United States Department of Labor

Employees’ Compensation Appeals Board

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W.C., claiming as widow of R.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Imperial, CA, Employer

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Docket No. 18-0531

Issued: November 1, 2018

Appearances: Case Submitted on the Record

Jonathan M. Perkins, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 18, 2018 appellant, through her representative, filed a timely appeal from a 

July 25, 2017 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 this case.

 

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.
2

ISSUE

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

death on August 4, 2015 was causally related to the accepted May 19, 2004 employment injury.

FACTUAL HISTORY

The employee, then a 42-year-old senior border patrol agent, filed a traumatic injury claim 

(Form CA-1) on May 19, 2004, alleging that he was injured that day when a suspect ran his vehicle 

into the employee’s vehicle.3 OWCP initially accepted the claim for cervical strain, and later 

expanded the acceptance of the claim to include cervical disc herniations at C4-5 and C5-6, left 

shoulder strain, psychogenic pain, dysphagia, and nonunion of fracture. The employee underwent 

cervical fusion surgery on February 3, 2005. OWCP paid wage-loss compensation benefits on the 

supplemental rolls as of November 3, 2004 and on the periodic rolls as of December 25, 2005. 

The employee underwent further cervical surgical procedures on April 25, 2006 and 

March 8, 2008. He returned to full duty on October 8, 2008, but was again disabled from work on 

May 26, 2009. OWCP again paid the employee wage-loss compensation on the periodic rolls. 

The employee did not return to work.

In a January 22, 2013 report, Dr. Charles Stevens, Board-certified in anesthesiology and 

pain medicine, noted seeing the employee for follow-up with complaints of neck, shoulder, and 

mid and lower back pain that radiated to the right leg. He reported that the employee had not been 

seen for almost a year and related that he took six to seven 4 milligram tablets of hydromorphone 

daily which were prescribed after brain surgery, and that he needed refills of other medications. 

Dr. Stevens diagnosed cervicalgia, postlaminectomy pain syndrome of the cervical region, 

brachial neuritis or radiculitis not otherwise specified, lumbosacral spondylosis without 

myelopathy, depressive disorder not elsewhere classified, and neck sprain. He indicated that he 

would restart methadone and provigil.

The employee moved from California to New Hampshire in April 2014. In a 

November 13, 2014 report, Dr. Mark C. Nelson, an attending Board-certified orthopedic surgeon, 

noted that the employee had moved to be on the east coast, but had travelled back to California 

and reported that he was much worse due to a flare-up of pain during his travels. He noted limited 

cervical range of motion on examination. Dr. Nelson indicated that the employee was being seen 

by a pain management specialist in the east and had run out of his pain medication. He gave him 

a small prescription for hydromorphone and Norco. In an attached work capacity evaluation (Form 

OWCP-5c), Dr. Nelson advised that the employee could work modified duty for four to six hours 

daily.

The employee died on August 4, 2015. Appellant, the employee’s widow, filed a claim for 

survivor’s benefits (Form CA-5) on January 7, 2016, alleging that the medications were prescribed 

to help the employee manage his chronic pain due to the May 19, 2004 employment injury.

A December 3, 2015 attending physician’s report attached to the Form CA-5 was 

completed by Dr. Terrence McNamara, an osteopath, Board-certified in physical medicine and 

 

3 At some point after filing the traumatic injury claim, the employee changed his name from E.C. to R.C.
3

rehabilitation and pain medicine. He indicated that he was treating the employee for chronic neck 

pain status postsurgery, which was employment related. Dr. McNamara noted that he had recently 

seen appellant on March 24, June 17, and July 15, 2015. He noted that, according to the autopsy, 

the cause of death was combined effects of ethanol and multiple medications. Dr. McNamara

checked a form box “no,” indicating that the employee’s death was not due to the employmentrelated neck pain. 

An autopsy was completed by Dr. Monica Smiddy, Board-certified in anatomic and 

forensic pathology. She noted the employee’s history of a remote injury of neck with surgical 

scars, chronic pain syndrome, chronic alcoholism and prescription medical abuse, remote 

craniotomy of right frontal skull with history of seizure disorder, and postmortem finding of left 

kidney renal cell carcinoma with no evidence of distant metastasis. An attached toxicology report 

showed findings above a therapeutic dose of ethanol, acetaminophen, alprazolam, dihydrocodeine/

hydrocodol, hydrocodone, hydromorphone, topiramate, tramadol, o-desmethyltramadol, 

venlafaxine, o-desmethylvenlafaxine, meta-chlorophenylpiperazine, and trazodone in femoral 

blood. Dr. Smiddy indicated that the cause of death was acute intoxication due to the combined 

effects of ethanol, alprazolam, hydrocodone, hydromorphone, topiramate, tramadol, venlafaxine, 

and trazadone. The manner of death was undetermined.

The death certificate listed the cause of death as acute intoxication with the combined 

effects of ethanol, alprazolam, hydrocodone, hydromorphone, topiramate, tramadol, venlafaxine, 

and trazodone. It further indicated “mixed prescription drugs with alcohol intoxication.” No other 

significant condition was listed. 

In a July 20, 2016 development letter, OWCP notified appellant of the deficiencies of her 

survivor benefits claim and requested additional factual and medical information. This was to 

include copies of any medical treatment records. OWCP specifically requested March 24, June 17, 

and July 15, 2015 treatment notes from Dr. McNamara, and other medical reports from the 

employee’s physician to support the most recent type and level of prescriptions recommended for 

his accepted work-related medical conditions.

Appellant submitted a July 25, 2016 statement in which she described the employee’s 

condition since the employment injury. She indicated that in December 2010 she took him to the 

hospital for an altered level of consciousness, and in January 2011 he was admitted, had a brain 

biopsy performed, and was diagnosed with posthypoxic leukoencephalopathy. Appellant related 

that she did not realize that the employee was taking tramadol, noting that they had gone to Mexico 

for dental work and a pharmacy employee told him that it could help his pain. She maintained that 

the employment injury led to chronic suffering, and his medication ultimately led to his death.

By letter dated September 16, 2016, OWCP asked Dr. McNamara to furnish his treatment 

notes dated March 24, June 17, and July 15, 2015, and any additional medical reports describing 

the employee’s most recent type and level of prescriptions recommended for his accepted 

conditions. 

In December 2016, OWCP referred the medical evidence of record to Dr. Stanley Yuan, 

an anesthesiologist, for a second opinion evaluation to determine whether there was a causal 

relationship between the employee’s death and his employment-related conditions. The statement 
4

of accepted facts (SOAF) forwarded to Dr. Yuan indicated that OWCP paid for prescribed 

medications topiramate, venlafaxine, hydromorphone hydrochloride, and hydrocodoneacetaminophen. It asked him to provide an opinion with a rationalized explanation as to whether 

the levels of prescription medication present in the employee’s body at the time of death were 

appropriate as treatment for the accepted conditions, and if the prescribed medication caused, 

accelerated, precipitated or in some way contributed to his death.

In a November 28, 2016 report, Dr. Yuan noted the history of injury, his review of medical 

records dating from May 19, 2004, the employee’s surgical history and care. In answer to OWCP’s 

questions, he indicated that the levels of prescription medication present in the employee’s body 

at the time of his death were appropriate as treatment for the conditions accepted as caused by the 

employment injury. Dr. Yuan explained that, while the list of prescribed medications did not 

match the toxicology report, both hydromorphone and hydrocodone-acetaminophen were

appropriate for postoperative pain therapy. He also noted that the employee had been prescribed 

methadone in addition to hydromorphone and further indicated that it was unclear what the 

indications were for topiramate, venlafaxine, alprazolam, and trazodone, as these medications are 

commonly prescribed for neuropathic pain and depression. Dr. Yuan also noted that the record 

did not indicate that tramadol had ever being prescribed for the employee. He concluded that, 

based on the information given, the levels of prescription medication present in the employee’s 

body at the time of his death were appropriate as treatment for the conditions accepted as related 

to his employment. Dr. Yuan further indicated that he did not believe that the medications listed 

in the SOAF as having been approved by OWCP caused, accelerated, precipitated or in some way 

contributed to the employee’s death. He explained that, when used together, the combination of 

opioid and benzodiazepine (BZD) drugs could have serious detrimental effects upon physical 

health, mental health, and sobriety, and that in addition to increasing the risk of overdose, BZD 

and opioid poly drug use could exacerbate psychological and medical problems commonly seen 

among drug users. Dr. Yuan noted that the autopsy determined that the cause of the employee’s

death was due to the effects of ethanol and multiple medications (alprazolam, hydrocodone, 

hydromorphone, topiramate, tramadol, venlafaxine, and trazodone), and that in addition to alcohol, 

there was a toxicology report of cannabinoids with no indication of medical marijuana approval. 

He further noted that the employee took methadone and Norco for several years, and that he 

received hydromorphone postoperatively after brain surgery. Dr. Yuan indicated that there was a 

high degree of poly-pharmacological self-administration, which likely contributed to the

employee’s death. He concluded that the medications listed in the SOAF did not cause, accelerate, 

precipitate or in some way contribute to the employee’s death. 

By decision dated January 13, 2017, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish that the employee’s death was causally 

related to his May 19, 2004 employment injury. 

In correspondence postmarked February 7, 2017 and received by OWCP on February 10, 

2017, appellant requested a hearing before an OWCP hearing representative. 

In an April 17, 2017 statement, appellant voiced her disagreement with Dr. Smiddy’s 

autopsy findings and Dr. Yuan’s conclusions. She also described medical findings regarding 

December 2010 and January 2011 hospitalizations for a hypoxic brain insult. Appellant noted that 
5

her husband had been prescribed opiates and BZDs for many years and was not a drug abuser. She 

concluded that the medications prescribed for the employee’s employment injury caused his death. 

Appellant submitted medical records from the employee’s December 2010 hospital 

admission. In a December 13, 2010 history and physical report, Dr. Sunny Richley, a Boardcertified internist, noted a history of hyperlipidemia and chronic pain syndrome secondary to 

multiple cervical surgeries due to a motor vehicle accident. She described symptoms of rightsided numbness and altered behavior beginning the previous day. Dr. Richley examined the 

employee and noted that a computerized tomography (CT) scan study of the head showed possible 

bilateral basal ganglia close to a possible infarct, but could not elucidate any areas of stroke. She 

ordered further studies. 

Dr. Andres N. Jacobo, a Board-certified neurologist, saw the employee in consultation on 

December 14, 2010 for numbness and abnormal CT of the head. He reported that the employee’s 

medication had recently been changed and he was started on Dilaudid and amitriptyline. 

Dr. Jacobo described the employee’s complaint of chronic neck pain and right upper extremity 

numbness. He performed neurological examination and reviewed the head CT scan. Dr. Jacobo’s 

diagnoses included new onset of a right C7-8 radiculopathy with weakness and numbness, right 

L5-S1 with numbness, status post one fall, apparently while intoxicated, chronic pain, status post

four surgical spine surgeries, headaches, and abnormal CT of the head. He ordered a CT scan of 

the cervical spine, magnetic resonance imaging (MRI) scans of the cervical and lumbosacral spine, 

and a brain MRI scan. Dr. Jacobo opined that there appeared “to be a tiny relationship” between 

the employee’s recent changes in medications and his intoxication and fall. He requested 

consultation with Dr. Stevens, who had previously treated the employee. 

Dr. Bernardo Ng, a Board-certified psychiatrist, treated the appellant on December 15, 

2010 for a history of depression. He performed mental status examination and diagnosed major 

depressive, recent, rule-out pain syndrome, and chronic pain syndrome, status post cervical surgery 

due to motor vehicle accident injury. Dr. Ng noted that the employee declined antidepressant 

medication. He indicated that consideration should be made to decrease pain medications, 

specifically narcotics, and recommended a rehabilitation program to prevent worsening of 

employee’s pain, which was declined by the employee.

Dr. Stevens reported on December 15, 2010 that the employee was unavailable at the time 

of consultation. He noted the employee’s long-standing history of chronic pain syndrome due to 

multiple neck surgeries and migraine headache, noting that he had been in a pain clinic earlier that 

year and had been seen on December 9, 2010 for uncontrolled pain symptoms which were not 

helped by methadone. Dr. Stevens noted that he prescribed Dilaudid and amitriptyline at that time

which the employee began taking, with subsequent right-sided numbness and pain that initiated 

hospitalization on December 13, 2010. He indicated that an MRI scan of the brain was normal. 

Dr. Stevens noted that, according to the employee’s report, he had only taken two Imitrex and one 

Dilaudid pill on the day he started having mental status changes, and opined that it was unlikely 

that this combination, along with amitriptyline, caused him to have a syncopal episode. He 

indicated that the employee’s hospital laboratory studies showed elevated liver enzymes and that 

he had recently been started on niaspan, a cholesterol medication, a known cause of hepatic 

dysfunction consistent with the employee’s symptoms. Dr. Stevens recommended that the 

employee not restart niaspan and be discharged on an oral morphine equivalent. A handwritten 
6

notation on Dr. Stevens’ consultation report indicated that the employee was admitted to a different 

hospital on January 1, 2011, readmitted in the middle of January, released approximately 

February 8, 2011, and then followed by a neurologist in Boston, Massachusetts. The note 

referenced a March 2, 2011 neurology report from Massachusetts General Hospital. The record 

contains no reports of any 2011 hospitalization in California or Massachusetts.

Appellant also forwarded Dr. McNamara’s treatment notes dated March 24 to July 15, 

2015 in which he described the employee’s pain management regimen, noting treatment with 

venlafaxine, Dilaudid, and Norco. Dr. McNamara diagnosed chronic pain, neck pain, chronic use 

of opiate drugs for therapeutic purposes, and history of traumatic brain injury. He noted that the 

employee was followed by neurology in Boston regarding chronic central nervous systems issues 

which appeared to have improved over time. In each report Dr. McNamara referenced his initial 

office note regarding his medical history.4 In the June 17, 2015 note, Dr. McNamara noted that 

the employee reported resuming smoking after many years and that he was drinking three beers a 

day. He indicated that he informed the employee that this was not compatible with chronic opioid 

therapy or his medication agreement. On July 15, 2015 Dr. McNamara indicated that the 

employee reported that he continued to smoke, but had discontinued alcohol. 

At the hearing, held on May 15, 2017, appellant’s representative discussed the employee’s 

medical history including reports from a Dr. Tracey Cho, a Board-certified neurologist, and a

Dr. Patrick Wolcott, a Board-certified internist and pulmonologist. He maintained that the 

employee’s death was employment related.5 

On June 13, 2017 appellant and her representative requested that OWCP expand the 

acceptance of the claim to include additional conditions of hepatic steatosis, posthypoxic 

leukoencephalopathy, hypoxemia, central sleep apnea, depression, respiratory system depression, 

bradycardia, and hypotension. The correspondence also referenced OWCP’s opioid policy,

effective June 26, 2017. 

In a June 8, 2017 report, Dr. Jacobo noted his review of some medical records of the 

employee including the autopsy. He disagreed with Dr. Smiddy’s findings and conclusions, 

alleging that her diagnosis of chronic alcoholism was incorrect. Dr. Jacobo further disagreed with

Dr. Yuan’s assertion that a toxicology report noted the presence of cannabinoids without indication 

of medical marijuana approval. He maintained that the employee’s chronic use of opioids 

provoked his death, noting factors of depression provoked by chronic pain, chronic use of 

narcotics, and being disabled and unemployed; the unauthorized use of prescribed medicine and 

use or abuse of alcohol provoked by long-term use of narcotics; and delayed posthypoxic 

leukoencephalopathy which was work related because the narcotics produced hypoxemia and 

central sleep apnea. Dr. Jacobo acknowledged that the employee was self-medicating at the time 

of his death, but asserted that this type of drug abuse was highly associated with the long-term use 

of opioids. He referenced a sleep study and report by Dr. Cho, and medical publications. 

Dr. Jacobo concluded that, while the employee died from an acute intoxication with alcohol and a 

combination of narcotics and other medicines, his death was the final act that began with his motor 

 

4 Dr. McNamara’s initial office note is not found in the case record before the Board.

5 The record does not contain a report from either doctor. 
7

vehicle accident which occurred in the line of duty. He advised that the employee lived trying to 

control his pain, but at the end, the treatment he was prescribed to control his pain provoked his

death. Dr. Jacobo asserted that the employee was not a drug abuser and died from the lesions and 

complications from the treatment for his chronic pain.

By decision dated July 25, 2017, an OWCP hearing representative found that appellant had 

not established that the employee’s death was causally related to his accepted employment injury. 

She noted that Dr. McNamara, his attending pain management specialist, indicated that the death 

of the employee was not related to his accepted injury, and that Dr. Yuan carefully reviewed the 

record and noted a high degree of poly-pharmacological self-administration, which likely 

contributed to the employee’s death, but that the medications listed in the SOAF did not cause or 

contribute to his death.6 The hearing representative found Dr. Jacobo’s report of limited probative 

value as he cited medical literature to support his opinion which did not specifically address the 

employee’s situation and work factors. She concluded that the weight of the medical evidence 

rested with the opinion of Dr. Yuan and affirmed the January 13, 2017 decision.

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 duty.7 An award of 

compensation in a survivor’s 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 the 

employment.8 Appellant has the burden of proof to establish by the weight of the reliable, 

probative, and substantial medical evidence that the employee’s death was causally related to an 

employment injury or to factors of his or her federal employment. As part of this burden, appellant 

must submit a rationalized medical opinion, based upon a complete and accurate factual and 

medical background, showing a causal relationship between the employee’s death and an 

employment injury or factors of his or her federal employment. Causal relationship is a medical 

issue and can be established only by medical evidence.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 

 

6 The hearing representative also noted that the record contained a toxicology report that was positive for 

cannabinoids. The record contains a January 31, 2013 report which was interpreted as positive for cannabinoids which 

indicated prescribed or illicit use of marijuana. 

7 5 U.S.C. § 8133 (compensation in case of death).

8 See Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

9 See L.R. (E.R.), 58 ECAB 369 (2007).

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

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

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

The general rule respecting consequential injuries is that, when the primary injury is shown 

to have arisen out of and in the course of employment, every natural consequence that flows from 

the injury is deemed to arise out of the employment, unless it is the result of an independent 

intervening cause, which is attributable to the employee’s own intentional conduct. The 

subsequent injury is compensable if it is the direct and natural result of a compensable primary 

injury. With respect to consequential injuries, the Board has stated that, where an injury is 

sustained as a consequence of an impairment residual to an employment injury, the new or second 

injury, even though nonemployment related, is deemed, because of the chain of causation to arise 

out of and in the course of employment and is compensable.13 A claimant bears the burden of 

proof to establish a claim for a consequential injury. As part of this burden, he must present 

rationalized medical opinion evidence.14

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that the 

employee’s death on August 4, 2015 was causally related to his accepted May 19, 2004 

employment injury.

OWCP accepted cervical strain, cervical disc herniations at C4-5 and C5-6, left shoulder 

strain, psychogenic pain, dysphagia, and nonunion of fracture caused by a May 15, 2004 motor 

vehicle accident. The employee died on August 4, 2015 of acute intoxication with combined 

effects of ethanol, alprazolam, hydrocodone, hydromorphone, topiramate, tramadol, venlafaxine, 

and trazodone. Appellant asserted that the medications were prescribed to help the employee 

manage pain due to the May 109, 2004 employment injury. 

On a December 3, 2015 attending physician’s report attached to appellant’s death benefits 

claim, Dr. McNamara an attending pain management specialist, noted that the employee’s autopsy 

listed the combined effects of ethanol and multiple medications as the cause of death. He indicated 

on the December 3, 2015 report that the employee’s death was not due to the pharmacological 

management of the employment-related neck pain. 

OWCP referred a SOAF and the medical record to Dr. Yuan for a second opinion 

evaluation. In his comprehensive November 28, 2016 report, Dr. Yuan noted his review of the 

medical evidence dating from May 19, 2004. He advised that the medications listed in the SOAF 

that had been approved by OWCP did not cause, accelerate, precipitate or in some way contribute 

to the employee’s death. Dr. Yuan noted, however, that the toxicology report did not match the 

prescribed medications. He explained that when used together, the combination of opioid and 

 

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

12 Id.

13 N.H., Docket No. 10-0536 (issued October 4, 2010).

14 Id.
9

BZD drugs could have serious detrimental effects upon physical health, mental health, and 

sobriety, and that in addition to increasing the risk of overdose, BZD and opioid poly drug use 

could exacerbate psychological and medical problems commonly seen among drug users. 

Dr. Yuan noted that the autopsy determined that the cause of the employee’s death was due to the 

effects of ethanol and multiple medications (alprazolam, hydrocodone, hydromorphone, 

topiramate, tramadol, venlafaxine, and trazodone). The Board notes that Dr. Yuan also indicated 

that a toxicology report was positive for cannabinoids. Contrary to appellant’s representative’s 

assertion on appeal, the record contains a January 31, 2013 report positive for cannabinoids use 

which indicated prescribed or illicit use of marijuana. Dr. Yuan indicated that there was a high 

degree of poly-pharmacological self-administration, which likely contributed to the employee’s 

death.

The Board has reviewed the opinion of Dr. Yuan and finds that it has reliability, probative 

value, and a convincing quality with respect to its conclusions regarding the issue presented on 

appeal.15 Dr. Yuan’s opinion is based on a proper factual and medical history and he thoroughly 

reviewed the factual and medical history by accurately summarizing the relevant medical 

evidence.16 As noted, he provided medical rationale explaining that the employee’s prescribed 

medications for treatment of his accepted employment-related conditions did not cause his death. 

Rather, the toxicology report indicated other substances, as well as alcohol and cannibus, 

contributed to the employee’s death. Thus, Dr. Yuan’s opinion is entitled to the weight of the 

medical evidence and establishes that the employee’s death was not caused or a consequence of 

the accepted employment injury.17

In support of her claim for death benefits, appellant submitted a June 8, 2017 report in 

which Dr. Jacobo, who had treated the employee for a nonemployment-related hospitalization in 

2010, noted his review of some of the employee’s medical records including the autopsy. 

Dr. Jacobo disagreed with Dr. Smiddy’s autopsy findings and conclusions, alleging that her 

diagnosis of chronic alcoholism was incorrect. He further disagreed with Dr. Yuan’s assertion that 

a toxicology report noted the presence of cannabinoids without indication of medical marijuana 

approval.18 Dr. Jacobo maintained that the employee’s chronic use of opioids for the employment 

injury caused his death. He acknowledged that the employee was self-medicating at the time of 

his death, but asserted that this type of drug abuse was highly associated with the long-term use of 

opioids. He concluded that, while the employee died from an acute intoxication with alcohol and 

a combination of narcotics and other medicines, his death was the final act that began with his 

motor vehicle accident which occurred in the line of duty. Dr. Jacobo asserted that the employee 

was not a drug abuser and died from the lesions and complications from the treatment for his 

chronic pain. Due to the lack of an accurate factual background regarding appellant’s substance 

abuse and the lack of medical reasoning explaining how the employee’s accepted employment-

 

15 See R.T., Docket No. 17-2019 (issued August 24, 2018). 

16 See Melvina Jackson, 38 ECAB 443 (1987).

17 Supra note 13

18 Supra note 12.
10

related conditions lead to the consequential overdose, Dr. Jacobo’s report is insufficient to meet 

appellant’s burden of proof.19

The Board also notes that it is unclear what Dr. Jacobo was referencing when he indicated 

that the employee died from lesions. While appellant submitted evidence from the employee’s

hospitalization in 2010, she also referenced additional hospitalizations in 2011 and treatment at 

Massachusetts General Hospital. The medical record also does not contain any of these reports

and does not contain reports of any studies done during the December 2010 hospitalization.

As to Dr. Jacobo’s reliance on medical publications, the Board has long held that excerpts 

from publications have little probative value in resolving medical questions unless a physician 

shows the applicability of the general medical principles discussed in the articles to the specific 

factual situation at issue in the case.20 Dr. Jacobo merely referenced the publications to support 

an opinion that patients on chronic opioid therapy had been shown to have relatively higher levels 

of clinical depression and to support that a potentially life-threatening side effect of opioid therapy 

was respiratory depression, bradycardia, and hypotension, which occurred in opioid overdose. 

The medical evidence of record also contains reports from other physicians, including 

Drs. Stevens, Nelson, Richley and Ng, who provided histories regarding the employee’s medical 

treatment, but offered no opinion regarding the cause of his death. Lacking an opinion regarding 

the cause of the employee’s death, these reports are insufficient to meet appellant’s burden of 

proof.21 Similarly Dr. Smiddy’s autopsy report related the employee’s toxicology findings and 

indicated that the cause of death was acute intoxication due to the combined effects of ethanol, 

alprazolam, hydrocodone, hydromorphone, topiramate, tramadol, venlafaxine and trazadone. 

However, she did not provide a rationalized medical opinion relating the employee’s death to his 

accepted employment injury.22

Appellant alleges that the employee’s death due to drug and alcohol intoxication stemmed 

from the pain caused by his accepted condition. If the employee’s drug dependency could be 

attributed to his disability, then the side effects of such dependency could be considered a 

consequential injury.23 Appellant, however, did not submit a medical report of sufficient rationale 

explaining how the accepted employment injury of May 19, 2004 or the accepted employment 

conditions caused or contributed to the employee’s death. None of the medical evidence submitted 

provided a physician’s rationalized medical opinion causally relating the employee’s death on 

August 4, 2015 to the accepted employment injury. By letter dated July 20, 2016, OWCP advised 

appellant of the specific evidence needed to establish her claim, and again informed her of what 

was required in its initial denial on January 13, 2017. 

 

19 See T.D., Docket No. 14-0262 (issued April 28, 2014). 

20 Roger G. Payne, 55 ECAB 535 (2004).

21 See J.P., (T.P.), Docket No. 17-0563 (issued June 20, 2018). 

22 Id.

23 See Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139 (2001).
11

Appellant’s belief that the employee’s chronic pain caused by the May 19, 2004 

employment injury caused his reliance on drugs that led to his death on August 4, 2015 is 

insufficient, absent medical rationale, to establish the requisite causal relationship. As she failed 

to submit medical evidence containing a rationalized medical opinion that the employee’s accepted 

conditions contributed to his August 4, 2015 death, she has not met her burden of proof.24

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 has not met her burden of proof to establish that the 

employee’s death on August 4, 2015 was causally related to his accepted May 15, 2004 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the July 25, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: November 1, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

24 Supra note 19.