United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.S., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

COMMISSARY AGENCY, 

Redstone Arsenal, AL, Employer 

__________________________________________ 

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Docket No. 14-972 

Issued: October 15, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On March 25, 2014 appellant filed a timely appeal from the December 23, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction to review the merits of this case. 

ISSUE 

The issue is whether OWCP properly denied authorization for surgery.2

 1

 5 U.S.C. § 8101 et seq.

2 Id. at § 8103. 
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FACTUAL HISTORY 

On February 2, 2005 appellant, a 52-year-old commissary management specialist, 

sustained an injury in the performance of duty when she lifted a case of groceries from a pallet to 

a cart. OWCP accepted her claim for lumbar strain and paid compensation for a period of wage 

loss. 

In 2013 Dr. Larry M. Parker, appellant’s Board-certified orthopedic surgeon, requested 

authorization to perform low back surgery. Appellant had a history of chronic back pain and 

right lower extremity pain. She had received multiple lumbar epidural steroid injections and she 

took chronic pain medication. Appellant had associated spinal stenosis and lumbar radicular 

syndrome at L5 in the right lower extremity. She had advanced degenerative disc disease with 

bone on bone at L5-S1. Dr. Parker found that she was a candidate for an anterior lumbar 

interbody fusion at that level. 

An OWCP medical adviser reviewed the matter and believed that any benefits from 

spinal fusion surgery would be untimely. He noted that appellant was 60 years old with an 

employment-related lumbar strain, a recent imaging study that was entirely benign and a 

neurological examination that was completely within normal limits. 

Dr. Parker, in a later report, disagreed with findings that appellant was a candidate for 

surgery given the fact that she failed 10 years of conservative management. 

In a decision dated December 23, 2013, OWCP denied authorization for surgery. It 

explained that it could not grant authorization for surgery based on its medical adviser’s review 

of the evidence. 

LEGAL PRECEDENT 

Section 8103(a) of FECA provides that the United States shall furnish to an employee 

who is injured while in the performance of duty the services, appliances and supplies prescribed 

or recommended by a qualified physician that the Secretary of Labor considers likely to cure, 

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

monthly compensation.3

 OWCP must therefore exercise discretion in determining whether the 

particular service, appliance or supply is likely to affect the purposes specified in FECA.4

 The 

only limitation on OWCP’s authority is that of reasonableness.5

 3 Id. at § 8103(a). 

4 See Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority in the administration of 

FECA and must exercise that discretion to achieve the objectives of section 8103). 

5 Daniel J. Perea, 42 ECAB 214 (1990). 
3

ANALYSIS 

OWCP accepted that the February 2, 2005 incident at work caused a lumbar strain and 

nothing more. It paid her compensation benefits on the basis of the accepted soft-tissue injury. 

Eight years later, Dr. Parker, appellant’s orthopedic surgeon, requested authorization to 

perform low back surgery. Appellant had a history of chronic back pain and right lower 

extremity pain. She had associated spinal stenosis and lumbar radicular syndrome at L5 in the 

right lower extremity. Appellant had advanced degenerative disc disease with bone on bone at 

L5-S1. She had failed 10 years of conservative treatment. 

Although Dr. Parker made the case for an anterior lumbar interbody fusion at the L5-S1 

level, he did not explain what this had to do with a lumbar muscle strain in 2005, nor did he 

make it clear how spinal fusion surgery was likely to cure, give relief, reduce the degree or the 

period of any disability or aid in lessening the amount of any monthly compensation paid on 

account of appellant’s 2005 lumbar strain. 

Based upon his review of the medical evidence of record, OWCP’s medical adviser 

concluded that, based on appellant’s age, a benign imaging study and a normal neurological 

examination, appellant would not benefit from surgery. 

Dr. Parker did not provide a full history of appellant’s back condition from the time of 

injury to his recommendation for surgery in 2013. He did not fully address the diagnostic testing 

to explain how a soft tissue strain of the lumbar spine, as accepted by OWCP, developed or 

contributed to the degenerative disc disease found at L5-S1 for which surgery was advised. 

Absent sufficient explanation on the issue of causal relationship, as noted by the medical adviser, 

the Board finds that OWCP did not abuse its discretion by denying Dr. Pollen’s surgical 

recommendation. 

CONCLUSION 

The Board finds that OWCP properly denied authorization for surgery. 
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ORDER 

IT IS HEREBY ORDERED THAT the December 23, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 15, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board