United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.M., Appellant

and

DEPARTMENT OF EDUCATION, FEDERAL 

STUDENT AID, Washington, DC, Employer

__________________________________________

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Docket No. 17-0741

Issued: April 5, 2018

Appearances: Case Submitted on the Record

Debra Hauser, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 14, 2017 appellant, through counsel, filed a timely appeal from an October 11, 

2016 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 met her burden of proof to establish the alleged factors of 

her federal employment. 

On appeal counsel contends that appellant sustained an employment-related injury.

FACTUAL HISTORY

On April 17, 2014 appellant, then a 55-year-old information technology (IT) security 

compliance manager, filed an occupational disease claim (Form CA-2) alleging that she sustained 

an injury caused or aggravated by her exposure to fragrances at work. She first became aware of 

her condition on May 16, 2011 and of its relationship to her federal employment on 

March 26, 2014. Appellant noted that her symptoms had diminished while she was out of the 

office for four weeks. She did not stop work. 

In an accompanying April 10, 2014 employee statement, appellant noted that beginning in 

November 2010 she developed headaches at work which made it difficult for her to focus on 

mundane work activities. In May 2011, she notified her acting supervisor and chief of staff for 

the technology office of her illness which she attributed to fragrances worn by her coworkers and 

its impact on her ability to think and breathe. Appellant was later moved to a different office which 

helped with the onset of her symptoms if she did not leave the room. She sought medical treatment 

from her primary care physician who diagnosed allergic rhinitis. Appellant noted that, by 

November 2012, she continued to have symptoms over the weekend. Her physician referred her 

to an ear, nose, and throat (ENT) physician and a neurologist. The ENT physician diagnosed

rhinitis and the neurologist prescribed medication. On December 6, 2013 an allergist also 

prescribed medication. 

Appellant worked four 10-hour days, Monday through Thursday from November 2010 to 

December 2013. On many days she claimed that she worked more than 10 hours a day. In 

November 2013, appellant’s supervisor changed her four-day workweek schedule to a five-day 

workweek schedule. In December 2013, appellant was required to work Monday through Friday.

On January 24, 2014 she experienced pounding in her chest, headache, dizziness, and ringing in 

her ears at work. Appellant also had difficulty thinking and keeping her focus. She sought medical 

treatment, teleworked from home, and used leave for her absence from work. When appellant

returned to the office on February 24, 2014 her previous symptoms returned. She sought treatment 

and returned to work on March 24, 2014. Appellant continued to have symptoms upon her return 

to work and again sought treatment. On March 26, 2016 she worked at home in the morning and 

arrived at work in the afternoon. By 3:30 p.m. appellant’s symptoms returned and she sought 

treatment from an employing establishment nurse. She described her work duties which included 

working in an office environment, interacting all day with individuals in person, by e-mail, or 

telephone, and attending meetings for five to eight hours. 

By development letter dated February 4, 2015, OWCP advised appellant of the deficiencies

of her claim and afforded her 30 days to submit additional evidence and respond to its inquiries. 

It also requested that the employing establishment respond to her allegations and provide 
3

information regarding her workplace exposure and medical evidence, if she had been treated at its 

medical facility.

In an undated letter, Dr. Linda Wilbanks, the employing establishment’s chief information 

security officer, disputed that appellant’s date of injury was May 16, 2011, just six months after 

she began working at the employing establishment on November 8, 2010. She noted that appellant 

had a private office. Dr. Wilbanks indicated that, while appellant periodically stated that a 

coworker’s fragrance (perfume, cream, shampoo, dry cleaning) bothered her, she did not state that 

she could not work or use leave due to her reaction to fragrance. She was allowed to periodically 

call into a meeting when she was bothered by an attendee’s fragrance. Dr. Wilbanks related that 

appellant’s performance reviews did not reflect that she had a medical issue that impacted her job

performance. No medical documentation was provided in support of an illness claim until 

April 2014 when appellant requested reasonable accommodation. Dr. Wilbanks asserted that 

appellant was not subjected to any potentially harmful substances. Appellant teleworked during 

the four-week period of office renovations. Upon completion of the renovations she claimed that 

fumes from new carpet and cleaning made her ill, but Dr. Wilbanks noted that attached documents

showed that the air quality had improved after the renovations. Dr. Wilbanks also noted that 

appellant used public transportation to commute to work. Appellant’s job duties included 

attending meetings with coworkers in conference rooms, offices, or through teleconferences. She

worked 10 hours a day, four days a week until December 2013 and subsequently transitioned to 8

hours a day, five days a week. During this time appellant teleworked approximately one to two

days a week and occasionally more often. Dr. Wilbanks listed the accommodations offered to 

appellant due to her condition after the office renovations and noted her rejection of this offer. 

Appellant’s April 2014 request for reasonable accommodation was granted and she was allowed 

to telework as much as possible even though her position did not support full-time telework and 

several work tasks were not sufficiently accomplished. When Dr. Wilbanks started working at the 

employing establishment in September 2012, appellant told her that fragrances bothered her and 

requested that she not use anything with a scent. She did not see any evidence or have any 

discussions with appellant that fragrances in the office were debilitating or impacting her abilities 

to work. Appellant did not take extensive sick leave that required medical documentation or claim 

that she could not work in the building until after the January 2014 office renovations. Her work 

schedule was changed due to the need to meet a deadline on Fridays. Regarding appellant’s 

contention that she became ill after arriving at work and working for a short period of time in the 

office, she noted that appellant was exposed to numerous people and their fragrances while taking

public transportation to work, travelling by air, and taking cruises. Dr. Wilbanks further 

maintained that while she claimed to have her allergic condition for 10 years, there was no 

documentation to indicate that she had informed the employing establishment about her condition

before starting work on November 8, 2010, that she required a private work area, or was unable to 

attend in-person meetings. She concluded that, while appellant indicated that her date of injury 

was May 16, 2011, no medical documentation was submitted in support of her claim until 

April 2014.

The employing establishment submitted a position description for an IT security 

compliance manager, correspondence regarding appellant’s reasonable accommodation request, 

and indoor air and water quality and odor and mold inspection reports. The indoor air and water 

quality and odor and mold inspection reports dated June 1, 2011 to July 1, 2104 were essentially 

unremarkable with the exception of elevated carbon dioxide concentrations which indicated
4

inadequate ventilation, harmless coliform bacteria and trace solvents common to fuel additives in 

the water, mold spurs in dirt on the ceiling, possible leak of air from an air supply duct in the 

ceiling, and water damage mold.

In a July 8, 2014 letter, Dr. Bonnie McCafferty, an occupational medicine consultant with 

the U.S. Department of Health and Human Services, Federal Occupational Health (FOH) Service,

reviewed medical records related to appellant’s request for reasonable accommodation to 

permanently work on a full-time basis at home due to her fragrance sensitivity. She noted that 

appellant was disabled under the Americans with Disabilities Act Amendments (ADAA) and 

Rehabilitation Act and intermittently impaired. Dr. McCafferty also noted that her request for 

reasonable accommodation was substantiated by medical documentation. She indicated that 

appellant had severe allergies and asthma. Dr. McCafferty maintained that appellant’s respiratory 

symptoms affected her cognitive impairment and substantially limited her ability to perform many 

of the major duties of her IT security and compliance manager position. She further maintained 

that her conditions were permanent. Dr. McCafferty indicated that appellant’s symptoms would 

recur if she was exposed to substances again in her office. She advised that, based on available 

medical information it was unknown as to the effectiveness of reassigning appellant to work in 

another building. Dr. McCafferty recommended that an indoor air quality assessment be 

performed prior to considering such changes. She also recommended that appellant be allowed to 

recover by working at home for at least three months.

In a November 13, 2014 letter, Dr. Neal L. Presant, an occupational medicine consultant

with FOH, reviewed documents related to appellant’s request for reasonable accommodations due 

to her fragrance sensitivity. He noted, among other things, that her LinkedIn website page stated 

that, in addition to her employing establishment job, she was a skincare consultant for Jafra 

Cosmetics International. Dr. Presant indicated that it was impossible to determine whether 

appellant had a disability under the ADAA or Rehabilitation Act and there was no need to grant 

her request for reasonable accommodation for full-time telework. He noted that appellant told a 

nurse practitioner that she had difficulty being in shopping malls due to fragrance exposure. 

Dr. Presant maintained that her inability to perform her job functions in the presence of fragrances 

could not be reconciled with her ability to fly and use public transportation and her outside 

employment. 

In response to OWCP’s development questionnaire, appellant noted her attempts to 

minimize her exposure to fragrances at places outside of her employment which included her gym, 

worship center, and doctor’s office, and the grocery store. She also minimized her exposure to 

fragrances at indoor social gatherings, technical training conferences, restaurants, and at home and 

while using public transportation and driving passengers in her car or cars from rental companies. 

Appellant indicated that she was being treated for seasonal allergies due to pollen. She related that 

her asthma and migraine symptoms developed over the past few years and became more profound 

and lasted longer as time progressed. Appellant maintained that she became symptomatic within 

a couple of hours of arriving at work. She kept her office door closed during the entire time she 

was at work.

Appellant submitted a January 27, 2014 medical report from Dr. Augusto C. Corella, a 

Board-certified internist. Dr. Corella noted appellant’s symptoms and medical and social history. 

He discussed findings on examination and assessed sleep disorder, headache, dyspnea, tinnitus, 
5

palpitations, chest pain, medically complex patient, ill-defined condition, and dizziness. On

February 26, 2014 Dr. Corella noted treating appellant since January 27, 2014 for incapacitating 

headaches, dizzy spells, and blurry vision of unknown etiology, but which seemed associated with 

potential work environmental triggers such as fragrance or other causative agents. He noted that 

she reported clinically feeling better until her return to work earlier in the week when she became 

ill again. Dr. Corella recommended modifying her workbench environment to avoid and limit 

possible environment triggers and irritants as she continued to undergo a diagnostic workup.

In a February 12, 2015 letter, a nurse practitioner noted that appellant was under her care 

for migraines. She related that appellant was allowed to telework to reduce her fragrance/olfactory 

exposure indefinitely.

On a February 16, 2015 prescription note Dr. Rodrigo C. Hurtado, a Board-certified 

allergist and immunologist, indicated that appellant was seen on that day. He provided instructions 

for her return to work.

By decision dated July 29, 2015, OWCP denied appellant’s occupational disease claim as 

the evidence of record was insufficient to establish that she actually experienced the employment

factors alleged to have caused her claimed injury. 

On July 27, 2016, appellant, through counsel, requested reconsideration. She contended 

that the evidence submitted was sufficient to establish that she experienced the claimed work 

exposure and that her diagnosed medical conditions were causally related to that exposure. 

Appellant submitted documents regarding her request for reasonable accommodation due to her 

fragrance sensitivity. In e-mails dated October 29, 2013 to July 18, 2014, she informed coworkers, 

including Dr. Milbanks, about the symptoms she had due to fragrance exposure at work. Appellant

noted her resultant absence from work and medical treatment. The e-mails indicated that

Dr. Milbanks accommodated appellant’s condition by providing her assignments that did not 

require her to be in the office. 

In a February 22, 2015 report, Dr. Hurtado noted his history of treating appellant’s severe 

nasal congestion, dry cough, wheezing, severe fatigue, migraines, and difficulty concentrating. He 

also noted her additional medical treatment. Dr. Hurtado indicated that appellant had seasonal 

allergic rhinitis with a moderate elevation of IgE antibodies which were genetic. He noted that 

she started having asthma symptoms due to adverse reactions to volatile irritants soon after starting 

work at the employing establishment. Dr. Hurtado related that appellant had asthma at her 

workplace and an immunodeficiency involving a deficiency of immune globulin M antibodies and 

deficiency of specific respiratory antibodies. He maintained that her return to her workplace would 

worsen her condition. Dr. Hurtado advised that attempts should be made to find appellant a work 

environment with less crowds, more ventilated rooms, and no uncontrolled use of scents. He

advised that avoidance to irritants was a necessity as exposures for several hours in a row would 

typically trigger her symptoms. Dr. Hurtado related that this was not the case with a short airplane 

flight because of the airplane’s powerful ventilation system or with brief use of public 

transportation to and from work where there was substantial ventilation and influx of outside air. 

In an undated report and March 17, 2016 prescription, he recommended that appellant continue to 

work three days a week, every other day, at her workplace due to her asthma, immunodeficiency, 

and chemical sensitivity as he previously described. Appellant could only attend face-to-face 
6

meetings when they were mandatory. Dr. Hurtado noted that appellant’s symptoms were clearly 

worse at the workplace. He maintained that she not only had respiratory issues, but also the 

environment triggered migraines, dizziness, and cognitive symptoms. Nevertheless, Dr. Hurtado 

indicated that appellant’s symptoms had improved with the use of special filters. 

In reports dated March 28 and August 10 2015, Dr. Janine Van Lancker, an allergist and 

immunologist, noted that appellant had a history of asthma and rhinitis which was greatly 

exacerbated by exposure to scents and fumes such as, perfumes, air fresheners, etc. She 

recommended that appellant work in an environment free of such exposures as much as possible. 

Dr. Lancker also recommended that appellant have a carbon-activated air cleaner and that she wear 

a respirator mask at work.

A referral for follow-up care dated March 23, 2015 contained an unknown signature and 

indicated that appellant should seek further healthcare within three to seven days. She presented 

on that day with complaints of a foggy head and thoughts. Appellant had increased sensitivity to 

environmental irritants. She was currently seeing an allergist and her primary physician regarding 

this concern. Appellant was instructed to follow-up with her primary care physician regarding her 

health issue of environmental irritants. 

On an April 6, 2015 prescription note Dr. Victoria H. Murphy, a Board-certified internist, 

indicated that appellant had multiple chemical sensitivity syndrome and should not be exposed to 

perfumes or strong cleaning chemicals. She requested that appellant be excused on April 8, 2015 

for a doctor’s appointment. 

By report dated April 8, 2015, Dr. Corella noted his treatment of appellant for 

incapacitating headaches, dizzy spells, blurry vision, and difficulty breathing of unknown etiology,

but which seemed to be associated with certain environmental triggers such as, fragrances and 

odors. Appellant reported that she was doing well until she returned to work where she could 

become abruptly ill. Dr. Corella noted that she had been advised by all of her specialists to avoid 

and limit potential environmental triggers and irritants. 

In a patient work profile dated May 20, 2015, a nurse practitioner indicated that appellant 

was treated on that day. She recommended that appellant avoid working in her office and all 

chemical toxins to prevent headaches. 

In an undated statement, appellant noted that she became symptomatic following her 

exposure to fragrance at grocery stores, indoor social gatherings, technical training conferences,

restaurants, and a doctor’s office. She also became symptomatic due to her exposure to fragrance 

while using public transportation, driving a passenger in her car, and driving a rental car, and when 

a neighbor dried clothes and a breeze blew the exhaust towards her window.

In a March 9, 2015 letter, Dr. Presant reviewed additional evidence and related that the 

conclusions in his previous letter remained unchanged. He questioned how appellant could sit in 

close proximity to passengers on a flight who may be wearing fragrances while she avoided 

shopping malls due to exposures to fragrances and odors. Dr. Presant also questioned why being 

in a private, well-ventilated room would not be adequate accommodation considering that she was 

also a skincare consultant, which would presumably put her in much closer proximity to fragrances 
7

than an office environment. On April 27, 2015 he indicated that based on recent medical 

information, appellant had a disability as defined by the ADAA. 

In a March 18, 2015 letter, appellant responded to Dr. Presant’s statements. She contended 

that she was not exposed to fragrance as a skincare consultant she interfaced primarily with Jafra 

Cosmetics International for the purpose of purchasing products at a consultant price, rather than a 

retail price. Appellant noted that she was able to use Jafra products they were for individuals with 

sensitive skin and did not contain fragrance. She further noted that during the past couple of years 

she had not done any new consultations, just occasional reorders. Appellant related that all Jafra 

products were ordered electronically and shipped. There were no retail outlets. Appellant again 

attributed her condition to exposure to fragrance at work. 

By decision dated October 11, 2016, OWCP modified its July 29, 2015 decision to find 

that the claimed injury did not arise during the course of employment and within the scope of 

compensable work factors. It noted that the evidence clearly demonstrated that appellant had

fragrance sensitivity in her everyday life and within her professional workplace. OWCP also noted 

that the employing establishment suggested that appellant could have been exposed to irritants 

while working as a skincare consultant for Jafra Cosmetics International. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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 or specific condition for which compensation is claimed is causally related to the 

employment injury.4 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.5

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 medical 

evidence required to establish causal relationship is rationalized medical opinion evidence. The 

opinion of the physician must be based on a complete factual and medical background of the 

employee, must be one of reasonable certainty, and must be supported by medial rationale 

 

3 Supra note 2.

4 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).
8

explaining the nature of the relationship between the diagnosed condition and the specific 

employment factors identified by the employee.6 

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish the alleged 

factors of her federal employment. 

Appellant alleged that, she developed a chemical sensitivity as a result of her exposure to 

fragrances while performing her duties as an IT security compliance manager at the employing 

establishment. Appellant’s statement that she sustained an occupational disease due to her federal 

employment, although entitled to great weight, is disputed by the employing establishment. 

Dr. Wilbanks, chief information security officer, maintained that while appellant asked her not to 

use fragrance, stated periodically that she was bothered by a coworker’s fragrance, and periodically 

called into a meeting when she was bothered by an attendee’s fragrance, she did not state that she 

could not work or use leave due to her reaction to fragrance. In response to appellant’s assertion 

that she became ill after arriving at work and working for a short period of time in the office,

Dr. Wilbanks related that she was exposed to numerous people and their fragrances while using 

public transportation to commute to work, travelling by air, and taking cruises. She maintained 

that while appellant claimed to have had an allergic condition for 10 years, there was no 

documentation indicating that appellant had informed the employing establishment about her 

condition at the start of her employment on November 8, 2010. Dr. Wilbanks further maintained 

that there was no documentation indicating that she required a private work area, or that, she was 

unable to attend in-person meetings. She related that appellant was not subjected to any potentially 

harmful substances at work. Dr. Wilbanks noted that she teleworked during the four-week period 

of office renovations and despite her claim upon completion of the renovation that fumes from 

new carpet and cleaning made her ill, air quality test results revealed improved air quality after the 

renovations. She disputed appellant’s claimed date of injury as May 16, 2011, noting that 

appellant did not submit any medical documentation in support of her claim until April 2014.

Dr. Presant, an occupational medicine consultant with FOH, disputed appellant’s alleged 

work exposure history. He noted that her LinkedIn website page stated that she not only worked 

at the employing establishment, but she also worked for Jafra Cosmetics International as a skincare 

consultant. Dr. Presant maintained that appellant’s job as a skincare consultant presumably put 

her in much closer proximity to fragrances than an office environment. In addition, he noted that 

she had informed a nurse practitioner about her difficulty being in shopping malls due to fragrance 

exposure. Dr. Presant advised that appellant’s inability to perform her job functions in the 

presence of fragrances could not be reconciled with her ability to fly and use public transportation 

and her outside employment. While Dr. McCafferty, an occupational medicine consultant with 

FOH, determined that appellant was disabled under the ADAA and Rehabilitation Act and that her 

request for reasonable accommodation to permanently work on a full-time basis at home due to 

her workplace fragrance sensitivity was substantiated by medical documentation, she did not 

specifically identify the substances which she believed caused her severe allergies and asthma, 

 

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.
9

affected her cognitive impairment, and substantially limited her ability to perform many of the 

major duties of her IT security and compliance manager position.

Furthermore, the indoor air and water quality and odor and mold inspection reports dated 

June 1, 2011 to July 1, 2104 were essentially unremarkable, and did not address unacceptable 

indoor air or odor quality due to fragrances. 

It is appellant’s burden of proof to establish exposure to allergens in the performance of 

duty. The Board has previously held that appellant has not met her burden of proof if she has not 

submitted any factual evidence substantiating her allegations that she was exposed to specific 

allergens at the employing establishment and the employing establishment has submitted evidence 

to dispute her general allegations.7

The Board finds that appellant has not provided the necessary factual evidence to establish 

exposure to fragrance in the performance of duty. Appellant has not submitted any factual 

evidence substantiating her allegations that she was exposed to specific fragrances at the 

employing establishment and the employing establishment has submitted evidence to dispute her 

general allegations.8

On appeal counsel contends that appellant sustained an employment-related injury. The 

Board finds that appellant has not met her burden of proof to establish an injury in the performance 

of duty. Since she failed to establish the first component of fact of injury, it is not necessary to 

discuss whether she submitted medical evidence sufficient to establish that a medical condition 

existed and whether the condition was causally related to the alleged factors of her federal 

employment.

9

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 not met her burden of proof to establish the alleged 

factors of her federal employment. 

 

7 M.B., Docket No. 15-0638 (issued August 21, 2015); S.B., Docket No. 08-2447 (issued November 20, 2009).

8

Id. 

9 Alvin V. Gadd, 57 ECAB 172 (2005).
10

ORDER

IT IS HEREBY ORDERED THAT the October 11, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.10

Issued: April 5, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

10 Colleen Duffy Kiko, Judge, participated in this decision, but was no longer a member of the Board effective 

December 11, 2017.