United States Department of Labor

Employees’ Compensation Appeals Board

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J.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, VA 

MONTANA HEALTHCARE SYSTEM,

BOZEMAN VA CLINIC, Bozeman, MT, 

Employer

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Docket No. 20-1252

Issued: February 5, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 3, 2020 appellant filed a timely appeal from a May 12, 2020 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, following the May 12, 2020 decision, OWCP received additional evidence. 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 his burden of proof to establish that he sustained a 

respiratory condition in the performance of duty, as alleged.

FACTUAL HISTORY

On March 25, 2020 appellant, then a 46-year-old nurse, filed an occupational disease claim 

(Form CA-2) alleging that he experienced an allergic respiratory reaction causally related to factors 

of his federal employment, including exposure to four types of mold identified in the clinic where 

he worked. He noted that he first became aware of his condition on June 1, 2019 and realized that 

it was caused or aggravated by his federal employment on March 23, 2020. Appellant indicated 

that, after taking 10 days off, he returned to work and experienced increased respiratory symptoms 

and was treated in the emergency room. He stopped work on March 24, 2020. On the reverse side

of the claim form appellant’s supervisor indicated that on March 30, 2020 he was scheduled to 

return to work at another employing establishment facility.

Appellant submitted a copy of a report detailing the March 3, 2020 testing of bioaerosol 

samples at the employing establishment. The testing, completed by a private company, revealed

results suggestive of a possible indoor source of mold. It indicated that two fungal types were 

recovered indoors that were not detected in the out-of-doors sample, suggesting a possible indoor 

source. The study further indicated that Stachybotrys, a type of mold that can produce potent 

mycotoxins and is associated with significant health symptoms, was detected in a sample taken in 

office seven. This concentration was sufficient to contribute to poor indoor air quality. The study 

revealed that these spores are not easily aerosolized and industry experts agree that any airborne 

Stachybotrys indoors should trigger investigative action and thorough remediation of the mold 

source. It further noted that Chaetomium was observed in samples taken in office 47 and 48. The 

report indicated that this fungal type is allergenic and can produce various mycotoxins as well as 

opportunistic infections in immune compromised individuals. It further indicated that 

Chaetomium is found in cellulose materials and requires similar environmental conditions for 

growth and it is often found in conjunction with Stachybotrys. The study recommended that the 

mold sources be identified and corrective action be undertaken to avoid potentially severe 

symptoms and reduce exposure to building occupants. It further recommended that with fungal 

material at this level, and because of the presence of two target fungal types, remediation efforts 

should be conducted. 

In an April 7, 2020 development letter, OWCP informed appellant that it had received no 

evidence in support of his occupational disease claim. It advised him of the type of factual and 

medical evidence necessary to establish his claim and provided a questionnaire for his completion. 

In a separate development letter of even date, OWCP requested that the employing establishment 

provide additional information regarding appellant’s exposure to potentially harmful substances, 

and comments from a knowledgeable supervisor regarding the accuracy of his statements. It 

afforded both parties 30 days to respond.

On March 24, 2020 appellant was treated in the emergency room by Dr. Eric G. Lowe, a 

Board-certified emergency room physician, for shortness of breath. He reported that after taking 

10 days off he returned to work and had a return of respiratory symptoms. Appellant noted that 
3

his workplace was under investigation for mold exposure, which was being remediated that week. 

Dr. Lowe diagnosed acute respiratory failure with hypercapnia, environmental and seasonal 

allergies, and gastroesophageal reflux disease. He opined that there was evidence of 

environmental exposure as the source for appellant’s symptoms and removed him from work for 

one week. Dr. Lowe prescribed epinephrine with almost immediate resolution of symptoms.

On April 14, 2020 Dr. Elizabeth A. Steiz, an osteopath, treated appellant by telephone for 

occupational exposure to mold. She indicated that the employing establishment had known mold 

contamination and was currently undergoing mold remediation. Appellant provided reports 

documenting positive mold tests at the facility. He reported chronic and recurrent symptoms of

respiratory disease since June 2019 with cough, congestion, and shortness of breath. Appellant 

was hospitalized from September 30 through October 2, 2019 for acute hypoxic and hypercapnic 

respiratory failure, severe obstructive lung disease, staph aureus bronchitis, and hyper eosinophilia. 

He also reported two emergency room visits in September 2019 with symptoms of shortness of 

breath, coughing, and wheezing. Dr. Steiz noted that appellant had 10 days off work with 

improvement in his symptoms and, upon returning to work on March 23, 2020, he experienced 

shortness of breath and was treated in the emergency room. She diagnosed mold exposure, workrelated injury, and reactive airway disease that was not asthma. Appellant indicated that his 

employing establishment moved him off site to another facility and he experienced improvement 

in his symptoms.

In an attending physician’s report (Form CA-20) dated April 16, 2020, Dr. Steiz noted a 

history of mold exposure on March 23, 2020 resulting in respiratory symptoms. She diagnosed 

reactive airway disease and respiratory failure. Dr. Steiz checked a box marked “Yes,” indicating 

that the diagnosed conditions were caused or aggravated by the described employment incident, 

further noting that appellant’s symptoms developed after exposure to mold.

On May 6, 2020 Dr. Mark D. Winton, Board-certified in infectious disease, treated 

appellant for mold exposure, eosinophilia, and acute recurrent pansinusitis. He diagnosed reactive 

airway disease that mimics asthma caused by mold exposure at the employing establishment. 

Dr. Winton noted that studies of the air handling in the building revealed elevated levels of reactive 

mold. He reported other employees having similar symptoms with a removal from that work space 

causing a dramatic improvement in symptoms. Dr. Winton ruled out other diseases and 

environmental causes after reviewing the data from the work environment. He further noted that 

immune response to mold can produce the same signs and symptoms as a sinus infection.

By decision dated May 12, 2020, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish the implicated employment factors. It concluded, 

therefore, that he had not met the requirements to establish that he sustained an injury as defined 

by FECA.

LEGAL PRECEDENT

An employee seeking benefits under FECA3has 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 

 

3 Supra note 1.
4

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA,4that 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.5 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.6

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.7

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.8 The opinion of the physician must be based on a complete factual 

and medical background of the claimant, 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 claimant.9 Neither the mere fact 

that a disease or condition manifests itself during a period of employment, nor the belief that the 

disease or condition was caused or aggravated by employment factors or incidents, is sufficient to 

establish causal relationship.10

In a case in which a preexisting condition involving the same part of the body is present 

and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.11

 

4

Id.

5 E.W., Docket No. 19-1393 (issued January 29, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153

(1989); L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

6 L.C., id.; R.C., 59 ECAB 427 (2008); James E. Chadden, id.

7 20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued 

February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990). 

8 See T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J. 

Woodhams, 41 ECAB 345, 352 (1989).

9

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000). 

11 E.W., supra note 5; Gary L. Fowler, 45 ECAB 365 (1994). 
5

ANALYSIS

The Board finds that appellant has met his burden of proof to establish that exposure to 

mold occurred while in the performance of duty, as alleged.

Appellant filed a claim alleging that he developed an allergic respiratory reaction caused 

by exposure to mold while working at the employing establishment. The record establishes that 

from June 2019 through March 23, 2020 appellant worked at the employing establishment with 

exposure to mold. A March 3, 2020 study of bioaerosol samples at the employing establishment 

revealed two fungal types were recovered indoors. The study noted that Stachybotrys, a type of 

mold that can produce potent mycotoxins and was associated with significant health symptoms, 

was detected in a sample taken in office seven. This concentration was sufficient to contribute to 

poor indoor air quality. The study further noted that Chaetomium was observed in samples taken 

in office 47 and 48, which is an allergen and can produce various mycotoxins as well as 

opportunistic infections in immune compromised individuals. The study recommended that the 

mold sources be identified and remediation efforts be undertaken to avoid potentially severe 

symptoms and reduce exposure to building occupants. Appellant indicated that, after taking off 

10 days, he returned to work and experienced increased congestion and respiratory symptoms.

The employing establishment did not respond to the development questionnaire and did 

not dispute the findings of this study. On the reverse side of the claim form, appellant’s supervisor 

had indicated that appellant was removed from the employing establishment and scheduled to work 

from another facility commencing March 30, 2020. Additionally, appellant sought medical care 

with Dr. Lowe on March 24, 2020, who noted his account of exposure to mold in the workplace 

and diagnosed acute respiratory failure with hypercapnia, environmental and seasonal allergies.

Similarly, on April 14, 2020 Dr. Steiz treated appellant for occupational exposure to mold. She 

too indicated that the employing establishment had known mold contamination and was currently 

undergoing mold remediation. Dr. Steiz diagnosed mold exposure, work-related injury, and 

reactive airway disease that was not asthma. Likewise, on May 6, 2020 Dr. Winton treated 

appellant for mold exposure, eosinophilia, and acute recurrent pansinusitis. He referenced mold 

exposure at the employing establishment, specifically that studies of the air handling in the 

building revealed elevated levels of reactive mold. Dr. Winton diagnosed reactive airway disease 

caused by mold exposure at the employing establishment. 

The claimed respiratory injury is consistent with the facts and circumstances he sets forth, 

his course of action, and the medical evidence he submitted. The Board finds that this evidence 

establishes that the alleged exposure to mold occurred, as alleged.12 

As appellant has established the claimed occupational exposure, the question becomes 

whether this exposure caused an injury.13 As OWCP found that he had not established an 

employment exposure, it did not evaluate the medical evidence.14 Thus, the Board will set aside 

 

12 See J.C., Docket No. 18-1803 (issued April 19, 2019); M.C., Docket No. 18-1278 (issued March 7, 2019); M.M.,

Docket No. 17-1522 (issued April 25, 2018).

13 See N.B., Docket No. 13-0513 (issued August 27, 2017).

14 See A.T., Docket No. 16-1787 (issued February 1, 2017).
6

OWCP’s May 12, 2020 decision and remand the case for consideration of the medical evidence of 

record.15 After such further development as deemed necessary, OWCP shall issue a de novo

decision addressing whether appellant has met his burden of proof to establish a respiratory or 

other medical condition causally related to the accepted employment exposure.

CONCLUSION

The Board finds that appellant has met his burden of proof to establish exposure to mold

occurred in the performance of duty, as alleged. The Board further finds that the case is not in 

posture for decision with regard to whether he has established a respiratory or other medical 

condition causally related to the accepted employment exposure.

ORDER

IT IS HEREBY ORDERED THAT the May 12, 2020 decision of the Office of Workers’

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

with this decision of the Board.

Issued: February 5, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

15 Id.