United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.V., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

UPSTATE NEW YORK HEALTH CARE 

SYSTEM, Buffalo, NY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0786 

Issued: August 2, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 9, 2016 appellant filed a timely appeal of a February 18, 2016 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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish an occupational 

disease of methicillin-resistant staphylococcus aureus (MRSA) causally related to exposures in 

his federal employment. 

On appeal appellant alleged that OWCP failed to consider that the employing 

establishment restroom was not properly cleaned on a daily basis. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On January 6, 2015 appellant, then a 58-year-old human resources assistant, filed an 

occupational disease (Form CA-2) alleging that he developed MRSA due to his work in patient 

wards. 

On November 30, 2014 appellant sought treatment for a skin abscess on his right buttock. 

Dr. Erica L. Olsen, a physician Board-certified in emergency medicine, diagnosed an abscess on 

his right thigh, and lower buttock. She found no systemic symptoms and no history of MRSA. 

Dr. Olsen drained the abscess and packed it with antibiotics. 

In letters dated March 11, 2015, OWCP requested additional factual and medical 

evidence from appellant and the employing establishment and allowed 30 days for a response. It 

requested that the employing establishment provide a list of potentially harmful substances to 

which appellant had been exposed, the tasks he performed which resulted in exposure, and the 

precautions taken to minimize effects of exposure. OWCP informed the employing 

establishment that, if it failed to respond, appellant’s allegations would be accepted as factual. 

Appellant provided additional medical records. In a note dated December 2, 2014, 

Dr. John E. Przylucki, a Board-certified surgeon, found that appellant’s right buttock abscess 

cultures positive for MRSA. On January 4, 2015 appellant developed a lesion on his right fourth 

finger and sought treatment from the employing establishment emergency room. On February 8, 

2015 he developed a left buttock abscess. Appellant sought treatment from the emergency room 

on December 2, 10, 2014, January 8, and February 10, 12, 14, and 21, 2015 for MRSA abscesses 

wound packaging change. 

On February 18, 2015 Dr. Przylucki found a history of recurrent MRSA abscesses. He 

noted that appellant was concerned that the abscesses may have origin at the employing 

establishment. Dr. Przylucki noted that appellant began experiencing recurrent abscesses in 

November 2014. He related that appellant had traveled to see his ex-girlfriend in Florida shortly 

before developing the initial abscess and that she had substance abuse problems. Since the initial 

abscess in November 2014 appellant experienced recurrences in addition to lesions on his finger 

and axilla. He used to work in the laundry at the employing establishment, but currently worked 

in human resources. Dr. Przylucki found that by sensitivity pattern and phenotype of disease 

appellant’s condition appeared most closely related to community associated MRSA. He further 

noted, “However, I cannot rule out either nosocomial acquisition of a hospital associated strain, 

nor can I rule out hospital acquisition of a community associated MRSA strain.” 

In a note dated March 18, 2015, Dr. Przylucki found that appellant’s condition had 

improved. He noted that appellant believed that the toilet bowls at the employing establishment 

were a source of MRSA. 

Appellant completed a statement in response to OWCP’s request for factual information 

and described his work in patient care areas in three different employing establishment hospitals 

from September 2008 through July 2013, as a food service tray passes, and as a housekeeper. He 

noted that he returned to work in customer service from January 2014 through January 2015. 

Appellant was currently employed in the engineering department of the employing 
3

establishment. He alleged that the men’s restroom did not have a housekeeper assigned to clean 

it for six months and received only light cleaning when staffing permitted it. Appellant alleged 

that the restroom was visibly dirty during the period that he contracted and recontracted MRSA. 

He also attributed the MRSA on his finger to handling dirty identification cards which he 

collected in human resources. Appellant alleged that the cards were visibly soiled. He opined 

that he contracted MRSA on his finger by touching dirty employee cards, and that he contracted 

MRSA on his buttocks by sitting on a dirty toilet seat at work. Appellant noted that there were 

no toilet seat covers and that he did not wear gloves when collecting cards. He indicated that he 

had a total of four lesions and that he was currently free of MRSA. 

By decision dated April 14, 2015, OWCP denied appellant’s occupational disease claim 

finding that he had not submitted the necessary medical opinion evidence to establish a causal 

relationship between his diagnosed condition and his alleged employment exposures. 

Appellant requested an oral hearing from OWCP’s Branch of Hearings and Review on 

May 14, 2015. He submitted a statement from Dave Mills, a housekeeper at the employing 

establishment. Mr. Mills asserted that from October 3, 2014 and March 23, 2015 there was no 

housekeeper assigned to clean the restrooms in appellant’s area of the employing establishment. 

He noted that the area was rarely cleaned and that the restrooms were unsanitary. Mr. Mills 

noted that during the period of no assigned housekeeper, he was occasionally assigned the extra 

duty of picking up the trash in appellant’s area. He opined, “As a trained and qualified 

housekeeper, I observed the unsanitary conditions in the restrooms ... and reported that to my 

supervisor.” 

Appellant testified at the oral hearing on December 7, 2015. He described his duties of 

making and collecting employee identification cards as a human resources assistant. Appellant 

opined that he had a compromised immune system due to a traumatic brain injury. He noted that 

housekeeping stopped cleaning his area of the employing establishment and that the restrooms 

were not cleaned for six months. Appellant concluded that he contracted MRSA from sitting on 

the unclean toilet seats. He noted that the employing establishment did not provide paper linings 

or sanitary wipes to prevent disease spread. 

By decision dated February 18, 2016, OWCP’s hearing representative found that 

appellant had not submitted the necessary medical opinion evidence to establish that his MRSA 

lesions were due to employment-related exposures. 

LEGAL PRECEDENT 

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed; (2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence 

or occurrence of the disease or condition; and (3) medical evidence establishing that the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant. 

The evidence required to establish causal relationship is rationalized medical opinion evidence, 
4

based upon a complete factual and medical background, showing a causal relationship between 

the claimed condition and identified factors. The belief of a claimant that a condition was caused 

or aggravated by the employment is insufficient to establish causal relation.2

ANALYSIS 

Appellant has attributed his diagnosed condition of MRSA abscesses on his buttocks and 

finger to exposures in his federal job duties. He asserted that he developed this infection due to 

collecting dirty identification cards and utilizing a restroom which was not regularly cleaned. 

The employing establishment did not respond to OWCP’s request for information. Appellant 

submitted a statement from a coworker supporting that the restroom in appellant’s duty area was 

not regularly cleaned for six months including the time period that he developed MRSA. The 

Board finds that he has established a diagnosis of MRSA based on the reports from 

Dr. Przylucki. The Board further finds that the statement of Mr. Mills is sufficient to establish 

that the employing establishment did not regularly clean the restrooms in appellant’s work area 

during the period that he developed MRSA. 

OWCP requested that the employing establishment provide answers to specific questions 

regarding appellant’s alleged exposure to MRSA at the employing establishment. The 

employing establishment did not respond. Without information regarding any incidences of 

MRSA infection at the employing establishment, appellant cannot establish that his infection 

occurred at work. It is well established that proceedings under FECA are not adversarial in 

nature and that, while the claimant has the burden of proof to establish entitlement to 

compensation, OWCP shares responsibility in the development of the evidence. OWCP has an 

obligation to see that justice is done.3

 In a case where OWCP “proceeds to develop the evidence 

and to procure evidence, it must do so in a fair and impartial manner.”4 The employing 

establishment’s reluctance or refusal to submit the requested evidence regarding appellant’s 

possible employment exposure to MRSA should not be an impediment to his successful 

prosecution of his claim. The type of information being sought is normally within the custody of 

the employing establishment and not readily available to him.5

 Accordingly, appellant should 

not be penalized for the employing establishment’s failure to submit the requested information. 

OWCP informed the employing establishment of the consequences for failing to respond, but it 

is not clear from OWCP’s decision why it declined to invoke this consequence on appellant’s 

behalf given the employing establishment’s failure to submit the requested information 

concerning his alleged occupational exposure. 

On remand, OWCP should again request that the employing establishment provide 

information regarding appellant’s possible exposure to MRSA at the employing establishment 

and any other relevant information. It should instruct the employing establishment of the 

 2 Lourdes Harris, 45 ECAB 545, 547 (1994). 

3 John J. Carlone, 41 ECAB 354, 358-60 (1989). 

4 Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985). 

5 See e.g., Jess Hall, 9 ECAB 831 (1958); Willie Mae Johnson, 4 ECAB 571 (1952). 
5

consequence of its continued failure to respond.6 After this and such other development as 

OWCP deems necessary, it should issue a de novo decision. 

CONCLUSION 

The Board finds that this case is not in posture for a decision as OWCP failed to obtain 

all necessary information from the employing establishment. 

ORDER 

IT IS HEREBY ORDERED THAT the February 18, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further development consistent 

with this decision of the Board. 

Issued: August 2, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 6 Jerome J. Kubin, Docket No. 03-1830 (issued October 1, 2003).