United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.H., widow of W.H., Appellant 

and 

DEPARTMENT OF THE NAVY, ALAMEDA 

NAVAL AIR STATION, Alameda, CA, Employer 

__________________________________________ 

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Docket No. 17-0729 

Issued: August 3, 2017 

Appearances: Case Submitted on the Record

Lauren Shine, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 14, 2017 appellant, through counsel, filed a timely appeal from an 

August 18, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of the claim.3

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 

3

 The record provided the Board includes evidence received after OWCP issued its August 18, 2016 decision. 

The Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the 

Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1). 
2

ISSUE 

The issue is whether appellant met her burden of proof to establish that the employee’s 

May 23, 2012 death was causally related to his Federal employment. 

FACTUAL HISTORY 

On December 11, 1979 the employee, then a 39-year-old sheet metal worker, sustained 

injuries in a work-related fall. He was climbing into an aircraft window, felt a pop in his back, 

and landed on his right side. The employee stopped work on the date of injury and never 

returned. OWCP accepted the claim for cervical sprain, lumbar sprain, sacroiliac ligament 

sprain, lumbar radiculopathy, cervical intervertebral disc degeneration, lumbar intervertebral disc 

displacement without myelopathy, prolonged depressive reaction, and pain disorder related to 

psychological factors. The employee remained on the periodic compensation rolls until his death 

at age 71 on May 23, 2012. 

OWCP learned of the employee’s death on May 31, 2012 and, accordingly, terminated 

wage-loss compensation for temporary total disability. It also informed appellant of the 

availability of survivor benefits for eligible dependents where death resulted from either a jobrelated injury or a medical condition caused by hazardous exposure on the job. Appellant filed a 

claim for survivor benefits (Form CA-5) in April 2015. 

The employee’s June 21, 2012 death certificate identified respiratory failure as the 

immediate cause of death. The underlying causes of death included cervical spinal cord 

compression and end-stage renal disease. 

The employee had been hospitalized on several occasions during the months and weeks 

preceding his May 23, 2012 death. 

On March 19, 2012 Dr. Christopher J. Rosko, a Board-certified emergency medicine 

specialist, indicated that the employee was hospitalized with weakness, neck/back pain, urinary 

tract infection and left foot dry gangrene. The employee also developed hypoxemia with 

increasing nasogastric tube output. He was found to have a large sacral decubitus ulcer with gas 

and Fournier’s gangrene. 

In a March 20, 2012 report, Dr. William Donnellan, a hematology oncology fellow, 

provided a consultation regarding cervical amyloidosis. He noted that the employee had fallen at 

home on February 7, 2012 and had progressive neurological decline due to spinal cord injury.4

 

Dr. Donnellan noted that the employee was essentially unable to move his left upper extremity 

and left lower extremity after that fall. 

On March 25, 2012 Dr. Fawaz Habeeb, an internist, diagnosed C3-4 amyloid osteopathyrelated spinal cord compression. 

 4

 Appellant fell at home on or about February 7, 2012. 
3

On May 21, 2012 Dr. Colleen Adkins, a Board-certified internist, noted the employee had 

C3-4 spinal cord compression due to dialysis-related amyloid, that he was status post Fournier’s 

gangrene, and that the hospital course was complicated by respiratory failure likely secondary to 

progression of high spinal cord injury. 

As noted, the employee died due to respiratory failure on May 23, 2012. 

In a May 24, 2012 autopsy report, Dr. Silvio H. Litovsky, a pathologist, indicated that the 

employee was a 71-year-old male with a history of multiple medical problems. These included 

diabetes, hypertension, end-stage renal disease on hemodialysis since 2002, coronary artery 

disease status post coronary artery bypass grafting (2000), chronic obstructive pulmonary 

disease, and known C3-4 cervical spinal cord compression with focal myelopathy. Magnetic 

resonance imaging scan of spine showed degenerative changes a C3-4 with underlying 

hemodialysis-related arthropathy or neuropathic joint and stable severe canal narrowing with 

cord compression. Dr. Litovsky opined that the immediate cause of death was bilateral acute 

pneumonia. The underlying causes of death included end-stage renal disease and the employee’s 

clinical history of hemodialysis associated with cervical spine arthropathy with spinal cord 

compression. 

On May 6, 2015 OWCP informed its district medical adviser (DMA) of the employee’s 

accepted conditions and requested that the medical evidence of record be reviewed to determine 

whether there was causal relationship between the employee’s death and the accepted conditions. 

In a May 11, 2015 report, Dr. Eric Puestow, a Board-certified internist and OWCP DMA, 

indicated that the employee had a history of diabetes, hypertension and artherosclerosis in 

addition to his accepted work-related conditions. He indicated that the employee had end-stage 

kidney disease consequential to his diabetes and that he had been on maintenance dialysis since 

2002. Also, since early 2012 the employee had been falling and had become nonambulatory. 

Dr. Puestow summarized the employee’s last hospital course, noting that he was admitted 

to the hospital with cervical myelopathy caused by spinal cord compression due to hemodialysisrelated arthropathy. He also noted that the death certificate and the autopsy report indicated that 

the immediate cause of death was pneumonia with the underlying cause of death was diabetic 

kidney failure, which resulted in hemodialysis-related cervical spine arthropathy with spinal cord 

compression. Dr. Puestow indicated that while the employee had cervical degenerative disc 

disease as an accepted condition this was not related to the spinal cord compression that 

ultimately caused the employee’s death. Thus, he opined that there was no causal relationship 

between the employee’s death and the accepted employment-related conditions. 

By decision dated October 28, 2015, OWCP denied appellant’s claim for survivor 

benefits because the weight of the medical evidence did not support that the employee’s death 

was causally related to his employment. 

Appellant timely requested a hearing before an OWCP hearing representative, which was 

held on July 11, 2016. She stated that she felt the employee’s death was work related because a 

spinal injury was noted on both the death certificate and the autopsy report. Counsel argued that 
4

the accepted work injuries had contributed to the employee’s death as his spine had 

decompressed to the point where he was paralyzed and wheelchair bound. 

By decision dated August 18, 2016, the hearing representative affirmed OWCP’s 

June 19, 2013 decision. 

LEGAL PRECEDENT 

FECA5

 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.6 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.7 This burden includes the 

necessity of furnishing rationalized medical opinion evidence demonstrating a causal 

relationship.8

 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 

or her previous employment.9

The mere showing that an employee was receiving compensation for total disability at the 

time of his or her death does not establish that the employee’s death was causally related to the 

previous employment.10 The Board has held that it is not necessary that there is a significant 

contribution of employment factors to establish causal relationship.11 If the employment 

contributed to the employee’s death, then causal relationship is established.12

ANALYSIS 

The Board finds that appellant has not established that the employee’s accepted workrelated conditions either caused or contributed to his May 23, 2012 death due to respiratory 

failure. The employee’s accepted conditions included cervical sprain, lumbar sprain, sacroiliac 

ligament sprain, lumbar radiculopathy, cervical intervertebral disc degeneration, lumbar 

intervertebral disc displacement without myelopathy, prolonged depressive reaction, and pain 

disorder related to psychological factors. Appellant believed that her husband’s death was 

employment related because the June 21, 2012 death certificate listed cervical spinal cord 

compression as an underlying cause of death. 

 5 Supra note 2. 

6

 5 U.S.C. §§ 8102(a) and 8133. 

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

8 Id.

9 Id.

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

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

12 Id. 
5

Dr. Adkins, who completed the death certificate, identified cervical spinal cord 

compression and end-stage renal disease as the underlying causes of death. However, she 

offered no medical rationale as to how the spinal cord compression was work related or how an 

accepted employment-related condition caused or contributed to the employee’s death.13 

OWCP had its DMA, Dr. Puestow, review the medical evidence of record to determine 

whether the decedent’s death was work related. Dr. Puestow noted that the employee’s last 

admission to the hospital was due to a cervical myelopathy caused by spinal cord compression 

due to hemodialysis-related arthroplasty. He also noted that the death certificate and the autopsy 

report indicated that the immediate cause of death was pneumonia with the underlying cause of 

death of diabetic kidney failure which resulted in hemodialysis-related cervical spine arthropathy 

with spinal cord compression. Dr. Puestow indicated that, while the employee had cervical 

degenerative disc disease as an accepted condition, this was not related to the spinal cord 

compression that ultimately caused the employee’s death. Thus, he opined that there was no 

causal relationship between the employee’s death and his employment-related condition(s). 

Dr. Litovsky opined in his autopsy report that the immediate cause of death was bilateral 

acute pneumonia. The underlying causes of death included end-stage renal disease and the 

employee’s clinical history of hemodialysis associated with cervical spine arthroplasty with 

spinal cord compression. 

The Board notes that there is no disagreement between the autopsy findings and the 

medical adviser’s opinion that the employee’s cervical cord compression was a consequence of 

hemodialysis. Thus, the Board finds that appellant failed to establish that the accepted 

employment-related conditions were a contributing cause of the employee’s death.14 

As no further relevant and probative medical evidence was submitted, appellant has 

failed to meet her burden of proof to establish her right to survivor’s benefits.15

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 was causally related to his federal employment. 

 13 See Edna M. Davis (Kenneth L. Davis), 42 ECAB 728 (1991); Christine T. McAtee (Charles M. McAtee), 36 

ECAB 390 (1984). 

14 See F.V. (R.V.), Docket No. 15-0717 (issued July 8, 2015); see also D.L. (R.L.), Docket No. 11-1993 (issued 

July 13, 2012); Roger W. Griffith, 51 ECAB 491 (2000); Glenn C. Chasteen, 42 ECAB 493 (1991); Arnold 

Gustafson, 41 ECAB 131 (1989); Beth P. Chaput, 37 ECAB 158 (1985). 

15 See Marian Tobin (John J. Tobin), Docket No. 95-2201 (issued November 24, 1997). 
6

ORDER 

IT IS HEREBY ORDERED THAT the August 18, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 3, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board