United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.S., widow of M.S., Appellant 

and 

DEPARTMENT OF THE NAVY, PEARL 

HARBOR NAVAL SHIPYARD, 

Pearl Harbor, HI, Employer 

__________________________________________ 

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Docket No. 14-891 

Issued: September 25, 2014 

Appearances: Case Submitted on the Record

John F. Dillon, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 10, 2014 appellant, through counsel, filed a timely appeal of a January 10, 

2014 decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for 

death benefits. 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 case. 

ISSUE 

The issue is whether appellant has met her burden of proof in establishing that the 

employee’s death was causally related to exposure to asbestos at work. 

On appeal counsel argues that the employee’s asbestosis contributed to his death. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. On August 7, 2013 the Board set aside a 

January 18, 2013 decision denying appellant’s claim for survivor benefits.2 The Board found 

that there was an unresolved conflict between Dr. Ghulam Arian, an attending Board-certified 

internist, and an OWCP medical adviser on the issue of whether the employee’s work-related 

asbestosis contributed to his death. The facts and the circumstances of the case as set forth in the 

Board’s prior decision are incorporated herein by reference.3

Following the Board’s August 7, 2013 decision, OWCP, by letter dated October 7, 2013, 

referred the employee’s case file and medical records, including a statement of accepted facts 

and list of questions, to Dr. Kyle I. Happel, a Board-certified internist with subspecialty 

certifications in critical care medicine and pulmonary disease, for an impartial medical opinion. 

In a December 12, 2013 report, Dr. Happel detailed the factual and medical history upon 

his review of the medical records and provided his analysis. He related that the employee 

exhibited multiple risk factors for coronary artery disease, which included hypertension, smoking 

and hypercholesterolemia. Dr. Happel noted that in the United States coronary artery disease is 

one of the most common causes of death. A review of objective testing revealed that the 

employee had a prior myocardial infarction and underwent stent replacement and percutaneous 

coronary angiography. According to Dr. Happel the employee’s coronary artery disease, 

hypercholesterolemia and congestive heart failure were unrelated to his asbestosis and that 

asbestosis was not a recognized factor for congestive heart failure. He attributed the employee’s 

death to refractory congestive heart failure which led to cardiac arrest. The underlying cause of 

the employee’s congestive heart failure was coronary artery disease. 

By decision dated January 10, 2014, OWCP denied appellant’s claim for survivor 

benefits. It found that the employee’s death was not caused or aggravated by his accepted workrelated asbestosis. 

LEGAL PRECEDENT 

FECA provides that the United States shall pay compensation for disability or death of an 

employee resulting from personal injury sustained while in the performance of duty.4

 

 2

 Docket No. 13-768 (issued August 7, 2013). 

3

 On November 12, 2010 the employee, then a 77-year-old asbestosis worker, filed an occupational disease claim 

alleging that on April 7, 2009 he first became aware of his chronic obstructive pulmonary disease and asbestosis and 

its relationship to his federal employment. The employee retired from the employing establishment on June 3, 1988. 

On June 1, 2011 OWCP accepted the employee’s claim for asbestosis. 

The employee died on January 23, 2011 and on April 6, 2011 appellant filed a claim for compensation (Form 

CA-5) due to the death of her husband. She attributed his death to congestive heart failure/asbestosis due to his 

work exposure to asbestosis and submitted a copy of the death certificate. 

4

 5 U.S.C. § 8133. 
3

Appellant has the burden of proving by the weight of the reliable, probative and 

substantial evidence that the employee’s death was causally related to his employment. This 

burden includes the necessity of furnishing rationalized medical opinion evidence of a cause and 

effect relationship, based on a complete factual and medical background, showing causal 

relationship. The opinion of the physician must be one of reasonable medical certainty and must 

be supported by medical rationale.5

 

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between 

the physician making the examination for the United States and the physician of the employee, 

the Secretary shall appoint a third physician who shall make an examination.”6

 Where a case is 

referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of 

such specialist, if sufficiently well rationalized and based on a proper factual and medical 

background must be given special weight.7

ANALYSIS 

The Board previously found a conflict in medical opinion existed between the reports of 

Dr. Arian, for appellant, and an OWCP medical adviser on the issue of whether the employee’s 

work-related asbestosis contributed to his death and remanded the case for referral of the case 

file to an impartial medical specialist and to issue a de novo decision. On remand, OWCP 

referred appellant to Dr. Happel for an impartial medical evaluation. 

The Board finds that Dr. Happel, based on an extensive review of the medical evidence 

and statement of accepted facts, concluded that the employee’s accepted work-related asbestosis 

did not cause or contribute to his death. Rather, he concluded that the employee died due to end 

stage congestive heart failure as a result of his coronary artery disease, which was unrelated to 

the accepted work-related asbestosis. Dr. Happel noted that the employee exhibited multiple risk 

factors for coronary artery disease, which included hypertension, smoking and hypercholesterolemia, and coronary artery disease is one of the most common causes of death in the 

United States. He opined that asbestosis was not a recognized factor for congestive heart failure. 

Dr. Happel attributed the employee’s death to refractory congestive heart failure which led to 

cardiac arrest with an underlying cause of coronary artery disease. As asbestosis is not 

recognized as a factor in causing biventricular congestive heart failure, he opined that the 

employee’s asbestosis was not a direct cause or contributing factor in his death. 

The Board finds that Dr. Happel provided a well-rationalized, impartial medical opinion 

based on a complete factual background, an extensive and thorough review of the accepted facts 

and the medical record. Dr. Happel’s opinion that the employee’s death on January 23, 2011 

was not causally related or aggravated by his accepted work-related asbestosis is entitled to 

 5 L.R. (E.R.), 58 ECAB 369 (2007); Viola Stanko (Charles Stanko), 56 ECAB 436 (2005). 

6

 5 U.S.C. § 8123(a); see also R.H., 59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637 (2002); Rita 

Lusignan (Henry Lusignan), 45 ECAB 207 (1993). 

7 V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994). 
4

special weight and represents the special weight of the evidence.8

 The Board will affirm 

OWCP’s January 10, 2014 decision denying compensation for death benefits. 

On appeal, counsel asserted that the employee had severe asbestosis and chronic 

obstructive pulmonary disease, the asbestosis caused severe respiratory impairment and that the 

asbestosis was a contributing factor in the employee’s death. For the reasons set forth above, the 

Board finds that OWCP properly relied on Dr. Happel’s opinion in concluding that the 

employee’s death was unrelated to his work-related asbestosis. Appellant has not submitted any 

medical evidence which would create a conflict with Dr. Happel’s opinion. 

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 did not meet her burden of proof to establish that the 

employee’s death on January 23, 2011 was causally related to the accepted work-related 

asbestosis. 

ORDER 

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

Compensation Programs dated January 10, 2014 is affirmed. 

Issued: September 25, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001).