United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.H., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

MATERIEL COMMAND, HILL AIR FORCE 

BASE, UT, Employer 

__________________________________________ 

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Docket No. 15-1106 

Issued: February 23, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On April 20, 2015 appellant filed a timely appeal from an April 7, 2015 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 over 

the merits of this case.2

 

ISSUE 

The issue is whether OWCP abused its discretion by denying appellant authorization for 

psychological testing and diagnostic evaluation. 

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the issuance of the April 7, 2015 OWCP decision, appellant submitted new 

evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its 

final decision. See 20 C.F.R. § 501.2(c)(1). 
2 

On appeal appellant contends that he sustained an employment-related head injury on 

January 24, 2013, but forgot to include it in his original claim form due to the nature of his 

injury. He contends that psychological testing and evaluation is necessary to determine the 

nature and extent of his condition. 

FACTUAL HISTORY 

OWCP accepted that appellant, a 39-year-old aircraft mechanic, sustained a right 

shoulder and acromioclavicular (AC) dislocation on January 24, 2013 as a result of slipping and 

falling on ice in the performance of duty. It authorized right shoulder surgery, which he 

underwent on March 1, 2013. Appellant was paid compensation benefits. 

On May 21, 2013 appellant’s treating physician, Dr. Michael Metcalf, a Board-certified 

orthopedic surgeon, found neurologic symptoms, substantial mood swings, depression, and 

agitation, and noted his concern that “perhaps during his fall [appellant] may have hit his head.” 

He referred appellant to Dr. Antonietta Russo, a psychologist, for evaluation at a postconcussion 

clinic. 

In a May 31, 2013 report, Dr. Russo indicated that appellant was seen for a “concussive 

injury that occurred secondary to slip and fall at work” on January 24, 2013. She noted that 

appellant suffered a “severe shoulder injury as well as back and mild concussive injury” and had 

“been struggling to manage affective and cognitive functioning with difficulties including pain, 

headaches, as well as noise and light sensitivities.” On July 16, 2013 Dr. Russo conducted 

psychological testing and found significant psychological distress that was likely contributing to 

his current functioning. She discovered a pattern of neurological findings, including attention 

difficulties and significant mood dysfunction consistent with a mild head injury, complicated by 

psychological factors, as well as a history of previous mild head injuries. Dr. Russo diagnosed 

severe major depressive disorder, adjustment disorder with mixed anxiety and depressed mood, 

and concussion with no loss of consciousness. 

On September 10, 2013 appellant requested authorization for psychological testing and 

diagnostic evaluation. 

In a September 10, 2013 letter, OWCP notified appellant that the evidence in the record 

was insufficient to establish medical necessity and afforded him 30 days to submit additional 

evidence and respond to its inquiries. 

Appellant submitted a December 17, 2013 report from Dr. Bryson Smith, a Boardcertified neurosurgeon, who found that he had “functional limitations, clinical dysthymia, 

depression, anxiety, and passive coping skills with [his] chronic pain.” Dr. Smith noted that 

untreated emotional issues could result in barriers to recovery and inadequate response to 

treatment. He found that appellant demonstrated “inadequate coping skills, and reliance on 

passive treatments such as opioids.” Dr. Smith referred appellant to “pain psychology” to “help 

de-emphasize pain relief and emphasize mindfulness towards function and self-reliance for 

success.” 
3 

OWCP referred appellant to Dr. Michael Callahan, a Board-certified orthopedic surgeon, 

for a second opinion evaluation to determine the nature and extent of his employment-related 

injuries. On July 2, 2014 Dr. Callahan reviewed a statement of accepted facts and appellant’s 

medical records, and conducted a physical examination. He found that on January 24, 2013 

appellant sustained a right grade 5 AC separation diagnosed by x-ray and subsequent surgical 

intervention confirming the posterior displacement of the AC joint and penetration of the 

trapezius muscle. Dr. Callahan opined that it was likely that the fall caused a recurrent injury to 

his lumbar spine based on his rapid onset of complaints of low back pain, left-sided 

radiculopathy, and right-sided hamstring pain with changes demonstrated by magnetic resonance 

imaging (MRI) scan. He found no evidence of any current neck condition other than trapezius 

pain due to the shoulder surgery. Dr. Callahan concluded that appellant had reached maximum 

medical improvement and was totally disabled for work. He recommended vocational 

rehabilitation and “further treatment includ[ing] cognitive behavioral therapy, which may extend 

for up to 20 visits with a psychotherapist familiar with cognitive behavioral therapy.” 

Dr. Callahan advised that appellant should also continue with his pain management physicians, 

but strongly recommended weaning him from his narcotics. He indicated that “[t]hese 

treatments may extend for up to three to six months to complete his rehabilitation” and then 

appellant would be able to return to limited-duty work. 

OWCP expanded appellant’s claim to include displacement of lumbar intervertebral disc 

without myelopathy based on Dr. Callahan’s July 2, 2014 second opinion report. 

By decision dated April 7, 2015, OWCP denied authorization for psychological testing 

and diagnostic evaluation as these procedures were unrelated to appellant’s accepted conditions. 

It further found that he did not initially claim a head injury on his CA-1 form and the medical 

evidence of record was insufficient to establish a head injury causally related to the January 24, 

2013 employment incident. 

LEGAL PRECEDENT 

Section 8103 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, which OWCP considers likely to cure, give relief, reduce 

the degree or the period of disability, or aid in lessening the amount of the monthly 

compensation.3 In interpreting this section of FECA, the Board has recognized that OWCP has 

broad discretion in approving services provided under FECA.4

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. Abuse of discretion is generally shown through 

proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which are 

                                                             3

 5 U.S.C. § 8103. 

4 See J.B., Docket No. 11-1301 (issued March 22, 2012). 
4 

contrary to both logic and probable deductions from established facts.5 It is not enough to 

merely show that the evidence could be construed so as to produce a contrary factual 

conclusion.6

 

ANALYSIS 

The Board has duly considered the matter and finds that the case is not in posture for a 

decision and must be remanded to OWCP. In the case of William A. Couch,

7

 the Board held that 

when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a 

claimant and received by it before the final decision is issued. In this case, in a decision dated 

April 7, 2015, OWCP denied authorization for psychological testing and diagnostic evaluation. 

On September 10, 2013 appellant requested authorization for psychological testing and 

diagnostic evaluation and OWCP referred appellant to Dr. Callahan for a second opinion 

evaluation to determine the nature and extent of his employment-related injuries. In his July 2, 

2014 report, Dr. Callahan recommended vocational rehabilitation and “further treatment 

includ[ing] cognitive behavioral therapy, which may extend for up to 20 visits with a 

psychotherapist familiar with cognitive behavioral therapy.” This report was received by OWCP 

on July 10, 2014. In its April 7, 2015 decision, OWCP denied appellant’s request for 

psychological testing and diagnostic evaluation because the treatment was unrelated to his 

accepted conditions. It did not note receipt or consideration of the July 2, 2014 report from 

Dr. Callahan. 

The Board finds that OWCP, in its April 7, 2015 decision, did not provide consideration 

to the July 2, 2014 report from Dr. Callahan and thus found that psychological testing and 

diagnostic evaluation was unrelated to his accepted conditions.8 For this reason, the case will be 

remanded to OWCP to enable it to properly consider all the evidence submitted at the time of the 

April 7, 2015 decision. Following such further development as OWCP deems necessary, it shall 

issue a de novo decision on the claim. 

CONCLUSION 

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

                                                             5 Id. 

6 See Dale E. Jones, 48 ECAB 648 (1997); Daniel J. Perea, 42 ECAB 214 (1990). 

7

 41 ECAB 548 (1990). 

8 See Linda Johnson, 45 ECAB 439, 440 (1994) (where the Board held that it is necessary that OWCP review all 

evidence submitted by a claimant and received by it prior to issuance of its final decision and noted that this 

principal applies with equal force when evidence is received by OWCP the same day a final decision is issued). 
5 

ORDER 

IT IS HEREBY ORDERED THAT the April 7, 2015 decision of the Office of 

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

proceedings consistent with this decision of the Board. 

Issued: February 23, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board