United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., widow of J.S., Appellant

and

DEPARTMENT OF THE ARMY, WOMACK 

ARMY MEDICAL CENTER, Fort Bragg, NC, 

Employer

__________________________________________

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Docket No. 19-0806

Issued: December 9, 2019

Appearances: Case Submitted on the Record

Martin Kaplan, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 5, 2019 appellant, through counsel, filed a timely appeal from a January 11, 

2019 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.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 Board notes that following the January 11, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id. 
2

ISSUE

The issue is whether appellant has established that the employee’s death on August 26, 

2017 was causally related to the accepted condition of permanent aggravation and acceleration of 

retinitis pigmentosa (RP). 

FACTUAL HISTORY

On July 8, 1993 the employee, then a 51-year-old physician, filed an occupational disease 

claim (Form CA-2) alleging that an increased workload beginning in August 1990 caused RP 

which was diagnosed in November 1991. He stopped work on March 1, 1993. 

The employee began treatment with Dr. J. Michael Geiger, a Board-certified 

ophthalmologist, in 1991. He submitted periodic reports describing the employee’s vision loss 

due to RP. 

After initial development of the claim, on November 1, 1995, OWCP accepted permanent 

aggravation and acceleration of RP. On December 28, 1995 it granted the employee a schedule 

award for 50 percent loss of vision in both eyes. The period of the award ran from March 9, 1993 

to April 1, 1996. Following the expiration of the schedule award, OWCP paid the employee wageloss compensation on the periodic rolls. 

In correspondence dated September 25, 2017, appellant informed OWCP that the 

employee died on August 26, 2017. She inquired about benefits as a surviving spouse and

contended that his death was due to “[h]is condition of progressive blindness caused by workrelated aggravation [which] progressed his late stage disoriented condition, an almost Alzheimer[-]

like condition, which ultimately lead to his death at a young age.” Appellant attached a copy of 

the employee’s death certificate, which indicated that he had died on August 26, 2017. The 

immediate cause of death was listed as failure to thrive occurring for weeks, with an underlying 

cause of Alzheimer’s disease occurring for years. The death certificate was signed by Dr. Vijaya 

Polavaram, Board-certified in internal medicine. 

By letter dated October 3, 2017, OWCP informed the employee’s estate that a widow 

and/or children would only be entitled to benefits if an injured workers’ death was a result of the 

work injury. It enclosed a claim for compensation by widow, widower, and/or children (Form 

CA-5) for completion. 

Appellant submitted a completed Form CA-5 dated November 1, 2017. An attached 

attending physician’s report, signed by Dr. Polavaram on October 31, 2017 indicated that 

contributing causes of the employee’s death were debility, anorexia, decubitus ulcer, generalized 

weakness, dementia, anemia, frailty, hypertension, diabetes mellitus, hypothyroidism, and 

neuropathy. She opined that the employee’s death was causally related to his blindness by 

aggravation and acceleration, and that it contributed to his Alzheimer’s and failure to thrive. 

Dr. Polavaram indicated that the employee’s blindness influenced his ability to cope with 

dementia, because due to his blindness, he had to rely on auditory signals. She opined that 

dementia often altered perception of auditory signals which made it harder to process simple tasks, 

and that the employee’s lack of vision led to increased difficulties with communication, in

learning, in understanding new tasks, and in the ability to participate in therapeutic practices which

would have allowed him to adapt and cope with dementia and to slow its progress. Dr. Polavaram 
3

also noted that his blindness also led to mechanical feeding difficulties and unusual feeding habits. 

She maintained that, if the employee had not been blind, he would have been able to manage his 

conditions more effectively, but that it ultimately led to his failure to thrive and, had he not been 

blind, he would likely still be alive.

OWCP asked its district medical adviser (DMA), Dr. Amanda C. Trimpey, Board-certified 

in preventive medicine, to comment on appellant’s claim. In a November 21, 2017 report, she

noted her review of the record, including a statement of accepted facts (SOAF). Dr. Trimpey

indicated that it was plausible and in line with generally accepted medical knowledge, that 

blindness could and would worsen one’s function and lead to accelerated demise in a dementia 

patient. The DMA also related that RP was an inherited condition not caused by injury.

Appellant forwarded progress notes for home visits from Dr. Polavaram dated April 28 to 

August 3, 2017. In each report, Dr. Polavaram noted that the employee had been bedbound for 

the past year, had dementia, appeared to be weak, and was cared for by family and home health 

aides. She diagnosed insulin-dependent diabetes, hypertension, hypothyroidism, hyperlipidemia, 

decubitus ulcer, spinal stenosis, major depression, and failure to thrive. Dr. Polavaram noted that 

following spinal surgery about 10 years previously, the employee began to decline and was 

bedbound due to back pain and inability to walk with some contractures of the lower extremities 

associated with lower motor neuron weakness, and that he indicated that he had no appetite. She

reported that the employee was legally blind due to macular degeneration. On August 3, 2017

Dr. Polavaram indicated that the employee was in a terminal condition and was referred for hospice 

care as requested by the family, noting that he had not been eating for a period of two weeks.

In a January 5, 2018 report, Dr. Geiger noted that he had treated the employee for over two 

decades and observed the deterioration of his vision from normal sight to total blindness. He 

opined that the employee’s blindness contributed greatly to his rapid decline and failure to thrive 

after developing Alzheimer’s dementia.

Hospice records dated August 9 to 26, 2017 described the employee’s palliative care. A 

note dated August 26, 2017 indicated that the employee died at home. Medical diagnoses listed 

included late-onset Alzheimer’s disease, dementia, and diabetes mellitus. 

OWCP again forwarded the record, including Dr. Geiger’s report, to Dr. Trimpey, its 

DMA, for review. It noted that the accepted condition was permanent aggravation and acceleration 

of RP, bilateral. In a February 1, 2018 report, Dr. Trimpey noted that the employee had a multitude 

of medical conditions which, when combined, all contributed to the general cause of death, failure 

to thrive. She reviewed the medical evidence including Dr. Polavaram’s October 31, 2017 

statement and Dr. Geiger’s January 5, 2018 report. Dr. Trimpey noted the accepted condition, but 

wrote that it was well-documented that RP was a hereditary condition. She indicated that the 

employee’s spinal surgery seemed to have worsened his physical state, and concluded that the 

combination of his many medical conditions of diabetes, atherosclerosis, Alzheimer’s disease, 

depression, spinal stenosis, neuropathy, hypertension, hyperlipidemia, thyroid disorder, 

generalized weakness, anemia, macular degeneration, pressure ulcers, bowel and bladder 

incontinence, poor food and fluid intake/anorexia, hypertensive heart disease, and blindness may 

have aggravated and or worsened his dementia symptoms and, in combination, contributed to his 

failure to thrive, which led to his death. 
4

In April 2018 OWCP referred the medical record to Dr. Kevin Yuhan, a Board-certified 

ophthalmologist, for a second opinion. In an April 19, 2018 report, Dr. Yuhan described the 

accepted conditions and death certificate findings. He opined that, although there was evidence 

that suggested that blindness (or a loss of a sense), could aggravate and accelerate dementia, there 

were no studies that clearly demonstrated that stress or environmental circumstances could 

aggravate or accelerate visual impairment due to RP, noting that a review of the literature yielded 

no studies or articles that suggested that environmental circumstances could accelerate or worsen 

RP. Dr. Yuhan concluded that, therefore, there was no evidence that suggested that the employee’s 

work environment and stressful circumstances accelerated his RP, or his dementia which led to his

death.

By decision dated April 30, 2018, OWCP denied appellant’s claim. It found the medical 

evidence of record was insufficient to establish appellant’s claim.

On May 23, 2018 appellant, through counsel, requested a hearing before OWCP’s Branch 

of Hearings and Review. On July 17, 2018 counsel withdrew the hearing request.4

In a July 1, 2018 report, Dr. Jennifer T. Perry, a Board-certified ophthalmologist, reviewed 

the employee’s medical records. She noted that OWCP accepted permanent aggravation and 

acceleration of bilateral RP which eventually led to permanent blindness with no light perception.

Dr. Perry opined that the employee’s accepted RP condition was causally related to his cause of 

death, Alzheimer’s disease and failure to thrive, indicating that it was generally accepted medical 

knowledge that visual impairment had an adverse effect on persons with dementia. She reported 

that patients with dementia and visual impairment, let alone no light perception vision, faced 

tremendous challenges such as inability to perform activities of daily living, increased confusion, 

inhibition of diurnal cycle inhibiting rest, increased fall risk, and accelerated cognitive decline, 

noting that the employee suffered all these due to his visual impairment. Dr. Perry maintained 

that, because of his RP, his blindness would have had a devastating and detrimental effect on his 

cognition. She continued that she had reviewed the reports of Dr. Trimpey and Dr. Yuhan, and 

both noted that evidence suggested that blindness could aggravate and accelerate dementia. 

Dr. Perry concluded that the employee’s accepted condition contributed to, aggravated, and 

accelerated his Alzheimer’s disease which eventually caused his death.

On September 4, 2018 counsel requested reconsideration. He claimed that, as Dr. Yuhan 

opined that RP should not have been accepted, his opinion was contrary to the SOAF and was of 

limited probative value and could not be the basis for denying survivor’s benefits. Counsel 

concluded that all the physicians of record agreed that blindness could accelerate dementia.

OWCP determined that a conflict in medical opinion had been created between appellant’s 

treating physicians and Dr. Yuhan.

 

4 At that time appellant was represented by Daniel F. Read, Esq. On July 16, 2018 Mr. Read withdrew his 

representation. Martin L. Kaplan, Esq. began representation on July 17, 2018. 
5

In correspondence dated October 19, 2018, counsel, citing Board cases C.D.

5

and Carolyn 

Spiewak,

6 maintained that the claim was not in posture for a referee examination because

Dr. Yuhan’s opinion was fatally flawed as he had opined that the employee’s preexisting condition 

should not have been accepted. He asked that if OWCP proceeded to refer the record for a referee 

examination, that he be provided with a bypass log to demonstrate that rotation procedures were 

being followed and to send a copy of the SOAF and questions sent to the referee physician.7

By letter dated November 5, 2018, OWCP informed appellant and counsel that a medical 

records review had been arranged with an impartial medical examiner (IME) Dr. Christopher P. 

Fleming, a Board-certified ophthalmologist, for a medical evaluation to resolve the conflict of 

medical opinion.

Counsel forwarded an October 31, 2018 report in which Dr. Seenu M. Hariprasad, a Boardcertified ophthalmologist, noted his review of the employee’s medical records dating back to 

June 1993. With regard to the employee’s death, Dr. Hariprasad opined that the employee’s 

accepted condition of aggravation and acceleration of bilateral RP was causally related to his death. 

He wrote that patients who had a visual impairment faced tremendous challenges when coping and 

dealing with dementia, noting that visual impairment had a detrimental impact on overall cognitive 

function and substantially impaired the ability to cope and adapt with dementia. This could cause 

increased difficulty in communicating, feeding, mobility, adapting to new environments or 

concepts, participating in cognitive therapy, etc. Dr. Hariprasad indicated that the medical 

literature supported that visual impairment had a substantial adverse impact on those suffering 

from dementia, noting that he had been involved in some studies. He reported that the employee’s 

residual blindness from his accepted condition substantially contributed, aggravated, and 

accelerated his dementia. Dr. Hariprasad also concluded that, based on his educational training, 

practical experience, extensive research, familiarity with the relevant medical literature, and a 

thorough review of the materials provided, it was his professional medical opinion to a high degree 

of medical certainly that the employee’s previously accepted permanent aggravation and 

acceleration of bilateral RP was casually related to his death.

In a December 12, 2018 report, Dr. Fleming opined that, based on his extensive review of 

the medical records, objective evidence, and the SOAF, the employee’s cause of death was not 

due to an accepted work-related condition of permanent aggravation and acceleration of bilateral 

RP. He wrote that the employee suffered from many medical issues, all of which contributed to 

his failure to thrive, the stated cause of death on his death certificate. Dr. Fleming opined that the 

employee’s accepted permanent aggravation of RP did not result in a worsening of the underlying 

conditions resulting in his death. He concluded that he did not see any direct correlation between 

the employee’s death and his accepted condition. 

 

5 Docket No. 08-1266 (issued January 28, 2009).

6 40 ECAB 552 (1989).

7 The record contains a number of telephone memoranda in which OWCP contacted physicians’ offices requesting 

a review of medical records. The record before the Board does not contain an OWCP form ME023 or a bypass log.
6

By decision dated January 11, 2019, OWCP denied modification of the April 30, 2018 

decision. It found that the special weight of the medical evidence rested with the opinion of

Dr. Fleming, the IME.

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.8 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.9 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 federal employment.10 As part of this burden, he or she 

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

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

employment injury or factors of his federal employment.11 Causal relationship is a medical issue 

that can only be established by medical evidence.12

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.13 The Board has held that it is not necessary that there be a significant 

contribution of employment factors to establish causal relationship.14 If the employment 

contributed to the employee’s death, then causal relationship is established.15

FECA provides that, if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.16 

For a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and 

rationale.17 Where OWCP has referred the case to an IME to resolve a conflict in the medical 

 

8 5 U.S.C. § 8133.

9 M.L. (S.L.), Docket No. 19-0020 (issued May 2, 2019).

10 L.W. (K.W.), Docket No. 19-0569 (issued August 16, 2019).

11 Id.

12 See J.P. (E.P.), Docket No. 18-1739 (issued May 3, 2019).

13 L.W. (K.W.), supra note 10.

14 Id.

15 M.L. (S.L.), supra note 9.

16 5 U.S.C. § 8123(a).

17 J.P. (E.P.), supra note 12.
7

evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper 

factual background, must be given special weight.18

ANALYSIS

The Board finds that this case is not in posture for decision.

On November 1, 2017 appellant filed a Form CA-5 requesting survivor benefits, alleging 

that the employee’s death on August 26, 2017 was causally related to the accepted condition of 

permanent aggravation and acceleration of bilateral RP.

OWCP referred the case record, together with a SOAF, to Dr. Yuhan for a second opinion. 

The SOAF noted the employee’s accepted condition as permanent aggravation and acceleration of 

bilateral RP. In his April 19, 2018 report, however, Dr. Yuhan opined that there was no evidence 

to suggest that the employee’s work environment and stressful circumstances accelerated his RP 

which led to his dementia and subsequently his death. Because he did not rely on the SOAF, his 

opinion is, therefore, flawed and of insufficient probative value. OWCP’s procedures provide that 

when a second opinion specialist or referee physician does not use the SOAF provided as 

framework in forming his or her opinion, the probative value of the opinion is seriously 

diminished, or negated altogether.19 As such, Dr. Yuhan’s opinion is insufficient to establish a 

conflict in the medical evidence with the employee’s treating physicians. As there was no conflict 

in the medical evidence, pursuant to 5 U.S.C. § 8123(a), the referral to Dr. Fleming was for a 

second-opinion examination.20

In his December 12, 2018 report, Dr. Fleming opined that the employee’s central vision 

loss was likely caused by macular degeneration and diabetes, but he also noted that the condition 

of permanent aggravation and acceleration of bilateral RP was an accepted condition. Regarding 

the employee’s death, he indicated that any of his serious medical issues including diabetes, 

hypertension, heart disease, atherosclerosis, and hyperlipidemia could have contributed to his 

failure to thrive and death, and that he did not think the employee’s accepted permanent 

aggravation of RP resulted in worsening of the underlying conditions which had resulted in his 

death.

In an October 31, 2018 report, Dr. Hariprasad, reviewed the record on behalf of appellant’s 

counsel, and opined that the employee’s accepted condition of aggravation and acceleration of 

bilateral RP was causally related to his death. He explained that patients who had a visual 

impairment faced tremendous challenges when coping and dealing with dementia, noting that 

visual impairment had a detrimental impact on overall cognitive function and substantially 

impaired the ability to cope and adapt. Dr. Hariprasad concluded that, based on his educational 

training, practical experience, extensive research, familiarity with the relevant medical literature, 

and a thorough review of the materials provided, it was his professional medical opinion, to a high 

 

18 Id.

19 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.7 

(October 1990); J.B., Docket No. 19-0715 (issued September 12, 2019); C.D., Docket No. 08-1266 (issued 

January 28, 2009).

20 S.M., Docket No. 19-0397 (issued August 7, 2019).
8

degree of medical certainty, that the employee’s previously accepted permanent aggravation and 

acceleration of bilateral RP was causally related to his death. 

The Board finds that there is now a conflict in medical opinion between Dr. Fleming and

Dr. Hariprasad regarding whether the employee’s accepted condition of permanent aggravation 

and acceleration of bilateral RP caused or contributed to his death.

21

Because there remains an unresolved conflict in medical opinion regarding whether there 

is a causal relationship between the employee’s accepted condition and his death, the case shall be 

remanded to OWCP for referral to an IME pursuant to section 8123(a) of FECA22 and section 

3.500.5(a) of its procedures.23 After this and such further development as OWCP deems necessary, 

it shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

 

21 Id.

22 5 U.S.C. § 8123(a).

23 Federal (FECA) Procedure Manual, supra note 19 at Part 3--Medical, Medical Examinations, Chapter 3.500.5(a) 

(May 2013).
9

ORDER

IT IS HEREBY ORDERED THAT the January 11, 2019 decision of the Office of 

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

consistent with this decision of the Board.

Issued: December 9, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board