United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Camden, AL, Employer 

__________________________________________ 

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Docket No. 14-2016 

Issued: January 16, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On September 19, 2014 appellant filed a timely appeal of a July 31 and September 8, 

2014 Office of Workers’ Compensation Programs’ (OWCP) merit decisions. 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. 

ISSUES 

The issues are: (1) whether OWCP abused its discretion in denying appellant’s request to 

change physicians; and (2) whether it properly denied appellant’s request for surgical spinal 

fusion. 

FACTUAL HISTORY 

On December 9, 2013 appellant, then a 49-year-old rural carrier, filed a traumatic injury 

claim alleging neck sprain during a December 2, 2013 employment-related automobile accident. 

 1

 5 U.S.C. § 8101 et seq.
2

She returned to light-duty work on December 16, 2013. On January 6, 2014 OWCP accepted 

appellant’s claim for lumbar and neck sprains. 

Appellant’s attending physician, Dr. Huey R. Kidd, an osteopath, examined her on 

March 3, 2014 and noted that she did not feel she was improving with physical therapy. He 

recommended a magnetic resonance imaging (MRI) scan due to neck sprain. Appellant 

underwent a cervical MRI scan on March 10, 2014. On March 17, 2014 Dr. Kidd reported that 

appellant had pain on the right side of her neck with numbness and tingling into her right 

fingertips. He reviewed the MRI scan and found bulging discs at C5-6 and a herniated disc at 

C6-7. Dr. Kidd requested a neurosurgical consultation. 

Dr. Timothy Holt, a Board-certified neurosurgeon, examined appellant on April 17, 2014 

and noted her history of injury. He diagnosed neck pain, cervical radiculitis, and herniated 

cervical disc. On examination Dr. Holt found weakness of the right wrist on motor testing with 

loss of range of motion. He examined appellant’s x-rays and found large anterior osteophytes at 

C5-6 with collapse of the discs at both levels. Dr. Holt stated, “At this time I think that 

[appellant] does have cervical stenosis. She has tried all conservative measures. She does have 

moderate disease at C5-6 and mild to moderate at C6-7, but both correlate to her symptoms.” He 

recommended a spinal fusion at C5-6 and C6-7. In a note dated April 22, 2014, Dr. Kidd stated 

that appellant was scheduled for surgery on June 20, 2014. 

OWCP accepted that appellant also sustained displacement of cervical intervertebral disc 

without myelopathy on May 9, 2014. An OWCP medical adviser reviewed the evidence on 

May 9, 2014 and found that surgery was not appropriate. He stated that appellant demonstrated 

some weakness in her right upper extremity, but no hard neurologic radicular signs. The medical 

adviser reviewed the cervical MRI scan and found that the report was “not particularly striking.” 

He stated that surgical intervention did not offer significant benefits and that conservative 

management was preferable. 

By decision dated May 21, 2014, OWCP denied the requested spinal fusion surgery. 

Appellant requested reconsideration of the May 21, 2014 decision on June 3, 2014. 

Dr. Kidd submitted a report dated May 22, 2014 and diagnosed cervical radiculopathy. 

On June 5, 2014 he diagnosed neck sprain, lumbago, bulging disc C5-6, and cervical 

radiculopathy. In a note dated June 20, 2014, Dr. Kidd stated that appellant was experiencing 

increased pain with radiation into her right arm. On July 8, 2014 he diagnosed herniated disc 

and cervicalgia. Dr. Kidd stated that appellant had “a potentially correctible problem by 

surgery.” He noted that she had continued pain and symptoms consistent with her findings on 

the MRI scan. Dr. Kidd submitted a report dated July 22, 2014 and stated that appellant 

remained symptomatic despite physical therapy. He recommended that she continue physical 

therapy and consult with Dr. Holt. 

Appellant submitted a written request to change physicians on June 26, 2014. She stated 

that Dr. Kidd was her treating physician and that he had recommended three courses of physical 

therapy. Appellant stated that she continued to experience a lot of pain and requested that 

Dr. Holt become her treating physician. 
3

In a letter dated July 14, 2014, OWCP stated that additional medical evidence was needed 

to support authorization of the requested surgery and provided appellant with a list of questions 

regarding her condition. It allowed 30 days for a response. 

By decision dated July 31, 2014, OWCP denied appellant’s request to change physicians 

finding that she had not submitted a compelling reason to find treatment from Dr. Kidd was 

anything other than proper and adequate. 

On August 22, 2014 Dr. Holt resubmitted his treatment note, appellant’s MRI scan 

findings, and Dr. Kidd’s notes. The medical adviser reviewed the medical evidence on 

August 20, 2014 and found no evidence of objective neurological deficit. He stated, “The MRI 

[scan] report is very bland.” The medical adviser concluded that conservative care was 

preferable. 

By decision dated September 8, 2014, OWCP denied modification of its prior decisions 

finding that appellant had not submitted the necessary medical evidence supporting a need for 

surgery. 

LEGAL PRECEDENT -- ISSUE 1 

The payment of medical expenses incident to securing medical care is authorized under 

section 8103 of FECA. The pertinent part provides that an employee may initially select a 

physician to provide medical services, appliances, and supplies in accordance with such 

regulations and instruction as the Secretary considers necessary.2

When the physician originally selected to provide treatment for a work-related injury 

refers the employee to a specialist for further medical care, the employee need not consult 

OWCP for approval. In all other instances, however, the employee must submit a written request 

to OWCP with her reasons for desiring a change of physician. OWCP will approve the request if 

it determines that the reasons submitted are sufficient. Requests that are often approved include 

those for transfer of care from a general practitioner to a physician who specializes in treating 

conditions like the work related one or the need for a new physician when an employee has 

moved.3

Any transfer of medical care should be accomplished with due regard for professional 

ethics and courtesy. No transfer or termination of treatment should be made unless it is in the 

best interest of the claimant and the government. Employees who want to change attending 

physicians must explain their reasons in writing and OWCP must review all such requests. 

OWCP may approve a change when: the original treating physician refers the claimant to 

another physician for further treatment; the claimant wants to change from the care of a general 

practitioner to that of a specialist in the appropriate field or from the care of one specialist to 

another in the appropriate field; or the claimant moves more than 50 miles from the original 

 2

 5 U.S.C. § 8101-8193; § 8103(a). 

3

 20 C.F.R. § 10.316. 
4

physician (since OWCP has determined that a reasonable distance of travel is up to a roundtrip 

distance of 100 miles). It must use discretion in cases where other reasons are presented.4 

The Board has recognized that OWCP, acting as the delegated representative of the 

Secretary of Labor, has broad discretion in approving services provided under FECA. OWCP 

has the general objective of ensuring that an employee recovers from his or her injury to the 

fullest extent possible in the shortest amount of time. It, therefore, has broad administrative 

discretion in choosing the means to achieve this goal. The only limitation on OWCP’s authority 

is that of reasonableness. Abuse of discretion is generally shown through proof of manifest 

error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic 

and probable deductions from established facts. It is not enough to show merely that the 

evidence could be construed to produce a contrary conclusion.5

ANALYSIS -- ISSUE 1 

On June 26, 2014 appellant submitted a written request to receive medical treatment from 

Dr. Holt. She noted that her treating physician, Dr. Kidd, had recommended three courses of 

physical therapy, but continued to have pain and requested that Dr. Holt become her treating 

physician. OWCP denied appellant’s request as there was no evidence to indicate that the 

treatment from Dr. Kidd was anything other than proper and adequate. 

The Board finds that OWCP did not abuse its discretion by denying appellant’s request to 

change physicians to Dr. Holt. The Board notes that Dr. Kidd has provided the medical 

treatment recommended by OWCP medical adviser and a change of medical treatment providers 

does not appear to be in appellant’s best interest. While appellant offered reasons for requesting 

to see Dr. Holt, OWCP provided sufficient reason for denying her request. It has broad 

discretion in approving services provided under FECA and the only limitation on OWCP’s 

authority is that of reasonableness.6

 In this case, there is no evidence of manifest error, clearly 

unreasonable judgment or illogical action on the part of OWCP. Appellant did not demonstrate 

that OWCP’s decision to deny the change in physicians was an abuse of discretion. 

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. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8103 of FECA7

 provides that OWCP shall provide a claimant with the service, 

appliances, and supplies prescribed or recommended by a qualified physician which are likely to 

 4

 Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter 

3.300.5.c (February 2012). 

5 Daniel J. Perea, 42 ECAB 221 (1990); J.W., Docket No. 13-1852 (issued January 23, 2014). 

6 Id.

7

 5 U.S.C. §§ 8101-8193, § 8103. 
5

cure, give relief, reduce the degree or period of disability, or aid in lessening the amount of 

monthly compensation. In interpreting section 8103, the Board has recognized that OWCP has 

broad discretion in approving services provided under FECA. OWCP has the general objective 

of ensuring that an employee recovers from his or her injury to the fullest extent possible in the 

shortest amount of time. It therefore has broad administrative discretion in choosing means to 

achieve this goal. The only limitation on OWCP’s authority is that of reasonableness.8

 Abuse of 

discretion is generally shown through proof of manifest error, clearly unreasonable exercise of 

judgment, or actions taken which are contrary to both logic and probable deductions from 

established facts. It is not enough to merely show that the evidence could be construed so as to 

produce a contrary factual conclusion.9

To establish that a medical procedure is warranted, a claimant must submit evidence to 

show that the procedure is for a condition causally related to the employment injury and that the 

procedure is medically warranted. Both of these criteria must be met in order for OWCP to 

authorize payment.10

ANALYSIS -- ISSUE 2 

OWCP accepted that appellant sustained lumbar and neck sprain as well as displacement 

of cervical intervertebral disc without myelopathy. On April 17, 2014 Dr. Holt diagnosed neck 

pain, cervical radiculitis, and herniated cervical disc. He found motor weakness in the right wrist 

as well as loss of range of motion. Dr. Holt reviewed appellant’s x-rays and found large anterior 

osteophytes at C5-6 with collapse of the discs at both levels. He concluded that appellant had 

cervical stenosis with moderate disc disease at C5-6 and C6-7 and recommended a spinal fusion 

at C5-6 and C6-7. 

An OWCP medical adviser reviewed Dr. Holt’s reports as well as appellant’s MRI scan 

and noted that appellant demonstrated some weakness in her right upper extremity. He further 

found no clear neurologic radicular signs. The medical adviser reviewed appellant’s MRI scan 

and found that the report was “not particularly striking” and was “very bland.” He concluded 

that surgical intervention did not offer significant benefits and that conservative management 

was preferable. 

Based on the evidence of record, the Board finds that OWCP did not abuse its discretion 

by denying the proposed surgical procedure for a cervical fusion. The evidence of record fails to 

establish the necessity for surgery was medically warranted. While Dr. Holt asserted that 

appellant required surgery for moderate disc disease, the medical adviser reviewed his report and 

noted that he had not provided specific detailed physical findings in support of his conclusions. 

Dr. Holt did not explain how and why he believed that surgery was necessary and a better 

treatment for appellant. Without medical opinion evidence establishing that the proposed 

 8 Daniel J. Perea, supra note 5. 

9 Id.

10 T.C., Docket No. 14-878 (issued November 24, 2014). 
6

surgery was medically warranted, Dr. Holt did not establish the need for spinal surgery and 

OWCP did not abuse its discretion in denying this requested treatment.

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 OWCP did not abuse its discretion by denying appellant’s request to 

change physicians or by denying her request for spinal surgery. 

ORDER 

IT IS HEREBY ORDERED THAT the September 8 and July 31, 2014 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: January 16, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board