United States Department of Labor

Employees’ Compensation Appeals Board

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L.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY

ADMINISTRATION, Madison, WI, Employer

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Docket No. 16-1673

Issued: February 20, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 17, 2016 appellant filed a timely appeal from an August 2, 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 over the merits of this claim.2

ISSUE

The issue is whether appellant met her burden of proof to establish that she developed 

recurrent facial cellulitis in the performance of duty.

 

1 5 U.S.C. § 8101 et seq.

2 The record provided the Board includes evidence received after OWCP issued its August 2, 2016 decision. The 

Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision. 

Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1).
2

FACTUAL HISTORY

On April 15, 2015 appellant, then a 46-year-old transportation security officer (screener), 

filed an occupational disease claim (Form CA-2) for recurrent facial cellulitis, which she 

attributed to alleged exposure to bacteria in the employing establishment’s breakroom. She

indicated that the breakroom had not been consistently maintained and the conditions were 

deplorable. Appellant also indicated that the water closet she used to get water for mopping 

(PODS) had not been cleaned in the 10 years she worked at the airport facility.3 She noted that 

the water closet basin had a hose lying at the bottom surrounded by filth. Appellant believed the 

dark, moist, dirty environment was a perfect setting for bacteria to grow. She first became aware 

of her condition on December 28, 2006, and she first realized it was caused or aggravated by 

factors of her federal employment on January 28, 2015. The employing establishment indicated 

that appellant initially reported her condition on October 19, 2010, and that each year she had 

been off work intermittently due to recurrent facial cellulitis. It further explained that appellant

was permitted to use the break area, but not required to do so. Appellant was last exposed to the 

alleged working conditions on April 16, 2015.

OWCP received various medical treatment records covering the period December 2008 

through March 2015. Appellant provided a chronology of the treatment she received for facial 

cellulitis, erysipelas, urticaria/hives, angioedema, dermatitis, skin infection(s), lesions and/or 

rash/blotchiness. She also noted that she had been hospitalized on five occasions between 

November 2012 and March 2015 due to recurrent facial cellulitis.

In a March 30, 2015 attending physician’s report (Form CA-20), Dr. Keith Konkol, a 

Board-certified internist specializing in infectious diseases, diagnosed recurrent facial cellulitis. 

He also indicated that it was possible appellant’s condition was caused or aggravated by her 

employment.

In an undated letter/report received on May 12, 2015, Dr. Konkol advised that he had seen 

appellant on a number of occasions for recurrent facial cellulitis. Appellant had this infection a 

minimum of four to five times, which was quite unusual. Moreover, every time the condition 

recurred, she required a two-week course of intravenous antibiotics. Dr. Konkol indicated that he 

had written the letter because appellant expressed concern that these recurrent infections were a 

result of her work environment. Appellant informed him that some of her work duties included 

cleaning up areas she deemed as not being the most sanitary of conditions. She expressed concern 

that, while cleaning these areas, she contaminated her face with bacteria, and thus, subsequently 

developed recurrent infections. Dr. Konkol noted that he had not visited appellant’s workplace, 

but she was quite concerned that her work environment was the trigger of her recurrent infections. 

He surmised that, if this were true, removal of appellant from her present work environment would 

result in less frequent recurrent infections and eventual resolution of the condition completely.

Dr. Konkol further noted that, while he did not know appellant’s entire job description, if she could 

avoid the cleaning part of the job then hopefully her recurrent facial infections would decline.

 

3 Appellant worked at the Dane County Regional Airport, Madison, WI.
3

On May 15, 2015 OWCP advised appellant that the evidence received to date was 

insufficient to support her claim. It explained that it was unclear whether appellant provided 

timely notification of her claimed work injury. OWCP also noted that the evidence of record 

was insufficient to establish that she actually experienced the employment factor(s) alleged to 

have caused her injury. It further advised that the evidence was insufficient to support that 

appellant was injured while performing any specific employment duty. OWCP provided a 

factual development questionnaire for her to complete and return. It afforded appellant 30 days 

to submit the requested information. OWCP similarly requested information from the employing 

establishment regarding appellant’s occupational exposure and what, if any, precautions were 

taken to minimize the effects of the exposure.

In an undated narrative statement received June 12, 2015, appellant asserted her belief that

she contracted facial cellulitis while cleaning the breakroom, which was excessively dusty and 

dirty and caused frequent sneezing. She stated that covering her face while sneezing caused 

bacteria to spread on her face. Appellant reported that isopropyl alcohol was used as a cleanser 

when she began working at the employing establishment, but management ultimately began using 

a cleanser called Simple Green. It was at this time that she allegedly began to experience facial 

cellulitis. Appellant alleged that she researched Simple Green’s website in January 2015 and read 

that it does not kill germs. She asserted that the breakroom is used by 30 employees on a daily 

basis and is rarely cleaned. Appellant added that dirty water frequently accumulated in a warm, 

dark, moist environment and it was not always poured out, creating an unsanitary workplace.

Appellant reported that in January 2015 she asked management if she could use bleach to 

clean the kitchen sink, as she had done previously, after it ran out of bleach in December 2014. 

She alleged that management ignored her request and she soon became ill again with cellulitis 

around the end of January 2015 after mopping the breakroom floor. Appellant alleged that other 

employees told her that they too became ill after working in the breakroom.

Appellant also submitted copies of e-mails from January, February, and May 2015. The emails documented her attempts to have management restock the breakroom with a bleach-based 

cleanser.

In a statement dated June 4, 2015, appellant’s supervisor, R.S., addressed her allegations. 

With regard to appellant’s claim that she developed facial cellulitis after exposure to mop water, he 

acknowledged that officers periodically mopped floors. However, R.S. noted that appellant never 

provided a specific date of exposure. He also noted that appellant had issues with cellulitis since 

June 2010. R.S. further commented that appellant requested leave in January and March 2015 for 

recurrent cellulitis, which she alleged was due to mop water. He further noted that approximately 

100 employees used the breakroom daily, but appellant was the only employee who raised these 

concerns. With regard to her assertion that the breakroom was dirty because it was cleaned with 

Simple Green as opposed to bleach, R.S. noted that management provided an approved cleaner that 

specifically addressed methicillin-resistant staphylococcus aureus (MRSA), pursuant to appellant’s 

request. He also explained that employees mopped twice weekly, once by each shift. Mopping 

was performed by officers assigned to specific locations, and individual officers might find 

themselves performing this task perhaps once each month, but more likely once every quarter. 

R.S. noted that he did not dispute that appellant mopped the floor. As to precautionary measures, 

he advised that officers were provided with latex gloves for use during any task.
4

In her June 7, 2015 response to OWCP’s developmental letter, appellant advised that she 

was exposed to gram positive bacteria that can cause cellulitis or MRSA. She asserted that she was 

not exposed to these elements except in unclean areas in the breakroom. Appellant alleged that the 

exposure occurred when she was accessing water for the mop bucket from the water closet located 

in the breakroom or by cleaning up the breakroom or using it during a time when no proper 

disinfectant was used. She reported that she used a bleach germicide from April 2014 until midDecember 2014 and did not become ill. Appellant also noted that the correct date of injury was 

December 21, 2008, not December 28, 2006.

In a June 7, 2015 statement, J.O., appellant’s coworker, indicated that he developed a skin 

infection that he believed he contracted while working at the airport. J.O. indicated that he had 

worked there since 2008.

By decision dated October 29, 2015, OWCP denied the claim, finding that appellant failed 

to establish that the event(s)/exposures occurred as alleged.

Appellant timely requested an oral hearing before a representative of OWCP’s Branch of 

Hearings and Review, which was held on June 29, 2016.

At the hearing, appellant testified that management was not using the proper disinfectant 

and that the water closet had not been cleaned for 10 years. She asserted that the water closet in 

the breakroom contained a cutoff hose that was dirty and had not been disinfected. Appellant 

believed that bacteria formed in such water and that she was exposed to the bacteria when using 

the water for cleaning the room. She stated that such bacteria must have been present in the 

breakroom water because she was not exposed to bacteria at home. Appellant reiterated her 

assertions that Simple Green cleaner, used at the worksite from 2008 to 2015, was insufficient to 

kill harmful bacteria. She also stated that two of her coworkers also developed cellulitis as a result 

of this exposure. Appellant reported that she stopped working for the employing establishment 

sometime in 2015, and began working with the U.S. Department of Veterans Affairs in

November 2015. When asked how she knew that the water in the breakroom contained specific 

bacteria in the absence of testing for such elements, she responded that an emergency room doctor 

told her that certain bacteria caused the cellulitis infection that she contracted.

In a June 15, 2016 report, Dr. Ronald L Ragotzy, a Board-certified allergist and 

immunologist, noted that he had treated appellant on eight occasions between October 2010 and 

June 2016. He followed her for asthma, rhinitis, and recurrent cellulitis. Dr. Ragotzy explained 

that cellulitis was an infection of the skin and underlying soft tissue that could be contracted from 

other infected individuals or any contaminated surface that had not been disinfected on a daily 

basis. He further noted that appellant’s cellulitis had recurred over seven years exclusively while 

she worked for the employing establishment. Appellant’s condition required frequent medical 

encounters, hospitalizations, and prolonged intravenous antibiotics. Dr. Ragotzy indicated that he 

was convinced the recurring nature of appellant’s cellulitis was directly caused by her work 

environment. He explained that appellant’s coworkers developed similar symptoms, some of 

whom had left employment. Dr. Ragotzy also noted that the breakroom was not cleaned with a 

disinfectant. Lastly, he explained that appellant’s cellulitis completely resolved after she left the 

employing establishment, which was consistent with Dr. Konkol’s prediction. In closing,
5

Dr. Ragotzy indicated that he was absolutely convinced that appellant’s recurrent cellulitis was 

caused by her work environment.

By decision dated August 2, 2016, an OWCP hearing representative affirmed the 

October 29, 2015 decision. He determined that the evidence of record did not establish that 

exposure to bacteria occurred as alleged. The hearing representative found that appellant failed 

to meet her burden of proof to establish that the water in the breakroom tested positive for 

bacteria. He noted that, while the water in the employing establishment’s breakroom might have 

been dirty on occasion, appellant failed to submit objective evidence that the water was 

contaminated with specific bacteria. The hearing representative found that her belief that she 

developed cellulitis because of a workplace exposure did not, by itself, establish that exposure to 

bacteria occurred. He therefore found that fact of injury was not established by evidence of 

exposure to bacteria in excess of a permissible level. The hearing representative further found 

that the record did not establish that Simple Green was insufficient to use for mopping the work 

area.

LEGAL PRECEDENT

A claimant seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence, including that an injury was sustained in the performance of duty as alleged, and that 

any specific condition or disability claimed is causally related to the employment injury.5

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

disease claim, a claimant must submit: (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 diagnosed 

condition is causally related to the identified employment factors.6

ANALYSIS

The Board finds that appellant has not submitted sufficient evidence that she was, in fact, 

exposed to particular bacteria at work. She has alleged that she was exposed to gram positive 

bacteria that can cause cellulitis or MRSA while accessing water from the water closet and/or 

 

4 See supra note 2.

5 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a 

medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See 

Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between 

the diagnosed condition and the implicated employment factors must be based on a complete factual and medical 

background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale, 

explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment 

factors. Id.

6 Victor J. Woodhams, id.
6

when cleaning the breakroom without a proper disinfectant. Appellant, however, has not provided 

any evidence regarding whether such bacteria was present in the workplace. The fact that a 

condition manifests itself during a period of employment is insufficient to establish causal 

relationship.7 Temporal relationship alone will not suffice.8 Entitlement to FECA benefits may 

not be based on surmise, conjecture, speculation, or on the employee’s own belief of a causal 

relationship.9

The weight of the factual evidence, therefore, does not support that appellant was 

exposed to bacteria in the employing establishment breakroom and/or water closet while engaged 

in her employment duties. The factual evidence developed in this case does not substantiate 

appellant’s claim of exposure. For this reason, the Board affirms the denial of appellant’s 

occupational disease claim.

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 has failed to meet her burden of proof to establish that she 

developed recurrent facial cellulitis in the performance of duty.

 

7 20 C.F.R. § 10.115(e).

8 See D.I., 59 ECAB 158, 162 (2007).

9 See M.H., Docket No. 16-0228 (issued June 8, 2016).
7

ORDER

IT IS HEREBY ORDERED THAT the August 2, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 20, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board