November 19, 2016 Dr. Hurtado advised that appellant had a history of asthma 

previously controlled with the occasional use of an inhaler. He related:

“[Appellant’s] complaints coincide with two water damage incidents at her work 

sites from a HVAC [heating, ventilation, and air conditioning] water release in 

June 2015 and the break of [a] sprinkler opening in October 2015. [Appellant] was 

out of work from July to October [2015], she got better while being off work. While 

she was off work, her coworkers were moved to another office site. About two 

weeks before returning to work there was water damage in her new office from the 

break of a sprinkler opening. Ever since these two water damage incidents 

happened, her symptoms’ escalation became worse and out of control.”

Dr. Hurtado noted that appellant had experienced exacerbations of her asthma, infections, 

hives, chronic sinus symptoms, muscle aches, coughs, and migraines, and had sought emergency 

treatment over six times. He related that she had improved while at home over the weekend, but 

that her condition had worsened after a few hours at work. Dr. Hurtado opined that appellant had 

severe asthma that had worsened as a result of exposure to her work environment, and also had 

“developed disabling migraines, urticarial (hives) and chronic symptoms of allergic rhinosinusitis, 

which worsen at her workplace.” He recommended that appellant relocate to an environmentally 

sound building or, if that was not an option, retire.

By letter dated December 23, 2016, appellant, through counsel, requested that OWCP 

reopen her workers’ compensation claim and adjudicate the claim as an occupational disease rather 

than a traumatic injury. She advised that she had sustained an exacerbation of a respiratory 

condition when her building had experienced a flood over the weekend of June 13, 2015 causing 

the ceiling tiles to collapse. When appellant had resumed work on June 15, 2015, she had 

experienced respiratory problems, including asthma, chest tightness, headaches, and coughing. 

She used leave under the FMLA from July to October 2015. Appellant’s workstation had relocated 

to another location in October 2015. Two weeks before she was scheduled to resume work, the 

new location had flooded and, following her return to work, she had experienced another 

exacerbation of her condition. Counsel reviewed the medical evidence and asserted that the 
5

opinions of Dr. Malik and Dr. Hurtado supported that her employment duties exacerbated her 

respiratory condition.

In a January 31, 2017 development letter, OWCP requested that the employing 

establishment provide comments from a knowledgeable supervisor regarding the accuracy of 

appellant’s statements. It further requested the results of air quality testing.

In a February 1, 2017 development letter, OWCP advised appellant that it had paid a 

limited amount of medical expenses as her claim was uncontroverted and appeared minor, but was 

now formally considering her claim. It requested that she provide additional factual and medical 

information in support of her claim, including a detailed description of the workplace exposure 

that she believed had contributed to her condition and a reasoned report from her attending 

physician addressing the relationship between any diagnosed condition and work factors. 

In a February 14, 2017 addendum, Dr. Hurtado opined that, based on appellant’s history, 

the findings on examination, and the results of diagnostic testing, she had experienced an 

exacerbation of allergic rhinosinusitis and asthma due to her employment exposure. He related:

“Both of the work environments [appellant] has worked in since June 15, 2015 have 

experienced significant water damage incidents that can have a significant and 

lasting effect on the overall air quality leading to the introduction of new and 

additional environmental allergens and pollutants. When a person with asthma or 

allergies is exposed to an environmental trigger such as an allergen or pollutant 

(i.e., odors, mold, or damp environments, insects, dust, or cold air), this can cause 

the airways and nasal passages to become inflamed, narrow, and fill with mucous, 

causing an exacerbation of asthma and allergic rhinosinusitis and continue to 

exacerbate these conditions when she returns to these environments. [Appellant] 

repeatedly tried to return to work only to experience an exacerbation of her 

symptoms.”

Dr. Hurtado opined that the mechanism of injury was “consistent with the exacerbation of 

[her] condition,” noting that her symptoms began upon exposure to her office environment. He 

related that based on the objective findings that appellant’s “continued exposure to her work 

environment since June 15, 2015 has exacerbated her asthma and allergic rhinosinusitis.”

Appellant, in a February 24, 2017 response, related that a flood had occurred in her work 

space the weekend before June 15, 2015. When she returned to work on June 15, 2015 the ceiling, 

carpet, and her chair were saturated with water and covered with debris, and the area smelled 

moldy and musty. Cleaning up after the flood took a long time and even after cleanup the “carpet 

was still wet, the odor was not completely gone, and there were water stains on the ceiling tiles in 

the open office area.” Appellant’s allergies worsened and she sought treatment on June 17, 2015. 

She was off work from June to October 2015. Appellant’s office relocated, but on October 26, 

2015, two weeks before she was scheduled to resume work, a sprinkler pipe had flooded her work 

area. She related:

“During an on-site inspection right after the floor, there were excessive moisture 

readings throughout Suite 112, where my cubicle was located. Despite this ‘clean 
6

up,’ there were still ongoing issues from the flood when I returned to work two 

weeks later. Some ceiling tiles developed stains or black spots on them, there was 

a green color in the carpet where the flood happened, and the office smelled moldy 

and like rotten eggs.” 

Appellant further advised that the employing establishment had provided her with an air 

purifier on December 21, 2015 that did not help. She had filed for retirement in November 2016. 

Appellant specified that she was claiming an occupational disease rather than a traumatic injury.

By decision dated March 9, 2017, OWCP denied appellant’s claim, finding that she had 

not established an injury in the performance of duty. It determined that she had established the 

occurrence of the implicated work factors, but had failed to establish an injury in the course of her 

employment as she had not provided evidence establishing that she was exposed to unsafe levels 

of mold and dust. OWCP noted that an environmental study found the presence of Myxomycetes,

but had attributed the presence of the fungus to indoor plants. It also noted that the medical 

evidence submitted was insufficient to support that appellant sustained a medical condition due to 

the compensable employment factors.

Thereafter, OWCP received a June 30, 2015 report from Applied Environment, Inc.

regarding its evaluation of the air quality at appellant’s work location on June 18, 2015. It had 

determined that the air quality was within acceptable limits with lower fungal spore concentrations

inside than those measured outside. Applied Environmental had found moisture on carpet tiles, 

wet drywall, and missing ceiling tiles in one office and moisture on the wall separating two offices. 

It indicated that it had found no “visible mold growth or odors typically associated with such 

growth” during its inspection. Applied Environment also advised that the humidity measurements 

for the air in the building had been within normal limits. It provided measurements for fungal 

spores obtained on June 18, 2015 and advised that the “[f]ungal spores in the concentrations 

measured would not be anticipated to adversely affect normal healthy individuals.” 

Appellant further submitted an April 25, 2016 air quality analysis showing the presence of 

fungal spores and particulates, including Myxomycetes. 

In a February 27, 2017 e-mail message, V.R., a supervisor, related that the ceiling tile fell 

around June 14, 2015. No one had witnessed the incident, but she believed that appellant’s 

statement regarding the occurrence was accurate. V.R. did not know if there were any substances 

that were harmful present, but indicated that she had provided three air sample reports. She related 

that the employing establishment had provided appellant with an air purifier and a mask as 

accommodations.

In a report dated August 11, 2017, Dr. Karen Kaufman, an osteopath Board-certified in 

allergy and immunology and internal medicine, indicated that she had begun treating appellant 

after Dr. Hurtado retired in April 2017. She related:

“Both of the work environments [appellant] have worked in since June 15, 2015 

have experienced significant water damage incidents that can significantly impact 

the condition of patients with underlying asthma, allergic rhinitis, or vasomotor 

rhinitis, and in air sample analysis, mold spores have been identified. Even 
7

exposure to mold spores in the workplace environment can negatively impact the 

overall health of sensitized individuals like [appellant], and the ability to control 

exacerbations of asthma and rhinitis can be very difficult in the setting of repeated 

exposure because of her sensitization. By reviewing her chart and history, she has 

had recurrent flares of her asthma and rhinitis every time she would return to her 

work environment, and symptoms would improve upon her return home.”

Dr. Kaufman advised, “Based on a thorough review of [appellant’s] history, physical 

exam[ination] findings, results of testing, and a review of prior evaluations of her workplace, it is 

my professional medical opinion that exposure in her workplace environment starting June 15, 

2015 have contributed to exacerbation of her underlying asthma and mixed rhinitis.”

Appellant, through counsel, on December 14, 2017 requested reconsideration. She 

asserted that medical evidence from Dr. Kaufman established that work factors had aggravated her 

respiratory condition. Counsel asserted that appellant had established exposure to environmental 

triggers in her work space, including wet carpeting and drywall in her office suite, elevated 

moisture readings, and the presence of mold spores.

By decision dated March 1, 2018, OWCP denied modification of its March 9, 2017 

decision. It found that the evidence of record was insufficient to establish that appellant sustained 

an injury in the performance of duty as she failed to submit air quality testing showing unsafe 

levels of mold and dust in her work environment.

LEGAL PRECEDENT

An employee seeking benefits under FECA5has 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.6 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7

In an occupational disease claim, appellant’s burden requires submission of the following: 

(1) a factual statement identifying employment factors alleged to have caused or contributed to the 

presence or occurrence of the disease or condition; (2) medical evidence establishing the presence 

or existence of the disease or condition for which compensation is claimed; and (3) medical 

evidence establishing that the diagnosed condition is causally related to the employment factors 

identified by the employee.8

 

5 5 U.S.C. § 8101 et seq.

6

J.I., Docket No. 18-0286 (issued September 17, 2018).

7 A.J., Docket No. 18-0905 (issued December 10, 2018).

8 R.M., Docket No. 18-0976 (issued January 3, 2019); P.D., Docket No. 17-1885 (issued September 17, 2018).
8

The medical evidence required to establish causal relationship is rationalized medical 

opinion evidence. The opinion of the physician must be based on a complete factual and medical 

background of the employee, must be one of reasonable 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

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP shares 

responsibility to see that justice is done.10 The nonadversarial policy of proceedings under FECA 

is reflected in OWCP’s regulations at section 10.121.11

OWCP’s procedures provide that the claims examiner should refer the case to a second 

opinion physician when it has gathered all the medical evidence from the attending physician and 

does not have enough evidence about a diagnosis or an adequately reasoned opinion about causal 

relationship to accept the case, but does have sufficient evidence to suggest that the claimant might 

be entitled to benefits.12

ANALYSIS

The Board finds that this case is not in posture for decision.

Initially, the Board notes that appellant alleged that her injury occurred due to exposure to 

work factors occurring over more than one work shift, and thus her claim is for an occupational 

disease.13

OWCP denied appellant’s claim, finding that the evidence of record was insufficient to 

establish that she had been exposed to hazardous levels of mold or dust. She has established, 

however, that her work area in June 15, 2015 had been flooded, causing a ceiling tile to collapse 

and spread debris around the office. On June 18, 2015 Applied Environment evaluated the work 

space and found moisture on the carpet, drywall, and some walls. It indicated that fungal spore 

measurements were within acceptable levels and would not adversely affect normal individuals. 

Appellant has also established that a second work location had flooded in October 2015, two weeks 

before she began working in that location. Apex evaluated the area on October 13, 2015 and found 

moisture readings in the red zone on drywall and carpeting. An air quality report also found an 

indoor concentration of mold spores significantly less than that of the outside air and a low 

concentration of Myxomycetous mold spores not present in the outside air. While appellant has 

 

9 P.Y., Docket No. 18-1136 (issued January 7, 2019).

10 A.J., Docket No. 18-0905 (issued December 10, 2018).

11 20 C.F.R. § 10.121.

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluation Medical Evidence, Chapter 

2.810.9.b(1) (June 2015).

13 A traumatic injury is defined as a “condition of the body caused by a specific event or incident, or series of events 

or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition 

produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R. § 10.5(q).
9

not demonstrated exposure to unhealthy levels of mold at work, the Board finds that she has 

established that she worked in two offices that flooded resulting in her exposure to water in the 

carpet and drywall prior to cleanups and debris from a fallen ceiling tile. 

Given that appellant has established the employment exposures, the question becomes 

whether these exposures caused an injury.14 Thus, the Board will set aside OWCP’s March 1, 

2018 decision and remand the case for consideration of the medical evidence. Following this and 

other such further development as deemed necessary, OWCP shall issue a de novo final decision.

CONCLUSION

The Board finds that the case is not in posture for decision. 

ORDER

IT IS HEREBY ORDERED THAT the March 1, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this opinion of the Board.

Issued: March 11, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

14 R.E., Docket No. 17-0547 (issued November 13, 2018).