United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.M., daughter of M.M., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, MARCH 

AIR RESERVE BASE, CA, Employer 

__________________________________________ 

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Docket No. 15-0817 

Issued: July 8, 2015 

Appearances: Case Submitted on the Record

Brett Blumstein, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 24, 2015 appellant, through counsel, filed a timely appeal from a 

December 18, 2014 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 case. 

ISSUE 

The issue is whether the employee’s death was casually related to his federal 

employment. 

FACTUAL HISTORY 

On July 21, 2006 the employee, then a 45-year-old firefighter, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained a back injury in the performance of duty on 

 1

 5 U.S.C. § 8101 et seq. 
2

July 14, 2006. The employee indicated on the claim form that he missed a step while getting off 

a rescue truck. OWCP initially accepted the claim for a lumbar strain. The claim was 

subsequently accepted for a herniated L5-S1 disc with radiculopathy, and lumbosacral neuritis or 

radiculitis. The employee stopped working and received wage-loss compensation on the 

periodic rolls. He underwent lumbar surgeries on December 11, 2007 and December 16, 2008. 

By decision dated April 5, 2011, the employee received a schedule award for two percent 

permanent impairment to each leg. 

The employee was referred for a second opinion examination by Dr. Ronald Lampert, a 

Board-certified orthopedic surgeon. In a report dated January 10, 2012, Dr. Lampert provided a 

history and results on examination. He reported the employee’s daily medications were: 

Hydrocodone, Tramadol, Tizanidine, Orphenadrine citrate, and Zolpidem Tartrate. Dr. Lampert 

stated that he did not believe additional surgery was warranted and recommended a functional 

capacity evaluation. The record contains a report dated April 10, 2012 from Dr. Thomas Haider, 

an orthopedic surgeon, indicating that a urine sample was taken as part of a medication 

management evaluation. Dr. Haider reported the prescribed medications were: Norco 

(Hydrocodone), Zolpidem (Ambien), and Zanaflex. 

OWCP found there was a conflict in medical evidence and referred the employee to 

Dr. Jeffrey Levine, a Board-certified orthopedic surgeon. In a report dated May 31, 2012, 

Dr. Levine provided a history and results on examination. As to medications, he reported the 

same medications as Dr. Lampert. According to Dr. Levine, there was a psychologic overlay 

with respect to the employee’s symptoms and he recommended a psychiatric evaluation. 

The record indicates that the employee was hospitalized on January 1, 2013. The 

employee was treated on January 3, 2013 by Dr. Kern Chaudhry, a Board-certified internist. 

Dr. Chaudhry reported that the employee was confused and unable to answer any questions. He 

diagnosed a psychotic disorder and prescribed Ativan for anxiety. Dr. Jyothi Punnam, a Boardcertified internist, indicated that the employee was discharged from the hospital on 

January 13, 2013. The diagnoses included diffuse periventricular white matter changes of 

unclear etiology, presumed toxic metabolic versus anoxic encephalopathy, and substance abuse. 

In a report dated March 9, 2013, Dr. Scott Kirby, an osteopath, stated that the employee had 

chronic back pain and his medications included Aricept, aspirin, Namenda, Provigil, and Zocor. 

He stated that the employee would be given prescriptions for Valium, Phenergan, and Percocet. 

In a report dated April 24, 2013, Dr. Dennis Cramer, an osteopath, indicated that the employee 

reported severe pain radiating into both legs.2

 He reported that the employee could not sleep 

despite taking multiple over the counter medications, muscle relaxants, and narcotics. The 

employee wanted to have back surgery. 

The employee was seen on May 7, 2013 by Dr. Haider, who reported results on 

examination. Dr. Haider stated that the employee needed a lumbar decompression and fusion 

surgery at L4-5 and would be seen after a magnetic resonance imaging (MRI) scan was 

performed. A toxicology report dated May 17, 2013 indicated negative results for methadone, 

opiates, benzodiazepines,3

 and barbiturates. The employee underwent a lumbar MRI scan on 

 2

 The report was cosigned by Dr. Haider. 

3

 According to the report, benzodiazepines included Temazepam, Nordiazepam, and Oxazepam. 
3

June 27, 2013. By letter dated July 19, 2013, OWCP advised the employee that a second opinion 

examination by a psychiatrist would be scheduled. 

The record indicates that the employee died at his home on July 31, 2013. On 

October 29, 2013 appellant filed a CA-5 claim for compensation by widow, widower, and/or 

children.4 

In a certificate of death and accompanying report dated August 3, 2013, Dr. Vladimir 

Shvarts, a Board-certified pathologist, reported that the cause of the employee’s death was 

“combined drug toxicity.” He stated the employee’s blood contained methadone, .533 mg/L, and 

was positive for Diazepam, Nordiazepam, Temazepam, Oxazepam, and Orphenadrine. 

According to Dr. Shvarts, the employee suffered from hypertensive heart disease and he noted a 

history of toxic metabolic encephalopathy. 

OWCP requested that an OWCP medical adviser review the medical evidence. In a 

report dated March 27, 2014, the medical adviser, Dr. Ellen Pichey, noted that the medical 

reports did not clearly state a list of medications. She noted there was no mention of the 

employee taking methadone or being referred to a narcotic dependency clinic. Dr. Pichey noted 

that the toxicology screen dated May 17, 2013 was negative for methadone, benzodiazepines, 

and opiates. She reported that according to OWCP’s affiliated computer services (ACS) the paid 

prescriptions in the three months prior to the employee’s death were: Diazepam (muscle 

relaxant/anti-anxiety), Carisoprodol (brand name soma, a muscle relaxant), Orphenadrine 

(muscle relaxant), and Vicodin. According to Dr. Pichey, the combination of methadone with 

benzodiazepines was “a potential factor,” but there were many unknowns in the case. 

On October 28, 2014 appellant submitted an October 25, 2014 report from Dr. Aliyar 

Parvin, a Board-certified family practitioner. Dr. Parvin reported that he had reviewed the 

medical records and the autopsy report. He opined that the employee’s death was “likely the 

result of overmedication by his physicians, based on several observations.” Dr. Parvin noted the 

substances in the employee’s blood were medications, not illicit drugs. He further noted that at 

the time of the employee’s death “he was on Methadone, Hydrocodone, Diazepam, Tramadol, 

and Temazepam, which not only have the capacity to depress ones mental status and level of 

consciousness individually, but when combined can further the risk by increasing this effect and 

in fact causing cardiorespiratory arrest.” 

OWCP again referred the evidence to an OWCP medical adviser for review. In a report 

dated November 22, 2014, an OWCP medical adviser, Dr. James Grossman, reviewed the 

medical record. Dr. Grossman noted that the employee had several medications in his blood at 

the time of death, but “information that can establish cause and effect is missing.” He stated that 

while the employee may have been taking medications related to his employment injury, the 

information in the medical evidence did not establish a link between his death and the work 

injury. 

 4

 The form also listed two other children. Appellant’s date of birth was October 27, 1996. A CA-5 dated 

August 11, 2014 listed only appellant as the claimant. 
4

By decision dated December 18, 2014, OWCP denied the claim for benefits. It found the 

weight of the medical evidence was represented by Dr. Grossman and did not establish the 

employee’s death was casually related to federal employment. 

LEGAL PRECEDENT 

Pursuant to 5 U.S.C. § 8133, a widow, widower, or child may claim that the employee’s 

death was casually related to federal employment.5

 An 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 medical 

opinion evidence of a cause and effect relationship based on a complete factual and medical 

background.6 The opinion of the physician must be one of reasonable medical certainty and 

must be supported by medical rationale.7 The mere showing that an employee was receiving 

compensation for total disability at the time of his death does not establish that his death was 

causally related to his employment.8 The Board has held that it is not necessary that there is a 

significant contribution of employment factors to establish causal relationship.9

 If the 

employment contributed to the employee’s death, then causal relationship is established.10

FECA provides that, if there is a 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 the examination.11 The implementing regulations state that if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

physician to make an examination. This is called a referee or impartial examination and OWCP 

will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.12

ANALYSIS 

In the present case appellant, a minor child of the employee, filed a claim for benefits 

alleging that her father’s (the employee) death was causally related to his federal employment. It 

is her contention that medications the employee was taking for his accepted back conditions 

 5 See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Death Claims, Chapter 2.700.8 (February 2013).

6 Carolyn P. Spiewak (Paul Spiewak), 40 ECAB 552 (1989). 

7 Kathy Marshall (Dennis Marshal), 45 ECAB 827 (1994). 

8 Edna M. Davis (Kenneth L. Davis), 42 ECAB 728 (1991). 

9 See T.H. (M.H.), Docket No. 12-1018 (issued November 2, 2012). 

10 Id. 

11 5 U.S.C. § 8123. 

12 20 C.F.R. § 10.321. 
5

caused or contributed to his death. The Board finds there are conflicting opinions and this is a 

medical issue that must be resolved by a referee physician. 

According to Dr. Shvarts, the cause of death on July 31, 2013 was “combined drug 

toxicity.” His August 3, 2013 report notes the presence of a number of drugs in the employee’s 

blood and urine. The record indicates that the employee had an accepted employment-related 

back condition and was taking pain medication. The medical adviser, Dr. Pichey, noted that the 

employee had prescriptions in the three months prior to death for Orphenadrine and Diazepam, 

two substances noted by Dr. Shvarts as present at the time of death. Dr. Levine had noted in his 

May 31, 2012 report that the employee was taking Orphenadrine. 

Dr. Parvin provided an opinion that the medications for the employment-related back 

condition played a predominant factor in the employee’s death. He noted a number of drugs 

found in the employee and opined that such drugs in combination can contribute to 

cardiorespiratory arrest. On the other hand, OWCP medical adviser Dr. Grossman found the 

evidence was insufficient to establish a causal relationship with the employment injury. He 

found the evidence of record did not establish that medications taken for the employment injury 

contributed to the employee’s death. 

The Board finds that a conflict exists under 5 U.S.C. § 8123(a) and the case will be 

remanded to OWCP to resolve the conflict. The issue is whether any prescribed medications 

taken by the employee for an employment-related condition contributed to his death. As noted 

above, any contribution from employment to the employee’s death is sufficient to establish 

causal relationship. The selected referee physician should be provided with a proper 

background, a statement of accepted facts of the claim, and all relevant medical evidence with 

respect to this specific medical issue. After such further development as is deemed necessary, 

OWCP should issue a merit decision. 

CONCLUSION 

The Board finds that there is an unresolved conflict in the medical evidence and the case 

is remanded for further development. 
6

ORDER 

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

Compensation Programs dated December 18, 2014 is set aside and the case is remanded for 

further action consistent with this decision of the Board. 

Issued: July 8, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board