United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.I., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

FAYETTEVILLE VETERANS AFFAIRS 

MEDICAL CENTER, Fayetteville, NC, Employer

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Docket No. 22-0236

Issued: August 3, 2022

Appearances: Case Submitted on the Record

Daniel F. Read, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On December 1, 2021 appellant, through counsel, filed a timely appeal from a November 2, 

2021 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.3

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.

3 The Board notes that,following the November 2, 2021 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

ISSUES

The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation benefits, effective September 22, 2021, as he no longer had disability 

causally related to his accepted July 9, 2018 employment injury; and (2) whether appellant met his

burden of proof to establish continuing disability after September 22, 2021 causally related to the 

accepted employment injury. 

FACTUAL HISTORY

On July 9, 2018 appellant, then a 44-year-old medical clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on that day he was exposed to chemicals due to roofing work being

performed at the employing establishment from sometime in May through July 9, 2019. He 

alleged that this exposure caused him disoriented thoughts, irregular sinus drainage, dry mouth, 

burning eyes, head pressure, and a loss of balance. On July 9, 2018 appellant was transferred to a 

different building, but stopped work on September 19, 2018. OWCP accepted the claim on 

January 14, 2020 for sinusitis aggravation, and on January 22, 2020 accepted the additional 

diagnosis of pneumonitis.4 It paid appellant on its supplemental rolls from August 24, 2018 

through February 27, 2021 and on its periodic compensation rolls commencing February 28, 2021. 

On April 7, 2021 Dr. Ronald F. Halbrooks, a Board-certified internist, completed a Form 

OWCP-5c work capacity evaluation and opined that appellant was totally disabled as he could not

perform any repetitive activity for more than 15 minutes. 

OWCP subsequently referred appellant to Dr. Ashish Singh, Board-certified in pulmonary 

medicine, for a second opinion evaluation to determine the status of appellant’s employmentrelated conditions, and an opinion as to whether he could return to work in some capacity. The 

November 18, 2019 statement of accepted facts (SOAF) provided to Dr. Singh did not list the 

accepted conditions. 

In a May 6, 2021 report, Dr. Singh reviewed the SOAF along with appellant’s medical 

record and indicated that he relied upon the history of injury described by appellant since he had 

no documentation of a July 2018 employment injury.

5

 Appellant’s April 30, 2021 physical

examination findings indicated normal respiratory rate and oxygen saturations, with lungs clear to 

auscultation. Dr. Singh indicated that appellant’s methacholine challenge test suggested a 

hyper-reactive airway, allergy tests performed before and after the July 2018 exposure showed 

allergies to mold, and computerized tomography (CT) scans of the chest were noted to be 

unremarkable on multiple occasions. He diagnosed allergies to mold, chronic sinusitis, and 

asthma. Dr. Singh indicated that the documentation of record supported that appellant’s mold 

allergy and chronic sinusitis conditions preexisted July 2018, but it was unclear whether his asthma 

existed prior to July 2018. He opined that it was likely that appellant had undiagnosed asthma

prior to July 2018 as many patients with allergies and sinus disease also had asthma, and his 

methacholine challenge test, the primary test for diagnosing asthma, would likely have been 

4 These conditions are noted in the International Classification of Diseases (ICD-10) screen of the case record as 

chronic maxillary sinusitis, and bronchitis and pneumonitis due to chemicals, gases, fumes and vapors. 

5 Dr. Singh noted that he had requested clarification of the SOAF, but had not yet received clarification and was 

providing a report with the documentation available to him. 
3

positive given his history of mold allergy and sinusitis. Based on appellant’s history of the 

employment injury, Dr. Singh opined “it likely aggravated [appellant’s] preexisting chronic 

sinusitis and precipitated asthma.” He opined that the aggravation of chronic sinusitis by the 

employment injury was temporary, but that the current ongoing aggravation of chronic sinusitis 

was due to the preexisting mold allergy condition and not because of the work injury. Dr. Singh 

thus concluded that the aggravation of chronic sinusitis caused by work injury had likely resolved

as the active problem of chronic sinusitis was due to mold allergies and not due to continuation of 

the effect of the July 9, 2018 work-related injury. He noted that “the asthma, if precipitated by 

work injury, continued to be an active problem because of appellant’s underlying chronic sinusitis 

and allergies.” Dr. Singh explained that both the chronic sinusitis and asthma problems were not 

expected to resolve completely due to appellant’s mold allergies and probable exposure. Based 

on appellant’s clinical presentation, Dr. Singh opined that he was capable of returning to hisJuly 9, 

2018 date-of-injury position, provided that his work area did not have mold. Dr. Singh explained

that, although appellant had chronic sinusitis and asthma, there was no objective evidence that 

appellant would be unable to perform his employment duties as his clinical presentation was 

devoid of respiratory distress, appellant’s oxygen saturations were good, and his lungs were clear. 

He further opined that appellant would need long term treatment for his chronic sinusitis and 

asthma caused by his allergies to mold. In an accompanying June 5, 2021 OWCP-5c form,

Dr. Singh opined that appellant could perform his usual job as along as his work area did not have 

mold. 

On July 19, 2021 OWCP advised appellant that it proposed to terminate appellant’s

wage-loss compensation benefits because his July 9, 2018 employment injury no longer caused 

disability. It found that weight of the medical evidence rested with the April 30, 2021 second 

opinion of Dr. Singh, who found that appellant was able to return to his date-of-injury position in 

a mold-free work area. OWCP afforded appellant 30 days to submit additional evidence and 

argument if he disagreed with the proposed termination. 

OWCP received a response from the notice of proposed termination along with additional 

medical evidence including an August 4, 2020 report from Dr. Yuh-Chin T. Huang, a 

Board-certified pulmonary disease specialist, a November 23, 2020 progress report from

Dr. William Reed, a Board-certified otolaryngologist, March 9, 2021 progress notes from

Dr. David Jang, a Board-certified otolaryngologist, March 30, 2021 progress notes from

Dr. Feras Y. Ackall, an otolaryngologist specialist, April 13, 2021 progress notes from Dr. Irlene 

Locklear, a Board-certified pulmonary specialist, a July 27, 2021 attending physician’s report 

(Form CA-20) signed by Dr. Jang, a July 27, 2021 progress note from Dr. Connor L. Pratson, a 

Board-certified otolaryngologist, a July 28, 2021 sinus CT scan signed by Dr. Alexie Riofrio, a 

Board-certified diagnostic radiologist, an August 9, 2021 report by Dr. Huang, and diagnostic tests 

dated December 8, 2020 and July 28, 2021. 

By decision dated September 22, 2021, OWCP terminated appellant’s wage-loss 

compensation, effective that day. The weight of the medical evidence was afforded to Dr. Singh, 

who opined that appellant was able to return to his July 9, 2018 date-of-injury positionas a medical 

clerk provided that his work area did not have mold problems.

On October 5, 2021 appellant, through counsel, requested reconsideration and provided 

additional legal arguments. OWCP also received a March 10, 2021 report from Dr. Dennis J. 

Darcey, Board-certified in occupational medicine, was received. Dr. Darcey concluded that 
4

appellant may be able to return to work, but that he must work in an environment free of irritant 

chemicals, mold, dust, and in a temperature and humidity-controlled environment.

By decision dated November 2, 2021, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT -- ISSUE 1

Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to 

justify modification or termination of benefits.6 Having determined that, an employee has a 

disability causally related to his or her federal employment, OWCP may not terminate 

compensation without establishing either that the disability has ceased or that it is no longer related 

to the employment.7 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.8

The term disability is defined as the incapacity, because of an employment injury, to earn 

the wages the employee was receiving at the time of the injury.9

ANALYSIS -- ISSUE 1

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss compensation benefits, effective September 22, 2021, as he no longer had disability 

causally related to his accepted July 9, 2018 employment injury.

OWCP accepted the claim for sinusitis aggravation and pneumonitis. None of these 

diagnoses however were listed on the November 18, 2019 SOAF provided to Dr. Singh as the 

SOAF was prepared prior to the acceptance of the claim. 

In his May 6, 2021 report, Dr. Singh specifically noted that his opinion that was based on 

appellant’s recitation of his employment injury as OWCP had not provided any documentation as 

to how the work injury in July 2018 occurred. He opined that appellant’s diagnosed conditions of 

allergy to mold, chronic sinusitis, and asthma were preexisting and concluded that the temporary 

aggravation of chronic sinusitis caused by work injury had “likely resolved” as the active problem 

of chronic sinusitis was due to mold allergies and not due to continuation of the effect of the July 9, 

2018 work-related injury. Dr. Singh noted that the asthma, if precipitated by work injury, 

continued to be an active problem because of appellant’s underlying chronic sinusitis and allergies. 

He explained that both the chronic sinusitis and asthma problems were not expected to resolve 

completely due to appellant’s mold allergies and probable exposure and continuing medical 

treatment was required. Dr. Singh further opined, based on appellant’s clinical presentation, that 

6

See N.P., Docket No. 19-0296 (issued July 25, 2019);H.P., Docket No. 18-0851 (issued December 11, 2018);

S.F., 59 ECAB 642 (2008);Kelly Y. Simpson, 57 ECAB 197 (2005);PaulL. Stewart, 54 ECAB 824 (2003).

7

J.D., Docket No. 18-0958 (issued January 8, 2019); I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 

734 (2003).

8

See D.P., Docket No. 18-0038 (issued January 4, 2019); J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 

284 (1988).

9

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB 

397 (1999).
5

appellant was capable of returning to his July 9, 2018 date-of-injury position provided his work 

area did not have mold problems. 

While Dr. Singh reviewed appellant’s medical record in detail, he did not have a complete 

and accurate SOAF which documented the nature and duration of appellant’s employment 

exposure to chemicals on July 9, 2018 and which contained a list of the accepted conditions. 

OWCP procedures and the Board precedent dictate that when an OWCP medical adviser, second

opinion specialist, or impartial medical examiner renders a medical opinion based on a SOAF

which is incomplete or inaccurate or does not use the SOAF as the framework in forming his or 

her opinion, the probative value of the opinion is seriously diminished or negated altogether.10

As Dr. Singh did not have a complete and accurate SOAF which fully described appellant’s

accepted employment exposure to chemicals and which listed the accepted conditions, his report 

was not based on an accurate history of injury and was insufficient to carry the weight of the 

medical evidence. The Board thus finds that OWCP failed to meet its burden of proof.11

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation benefits, effective September 22, 2021, as he no longer had disability causally 

related to his accepted July 9, 2018 employment injury.

10 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990). C.L., Docket No. 21-0451 (issued February 11, 2022); M.D., Docket No. 18-0468 (issued 

September 4, 2018);see alsoPaul King, 54 ECAB 356 (2003).

11 In light of the disposition of Issue, Issue 2 is rendered moot. 
6

ORDER

IT IS HEREBY ORDERED THAT the November 2, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: August 3, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board