United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.S., widow of G.S., Appellant 

and 

DEPARTMENT OF JUSTICE, DRUG 

ENFORCEMENT ADMINISTRATION, 

Gainsville, FL, Employer 

__________________________________________ 

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Docket No. 14-1046 

Issued: September 23, 2014 

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On April 1, 2014 appellant, through counsel, timely appealed the November 26, 2013 

merit decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed the 

denial of survivors’ 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 the claim. 

ISSUES 

The issues are: (1) whether appellant established that the decedent employee’s 

January 25, 2011 death was employment related; and (2) whether OWCP abused its discretion by 

denying appellant’s request for subpoenas. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

The decedent employee, a former special agent, died on January 25, 2011 at the age of 

59. He worked for the employing establishment approximately 22 years prior to his 

December 31, 2008 retirement. Appellant filed an occupational disease claim (Form CA-2) on 

October 9, 2012, alleging that her deceased husband developed chronic lymphocytic leukemia 

(CLL) and tonsillar lymphoma as a result of his federal occupational exposure.2 She submitted 

an August 24, 2004 report from Dr. Mathew Miceli, a Board-certified oncologist, who diagnosed 

CLL. Dr. Miceli stated that it was his understanding that, as a DEA agent, the employee was 

involved with investigating methamphetamine (meth) labs. During takedown of these labs, he 

was exposed to organic solvents; probably such common ones as toluylene and benzene. 

Because of the employee’s underlying bone marrow disorder, Dr. Miceli advised against further 

exposure to meth labs or solvents. He explained that the risk of further bone marrow injury was 

too high. Further, Dr. Miceli stated that the solvents “might” have contributed to the employee’s 

CLL. 

On October 23, 2012 OWCP advised appellant to file a survivor’s claim (Form CA-5). It 

requested a factual statement regarding the decedent’s employment exposure, as well as 

nonoccupational exposure to chemicals and carcinogens. OWCP also advised appellant of the 

need for additional medical evidence in support of the claim. 

On October 31, 2012 appellant filed a claim for compensation by widow, (Form CA-5). 

She attributed her husband’s January 25, 2011 death to meth exposure. 

In a November 29, 2012 statement, the employing establishment advised that the 

decedent was a former DEA special agent, who served approximately 22 years prior to his 

retirement in December 2008. During his tenure, he participated in raiding and processing 

clandestine drug laboratories where illegal drugs were manufactured. The employing 

establishment indicated that all DEA special agents who entered clandestine drug laboratories 

were provided with appropriate personal protective equipment, as well as training in the proper 

use of such equipment. The equipment included secondary breathing apparatus, protective 

coveralls, gloves and foot protection. The employing establishment stated that, despite proper 

use of the protective gear, it was possible for an individual to be exposed to the myriad of 

chemicals used in the production of drugs in a clandestine laboratory. 

OWCP also received a position description for Criminal Investigator, which major duties 

included “seizures, raids, arrests and dismantlement of clandestine laboratories.” The position 

description listed that the employee was “[s]ubject to exposure to contagious diseases and to 

injury or death from harmful substances, all types of weapons and vehicular accidents.” 

In an undated statement, appellant noted that the employee worked in or around meth 

labs from 1999 through 2004. She explained that initially agents had no protective gear, but 

around 2002 they went from nothing to full hazmat gear. The employee tore down and cleanedup labs and transported all seized chemicals back to work in either the trunk or rear floor board 

of his vehicle. Afterwards, he would air out the vehicle in the driveway and then showered. 

 2

 The Form CA-2 indicated the decedent last worked on August 31, 2008. 
3

Appellant noted that her husband’s clothes required immediate washing. She described the smell 

as nauseating. Appellant claimed that he had been exposed to various chemicals, including 

methanol, ether, benzene, methylene chloride, trichloroethane, toluylene, muriatic acid, sodium 

hydroxide, table salt, ammonia, anhydrous ammonia, red phosphorus and iodine. She stated that 

there was no family history of cancer dating back three generations. When appellant asked their 

physician if the meth or chemicals related to meth caused her husband’s cancer, the physician 

indicated that some of the chemicals were linked and could cause cancer. 

On February 15, 2013 OWCP asked the employing establishment for information 

regarding the decedent employee’s occupational exposure. It requested a list of chemicals he 

was exposed to and information regarding the frequency and extent of his participation in meth 

lab raids. Additionally, OWCP requested a copy of the decedent’s employment record and any 

medical records in its possession. Appellant was copied on the February 15, 2013 

correspondence and OWCP specifically asked her to submit the decedent’s death certificate and 

any other relevant medical evidence, as initially requested on October 23, 2012. 

On March 5, 2013 the employing establishment advised OWCP that the decedent’s 

records were archived in St. Louis, MO. Consequently, additional time was needed in order to 

comply with OWCP’s February 15, 2013 request. 

On March 14, 2013 OWCP granted the employing establishment a 30-day extension. 

During the allotted timeframe, no additional information was received from either appellant or 

the employing establishment. 

In an April 24, 2013 decision, OWCP denied appellant’s survivor’s claim. It found that 

the evidence failed to substantiate the claimed occupational exposure and that there was 

insufficient medical evidence providing a diagnosis in connection with the decedent’s 

employment exposure. Consequently, OWCP found that appellant failed to establish fact of 

injury. 

Appellant’s counsel requested an oral hearing, which was held on September 23, 2013. 

In advance of the hearing, he requested subpoenas to obtain documentation from the employing 

establishment regarding chemical exposure and the use of the protective equipment. Counsel 

also sought DEA investigative reports for all meth labs and indoor marijuana growing labs the 

decedent raided, including information regarding the type of toxic substances and levels he 

encountered in each raid. He also sought a list of all DEA agents evaluated for CLL and a list of 

those who died due to chemical exposure or cancer during the past 10 years. The hearing 

representative denied the subpoena request on September 10, 2013. 

By decision dated November 26, 2013, the hearing representative affirmed OWCP’s 

denial of survivors’ benefits. The hearing representative denied appellant’s hearing request on 

the grounds that it was too general in nature and the information requested was of a type that 

could be obtained in writing. 
4

LEGAL PRECEDENT -- ISSUE 1 

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.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.4

 This burden includes the 

necessity of furnishing rationalized medical opinion evidence demonstrating a causal 

relationship.5

 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 

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

previous employment.6

ANALYSIS -- ISSUE 1 

The Board finds that the employing establishment’s November 29, 2012 statement 

corroborates that the employee was a DEA agent for 22 years. During his tenure, the employee 

participated in raids of laboratories where illegal drugs were manufactured. While he was 

provided protective equipment, the employing establishment acknowledge that it was possible 

for employees to be exposed to a myriad of chemicals used in the production of drugs. Specific 

employing establishment records pertaining to the employees’ participation in the subject raids 

was not obtained or submitted to OWCP prior to the denial of this claim. However even if 

OWCP’s case development regarding the decedent employee’s occupational exposure was 

incomplete, this does not relieve appellant of her burden to establish that the employee’s death 

was causally related to his employment. 

Appellant has the burden of establishing by the weight of the reliable probative and 

substantial evidence that the employee’s death was causally related to an employment injury or 

to factors of his employment.7

 She must submit a medical report from a physician who provides 

an accurate history of the employment injury, that correctly addresses the cause of death and that 

explains, with sound medical reasoning, how one led to the other. Such rationalized medical 

opinion evidence is absolutely necessary for appellant to establish the element of causal 

relationship. Without it, she has not established a prima facie case.8

The Board finds that appellant did not submit sufficient medical evidence regarding her 

husband’s cause of death. The record does not include a death certificate verifying January 25, 

2011 as the date of death. The only medical evidence of record predates the employee’s death by 

more than six years. On August 24, 2004 Dr. Miceli surmised that the employee’s exposure to 

 3

 5 U.S.C. §§ 8102(a) and 8133. 

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

5 Id.

6 Id.

7 See Lorraine E. Lambert (Arthur R. Lambert), 33 ECAB 1111 (1982). 

8 R.L. (P.L.), Docket No. 08-2313 (February 18, 2009). 
5

organic solvents “might” have contributed to his CLL. Appellant testified at the September 23, 

2011 hearing that her husband’s CLL had not progressed beyond the initial stage one diagnosis, 

but that he subsequently developed a throat condition. Absent a death certificate it is unclear 

whether the employee died due to his throat condition. There is no medical report from a 

physician addressing how the employee’s CLL diagnosed in 2004 contributed to his death in 

2011. 

Ultimately, the burden of proof rests with appellant to establish the essential elements of 

her claim.9

 Despite OWCP’s repeated requests that she submit evidence to support her 

survivors’ claim, the medical report of record is insufficient to establish the employee’s cause of 

death as related to the implicated occupational exposure. Consequently, appellant failed to 

satisfy her burden of proof. 

LEGAL PRECEDENT -- ISSUE 2 

The employing establishment is responsible for submitting to OWCP all relevant and 

probative factual and medical evidence in its possession or which it may acquire through 

investigation or other means. Such evidence may be submitted at any time pursuant to 20 C.F.R. 

§ 10.118(a). A claimant may request a subpoena, but the decision to grant or deny such a request 

is within the discretion of the hearing representative, 20 C.F.R. § 10.619. The Board’s function 

on appeal is to determine whether the hearing representative abused her discretion in granting or 

denying the subpoena request.10 In requesting a subpoena, the claimant must explain why the 

testimony or evidence is directly relevant to the issues at hand and also explain why a subpoena 

is the best method or opportunity to obtain such evidence because there are no other means by 

which the documents or testimony could have been obtained, see 20 C.F.R. § 10.619(a)(2). 

ANALYSIS -- ISSUE 2 

On appeal, counsel challenged the hearing representative’s denial of his subpoena 

request. Counsel argued that OWCP failed to properly develop the claim with respect to the 

decedent employee’s occupational exposure and the availability of protective equipment. He 

indicated that the requested information was necessary to lay a proper foundation for expert 

medical testimony regarding causal relationship. 

The Board finds that the hearing representative properly denied appellant’s subpoena 

requests. She did not establish why a subpoena was the best method to obtain the evidence in 

question and why there was no other means by which the testimony could be obtained. An abuse 

of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of 

judgment or actions taken which are contrary to both logic and probable deduction from 

established facts.11 The Board finds that the hearing representative did not abuse his discretion 

in denying appellant’s request for subpoenas. 

 9 William J. Cantrell, 34 ECAB 1223 (1983). 

10 Mary Poller, 55 ECAB 483, 489-90 (2004). 

11 See Claudio Vazquez, 52 ECAB 496 (2001). 
6

CONCLUSION 

Appellant has not established that the decedent employee’s January 25, 2011 death was 

employment related. She has also not established that OWCP abused its discretion by denying 

her request for subpoena. 

ORDER 

IT IS HEREBY ORDERED THAT the November 26, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 23, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board