United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.B., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 16-0760 

Issued: October 19, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 7, 2016 appellant filed a timely appeal of a January 8, 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 this case. 

ISSUE 

The issue is whether appellant has established an employment-related injury causally 

related to an accepted June 9, 2015 employment incident. 

FACTUAL HISTORY 

On July 1, 2015 appellant, then a 38-year-old immigration enforcement agent, filed a 

traumatic injury claim (Form CA-1) alleging that on June 9, 2015 he sustained a methicillinresistant staphylococcus aureus (MRSA) right upper leg area infection during a health 

 1

 5 U.S.C. § 8101 et seq. 
2

improvement program (HIP) workout. He explained that the alleged injury occurred at 12:00 

p.m. in the fitness center, which was located on the third floor of the employing establishment. 

Appellant noted his tour of duty hours were 7:00 a.m. to 3:00 p.m. He stopped work on 

June 12, 2015. Appellant’s supervisor noted on the claim form that the alleged injury was not 

sustained in the performance of duty. 

By correspondence dated July 13, 2015, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. Appellant was advised as to the medical and 

factual evidence required and was afforded 30 days to provide this information. OWCP also 

requested that the employing establishment respond to questions regarding appellant’s physical 

fitness activities. 

In response to OWCP’s request, appellant submitted photos of the gym facility inside the 

employing establishment, employing establishment memorandum regarding HIP, and responses 

to the questionnaire. He stated that he had been performing an hour to an hour and a half of 

general physical exercise. Appellant noted that he began to experience discomfort in his right 

upper leg after noticing small pustules. It was not until he sought medical treatment for his 

cellulitis that he was diagnosed with MRSA. 

A June 11, 2015 report from Dr. Lara E. Marsh, a specialist in sports medicine, noted that 

appellant was seen for a right thigh abscess which was diagnosed as right thigh cellulitis. She 

reported that appellant presented with six pustules on his right thigh, cellulitis, and he noted that 

appellant was limping. Appellant related that the symptoms had begun approximately three days 

previously. She noted that it was unknown what caused the symptoms, but that she suspected 

ingrown hairs. 

In a July 17, 2015 letter, the employing establishment responded to OWCP’s July 13, 

2015 request for additional information. It denied that MRSA was present in the fitness center. 

The employing establishment also related that participation in the HIP program was voluntary. 

By decision dated August 19, 2015, OWCP found that the alleged employment event had 

occurred in the performance of duty, but denied appellant’s claim as it found the record 

contained no medical evidence of record establishing that the alleged MRSA condition was 

causally related to the June 9, 2015 employment incident. 

In a form dated September 18, 2015, appellant requested reconsideration. In support of 

his request he submitted a September 16, 2015 report from Dr. Marsh in which she related that 

appellant was seen for his June 2015 right upper thigh skin infection. Dr. Marsh opined that 

there was a great probability that appellant contracted MRSA from the employing 

establishment’s gym facility, which appellant described as unsanitary. She further noted that 

appellant denied any contact with anyone with MRSA and that it could not be ruled out that 

appellant was exposed to the MRSA bacteria due to touching contaminated equipment with his 

hands. Dr. Marsh reiterated that she could not rule out that MRSA was contracted by appellant’s 

use of the gym equipment as transmission can occur when skin is in contact with an infected 

surface. 

By decision dated January 8, 2016, OWCP denied modification. It found the report from 

Dr. Marsh was speculative and insufficient to establish causal relationship. 
3

LEGAL PRECEDENT 

An employee seeking benefits under FECA2 has the burden of proof to establish the 

essential elements of his or her claim, including the fact 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, that an injury was sustained while in the performance of duty as alleged, and that any 

disability and/or specific condition for which compensation is claimed are causally related to the 

employment injury.3

 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4

 

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty it must first be determined whether a fact of injury has been established.5

 

First, the employee must submit sufficient evidence to establish that he actually experienced the 

employment incident at the time, place and in the manner alleged.6

 Second, the employee must 

submit sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.7

 

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is a causal relationship between the employee’s diagnosed condition and the 

compensable employment factors.9 The opinion of the physician must be based on a complete 

factual and medical background of the employee, 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 employee.10 

ANALYSIS 

Appellant filed a traumatic injury claim alleging that he sustained a right upper leg area 

MRSA infection while performing a HIP workout routine while in the performance of duty. 

OWCP accepted that appellant’s June 9, 2015 work out in the employing establishment’s fitness 

center occurred in the performance of duty. The issue is whether appellant met his burden of 

 2

 5 U.S.C. § 8101 et seq. 

3 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006). 

4 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 

5 B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3. 

6 D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005). 

7 C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra

note 3. 

8 Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 

642 (2006). 

9 J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006). 

10 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989). 
4

proof to establish that his MRSA infection was caused or aggravated by the accepted June 9, 

2015 incident. The Board finds, however, that appellant failed to establish that his MRSA 

infection had been caused or aggravated by his exercise activities in the employing 

establishment’s fitness center on June 9, 2015. 

The issue of causal relationship is a medical one and must be resolved by probative 

medical opinion from a physician.11 In the June 11, 2015 emergency room report, Dr. Marsh did 

not specifically address how the alleged MRSA condition was related to the accepted June 9, 

2015 employment incident. She did not discuss appellant’s fitness center activities as the cause 

of the MRSA in the June 11, 2015 emergency note. Rather, Dr. Marsh merely opined the cause 

was ingrown hairs. Lacking a rationalized medical opinion causally relating the diagnosed 

condition to appellant’s exercise activities, this report is of limited probative value.12 

In the September 16, 2015 report from Dr. Marsh, she opined that it could not be ruled 

out that appellant was exposed to MRSA at the gym and that the gym was probably where he 

contracted the condition. The report also noted that MRSA can be contracted by exposure to an 

infected area and not just by skin to skin contact. This opinion by Dr. Marsh is speculative and 

equivocal regarding causal relationship and is therefore of diminished probative value.13

The Board has held that the fact that a condition manifests itself during a period of 

employment does not raise an inference of causal relation.14 An award of compensation may not 

be based on surmise, conjecture or speculation. Neither the fact that appellant’s condition 

became apparent during a period of employment nor the belief that his condition was caused, 

precipitated, or aggravated by his employment is sufficient to establish causal relationship.15 To 

establish a firm medical diagnosis and causal relationship, appellant must submit a physician’s 

report that addresses how exercising at work caused or aggravated his MRSA.16 

OWCP advised appellant that it was his responsibility to provide a comprehensive 

medical report which described his symptoms, test results, diagnosis, treatment and the 

physician’s opinion, with medical reasons, regarding the cause of his condition. Appellant failed 

to submit appropriate medical documentation in response to OWCP’s request. As there is no 

 11 I.A., Docket No. 13-1701 (issued January 17, 2014); Ronald K. Jablanski, 56 ECAB 616 (2005). 

12 See supra note 10. 

13 C.C., Docket No. 14-1667 (issued December 3, 2014); Ricky S. Storms, 52 ECAB 349 (2001) (While the 

opinion of a physician supporting causal relationship need not be one of absolute medical certainty, the opinion must 

not be speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of medical 

certainty). 

14 L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB 

559 (2006). 

15 See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., id.; Robert Broome, 55 ECAB 339 (2004); Anna C. 

Leanza, 48 ECAB 115 (1996). 

16 Michael S. Mina, supra note 9; Michael E. Smith, 50 ECAB 313 (1999). 
5

probative, rationalized medical evidence addressing how his claimed MRSA was caused or 

aggravated by the identified employment incident, he has not met his burden of proof.17

On appeal appellant contends that the medical literature and Dr. Marsh’s report is 

sufficient to establish his claim. He argues that claims examiner is unqualified to adjudicate 

claims with proven medical diagnoses. As discussed above, it is appellant’s burden to provide a 

rationalized medical opinion explaining how the diagnosed MRSA had been caused or 

aggravated by the June 9, 2015 incident. Appellant failed to provide the requisite medical 

opinion and thus, has failed to meet his burden of proof. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant failed to establish that he sustained an employment-related 

injury in the performance of duty on June 9, 2015. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated January 8, 2016 is affirmed. 

Issued: October 19, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 Supra note 7.