United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., widow of D.H., Appellant 

and 

DEPARTMENT OF LABOR, MINE SAFETY 

& HEALTH ADMINISTRATION, 

Boulder City, NV, Employer 

__________________________________________ 

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Docket No. 13-505 

Issued: May 8, 2014 

Appearances: Case Submitted on the Record

Toby Rubenstein, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On January 2, 2013 appellant, through her representative, timely appealed the 

September 18, 2012 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 the claim. 

ISSUE 

The issue is whether the employee’s May 22, 2001 death was causally related to his 

federal employment. 

 1

 5 U.S.C. §§ 8101-8193 (2006). 
2

FACTUAL HISTORY 

This case was previously before the Board.2 The decedent-employee, a former 

supervisory mine safety and health inspector, passed away on May 22, 2001 at the age of 54. He 

suffered cardiac arrest while at home and was transported via ambulance to Boulder City 

Hospital emergency room where he was pronounced dead at 4:06 a.m. The death certificate 

identified cardiopulmonary arrest as the immediate cause of death.3

A June 15, 2001 heart pathology report identified the cause of death as cardiac arrest.4

 

The report also revealed left ventricular hypertrophy and subendocardial fibrosis consistent with 

scarring secondary to a past myocardial infarction involving the posterior left ventricle. There 

was also evidence of severe coronary atherosclerosis. The right coronary artery was 90 percent 

occluded, the left anterior descending coronary artery was 80 percent occluded, and the left 

circumflex coronary artery was 60 percent occluded. There was no coronary thrombosis 

identified. Additionally, the aortic valve and conduit showed mild atherosclerosis. 

Appellant claimed that job-related stress caused her husband’s death. She subsequently 

alleged that the employing establishment failed to inform the decedent-employee of the results of 

a May 8, 1995 electrocardiogram (ECG) that was administered as part of an employing 

establishment sponsored periodic medical examination. 

The decedent-employee had a lengthy smoking history and reportedly weighed in excess 

of 200 pounds at the time of death.5 His primary care physician, Dr. Robert E. Kessler, a Boardcertified family practitioner, advised that he last saw the decedent on April 13, 2001 and had 

never treated him for any heart-related problems.6 He attributed the employee’s death to an 

acute myocardial infarction and indicated that stress could have been a factor. Dr. Kessler was 

misinformed about the June 15, 2001 pathology findings and initially believed the decedent’s 

coronary arteries were “fairly clear.” After personally reviewing the pathology report, he 

acknowledged that the decedent-employee had very significant coronary atherosclerosis. 

At appellant’s request, Dr. Irwin Hoffman, a Board-certified internist with a subspecialty 

in cardiovascular disease, reviewed the decedent’s medical records. In a March 24, 2004 report, 

Dr. Hoffman noted that the decedent had severe triple vessel coronary artery disease and an old 

myocardial infarction. Risk factors for developing progressive coronary atherosclerosis included 

 2

 Docket Nos. 05-380 (issued October 3, 2005) and 06-2019 (issued March 13, 2007 and February 11, 2008). 

3

 An autopsy was not performed. 

4

 Appellant had donated her deceased husband’s heart valves and associated tissue. The heart specimen analysis 

and pathology report was part of the organ donor process. Dr. Gregory S. Ray, a Board-certified pathologist, 

prepared the June 15, 2001 report. 

5

 The emergency medical technician indicated that the decedent weighed approximately 100 kg (220 pounds). 

His latest fitness-for-duty examination in June 1999 noted a height of 5’9” and a weight of 192 pounds. 

6

 Dr. Kessler signed the May 29, 2001 death certificate. He began treating the employee in January 1998. 
3

cigarette smoking, mild dyslipidemia and job-related stress.7

 Dr. Hoffman indicated that jobrelated stress accelerated the decedent-employee’s coronary atherosclerosis, making him 

increasingly likely to sustain coronary disease complications, such as the ventricular fibrillation 

episode that caused his death. Dr. Hoffman also stated that the failure to inform the decedent of 

the May 8, 1995 abnormal ECG findings allowed his disease to progress unchecked by medical 

intervention.8

The employing establishment submitted a May 8, 1995 authorization of disclosure of 

medical information that was signed by the decedent. A copy of all examination components 

from the May 1995 in-service evaluation were to be sent to the decedent’s home address. He 

also authorized the release of medical information to the employing establishment. 

The May 8, 1995 ECG computer printout noted a preliminary assessment of “borderline 

ECG” and “consider inferior ischemia.” However, the examining physician, Dr. John P. 

Holland, Board-certified in occupational medicine, noted on the same computer printout that the 

results were “essentially normal” and the employee was “asymptomatic.” The employing 

establishment provided copies of reports dated July 11 and August 15 to 16, 1995, which advised 

that the decedent-employee should consult with his private physician regarding the recent ECG 

results, as well as borderline cholesterol, LDL. The employing establishment represented that 

this information had been conveyed to the employee. 

The employing establishment also submitted a May 12, 2004 report from Dr. Barbara J. 

Connors, Board-certified in both internal medicine and occupational medicine, who reviewed the 

decedent-employee’s medical records, as well as Dr. Hoffman’s March 24, 2004 report. She 

disagreed with Dr. Hoffman’s interpretation of the May 1995 ECG results, and instead concurred 

with Dr. Holland’s finding that this study was essentially normal. With respect to job-related 

stress having played a role in the employee’s death, Dr. Connors noted that during his June 24, 

1999 in-service examination, the employee denied depression, excessive worry and nervous 

trouble of any sort. 

In a September 15, 2004 report, Dr. Hoffman expressed disagreement with Dr. Connors’ 

opinion. He also noted that the decedent-employee reported depression or excessive worry 

during his May 8, 1995 in-service examination, which Dr. Hoffman found responsible for the 

employee’s then-elevated cholesterol. In a March 31, 2006 report, Dr. Hoffman reiterated both 

his finding that the employee’s death was job related, as well as his challenge to Dr. Connors’ 

opinion. 

 7

 Dr. Hoffman noted the decedent-employee could not accomplish his job without working nights and weekends. 

He also noted the decedent received personal and legal threats as a result of a mine investigation. OWCP accepted 

as compensable the factor that the decedent worked prolonged hours and that he had been threatened regarding the 

Rattlesnake Pit mine investigation. 

8

 Dr. Hoffman interpreted the May 1995 ECG as demonstrating abnormalities diagnostic of an inferior wall 

myocardial infarction. A preemployment ECG from September 1991 was reportedly normal. 
4

The last time the case was on appeal, the Board set aside OWCP’s August 15 and 

March 14, 2006 decisions and remanded the survivor’s claim for further medical development.9 

The Board initially found a conflict in medical opinion between Dr. Connors and Dr. Hoffman 

based on the mistaken belief that OWCP had referred the record to Dr. Connors. On petition for 

reconsideration before the Board, the Director of OWCP noted that the employing establishment 

secured Dr. Connors’ May 12, 2004 report, not OWCP. As such, there was no conflict in 

medical opinion. Rather than remand for an impartial medical evaluation, OWCP requested that 

the case be referred for a second opinion evaluation. Accordingly, by order dated February 11, 

2008, the Board modified its March 13, 2007 decision, and remanded the case to OWCP for 

referral to a Board-certified cardiologist for a second opinion evaluation.10

Since the case was last on appeal, OWCP prepared a July 1, 2008 statement of accepted 

facts and then amended it three times, most recently on October 5, 2011. Additionally, it has 

referred the case record for three second opinion evaluations and two impartial medical 

evaluations (IME). Appellant’s claim has been consistently denied by OWCP, and the Branch of 

Hearings and Review has remanded the case on several occasions for further development. 

By decision dated September 20, 2011, the hearing representative found a conflict in 

medical opinion between Dr. Hoffman and Dr. Raye L. Bellinger, a Board-certified cardiologist 

and OWCP-referral physician. In a December 16, 2010 report, Dr. Bellinger indicated that there 

was insufficient evidence to conclude that any factor(s) of employment caused, precipitated or 

contributed to the employee’s May 22, 2001 death due to myocardial infarction. In reports dated 

January 22 and February 15, 2011, Dr. Hoffman disagreed with Dr. Bellinger, particularly his 

finding of death due to myocardial infarction. He indicated that death threats the decedentemployee received caused stress, which more than likely precipitated his fatal arrhythmia. 

In a report dated October 23, 2011, Dr. Anjum Ismail, a Board-certified internist and 

IME, indicated that there was no evidence the employee died of an acute fatal myocardial 

infarction.11 He explained that there was no acute myocardial damage or coronary thrombosis 

noted in the heart pathology report, but there was evidence of chronic coronary artery disease 

with previous myocardial damage and scar involving the posterior wall of the left ventricle. 

Dr. Ismail indicated that the most likely cause of death was a fatal ventricular arrhythmia due to 

electrical instability of damaged myocardium. He then proceeded to address the question of 

what triggered the arrhythmia. Dr. Ismail explained that factors of having a stressful job, 

working long hours, being involved in a job-related investigation in April 2000, and receiving 

threatening calls “can all exacerbate a cardiac condition.” However, these factors alone did not 

cause the underlying chronic coronary artery disease. Dr. Ismail indicated that the decedent’s 

40-year smoking history, his elevated cholesterol and gender (male) were all important risk 

factors in the development of coronary artery disease. He also discussed the prevalence of 

sudden cardiac death in the U.S. and identified risk factors, such as chronic smoking and left 

 9

 The Board had earlier found that the decedent-employee’s regular job duties of investigating fatalities and 

carrying out his supervisory duties, including investigating those employees he supervised, were also compensable. 

10 The Board’s prior decisions are incorporated herein by reference. 

11 Dr. Ismail is also Board-certified in the subspecialties of cardiovascular disease and interventional cardiology. 
5

ventricular hypertrophy. Dr. Ismail further noted that coronary artery disease and scarred 

myocardium are sufficient to provoke ventricular tachyarrhythmia causing sudden cardiac death. 

He explained that the decedent had a scar on the posterior wall of this heart, which was evidence 

of a prior myocardial infarction.12

Dr. Ismail found that the decedent-employee suffered sudden cardiac death from most 

likely a fatal ventricular arrhythmia rather than an acute fatal myocardial infarction. The 

arrhythmia occurred because of underlying coronary disease. Dr. Ismail further explained that 

the decedent developed coronary artery disease because of multiple risk factors. In response to 

the question of whether job-related stress could have aggravated the decedent’s coronary artery 

disease, Dr. Ismail stated “It remains a possibility.” 

In a supplemental report dated January 2, 2012, Dr. Ismail discussed the difference 

between ventricular tachycardia (VT) due to acute ischemia versus VT due to structural heart 

disease (myocardial scar). He reiterated that the most likely cause of the employee’s death was 

fatal ventricular arrhythmia due to electrical instability surrounding the previous myocardial 

damage and scar involving the posterior wall of his left ventricle, as noted on the pathology 

report. 

By decision dated March 15, 2012, OWCP denied appellant’s claim based on the IME’s 

opinion. It subsequently denied modification in a September 18, 2012 decision.13

LEGAL PRECEDENT 

FECA provides for the payment of compensation for the disability or death of an 

employee resulting from personal injury sustained while in the performance of duty.14 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 or her employment.15 This burden includes the 

necessity of furnishing rationalized medical opinion evidence demonstrating a causal 

relationship.16 The physician’s opinion must be based on a complete factual and medical 

background, must be expressed in terms of a reasonable degree of medical certainty, and must be 

 12 Dr. Ismail noted the results of particular study which revealed that as many as half of myocardial infarctions 

may be clinically silent and unrecognized by patients. He also provided statistical data on U.S. deaths due to 

cardiovascular disease, including the number of annual deaths due to coronary heart disease. 

13 Appellant’s representative questioned whether OWCP’s September 18, 2012 decision was a non-merit denial of 

reconsideration or a merit view denying modification. The Board acknowledges that the notice of decision is 

internally inconsistent. OWCP stated that a “merit review was undertaken,” but later concluded that the new 

evidence submitted was insufficient to “warrant a merit review of the prior decision.” Despite the contradictions in 

the body of the decision, the September 18, 2012 cover page indicated that OWCP had “not modified [its] prior 

decision,” but had evaluated the evidence submitted and “reviewed the merits of [appellant’s] case.” Based on this 

latter representation, the Board will exercise jurisdiction over the merits of the claim. 

14 5 U.S.C. §§ 8102(a) and 8133. 

15 L.R., 58 ECAB 369, 375 (2007). 

16 Id.
6

supported by medical rationale explaining the relationship between the employee’s death and his 

or her previous employment.17

If there is disagreement between an OWCP-designated physician and the employee’s 

physician, OWCP shall appoint a third physician who shall make an examination.18 For a 

conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”19 Where OWCP has referred the case to an impartial medical examiner to resolve a 

conflict in the medical evidence, the opinion of such a specialist, if sufficiently well reasoned 

and based upon a proper factual background, must be given special weight.20

ANALYSIS 

Appellant’s representative argued that the employing establishment was liable for the 

employee’s May 22, 2001 death because of its failure to disclose to him the abnormal results of 

his May 8, 1995 ECG. The purported failure to disclose this information allegedly caused a 

deleterious effect on the course of the employee’s cardiac condition. 

Coverage for the deleterious effects of employer-provided medical services is limited to 

“employees who are voluntary participants in the employer’s sponsored health service 

program....”21 Deleterious effects of employer-provided medical services may be unavoidable or 

may occur because of error or agency failure to report examination results to the employee or to 

the employee’s physician in time to alter the course of a disease.22 They may also result from an 

act such as inadvertently administering the wrong drug, or failure to inform an employee of 

positive test results.23 Following appropriate development, all cases of this type should be 

referred to a district medical adviser for an opinion on whether the condition claimed was 

causally related to the agency medical service or was adversely affected by the failure to 

promptly alert the employee or the employee’s physician.24

Dr. Hoffman surmised that had the decedent-employee been provided information 

regarding the May 8, 1995 ECG results, his life would have been prolonged. First, there is a 

difference of opinion regarding the interpretation of the May 8, 1995 ECG results. While 

Dr. Hoffman believed the results were indicative of a prior myocardial infarction, Dr. Holland, 

who reviewed the study in conjunction with his 1995 examination of the employee, interpreted 

the ECG findings as essentially normal and noted that the employee was asymptomatic at the 

 17 Id.

18 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321 (2012); Shirley L. Steib, 46 ECAB 309, 317 (1994). 

19 Darlene R. Kennedy, 57 ECAB 414, 416 (2006). 

20 Gary R. Sieber, 46 ECAB 215, 225 (1994). 

21 Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.19b (March 1994). 

22 Id. at Chapter 2.804.19d. 

23 Id.

24 Id. at Chapter 2.804.19e. 
7

time. Also, Dr. Connors disagreed with Dr. Hoffman’s interpretation of the May 8, 1995 ECG 

results. Second, the record does not demonstrate that the employing establishment failed to 

disclose the May 1995 in-service examination findings and test results to the employee. 

According to the release signed by the employee, this information was to be mailed to his home 

address. Also, the employing establishment prepared contemporaneous reports disclosing the 

May 1995 ECG findings, as well as information regarding the employee’s borderline cholesterol 

results. Whether or not he personally received this information is unclear, and unfortunately, the 

decedent-employee is unavailable to shed light on the issue. The fact that appellant and 

Dr. Kessler were previously unaware of the May 1995 test results is not proof that the employing 

establishment failed to timely disclose the information to the decedent-employee.25 Apart from 

Dr. Hoffman’s speculation, there is no proof that the employee’s May 22, 2001 death was 

adversely affected by the employing establishment’s purported failure to promptly alert him of 

the May 1995 examination results. 

Appellant’s representative also invoked the human instincts doctrine as a basis for 

liability. However, her reliance on this doctrine is misplaced. An employer has the duty to make 

reasonable efforts to procure medical aid or other means of relief for an employee who becomes 

ill or injured on the job, and as a result is helpless to provide for his own care.26 A failure to 

satisfy this duty -- the human instincts doctrine -- may be sufficient to establish a causal 

connection between an employee’s condition and the employment if it is shown that the 

employer’s failure contributed to the claimed condition.27 The decedent employee was off-duty 

and at home just prior to his death at 4:06 a.m. on May 22, 2001. Consequently, the human 

instincts doctrine is inapplicable. 

 Notwithstanding the above-noted findings, the question of whether the employee’s death 

was employment related is not in posture for decision. Dr. Ismail, the IME, did not adequately 

resolve the issue of whether job-related stress contributed to the decedent-employee’s coronary 

artery disease. In his October 23, 2011 report, Dr. Ismail stated “It remains a possibility.” 

Earlier in his report, the IME noted that the factors of having a stressful job, working long hours, 

being involved in a job-related investigation in April 2000, and receiving threatening calls “can 

all exacerbate a cardiac condition.” He did not definitively state whether the decedentemployee’s job duties exacerbated his cardiac condition. The IME merely noted that it remains a 

possibility. Thus, the question remains as to whether the accepted compensable employment 

factors contributed to the employee’s May 22, 2001 cardiac arrest. 

The IME’s report must actually fulfill the purpose for which it was intended; it must 

resolve the conflict in medical opinion.28 OWCP should ensure that the IME’s report is 

comprehensive, clear and definite and that it is based on current information and supported by 

 25 Moreover, Dr. Kessler did not begin to treat the employee until approximately two-and-a-half years later. 

26 J.W., Docket No. 11-1655 (issued May 18, 2012); Joseph J. Rotelli, 40 ECAB 987, 992 (1989). 

27 J.W., id.

28 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing & Evaluating Medical Evidence, Chapter 

2.810.11d(2) (September 2010).
8

substantial medical reasoning, as well as a review of the case file.29 If the referee specialist 

submits an opinion which is equivocal, lacks rationale, or fails to address the specified medical 

issues or conflict, OWCP is obliged to seek clarification from the IME.30 Because of the abovenoted defect in Dr. Ismail’s opinion, the Board finds the case is not in posture for decision. 

Accordingly, OWCP’s September 18, 2012 decision shall be set aside and the case remanded for 

further development. 

If Dr. Ismail is either unwilling or unable to provide the necessary clarification, then 

OWCP should refer appellant to another IME.31 After OWCP has developed the case record 

consistent with the Board’s directive, a de novo decision shall be issued. 

CONCLUSION 

The case is not in posture for decision. 

 29 Id.

30 Id. at Chapter 2.810.11e. 

31 Id.
9

ORDER 

IT IS HEREBY ORDERED THAT the September 18, 2012 decision of the Office of 

Workers’ Compensation Programs is set aside. The case is remanded for further action 

consistent with this decision of the Board. 

Issued: May 8, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board