United States Department of Labor

Employees’ Compensation Appeals Board

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R.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PATROL, 

Frederiksted, VI, Employer

__________________________________________

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Docket No. 18-0840

Issued: November 19, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 13, 2017 appellant filed a timely appeal from a November 6, 2017 merit decision 

and a February 6, 2018 nonmerit 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 to consider 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

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish an 

occupational disease in the performance of duty; and (2) whether OWCP properly denied 

appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C § 8128(a).

FACTUAL HISTORY

On April 26, 2017 appellant, then a 53-year-old supervisor, filed an occupational disease 

claim (Form CA-2) alleging that she experienced dizziness, extreme lethargy, and headaches as 

the result of mold spore exposure at work. She noted that she first became aware of her claimed

condition on March 23, 2017, but did not realize the connection to her work until later on 

April 11, 2017, when she stopped work. 

By development letter dated May 24, 2017, OWCP informed appellant that additional 

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

employment-related activities that she believed caused or contributed to her condition, as well as 

rationalized medical evidence establishing causal relationship. It provided a questionnaire for her 

completion and afforded appellant 30 days to submit the requested information. No response was 

received.

By decision dated November 6, 2017, OWCP denied appellant’s claim, finding that she 

failed to identify the work factors, duties, or exposure alleged to have caused or contributed to her 

claimed injury. Additionally, it found that she had not submitted medical evidence containing a 

medical diagnosis in connection with such work events. 

On January 19, 2018 appellant requested reconsideration and submitted medical evidence

in support thereof. 

An April 11, 2017 duty status form (Form CA-17) by Dr. John Charles Perez, a treating 

physician specializing in internal medicine, noted that appellant was exposed to mold at work. He 

diagnosed conjunctivitis, allergic reaction to mold, and nasal drainage. Appellant was released to 

return to work with restrictions limiting her physical work activities and exposure to fumes and 

noise, effective April 17, 2017. 

Dr. Perez, in an August 4, 2017 attending physician’s report (Form CA-20), diagnosed

chronic rhinitis with occupational exposure to mold, hematuria, multinopolar thyroid goiter, and 

hypertensive nephropathy. He checked a box marked “yes” to the question of whether the 

conditions had been caused or aggravated by factors of her federal employment. In support of this

opinion, Dr. Perez noted that appellant had an insidious allergic reaction to environmental mold 

exposure. 

By decision dated February 6, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of her claim. 
3

LEGAL PRECEDENT -- ISSUE 1

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 filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty, and that any disability or 

specific condition for which compensation is claimed is 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 on a traumatic injury or an occupational disease.5

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.6

Appellant’s burden of proof includes the submission of a detailed description of the 

employment factors or conditions which he or she believes caused or adversely affected a condition 

for which compensation is claimed.7

ANALYSIS -- ISSUE 1

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

disease in the performance of her federal employment duties. 

Appellant has not provided sufficient evidence to establish that an occupational exposure 

occurred. Her claim form generally stated that she experienced dizziness, extreme lethargy, and 

headaches due to mold spore exposure. Appellant provided no explanation as to where she was 

exposed to mold at work or the length of time she was allegedly exposed. As she provided no 

explanation as to how the duties of her federal employment exposed her to mold, she has not 

established the factual component of her claim.

8

By a May 24, 2017 development letter, OWCP informed appellant that the evidence 

received was insufficient to establish that she experienced any employment factors that were 

 

3 Supra note 1.

4 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6 T.C., Docket No. 17-0872 (issued October 5, 2017).

7 T.B., Docket No. 17-0444 (issued May 5, 2017).

8 See M.L., Docket No. 12-0957 (issued December 7, 2012).
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alleged to have caused an injury. It asked her to provide a detailed description of the employmentrelated activities that she believed contributed to her condition. OWCP provided a questionnaire

for appellant’s completion, so that she could substantiate the factual elements of her claim. 

Appellant did not provide the necessary information prior to the issuance of OWCP’s November 6, 

2017 decision.9 Accordingly, the Board finds that she has not met her burden of proof to establish 

fact of injury in the performance of duty.10

As appellant has not established an injury in the performance of duty, she has not met her

burden of proof.

On appeal, appellant asserts the evidence submitted establishes her claim, as her physician

opined that she was very susceptible to mold exposure and testing showed the indoor air quality 

was not acceptable where she was stationed. However, as she has not established the factual 

component of her claim, the Board will not address the medical evidence with respect to causal 

relationship.11

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.

LEGAL PRECEDENT -- ISSUE 2

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,12

OWCP’s 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.13 

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.14 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.15 If the request is timely, but fails to meet at least one 

 

9 See L.B., Docket No. 18-0411 (issued September 12, 2018). 

10 Supra note 8. 

11 S.S., Docket No. 18-0242 (issued June 11, 2018).

12 5 U.S.C. § 8128(a).

13 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

14 Id. at § 10.607(a).

15 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).
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of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.16

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a).

On February 6, 2018 appellant requested reconsideration of OWCP’s November 6, 2017 

decision which denied her occupational disease claim. The underlying issue on reconsideration is 

factual in nature -- whether she established mold exposure at work.

In her December 21, 2017 request for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law, or advanced a new and relevant legal 

argument not previously considered. Thus, she is not entitled to a review of the merits of her claim 

based on the first and second above-noted requirements under section 10.606(b)(3).

The Board further finds that appellant did not submit relevant and pertinent new evidence 

in support of reconsideration. In support of the request for reconsideration OWCP received an 

April 11, 2017 Form CA-17 and an August 4, 2017 Form CA-2. This evidence is not relevant to 

the underlying factual issue as it does not address the underlying issue of whether appellant 

established actual exposure to mold at work. Evidence which does not address the particular issue 

under consideration does not constitute a basis for reopening a case.17

The Board accordingly finds that appellant failed to meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

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

disease in the performance of duty. The Board further finds that OWCP properly denied her

request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

 

16 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

17 See K.T., Docket No. 15-1916 (issued February 1, 2016).
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ORDER

IT IS HEREBY ORDERED THAT the February 6, 2018 and November 6, 2017 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: November 19, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board