United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Denver, CO, Employer

__________________________________________

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Docket No. 21-1357

Issued: March 15, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 14, 2021 appellant filed a timely appeal from a May 19, 2021 nonmerit

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has 

elapsed from OWCP’s last merit decision, dated March 5, 2021 to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of this case.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

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

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 18, 2019 appellant, then a 57-year-old scheduling officer, filed a traumatic 

injury claim (Form CA-1) alleging that on October 17, 2019 she experienced an asthma attack 

when exposed to dust while in the performance of duty. She stopped work on the date of injury.

In support of her claim, appellant submitted an October 17, 2019 hospital emergency 

department report by Dr. Richard D. Zane, Board-certified in emergency medicine. Dr. Zane

related that appellant had a history of asthma, and had not experienced a severe exacerbation since 

2014 until that day while in her office in the baggage claim area at work. He attributed the current 

episode to odor and mold caused by water leaking through the ceiling tiles in her office. On 

examination, Dr. Zane observed diminished expiratory sounds with end expiratory wheezing, 

coughing, tachycardia, dyspnea, respiratory distress, and tremulousness. As nebulizer treatments 

in the emergency department did not improve appellant’s symptoms, she was admitted to the

intensive care unit. Dr. Zane diagnosed an asthma exacerbation attack.

In an October 17, 2019 intensive care unit report, Dr. Richard William Vandivier, Boardcertified in internal medicine and pulmonology, noted that appellant presented with acute shortness 

of breath while at work. He noted “[s]he states that there has been some construction and leaking 

of moldy odor fluid in her office which likely precipitated her shortness of breath.”

In an October 18, 2019 hospital discharge report, Dr. Vandivier diagnosed an asthma 

exacerbation and prescribed medication. He noted that it was important for appellant to avoid any 

environmental triggers, particularly at her workplace, “to prevent this from occurring again.”

In a development letter dated June 12, 2020, OWCP informed appellant of the deficiencies 

of her claim. It advised her of the type of factual and medical evidence necessary to establish her 

claim and provided a questionnaire for her completion. In a separate development letter of even 

date, OWCP requested that the employing establishment provide comments from a knowledgeable 

supervisor on the accuracy of appellant’s statements and the type of tasks performed which 

resulted in the exposure and the duration. It afforded both parties 30 days to provide the necessary 

evidence. 

In response, the employing establishment provided a June 22, 2020 statement confirming 

that in the area where appellant was seated on October 17, 2019, there were missing ceiling tiles 

and large trashcans placed to collect dripping water. There was also a “smell that was not right.

[Appellant] began coughing and using her emergency inhaler.” She left the area at her supervisor’s 

instruction, but her breathing became more erratic. Paramedics were called to the scene and 

recommended appellant be taken to an emergency department. Appellant’s husband then 

transported her to the hospital.

In a June 24, 2020 statement, appellant’s supervisor, asserted that on the date appellant 

experienced an asthma attack, “[w]hen entering the office there was a strong mildew smell with 

several wet ceiling tiles and trash cans filled with water.” Appellant began coughing 30 minutes 

after her arrival. She exited the office to get fresh air, then began struggling to breathe. Paramedics 

were summonsed and administered medication, which did not relieve appellant’s symptoms. 

Appellant’s husband then transported her to the hospital.
3

By decision dated July 23, 2020, OWCP accepted that the October 17, 2019 incident 

occurred as alleged but denied appellant’s claim as the medical evidence of record did not contain 

a diagnosis causally related to the accepted incident. It concluded, therefore, that the requirements 

had not been met to establish an injury as defined by FECA.

On August 11, 2020 appellant requested reconsideration. She submitted additional 

medical evidence.

In an August 4, 2020 report, Dr. Mark Nathanson, an osteopath specializing in family 

medicine, noted treating appellant for severe, persistent asthma for more than five years.

Appellant also submitted employing establishment e-mails dated from October 18 

through 20, 2019 noting that a water pipe had broken above her work area, causing extensive 

leakage and significant odor. In an October 18, 2019 e-mail, a safety specialist, cautioned that 

there were “layers of particles that can easily set off [appellant’s] asthma again.”

By decision dated September 16, 2020, OWCP denied reconsideration of the merits of 

appellant’s claim.

On December 2, 2020 appellant requested reconsideration. She submitted an October 1, 

2020 report by Dr. Nathanson, who noted that appellant had been doing fairly well with her asthma 

until an exacerbation at work caused by black mold on waterlogged tiles which caused appellant

to be hospitalized due to the injury. Dr. Nathanson diagnosed a resolved severe exacerbation of 

moderate persistent allergic asthma, vocal cord dysfunction, and stable asthma. He prescribed 

medication.

By decision dated March 5, 2021, OWCP modified its July 23, 2020 decision to find that 

appellant had established a diagnosis that could reasonably be connected to the claimed condition. 

The claim remained denied as the medical evidence of record was insufficient to establish causal 

relationship.

On May 12, 2021 appellant requested reconsideration. She submitted a May 7, 2021 

statement reiterating her account of the events of October 17, 2019. Appellant also submitted an 

April 26, 2021 note from Dr. Nathanson noting that her “[a]cute attack which led to 

hospitalization” was “caused by dust and other particulate components which stemmed from wet 

ceiling tiles at her place of work.” He opined, “this is what brought on her attack.”

By decision dated May 19, 2021, OWCP denied appellant’s request for reconsideration. It 

found, “[s]pecifically, causal relationship is a medical issue and you did not submit any medical 

evidence in support of your request for reconsideration. We have not received a well-rationalized 

medical report....”
4

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application. 2

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.3

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

OWCP’s decision for which review is sought.4 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.5 If the request is timely, but fails to meet at least one of the 

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.6

ANALYSIS

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

In denying appellant’s request for reconsideration, OWCP did not reference

Dr. Nathanson’s April 26, 2021 report addressing the causal relationship between the claimed 

asthma attack to appellant’s exposure to wet ceiling tiles and particulates at the employing 

establishment. 

In the case of William A. Couch,

7

the Board held that, when adjudicating a claim, OWCP 

is obligated to consider all evidence properly submitted by a claimant and received by OWCP 

before the final decision is issued. While OWCP is not required to list every piece of evidence 

submitted to the record, there is no indication that Dr. Nathanson’s April 26, 2021 report was 

reviewed and considered by OWCP in its May 19, 2021 decision.8 In its May 19, 2021 decision, 

OWCP denied appellant’s request for reconsideration, finding that she failed to submit any medical 

evidence in support of her request for reconsideration. As it did not review or consider

2

5 U.S.C. § 8128(a). 

3

20 C.F.R. § 10.606(b)(3). 

4

Id. at § 10.607(a). 

5

Id. at § 10.608(a). 

6

Id. at § 10.608(b).

7

41 ECAB 548, 553 (1990). 

8

See T.G., Docket No. 19-1930 (issued January8, 2021). 
5

Dr. Nathanson’s April 26, 2021 report, it failed to follow its own procedures by properly 

discussing the relevant evidence of record.9

As the Board’s decisions are final as to the subject matter appealed, it is crucial that OWCP 

address all relevant evidence properly submitted to OWCP prior to the issuance of its decision.10

For this reason, the case will be remanded to OWCP to properly consider all of the evidence

of record. Following this and other such further development as deems necessary, OWCP shall 

issue a de novo decision.

CONCLUSION

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

9 All evidence submitted should be reviewed and discussed in the decision. Evidence received following 

development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be 

referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter 

2.1401.5(b)(2) (November 2012). 

10 20 C.F.R. § 501.6(d); supra note 8; W.G., Docket No. 20-1536 (issued December 17, 2021);see also A.V., Docket 

No. 20-1251 (issued January 28, 2021). 
6

ORDER

IT IS HEREBY ORDERED THAT the May 19, 2021 decision of the Office of Workers’

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

consistent with this decision of the Board.

Issued: March 15, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board