Mold Allergy Turns into Harassment That Spoils OWCP Decision
By Frank Ferreri, December 11, 2024
Quick facts:
- A VA technologist was allegedly bullied after requesting accommodations for a mold allergy.
- The technologist filed an occupational disease claim based on an emotional condition.
- ECAB sent the case back to OWCP to consider new evidence from an arbitration decision that found the technologist was a qualified individual with a disability.
Sometimes, one thing leads to another. And, sometimes, one incident of legal significance opens the window to one or more other claims.
For example, there’s S.W. and Department of Veterans Affairs, No. 22-0565 (Oct. 17, 2024). It started with medical technologist’s complaints over mold in the workplace and ended up in a workers’ compensation claim, with a stop in disability-based bullying along the way.
What happened?
The technologist alleged he sustained an allergic reaction with respiratory, neurologic, and visual symptoms due to exposure to mold at his work location dating back to 1990. About two months later, the technologist filed another occupational disease claim alleging he sustained an emotional condition due to:
- Harassment by coworkers; and
- Disciplinary actions by supervisors.
Specifically, the technologist alleged: 1) two coworkers swore at him during training; 2) he was subjected to a pattern of discrimination; 3) his supervisor subjected him to disparate treatment and hostility on the basis of disability related to the mold allergy; and 4) he was denied reasonable accommodations.
OWCP denied the technologist’s emotional condition claim, finding the evidence of record was insufficient to establish a compensable employment factor. OWCP twice denied the technologist’s request for modification.
Later, OWCP received a union grievance arbitration, which found the technologist was a qualified individual with a disability based on his mold allergy. The decision also noted the agency discriminated against the technologist by not providing reasonable accommodations.
Despite this evidence, OWCP denied another request for reconsideration from the technologist, prompting him to take the claim before ECAB to require OWCP to reopen the case.
What did ECAB say?
Under 20 CFR 10.606(b)(3), to require OWCP to reopen a case for merit review, a claimant must provide evidence that:
- Shows OWCP erroneously applied or interpreted a specific point of law;
- Advances a relevant legal argument not previously considered by OWCP; or
- Constitutes relevant and pertinent new evidence not previously considered by OWCP.
ECAB determined OWCP improperly denied the technologist’s request for reconsideration of the merits of claim. ECAB faulted OWCP for not taking into consideration the contents of the union arbitration decision, which ECAB found was “new and relevant evidence regarding the underlying merit issue of whether [the technologist had] established a compensable employment factor.”
According to ECAB, the grievance arbitration decision, which found the technologist was a qualified individual with a disability based on his mold allergy, met the criteria for a merit review under 20 CFR 10.606(b)(3) — the decision constituted relevant and pertinent new evidence not previously considered.
Thus, ECAB directed OWCP to take another look at the case with the new evidence in hand and issue a new decision.
It isn’t every day that allergies, harassment, disabilities, and workers’ compensation pile up on an agency’s plate. However, it’s a reminder that addressing allegations of disability-based bullying early can make for a smoother and more peaceful work environment.
And remember: Reasonable accommodation requests don’t live in a vacuum. How an agency responds to an employee’s request could mean the difference between following multiple laws properly or ending up with compliance headaches. [email protected]
Related training:
- Stay Up to Date: Hostile Work Environment Harassment 2025, February 19
- The Reasonable Accommodation Mistakes Agencies Make (Agency Direct Training)
