United States Department of Labor

Employees’ Compensation Appeals Board

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M.L., Appellant (widow of S.L.)

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION,

San Diego, CA, Employer

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Docket No. 19-0020

Issued: May 2, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 3, 2018 appellant, through counsel, filed a timely appeal from an April 13, 

2018 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 April 13, 2018 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 met her burden of proof to establish that the employee’s

death on February 22, 2016 was causally related to his accepted November 24, 2015 employment 

injury.

FACTUAL HISTORY

On December 9, 2015 the employee, then a 41-year-old customs and border protection K9 officer, filed a traumatic injury claim (Form CA-1) alleging that on November 24, 2015 he 

sustained a right knee injury when his knee buckled while in the performance of duty. On the 

reverse side of the claim form the employing establishment indicated that the employee stopped 

work on November 25, 2015 and returned to work that same day after receiving medical treatment.

By decision dated January 8, 2016, OWCP accepted the employee’s claim for unspecified 

subluxation of right patella. On February 5, 2016 it authorized surgery on the employee’s right 

knee.

In a report dated February 10, 2016, Dr. Rodney Henderson, a Board-certified orthopedic 

surgeon, related that he had performed surgery on employee’s right knee and noted postoperative

diagnoses of right knee patellar dislocation, lateral meniscus tear, and chondromalacia.

In a report dated February 21, 2016, Dr. Matthew Dickson, Board-certified in emergency 

medicine, diagnosed cardiac arrest, cause unspecified.

The employee died on February 22, 2016. In a report dated February 22, 2016,

Dr. Dickson indicated a clinical impression of cardiopulmonary arrest.

In a death certificate dated February 24, 2016, Dr. Victor Alvarez, a Board-certified 

anatomic and clinical pathologist, noted the employee’s immediate cause of death as pulmonary 

embolism. In a box marked other significant conditions contributing to the death, but not resulting 

in the underlying cause were listed as recent knee surgery, obesity, and high cholesterol.

In an autopsy report dated February 29, 2016, Dr. Alvarez indicated that the employee’s 

cause of death was natural. The employee’s anatomical diagnoses were listed as: (1) status post 

recent knee surgery; (2) pulmonary embolism; and (3) severe coronary artherosclerosis.

On September 13, 2016 appellant, the employee’s widow, filed a claim for survivor’s 

benefits (Form CA-5). She resubmitted a copy of the death certificate as well as the autopsy report. 

Appellant also submitted a copy of her marriage license, and dependents’ birth certificates along 

with her claim.

In a development letter dated October 31, 2016, OWCP informed appellant of the 

deficiencies of her survivor benefits claim and requested additional factual and medical 

information. It specifically requested that she submit a comprehensive medical report that gave a 

qualified physician’s opinion, with medical reasons, on the direct cause of the employee’s death. 

Appellant did not submit additional evidence.
3

By decision dated April 13, 2018, 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 November 24, 2015 employment injury.

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.4 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.5 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. As part of this burden, she 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 federal employment. Causal relationship is a medical issue and can be 

established only by medical evidence.6

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

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

employment.7 The Board has held that it is not necessary that there be a significant contribution 

of employment factors to establish causal relationship.8 If the employment contributed to the 

employee’s death, then causal relationship is established.9

ANALYSIS

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

employee’s death on February 22, 2016 was causally related to his accepted November 24, 2015 

employment injury.

OWCP accepted subluxation of right patella caused by a November 24, 2015 employment 

injury. On February 10, 2016 the employee underwent authorized right knee surgery. He died on 

February 22, 2016 of a pulmonary embolism. Appellant has not submitted evidence establishing 

that the cause of death was due to circumstances surrounding the employee’s accepted 

November 24, 2015 employment injury or surgery necessitated by the injury. 

The medical evidence of record regarding the employee’s death include reports dated 

February 21 and 22, 2016 from Dr. Dickson. Dr. Dickson provided a history regarding the 

 

4 5 U.S.C. § 8133 (compensation in case of death).

5 W.C. (R.C.), Docket No. 18-0531 (issued November 1, 2018); see Sharon Yonak (Nicholas Yonak), 49 ECAB 

250 (1997).

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

7 W.C. (R.C.), supra note 5; Edna M. Davis (Kenneth L. Davis), 42 ECAB 728 (1991).

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

9

Id.
4

employee’s medical treatment during the cardiac arrest event, but offered no opinion regarding the 

cause of death. Lacking an opinion regarding the cause of the employee’s death, these reports are 

insufficient to meet appellant’s burden of proof.10 

Dr. Alvarez signed the employee’s death certificate dated February 24, 2016 and the 

autopsy report dated February 29, 2016. He related the employee’s history of medical treatment 

and cause of death. On the death certificate Dr. Alvarez noted pulmonary embolism as the 

immediate cause of death, and recent knee surgery, obesity, and high cholesterol in a box marked 

other significant conditions contributing to death, but not resulting in the underlying cause of 

death. However, he did not provide a rationalized medical opinion relating the employee’s death 

to his accepted employment injury.11 The Board has previously explained that if the death 

certificate lists the accepted employment conditions as “other significant conditions contributing 

to death,” there must be an accompanying medical opinion that clarifies how these conditions 

caused or contributed to the employee’s death.

12

 The death certificate is therefore of insufficient 

probative value to establish causal relationship as it does not contain medical rationale. Similarly, 

the autopsy report noted that the employee’s anatomic diagnoses including his recent knee surgery, 

but offered no clarifying opinion as to how the employee’s knee surgery contributed to his death.13 

Lacking this clarification, the autopsy report is also insufficient to establish causal relationship. In 

a claim for death benefits under FECA, the claimant for benefits has the burden of proof to 

establish the necessary elements of her claim. The claimant must prove by the weight of the 

reliable, probative, and substantial evidence the existence of a causal relationship between an 

employee’s death and the accepted employment injury.

14

As appellant has failed to submit medical evidence containing a rationalized medical 

opinion that the employee’s accepted conditions contributed to his February 22, 2016 death, she 

has not met her burden of proof.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 has not met her burden of proof to establish that the

employee’s death on February 22, 2016 was causally related to his accepted November 24, 2015 

employment injury.

 

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

11 Id.

12 See Glenda Mae Robbins, (David Robbins), Docket No. 00-0492 (issued February 15, 2001). 

13 Id.

14 Id.

15 W.C. (R.C.), supra note 5; See T.D., Docket No. 14-0262 (issued April 28, 2014).
5

ORDER

IT IS HEREBY ORDERED THAT the April 13, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 2, 2019

Washington, DC

Christopher J. Godfrey, 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