United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Gaithersburg, MD, Employer

__________________________________________

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Docket No. 19-1436

Issued: February 21, 2020

Appearances: Case Submitted on the Record

Sara Kincaid, Esq., for the appellant1

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 June 17, 2019 appellant, through counsel, filed a timely appeal from a January 24, 2019

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 a respiratory 

condition causally related to the accepted factors of her federal employment.

FACTUAL HISTORY

On April 22, 2016 appellant, then a 52-year-old disability compliance specialist, filed an 

occupational disease claim (Form CA-2) alleging that she developed asthma due to exposure to 

harmful substances in the workplace. She advised that she first became aware of her claimed 

condition and its relation to factors of her federal employment on March 23, 2016. Appellant 

stopped work on March 24, 2016.

In an accompanying statement, appellant described instances in the summer of 2015 and 

March 2016 when she had coughing spells while working at the employing establishment worksite 

in Gaithersburg, Maryland. She also described a coughing spell she experienced in the summer of 

2015 while working at the worksite in L’Enfant Plaza, Washington, District of Columbia, and in 

December 2015 while working at the worksite in Waldorf, Maryland. Appellant asserted that she 

was exposed to harmful allergens in the air at these locations. 

Appellant subsequently submitted an April 20, 2016 report from Dr. Victor E. Herry, a 

Board-certified internist and pulmonologist, who reported that appellant presented to his office on 

October 19, 2015 after visiting the emergency room as a result of facial swelling. She subsequently 

underwent skin testing and was found to be allergic to aeroallergens, including dust, molds, dander, 

weeds, grasses, trees, and pollen. Dr. Herry indicated that appellant also presented to his office on 

March 31, 2016 with excessive coughing and accompanying hoarseness which she reported had 

begun at work. He reported that, after being away from the workplace, appellant’s coughing 

stopped and her lungs became completely clear without wheezing. Dr. Herry opined that 

appellant’s work environment contained some aeroallergens which resulted in her having 

hyperirritable airways and experiencing excessive coughing and wheezing. 

In a May 9, 2016 attending physician’s report (Form CA-20), Dr. Herry listed the date of 

injury as March 23, 2016 and the diagnosis due to the employment activity as mild persistent 

asthma with status asthmaticus. He checked a box marked “Yes” to indicate that the diagnosed 

condition was caused or aggravated by the employment activity and added the notation, 

“Environmental agents at work can aggravate the patient’s asthma symptoms such as coughing 

and [shortness of breath].”

In a May 19, 2016 development letter, OWCP requested that appellant submit additional 

factual and medical evidence, including a physician’s opinion supported by a medical explanation 

as to how the reported employment factors caused or aggravated a medical condition. It provided 

a questionnaire for her completion which posed a series of questions regarding the reported 

employment factors. OWCP afforded appellant 30 days to respond.3

 

3 On May 19, 2016 OWCP also requested additional information from the employing establishment which was to 

be submitted within 30 days.
3

In response, appellant provided a June 3, 2016 statement in which she provided additional 

details regarding the incidents at work she previously identified. She advised that she only suffered 

asthma attacks at work and noted that her coughing episodes were accompanied by wheezing. The 

employing establishment submitted an undated letter from the manager of its disability programs

answering a series of questions posed by OWCP. The manager indicated that May 9, 2013 testing 

at the L’Enfant Plaza worksite revealed airborne fungal/mold populationsthat were consistent with 

those found outdoors.

4

Appellant submitted a June 20, 2016 report from Dr. Herry who noted that appellant was 

first seen on October 19, 2015 after a visit to the emergency room for angioedema and that she 

first reported having experienced wheezing when she was seen on March 31, 2016. She

complained of excessive coughing in the workplace and advised that she developed hoarseness as 

a result. Dr. Herry indicated that appellant reported that whenever she was at work she experienced 

violent coughing with no control, but that she had no symptoms away from work. He advised that 

asthma was a clinical syndrome characterized by episodic reversible airway obstruction, increased 

bronchial reactivity, and airway inflammation. Dr. Herry noted that environmental exposure in 

sensitized individuals was a major inducer of airway inflammation.5 In a July 15, 2016 report, he

recommended that various measures be taken at appellant’s worksites, including the cleaning of 

all air ducts.

Appellant also submitted a copy of a report detailing August 29, 2016 testing which was 

conducted at the Gaithersburg, Maryland worksite by a private company. It indicated that the 

indoor air quality comfort parameters of the tested area (including temperature, relative humidity, 

and carbon dioxide) were within acceptable comfort parameters which were below exposure limits 

and below levels that might facilitate mold growth. The total volatile organic compound (VOC) 

levels were found to be at the low range of the “multifactoral exposure range” which might cause 

irritation if other stressors or exposure irritation are expected.6 The study provided that the VOC 

levels did not represent a “negative impact” to the indoor air quality and advised that there was no 

discernable difference in the measured and observed parameters between the complaint and control 

areas. The laboratory analytical results indicated that the airborne fungal spore populations 

identified in the assessed areas were less than the exterior control samples, were consistent with 

populations of fungi that were common outdoors, and did not pose a risk to most occupants with 

respect to the presence of unusual fungal populations or fungal species of concern. The report 

noted, however, that different individuals might have differing sensitivities to mold and other 

allergens.

By decision dated October 21, 2016, OWCP accepted that appellant was exposed to low 

levels of dust and mold in her workplace. However, it denied her claim, finding that she had not 

submitted medical evidence sufficient to establish a medical condition casually related to the 

 

4 The employing establishment attached a report detailing the May 9, 2013 testing which was conducted at the 

L’Enfant Plaza worksite by a private company.

5 Appellant also submitted a June 29, 2016 report from Dr. Bahram Redjaee, a Board-certified internist and 

pulmonologist, who diagnosed “severe allergy resulting in unknown.”

6 The report indicated that the mold samples collected also included dust particles.
4

accepted employment factors. OWCP concluded, therefore, that appellant had not met the 

requirements to establish “an injury and/or medical condition causally related to the accepted work 

event(s).”

On July 26, 2017 appellant, through counsel, requested reconsideration of the October 21, 

2016 decision. Counsel argued that the reports of Dr. Herry established appellant’s claim.7

Appellant submitted a June 16, 2017 report from Dr. Herry who diagnosed unspecified 

asthma (uncomplicated) and other asthma. Dr. Herry advised that appellant’s wheezing was 

triggered by her work environment and opined that, based on his examination and review of the 

medical history, appellant’s exposure to dust, molds, and other aeroallergens (as documented in 

the August 29, 2016 study) contributed to her development of occupational asthma. He indicated

that, although the August 29, 2016 air quality study concluded that the overall air quality had not 

been negatively impacted, it should be noted that different individuals might have differing 

sensitivities to mold spores and other aeroallergens and might have a reaction to aeroallergens at 

low levels that are deemed safe to most. Prior skin testing had shown that appellant was allergic 

to many aeroallergens, including dust and molds, making her particularly sensitive to exposure to 

these aeroallergens.

Dr. Herry further indicated that exposure to aeroallergens in a sensitized individual such as 

appellant, even in small quantities, could cause the airways to become inflamed and narrowed, 

thereby leading to increased bronchial reactivity that caused coughing and wheezing. He posited 

that this increased bronchial activity was what caused asthma and this process happened to 

appellant as a result of continued exposure to mold, dust, and other aeroallergens in her work 

environment. He opined that this mechanism of injury was consistent with appellant’s 

development of occupational asthma and her immediate onset of respiratory symptoms after 

exposure to her work environment, which improved while away from work, and was also 

consistent with continued exposure to mold, dust, and other aeroallergens in her work

environment, thereby contributing to her development of occupational asthma. Dr. Herry 

concluded, “Therefore, based on my objective findings and within reasonable medical certainty, it 

is my medical opinion that the patient’s continued exposure to mold, dust, and other aeroallergens 

in her work environment since March 23, 2016 has contributed to her development of occupational 

asthma.”

The employing establishment submitted January 17 and August 17, 2017 letters in which 

agency officials argued that the results of the 2016 air quality study diminished the validity of 

appellant’s claim for an employment-related respiratory condition.

By decision dated October 24, 2017, OWCP denied modification of the October 21, 2016 

decision. 

On October 23, 2018 appellant, through counsel, requested reconsideration of the 

October 24, 2017 decision. In a September 12, 2018 report, Dr. Herry provided a discussion of 

 

7 On January 17, 2017 appellant filed a notice of recurrence (Form CA-2a). However, her filing of this form was 

premature as her claim had not yet been accepted.
5

the cause of appellant’s occupational asthma which was essentially the same as that contained in 

his previously submitted June 16, 2017 report.

By decision dated January 24, 2019, OWCP denied modification of the October 24, 2017 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA8 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence, 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 an injury was sustained in the performance of duty as alleged, and that any disability

or medical condition for which compensation is claimed is causally related to the employment 

injury.9 These are the essential elements of every compensation claim regardless of whether the 

claim is predicated upon a traumatic injury or an occupational disease.10

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

disease claim, a claimant must submit 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 identified employment factors.11

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.12 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.13 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s 

specific employment factor(s).14

 

8 Supra note 2.

9 K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn 

Haggerty, 45 ECAB 383, 388 (1994).

10 K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

11 R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. 

Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

12 T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996). 

13 M.V., Docket No. 18-0884 (issued December 28, 2018).

14 Id.; Victor J. Woodhams, supra note 11.
6

ANALYSIS

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

Appellant submitted a series of reports from Dr. Herry who found that appellant sustained 

a respiratory condition due to exposure to harmful substances in the workplace. Dr. Herry

provided his most extensive discussions positing that appellant sustained employment-related 

asthma in narrative reports dated June 16, 2017 and September 12, 2018. In these reports, he

explained that although the August 29, 2016 air quality study concluded that the overall air quality 

had not been negatively impacted, it should be noted that different individuals might have differing 

sensitivities to mold spores and other aeroallergens and might have a reaction to aeroallergens at 

low levels that are deemed safe to most. Prior skin testing had shown that appellant was allergic 

to many aeroallergens, including dust and molds, making her particularly sensitive to exposure to 

these aeroallergens. This mechanism of injury was consistent with appellant’s development of 

occupational asthma and her immediate onset of respiratory symptoms after exposure to her work 

environment, which improved while away from work, and was also consistent with continued 

exposure to mold, dust, and other aeroallergens in her work environment, thereby contributing to 

her development of occupational asthma. Dr. Herry concluded that appellant’s continued exposure 

to mold, dust, and other aeroallergens in her work environment since March 23, 2016 contributed 

to her development of occupational asthma. The Board further notes that Dr. Herry also found, in 

reports dated April 20 and May 9, 2016, that appellant’s respiratory condition was related to 

exposure to allergens in the workplace.

The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is 

not a disinterested arbiter.15 The Board finds that while Dr. Herry’s reports are insufficient to meet 

appellant’s burden of proof, they raise an uncontroverted inference of causal relation between her 

claimed respiratory condition and the accepted factors of her federal employment. Further 

development of appellant’s claim is therefore required.16

On remand OWCP shall prepare a statement of accepted facts and refer appellant to an 

appropriate Board-certified specialist for a second opinion examination and an evaluation 

regarding whether she sustained a medical condition due to the accepted factors of her federal 

employment. Following any necessary further development, OWCP shall issue a de novo decision.

CONCLUSION

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

 

15 See B.B., Docket No. 18-1321 (issued April 5, 2019).

16 See C.M., Docket No. 17-1977 (issued January 29, 2019); John J. Carlone, 41 ECAB 354 (1989).
7

ORDER

IT IS HEREBY ORDERED THAT the January 24, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further 

action consistent with this decision of the Board.

Issued: February 21, 2020

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