United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.L., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF INVESTIGATION, New York, NY, 

Employer

__________________________________________

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Docket No. 21-0079

Issued: January 25, 2022

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On October 25, 2020 appellant, through counsel, filed a timely appeal from a June 8, 2020 

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 his burden of proof to establish an occupational 

disease causally related to the accepted employment exposure.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.

On July 28, 2009 appellant, then a 40-year-old special agent, filed an occupational disease 

claim (Form CA-2) alleging that he sustained hearing loss, tinnitus in the right ear, bronchitis, 

dizziness, nausea, vomiting, inflammation of the nose and face, lesions, and insomnia causally 

related to factors of his federal employment, including the exposure to mold. He did not stop work.

Appellant submitted mold analysis reports dated January 30, March 9, and April 8, 2009 

from samples obtained at his work location. The results showed unusual mold growth associated 

with excess moisture. An Environmental Relative Moldiness Index (ERMI) report dated June 4, 

2009 provided a list of each type of mold found at appellant’s work location and the spore count. 

In a report dated July 9, 2009, Dr. Jonathan E. Gage, a Board-certified internist and 

cardiologist, noted that he had treated appellant for Meniere’s disease for several years and 

discussed his treatment to remove toxins. He diagnosed an abnormal echocardiogram, shortness 

of breath, chronic fatigue syndrome, and dizziness.

In a statement received by OWCP on August 10, 2009, appellant related that the ductwork 

in his building had not been cleaned even though it had been “engulfed by the debris” from Ground 

Zero. In April 2004 he began experiencing tinnitus, hearing loss, inflammation on the right side 

of his face and nose, and lesions on his right thigh. In 2005 appellant experienced dizziness and 

vertigo, and in May 2006 he began vomiting uncontrollably at work. He realized in January 2009 

that the vents in his office were covered with black mold, which was confirmed by lab testing.

In a development letter dated August 14, 2009, OWCP advised appellant that the evidence 

currently was insufficient to show that he had sustained an occupational injury. It notified him of 

the type of additional evidence needed, including a reasoned report from his attending physician 

addressing the causal relationship between any diagnosed condition and factors of his federal 

employment. OWCP afforded appellant 30 days to submit the requested evidence. 

In a December 23, 2009 development letter, OWCP requested that the employing 

establishment provide comments from a knowledgeable supervisor regarding whether appellant 

had been exposed to black mold or other harmful substances at work. It further requested a copy 

of any available air samples or, if not available, a description of the ventilation and air circulation 

in his work area.

3 Order Granting Remand and Cancelling Oral Argument, DocketNo. 14-2062 (issued June 19, 2015).
3

By decision dated January 22, 2010, OWCP denied appellant’s occupational disease claim. 

It noted that the employing establishment had not responded to its request for information 

regarding his exposure to mold, and thus it had accepted his statement regarding mold exposure 

as factual. OWCP found, however, that the medical evidence of record was insufficient to establish 

a medical condition causally related to the accepted exposure.

In a report dated December 20, 2010, Dr. Ritchie C. Shoemaker, who specializes in family 

medicine, discussed his treatment of appellant from May to October 2009. He advised that lab 

work had revealed compounds in his blood that were linked to water-damaged buildings. 

Dr. Shoemaker diagnosed chronic inflammatory response syndrome (CIRS) due to workplace 

exposure. He advised that ERMI testing had confirmed fungal growth at appellant’s work location, 

including stachybotrys. Dr. Shoemaker related that appellant’s illness resulted from “a rapidly 

developing injury caused by exposure to toxigenic organisms, including, but not limited to, 

toxigenic fungi and inflammagens” found in his work location.

On January 13, 2011 appellant requested reconsideration.4

OWCP, on June 21, 2011, referred appellant to Dr. Howard Kaplan, an internist, for a 

second opinion examination.

In a report dated July 7, 2011, Dr. Kaplan noted that Dr. Shoemaker had diagnosed CIRS 

after evaluating appellant for hearing loss, tinnitus, bronchitis, dizziness, nausea, inflammation of 

the nose, and sleep issues. He advised that CRIS was “not a codeable medical diagnosis but it is 

an accepted medical syndrome that is normally seen after exposure to various mold and/or toxins 

and inflammatory components.” Dr. Kaplan attributed appellant’s medical condition “not only to 

mold but other inflammatory components related to mold to which he was exposed ” at his work 

location. He attributed his dizziness and hearing loss on the right side directly related to mold 

exposure at work, noting that the records showed high levels of mold and toxins in the samples 

taken. In a July 28, 2011 addendum, Dr. Kaplan provided the applicable diagnosis codes for the 

conditions of accidental poisoning, contact with hazardous substances, and contact with and 

exposure to mold. In response to OWCP’s request for clarification of the diagnoses, on 

September 8, 2011, he diagnosed cough, tinnitus, hearing loss not otherwise specified, and nausea. 

On September 22, 2011 OWCP referred appellant to Dr. Varshapriya Iyer, a Boardcertified internist, for a second opinion examination. In a report dated November 1, 2011, Dr. Iyer 

indicated that CIRS was not a recognized condition. She advised that appellant’s “auditory and 

vestibular symptoms cannot be ascribed to mold exposure.”

OWCP noted that Dr. Iyer had not provided a narrative report. It thus referred appellant to

Dr. Alan Kaufman, Board-certified in allergy and immunology, for a second opinion examination. 

In a report dated December 27, 2011, Dr. Kaufman advised that he was unaware of the 

diagnosis of CIRS. He further opined that causation between appellant’s hearing loss and mold 

4 Appellantsubmitted additional lab reports dated November 2009. 
4

exposure was not established. Dr. Kaufman indicated that there were “no other medical conditions 

attributed to mold exposure that have been diagnosed in the claimant.”

By decision dated January 11, 2012, OWCP denied modification of its January 22, 2010 

decision.

In a report dated May 27, 2012, Dr. Shoemaker asserted that acute sensorineural hearing 

loss was a “known complication of an inflammatory illness....” He advised that CIRS was a 

chronic form of systemic inflammatory response syndrome (SIRS), which had a diagnosis code.

On December 27, 2012 appellant requested reconsideration. 

On March 12, 2013 OWCP again referred appellant to Dr. Kaufman for a second opinion 

examination. 

In a report dated March 26, 2013, Dr. Kaufmanopined that the etiology of Meniere disease 

was unknown and unconnected to mold exposure. He asserted that recent studies showed no 

adverse effects from mold exposure at work. 

By decision dated April 22, 2013, OWCP denied modification of its January 11, 2012 

decision. 

In a report dated December 31, 2013, Dr. John Santilli, Board-certified in allergy and 

immunology, discussed appellant’s symptoms of dizziness, tinnitus, hearing loss, fatigue, 

difficulty with memory and focusing, anxiety, and depression beginning in 2003 after he was 

transferred to a new work location. He noted that appellant’s symptoms temporarily improved in 

2006 when he took medication. In October 2009 appellant’ssymptoms resolved when he relocated

to a new work location. In June 2010 he returned to the former location and again experienced 

dizziness, nausea, and vomiting. Dr. Santilli advised that allergy testing performed November 25, 

2013 was positive for seven types of mold. He found that environmental testing at appellant’s 

work location had revealed mold associated with excess moisture. Dr. Santilli noted that he 

continued to experience nasal congestion, postnasal drip, ear pain, tinnitus, hearing loss, fatigue, 

and difficulty with memory and focus. He related that appellant “suffers from symptoms 

associated with allergic rhinitis, chronic sinusitis, and cognitive problems secondary to indoor 

mold exposure” at the implicated work location. Dr. Santilli indicated that tinnitus, associated 

hearing loss, vertigo, and Meniere’s disease had been associated with allergies. 

On February 4, 2014 appellant requested reconsideration. 

By decision dated May 1, 2014, OWCP denied modification of its April 22, 2013 decision.

Appellant appealed to the Board. By order dated June 19, 2015, the Board granted the 

Director of OWCP’s motion to set aside the May 1, 2014 decision.

5

 The Board noted that the 

Director asserted that a conflict existed between Dr. Shoemaker and Dr. Santilli, appellant’s 

physicians, and Dr. Kaufman, the referral physician, regarding whether he had sustained a 

5

Supra note 3.
5

diagnosed condition due to his accepted mold exposure in the course of his federal employment 

and that, on remand, OWCP would refer him to an impartial medical examiner for resolution of 

the conflict.

On March 14, 2016 OWCP referred appellant to Dr. Richard J. Lee, Board-certified in 

allergy and immunology, for an independent medical evaluation.

In a report dated May 2, 2016, Dr. Lee discussed appellant’s symptoms of tinnitus, 

dizziness, hearing loss, depression, anxiety, and fatigue when he was exposed to mold at his work 

location, and his continued complaints of sinus congestion, hearing loss on one side, and tinnitus. 

He diagnosed chronic rhinitis and tinnitus. Dr. Lee disagreed that appellant had chronic systemic 

inflammatory syndrome, but found that his exposure to mold at work had caused “the development 

of a chronic allergic condition.” He noted that 2013 mold testing by Dr. Santilli showed a “strong 

positive skin responses to molds. This test was repeated at this visit and confirms those finding[s] 

with a strong positive test to aspergillus.” Dr. Lee found that appellant had “documented IgE 

disease to the mold and this is mostly likely secondary to the high level of exposure at the job site. ”

On November 7, 2016 OWCP referred appellant to Dr. Stanley Goldstein, Board-certified 

in allergy and immunology, for an impartial medical examination. The statement of accepted facts 

(SOAF) indicated that appellant had filed an occupational disease claim alleging mold exposure 

at his work location and that mold testing had been performed at his building in 2009. 

In a report dated August 28, 2018, Dr. Goldstein advised that CIRS was not a recognized 

medical condition. He opined that tinnitus, hearing loss, Meniere’s disease, cognitive problems, 

and chronic fatigue syndrome were unrelated to mold exposure. Dr. Goldstein found that exposure 

to mold could contribute to the development of allergic rhinitis. He determined, however, that 

appellant had no symptoms of allergic rhinitis at the time of his examination and advised that skin 

testing performed on that date showed a negative response to mold. Dr. Goldstein further found 

that a review of the medical evidence failed to establish that he had chronic rhinosinusitis and thus 

determined that his mold exposure had not caused or aggravated the condition.

By decision dated January 31, 2019, OWCP again denied appellant’s occupational disease 

claim, finding that he had not established a medical condition causally related to his accepted 

employment-related mold exposure. 

In a report dated August 27, 2019, Dr. Santilli noted his treatment of appellant from 2013 

to 2018. He advised that appellant had positive skin test results to the molds alternaria, aspergillus, 

cloadosporium, fusarium, mucor, phycomycetes, penicillium, and rhizopus. Dr. Santilli 

challenged Dr. Goldstein’s assertion that exposure to mold did not contribute to Meniere’s disease, 

hearing loss, or chronic fatigue syndrome, noting that it was currently unknown whether mold was 

a factor in these conditions and that it thus could not be eliminated as a cause. He opined that mold 

exposure had triggered appellant’s allergic rhinitis. Dr. Santilli related, “All of Dr. Goldstein’s 

conclusions that mold exposure does not cause any medical problems are not backed up by any 

medical references, and are, therefore, only his opinion and are not medically backed by current 

research.” He diagnosed allergic rhinitis, chronic sinusitis, and reactive airways disease due to 

appellant’s mold exposure at work. Dr. Santilli advised that skin tests supported his findings.
6

On January 10, 2020 appellant, through counsel, requested reconsideration. He advised 

that photographs supported that appellant had a positive skin reaction to the allergy tests performed 

by Dr. Goldstein, and that consequently Dr. Goldstein’s opinion was based on an inaccurate 

medical history. Counsel also argued that Dr. Santilli was more qualified than Dr. Goldstein as he 

was an expert in reactions to environmental pathogens.

By decision dated June 8, 2020, OWCP denied modification of its January 31, 2019 

decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA6 has the burden of proof to establish the 

essential elements of his or her claim, including 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 

period of FECA,7that an injury was sustained while in the performance of duty as alleged, and 

that any disability or specific condition for which compensation is claimed is causally related to 

the employment injury.8 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.9

In an occupational disease claim, appellant’s burden of proof requires submission of 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 employment factors identified by the employee.10

Causal relationship is a medical issue, and the medical evidence required to establish causal 

relationship is rationalized medical opinion evidence.11 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.12

6

Supra note 2.

7

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

8

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

9 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

10 S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

11 A.M., Docket No. 18-1748 (issued April24, 2019); T.H., 59 ECAB 388 (2008).

12 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).
7

Section 8123(a) of FECA provides, in pertinent part: “If there is disagreement between 

the physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.”

13

 This is called a referee 

examination and OWCP will select a physician who is qualified in the appropriate specialty and 

who has no prior connection with the case.14 Where a case is referred to an impartial medical 

specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently 

well rationalized and based on a proper factual background, must be given special weight.15

ANALYSIS

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

OWCP determined that a conflict arose between appellant’s physicians, Dr. Shoemaker 

and Dr. Santilli, and OWCP’s referral physician, Dr. Kaufman, regarding whether appellant had 

sustained a diagnosed condition due to his accepted employment-related mold exposure. In order 

to resolve the conflict, it properly referred him, pursuant to section 8123(a) of FECA, to

Dr. Goldstein, a Board-certified allergist, for an impartial medical examination.

The Board notes that the SOAF provided to Dr. Goldstein was deficient in that it indicated 

only that appellant claimed that he was exposed to mold at work. The SOAF did not specify that 

OWCP had accepted his mold exposure or provide any exposure data, both of which are essential 

elements of the SOAF under OWCP’s procedures.16

Further, when a case is referred to an impartial medical specialist for the purpose of 

resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on 

a proper factual background, must be given special weight. 17 The Board finds, however, that

Dr. Goldstein’s report is insufficiently rationalized to constitute the special weight of the evidence. 

In a report dated August 28, 2018, Dr. Goldstein found that CIRS was not a recognized 

diagnosed medical condition. He asserted tinnitus, hearing loss, Meniere’s disease, cognitive 

problems, and chronic fatigue syndrome were unrelated to mold exposure. Dr. Goldstein further 

found that appellant had no symptoms of allergic rhinitis at the time of his examination. He noted 

that skin testing performed on that date had demonstrated a negative response to mold. 

Dr. Goldstein opined that the medical evidence failed to support the diagnosis of chronic 

rhinosinusitis. The Board notes, however, that his opinion is conclusory in nature.18 The Board 

has held that to be entitled to special weight, the opinion of the impartial medical examiner (IME) 

13 5 U.S.C. § 8123(a).

14 C.W., Docket No. 18-1536 (issued June24, 2019).

15 V.K., Docket No. 18-1005 (issued February 1, 2019).

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.5(f) 

(September 2009).

17 Id.

18 See G.B., Docket No. 19-1510 (issued February 12, 2020).
8

must contain clear, persuasive rationale on the critical issue in the claim.19 Dr. Goldstein failed to 

provide rationale for his opinion other than to note that appellant did not have positive mold test 

results or symptoms of rhinitis at the time of his examination.20 He did not explain the discrepancy 

between the negative mold testing results he obtained and the positive skin tests for mold found in 

2013 by Dr. Santilli and in 2016 by Dr. Lee, an OWCP referral physician. The Board has found 

that, when an IME fails to provide medical reasoning to support his or her conclusions about a 

claimant’s condition, the opinion is insufficient to resolve a conflict in medical evidence. 21 Thus, 

the Board finds that Dr. Goldstein’s opinion is of insufficient probative value to carry the special 

weight of the evidence.22

The Board has held that, when OWCP obtains an opinion from an IME for the purpose of 

resolving a conflict in the medical evidence and the IME’s opinion requires clarification or 

elaboration, it must secure a supplemental report to correct the defect in his or her original report.23 

Upon return of the case record, OWCP shall prepare a SOAF setting forth appellant’s accepted 

mold exposure in accordance with its procedures and obtain a supplemental report from

Dr. Goldstein clarifying whether appellant sustained a diagnosed condition due to his accepted 

mold exposure. If the IME is unable to clarify or elaborate on his original report, or if the 

supplemental report is also vague, speculative, or lacking in rationale, OWCP must submit the case 

record and a detailed SOAF to another IME for the purpose of obtaining a rationalized medical 

opinion on the issue.24 Following this and other such further development as deemed necessary, 

OWCP shall issue a de novo decision.25

CONCLUSION

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

19 C.T., Docket No. 19-0508 (issued September 5, 2019); A.R., Docket No. 17-1358 (issued February 1, 2018).

20 See T.S., Docket No. 18-1702 (issued October 4, 2019).

21 B.J., Docket No. 18-1186 (issued July 9, 2019); A.R.,Docket No. 12-0443 (issued October 2, 2012).

22 S.A., Docket No. 18-1353 (issued May 22, 2020).

23 R.O., Docket No. 19-0885 (issued November 4, 2019); Talmadge Miller, 47 ECAB 673 (1996); see also supra

note 6 at Part 2 -- Claims, Developing and Evaluation Medical Evidence, Chapter 2.810.11(c)(1)-(2) 

(September 2010).

24 Id.

25 V.K., Docket No. 19-0422 (issued June 10, 2020); Douglas M. McQuaid, 52 ECAB 382 (2001).
9

ORDER

IT IS HEREBY ORDERED THAT the June 8, 2020 decision of the Office of Workers’

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

with this opinion of the Board.

Issued: January 25, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board