United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., widower of T.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Salem, VA, Employer 

__________________________________________ 

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Docket No. 14-0460 

Issued: February 11, 2016 

Appearances: Oral Argument January 7, 2015 

Susan A. Waddell, Esq., for the appellant 

Ashkea Herron McAllister, Esq., for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On December 23, 2013 appellant, through counsel, filed a timely appeal of a 

November 6, 2013 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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish that the 

employee’s death was caused or contributed to by her federal employment. 

FACTUAL HISTORY 

On February 10, 2012, appellant filed a claim for compensation by widower2

 (Form CA5) alleging that his wife, the employee, died on October 7, 2011 due to her federal employment. 

 1

 5 U.S.C. § 8101 et seq.

2

 The record includes a copy of appellant’s marriage license. 
2

He noted that the employee worked as a nurse for the employing establishment at its Medical 

Center in Salem, Virginia. On the reverse of the form, the employee’s attending physician, 

Dr. Richard P. Konstance, a Board-certified cardiologist, noted that she suffered a suspected 

heart attack with increased metabolic acidosis due to a presumed bacterial infection. Her direct 

cause of death was Neisseria meningitidis group B bacteremia with disseminated intravascular 

coagulation. Dr. Konstance noted that the contributory causes of death were meningitis, septic 

shock, respiratory failure, and pulseless electrical activity (PEA) arrest. He reported that the 

employee’s symptoms included fever, watery diarrhea and bloody emesis, lethargy, as well as 

profound metabolic acidosis and changes on her electrocardiogram (EKG). The death certificate 

listed meningitis as the immediate cause of death. 

 In a report dated March 1, 2012, Dr. Luthur A. Beazley, a Board-certified pediatrician, 

attributed the employee’s death to meningococcemia. He noted that the employee worked as a 

nurse in an active clinic. He opined, “While meningococcus can be acquired by the general 

population, being a health care professional like [the employee] certainly increased ones risk. 

Her situation can be considered work related.” 

Dr. Lee Anne Steffe, a Board-certified pediatrician, completed a note on March 1, 2012 

and opined that the employee was most likely exposed to the N. meningitidis bacteria at the 

employing establishment where she was employed as a nurse in the family practice clinic. 

Dr. Steffe referenced a medical publication noting that healthcare workers had a 25-times greater 

risk of contracting meningococcal disease than the general population. She concluded, “The 

incidence of this deadly disease is thankfully low, but I do believe that [the employee’s] 

employment increased her risk of exposure.” 

In a letter dated November 14, 2012, OWCP requested additional factual evidence 

regarding the employee’s exposure and medical evidence with an explanation as to whether the 

exposure resulted in the specific infection diagnosed. 

Appellant submitted a narrative statement describing the events of October 6 and 7, 2011. 

He related that the employee reported for work on that date at 7:35 a.m. and seemed in normal 

good health and spirits. When he picked her up at 4:30 p.m., she was still in a good mood, 

showing no signs of illness. They then ate dinner at a local restaurant. The employee did not 

finish her meal, but did not say she was feeling ill. They then returned home and appellant went 

to bed at 10:30 p.m. On Friday, October 7, 2011 the employee awakened appellant at 2:10 a.m., 

noting that that she was freezing cold and could not get warm. Her temperature at that time was 

100.7 degrees. At 2:50 a.m. the employee informed appellant that she was nauseous and 

vomited blood. Appellant drove the employee to the emergency room at New River Valley 

Medical Center in Radford, VA. After performing diagnostic tests, including an 

electrocardiogram (EKG), doctors advised that they could not find anything wrong, but were 

admitting her for observation. At 10:00 a.m., the employee’s temperature had risen to 105.8 

degrees and a second EKG revealed heart problems. The employee was diagnosed with a heart 

attack and was helicoptered to Carilion Roanoke Memorial Hospital, which was better equipped 

to handle her medical condition. At 12:00 p.m. she was found to be responsive. At 

approximately 1:30 p.m. the charge nurse informed appellant that the employee had not had a 

heart attack, but rather had an unknown type of virus or blood infection and they were working 

on the problem. Shortly thereafter, the employee’s vital signs crashed and doctors were 
3

ultimately unable to revive her. The employee died at approximately 4:00 p.m. When appellant 

was allowed back into the employee’s hospital room, he noticed red pimples on her skin. He 

was told at the time that the doctors did not know what caused her death. Appellant requested an 

autopsy. 

Appellant explained that the employee’s work involved patients seizing on her and 

treating patients who lived in unsanitary conditions. He noted that he was required to take 

antibiotics after the employee’s death due to the contagious nature of her condition. He further 

stated that that a “Lady in the North Carolina Operations center where they handled my wife’s 

case said it [was] highly [likely] she acquired this virus at the Veterans Hospital in Salem, VA.” 

Appellant further stated, “I understand the only way to find out if you have the disease is to do a 

spinal tap. I have been advised you can carry the disease and not know it. I cannot subject all 

the people that she came in contact with that week to a spinal tap to find the source.” 

Appellant submitted the employee’s hospital records. A report from Dr. Konstance noted 

that he examined the employee at the Carilion Roanoke Memorial Hospital, on October 7, 2011 

after the employee had presented to an outside emergency room complaining of fever, chills, and 

watery diarrhea followed by blood emesis. She was noted to be somewhat lethargic. After EKG 

changes, she was transported to Carilion Roanoke Memorial Hospital Cardiology Service for 

possible cardiac intervention. Upon arrival, she initially complained of abdominal pain and 

continued to be quite lethargic. Shortly after her arrival she had a temperature of 105 degrees 

and deteriorated fairly quickly, requiring intubation, and she subsequently developed pulseless 

electrical activity (PEA) arrest. He diagnosed an acute septic event localized to her abdominal 

compartment with profound metabolic acidosis with lactic acidosis and recurrent episodes of 

PEA arrest refractory to resuscitative efforts. 

Dr. Robert E. Budin, a Board-certified pathologist, performed an autopsy. He listed the 

employee’s cause of death as Neisseria meningitidis group B bacteremia with disseminated 

intravascular coagulation involving kidney, gastrointestinal tract, heart, and lungs with 

hemorrhage of the middle lobe of the right lung and bilateral adrenal glands. 

Dr. William J. Kagey, a Board-certified pediatrician, completed a note dated 

December 27, 2012 and noted that the employee worked as a nurse in the family practice clinic 

at the employing establishment. He also noted that she died of meningococcemia on 

October 7, 2011. Dr. Kagey opined, “I have reviewed her medical record and my unequivocal 

opinion is that there is reasonable medical probability that the meningococcal disease was 

acquired as a work-related illness.” He also noted that the medical literature confirmed that 

health care workers were at significantly greater risk of acquiring meningococcal disease. 

On January 3, 2013 Dr. Steffe opined, “With reasonable medical probability, [the 

employee] was exposed to the N. [m]eningitidis bacteria at the [employing establishment] where 

she was employed as a nurse in the Family Practice clinic.” 

In an e-mail dated February 1, 2013, appellant’s supervisor, Pam McAnally, stated that 

the employee worked in the surgical and urology outpatient specialty clinics. She stated that, “It 

is not possible to determine if the exposure was work related.” Ms. McAnally noted that no 

other employees were infected. She further stated that she was unable to determine to whom the 
4

employee was exposed, the dates of the exposure, or the length of time that the employee was 

exposed to the source of the infection. The employee worked Monday through Friday, 

September 26 to 30, 2011 and Monday through Thursday, October 3 to 6, 2011. 

By decision dated March 7, 2013, OWCP denied appellant’s claim finding that he had not 

established that the employee’s exposure to meningitis occurred due to her federal employment. 

On March 11, 2013 appellant requested an oral hearing before an OWCP hearing representative. 

Appellant and Dr. Kagey testified at the oral hearing held on August 5, 2013. Counsel 

argued that 10 to 15 percent of the general population might be silent carriers of the bacterial 

meningitis that killed the employee. Dr. Kagey stated that the employee contracted a bacterial 

infection of meningococcemia in the blood stream and meningococcal bacteria in the central 

nervous system in the spinal fluid. He stated that this bacteria was carried in a small percentage 

of the population and usually contracted through airborne exposure. Dr. Kagey stated that the 

disease could develop rapidly as in the employee’s case with colonization in the bloodstream and 

then the central nervous system leading to vascular collapse from the bacterial infection. He 

stated that the incubation period was usually one to four days from the time of exposure. 

Dr. Kagey noted that as a nurse the employee was 25 times more likely to develop meningitis in 

a hospital setting than the general population. 

Appellant testified during the hearing that he had not contracted meningitis, and that to 

his knowledge he was not a carrier. He further stated that he was not aware of anyone in the 

community with the disease. Appellant described the employee’s onset of symptoms and noted 

the quick escalation of the disease resulting in her death only 14 hours after the initial onset of 

symptoms. He testified that the employee had not traveled or been exposed to crowds during the 

week before her symptoms developed. Appellant noted that, other than for the night of 

October 6, 2011, they had not eaten out previously that week, but stayed home and did not do 

much. Counsel stated that she would submit a copy of the one-page health department 

investigation, as well as articles from medical literature. 

Following the oral hearing, counsel submitted excerpts from medical publications 

addressing health care workers and meningococcal disease. Dr. Kagey also noted that one of the 

articles states that health care workers were 25 percent more likely to be exposed to the bacteria, 

and the article contains a comment that health care workers without airway protection at the time 

of patient admission probably have an even greater risk. 

By decision dated November 6, 2013, the OWCP hearing representative denied 

appellant’s claim because there was no evidence in the record to support a finding that the 

employee contracted meningococcal meningitis at work or that she was exposed to the bacteria at 

work. He concluded, “Absent the submission of factual evidence establishing when, where and 

how the employee was exposed to the N. Meningitidis bacteria while in the performance of her 

federal duties, the evidence of record is found to be insufficient to establish that the employee’s 

death was causally related to her federal employment.” 
5

LEGAL PRECEDENT 

The United States shall pay compensation for the disability or death of an employee 

resulting from personal injury sustained while in the performance of his or her 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 or her federal 

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.4

 

Chapter 2.805.6 of OWCP’s procedure manual provides: 

“High-Risk Employment. Certain kinds of employment routinely present 

situations which may lead to infection by contact with animals, human blood, 

bodily secretions, and other substances. Conditions such as HIV infection and 

hepatitis B more commonly represent a work hazard in health care facilities, 

correctional institutions, and drug treatment centers, among others, than in 

Federal workplaces as a whole. Likewise, claims for brucellosis, anthrax, and 

similar diseases will most often arise among veterinarians and others who 

regularly work with livestock. 

“Establishing causal relationship in these types of complex cases usually requires 

an in-depth discussion of causal relationship by an appropriate specialist (whether 

it is the claimant’s physician or a second opinion specialist.) When writing to a 

specialist, the [claims examiner] should include a [statement of accepted facts] 

SOAF to provide a complete an accurate factual background for the specialist to 

render his/her opinion.5

” 

ANALYSIS 

Appellant argues that the employee contracted meningococcal meningitis in the course of 

her employment as a nurse for the employing establishment, resulting in her death on 

October 7, 2011. OWCP denied appellant’s claim for survivor benefits, finding that the evidence 

of record was insufficient to support a finding that the employee contracted meningococcal 

meningitis at work, or that she was exposed to the bacteria at work. 

The Board finds that the employee’s work as a nurse at the employing establishment 

routinely presented situations which may lead to infection by contact with human blood, bodily 

 3

 5 U.S.C. § 8102(a); see 5 U.S.C. § 8133. 

4 Lois E. Culver, 53 ECAB 412 (2002). 

5

 Federal (FECA) Procedural Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.6 (January 2013). 
6

secretions, and other substances. Appellant’s employment is thus found to be high-risk 

employment.6 

The question of whether an employment injury is causally related to work factors is 

generally established by medical evidence.7

 However, as noted, OWCP procedures contain 

specific provisions pertaining to high-risk employment. Chapter 2.805.6 of the procedure 

manual provides that “establishing causal relationship in these types of complex cases usually 

requires in-depth discussion by an appropriate medical specialist (whether it is the claimant’s 

physician or a second opinion specialist).”8

 

In support of his claim, appellant submitted medical reports from Drs. Kagey, Beazley, 

and Steffe, who all opined that due to her work as a nurse, the employee was more likely to be 

exposed to meningococcal disease than the general population. However, all three of these 

physicians are pediatricians. They are not appropriate medical specialists on infectious diseases. 

Furthermore, they based their conclusions on generalized statements that nurses and other health 

care workers are more likely than the general public to be exposed to meningitis. Their brief 

reports do not contain the necessary “in-depth discussion of causal relationship by an appropriate 

specialist” to establish a causal relationship between the employee’s diagnosed cause of death 

and her high-risk employment. Furthermore, an award of compensation in a survivor benefits 

claim may not be based on surmise, conjecture, or speculation, or on appellant’s belief that the 

employee’s death was caused, precipitated, or aggravated by [her] employment.9 The Board has 

held that medical reports which are not based on an accurate history of injury, that are of general 

application, and do not address the specifics of a case are insufficient to establish a claim.10

The employee’s supervisor, Ms. McAnally, stated that it was not possible to determine if 

appellant’s exposure was work related and noted that no other employees were infected. She 

stated that she was unable to determine to whom the employee could have been exposed, the 

dates of any exposure, or the length of time that the employee could have been exposed to any 

source of infection. The record does not contain any suggestion that there were patients or 

coworkers at the employing establishment who were diagnosed with the meningitis that 

ultimately took the life of the employee nor that there was any source of transmission at work. 

The employing establishment did not acknowledge any exposure which could have caused the 

employee to have acquired the disease. Although it is appellant’s burden to establish his claim, 

OWCP is not a disinterested arbiter, but rather, shares responsibility in the development of the 

evidence, particularly when such evidence is of the character normally obtained from the 

employing establishment or other government source.11 To properly adjudicate this claim 

premised on an employee engaged in high-risk employment, the procedures require that the 

 6 Id.

7 Supra note 4. 

8 Supra note 9. 

9 Jimmy Zenny (Ingrid Hall Zenny), 54 ECAB 577, 579 (2003); Juanita Terry, 31 ECAB 433, 34 (1980). 

10 C.S., Docket No. 14-1994 (issued January 21, 2015). 

11 Judy C. Rogers, 54 ECAB 693 (2003). 
7

record include an in-depth discussion of any causal relationship by an appropriate specialist. As 

the only physicians who have reviewed this situation and offered an opinion on causal 

relationship are pediatricians, the Board finds OWCP should have referred the record to an 

appropriate infectious disease specialist.12

On remand OWCP should prepare a complete, accurate, and updated statement of 

accepted facts, noting specifically the events of October 6, 2011 leading up to her death on 

October 7, 2011, and refer the claim to an appropriate medical specialist for a reasoned opinion 

as to whether the employee’s work as a nurse for the employing establishment caused or 

contributed to her death. Following such further development as deemed necessary, it shall issue 

a de novo decision. 

CONCLUSION 

The Board finds the case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT November 6, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further proceedings consistent 

with this opinion of the Board. 

Issued: February 11, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 12 See N.S., Docket No. 07-1652 (issued March 19, 2008).