United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.M., Appellant 

and 

U.S. POSTAL SERIVCE, PROCESSING & 

DISTRIBUTION CENTER, Southeastern, PA, 

Employer 

__________________________________________ 

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Docket No. 15-543 

Issued: June 5, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 20, 2015 appellant, through her attorney, filed a timely appeal from a 

November 5, 2014 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. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for surgical 

authorization and claim expansion. 

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated November 18, 2010, 

the Board affirmed June 30 and October 1, 2009 decisions denying appellant’s claim for 

 1

 5 U.S.C. § 8101 et seq. 
2

compensation for intermittent disability from September 1, 2007 through April 22, 2008 and for 

a recurrence of disability on April 30, 2008 due to her September 1, 2007 employment injury.2

 

The Board subsequently issued an order remanding the case on January 25, 2013 after finding 

that OWCP had improperly selected Dr. John F. Perry, a Board-certified orthopedic surgeon, as 

an impartial medical examiner.3

 The facts and circumstances from the prior decision and order 

are hereby incorporated by reference. The facts relevant to the current appeal will be set forth. 

On November 28, 2007 appellant, then a 34-year-old processing clerk, filed an 

occupational disease claim alleging that she sustained right ulnar neuropathy due to factors of her 

federal employment. OWCP accepted the claim for right ulnar neuropathy. Following her 

injury, she performed limited duty. In a report dated October 29, 2007, Dr. Scott M. Fried, an 

attending osteopath, diagnosed an acute subluxing ulnar nerve of the right elbow due to 

repetitive work activities, right ulnar neuropathy, right radial tunnel syndrome, brachial plexitis, 

and right median neuropathy. 

On September 22, 2009 Dr. Fried requested authorization for a right ulnar 

decompression, a muscle/tendon transfer, decompression of the forearm one space, a revision of 

an arm/leg nerve, and a procedure to relieve pressure on the nerves. 

On October 11, 2009 an OWCP medical adviser recommended approval of only the ulnar 

nerve transposition. He advised against expanding appellant’s claim to include conditions other 

than right ulnar neuropathy. 

By decision dated October 14, 2009, OWCP denied authorization for a muscle/tendon 

transfer, a decompression of the forearm one space, a revision of an arm/leg nerve, and a 

procedure to relieve pressure on nerves. It authorized surgery to revise the right ulnar nerve. 

On October 16, 2009 appellant’s attorney requested an oral hearing. In a decision dated 

April 19, 2010, an OWCP hearing representative vacated the October 14, 2009 decision.4

 She 

found that a conflict existed between OWCP medical adviser and Dr. Fried regarding the need to 

authorize additional surgical procedures. The hearing representative also found a conflict 

regarding whether the claim should be expanded to include the diagnoses provided by Dr. Fried 

in his October 29, 2007 report of a subluxing ulnar nerve in the right elbow, right radial tunnel 

syndrome, brachial plexitis, and right medial neuropathy. She remanded the case for referral to 

an impartial medical examination. 

 2

 Docket No. 10-464 (issued November 18, 2010). 

3 Order Remanding Case, Docket No. 12-1396 (issued January 25, 2013). 

4

 On March 25, 2010 OWCP had referred appellant to Dr. Robert Draper, a Board-certified orthopedic surgeon, 

for a second opinion examination regarding her current condition. In his report dated April 27, 2010, Dr. Draper 

diagnosed entrapment syndrome of the right ulnar nerve and advised that she required surgery on the right ulnar 

nerve. 
3

On August 26, 2010 OWCP referred appellant to Dr. Perry for an impartial medical 

examination.5

 In a report dated September 30, 2010, Dr. Perry diagnosed ulnar neuropathy of 

the right elbow probably due to employment. He found no evidence of median nerve 

compression or radial tunnel syndrome. Dr. Perry recommended additional electrodiagnostic 

testing. 

On October 4, 2010 OWCP informed appellant that Dr. Perry required an 

electromyogram (EMG) from an independent source and provided her 30 days to submit the 

study. 

By decision dated November 5, 2010, OWCP denied authorization for additional surgical 

procedures based on the opinion of Dr. Perry as impartial medical examiner. 

On November 10, 2010 appellant submitted a September 30, 2010 EMG study. 

On December 7, 2010 Dr. Fried performed an anterior transposition of the right ulnar 

nerve, a right ulnar nerve neurolysis, a medial antebrachial cutaneous nerve neurolysis, a medial 

cutaneous branch ulnar nerve neurolysis, a transfer of the right flexor pronator mass, and a right 

forearm fasciotomy. 

Following a preliminary review, in a decision dated May 25, 2011, an OWCP hearing 

representative vacated the November 5, 2010 decision. She remanded the case for OWCP to 

provide Dr. Perry with the September 30, 2010 EMG study and request a supplemental report. 

On June 2, 2011 OWCP accepted that appellant sustained a recurrence of disability 

beginning December 7, 2010 and paid her compensation for total disability beginning that date. 

In a supplemental report dated July 25, 2011, Dr. Perry noted that the EMG study was 

“basically negative for thoracic outlet syndrome, carpal tunnel syndrome, or radial tunnel 

syndrome.” He reviewed the December 7, 2010 operative report and stated, “Basically, 

[Dr. Fried] did a submuscular anterior ulnar nerve transposition. The other items mentioned, 

such as the neurolysis of the nerve, the flexor pronator mass portion of the procedure, and the 

fasciotomy, are all part of the basic anterior transposition of the ulnar nerve, which was done 

sub-muscularly.” 

By decision dated September 1, 2011, OWCP denied authorization for procedures 

unrelated to the accepted condition of an ulnar nerve lesion. It further determined that the weight 

of the evidence, as represented by Dr. Perry’s report, did not show that she sustained carpal 

tunnel syndrome, radial nerve syndrome or thoracic outlet syndrome due to her employment 

injury. In a decision dated February 28, 2012, an OWCP hearing representative affirmed the 

September 1, 2011 decision. 

 5

 OWCP initially referred appellant to Dr. Amir H. Fayyazi, a Board-certified orthopedic surgeon, for the 

impartial medical examination. As Dr. Fayyazi did not respond to OWCP’s June 30, 2010 request for a 

supplemental report, it referred her for to Dr. Perry for an impartial medical examination. 
4

In an order dated January 25, 2013, the Board set aside the February 28, 2012 OWCP 

decision denying her request for surgical authorization and expansion of her claim.6

 The Board 

determined that OWCP had not documented that it had properly selected Dr. Perry as the 

impartial medical examiner and remanded the case for OWCP to properly select a referee 

physician. 

On remand OWCP referred appellant to Dr. Eric Lebby, a Board-certified orthopedic 

surgeon, for an impartial medical examination. In the medical conflict statement dated 

February 5, 2013, it noted that it had only authorized as work related a revision of the ulnar nerve 

at the elbow. OWCP asked if any of the denied procedures should be authorized. 

Based on Dr. Lebby’s April 9, 2013 report, in a decision dated April 19, 2013, OWCP 

denied appellant’s request to authorize the muscle or tendon transfer, the decompression of the 

forearm one space, the revision of an arm nerve, and relieving pressure on the nerve. It noted 

that it had accepted and authorized the submuscular transposition of the right ulnar nerve. 

Appellant’s attorney requested an oral hearing. Following a preliminary review, on 

June 24, 2013 an OWCP hearing representative vacated the April 19, 2013 decision. She found 

that Dr. Lebby had not provided rationale supporting his findings and had not addressed the issue 

of whether appellant had sustained additional employment-related conditions. The hearing 

representative instructed OWCP to obtain a supplemental report from Dr. Lebby. 

In a supplemental report dated October 15, 2013, Dr. Lebby agreed with Dr. Perry’s 

findings in his 2010 impartial medical examination. 

By decision dated October 16, 2013, OWCP denied appellant’s request to authorize 

surgical procedures other than the right ulnar nerve transposition after finding that Dr. Lebby’s 

opinion constituted the weight of the evidence as impartial medical examiner. 

Appellant, through her attorney, requested an oral hearing. After a preliminary review, 

by decision dated January 10, 2014, OWCP hearing representative vacated the October 16, 2013 

decision. She found that Dr. Lebby’s report was insufficiently rationalized and that the questions 

posed to Dr. Lebby by OWCP on February 5, 2013 appeared prejudicial. The hearing 

representative instructed OWCP on remand to prepare a new medical conflict statement and 

questions for the referee physician and refer appellant for a new impartial medical examination. 

On February 10, 2014 OWCP prepared a new conflict statement regarding whether the 

additional surgical procedures of a muscle/tendon transfer, decompressing the forearm one 

space, revising an arm nerve, and relieving pressure on nerves were medically necessary and 

employment related.7

 It also asked the impartial medical examiner to address whether additional 

conditions should be accepted to approve the procedures and whether appellant required further 

medical treatment. 

 6 Order Remanding Case, Docket No. 12-1396 (issued January 25, 2013). 

7

 OWCP initially had changed the date of its February 15, 2013 conflict statement to January 15, 2014; however, 

it subsequently reviewed the conflict statement and questions on February 10, 2014. 
5

In an e-mail dated March 24, 2014, an OWCP claims examiner requested that a medical 

scheduler provide the status of the referral. The medical scheduler responded that a third-party 

scheduling facility had set up an appointment with a physician who had to be added to the 

system. In an e-mail dated March 24, 2014, OWCP noted that a “third-party scheduling facility” 

had found a physician to treat appellant. 

On March 24, 2014 OWCP referred appellant to Dr. Michael Mitrick, an osteopath who 

is Board-certified with the American Osteopathic Association in orthopedic surgery, for an 

impartial medical examination. The record contains an MEO23 appointment schedule form 

dated March 24, 2014 identifying Dr. Mitrick as the selected physician. OWCP noted on the 

form that an evaluation specialist scheduled the appointment after it had bypassed 20 physicians. 

The record contains screen shots dated April 16, 2014 that appear to show physicians 

bypassed by OWCP. The screen shots are not legible. 

In a report dated April 8, 2014, Dr. Mitrick opined that the December 7, 2010 ulnar nerve 

transposition was the only surgical procedures necessary. He found inconsistencies on 

examination. Dr. Mitrick advised that appellant could perform light duty and required no further 

physical therapy, self-care management training, cognitive treating, community work 

reintegration, massage therapy, paraffin bath therapy, or whirlpool therapy for any of the existing 

conditions. 

By decision dated April 23, 2014, OWCP denied authorization for surgical procedures 

other than the right ulnar nerve transposition. 

On April 28, 2014 appellant, through his attorney, requested an oral hearing. At the 

hearing, held on August 14, 2014, counsel argued that the questions posed to Dr. Mitrick were 

prejudicial, that he did not address claim expansion, and that the bypass screens documenting his 

selection were illegible. 

In a decision dated November 5, 2014, an OWCP hearing representative affirmed the 

April 23, 2014 decision. 

On appeal appellant’s attorney argues that OWCP did not properly select Dr. Mitrick as it 

was not possible to see his screen shot and as it was unclear why other physicians were bypassed. 

He further argues that it was unclear which medical conflict statement was provided to the 

physician and that OWCP did not ask about claim expansion. 

LEGAL PRECEDENT 

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint 

a third physician who shall make an examination.8 The implementing regulations state that, if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

 8

 5 U.S.C. § 8123(a). 
6

physician to make an examination. This is called a referee examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.9

A physician selected by OWCP to serve as an impartial medical specialist should be one 

wholly free to make a completely independent evaluation and judgment. In order to achieve this, 

OWCP has developed specific procedures for the selection of the impartial medical specialist 

designed to provide adequate safeguards against any possible appearance that the selected 

physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial 

medical specialist will be selected on a strict rotating basis in order to negate any appearance that 

preferential treatment exists between a particular physician and OWCP.10 

The Medical Management Application (MMA), which replaced the Physician’s Directory 

Service, allows users to access a database of Board-certified specialist physicians and is used to 

schedule referee examination. The application contains an automatic and strict rotational 

scheduling feature to provide for consistent rotation among physicians and to record the 

information needed to document the selection of the physician. If an appointment cannot be 

scheduled in a timely manner or cannot be scheduled for some other reason such as a conflict or 

the physician is of the wrong specialty, the scheduler will update the application with an 

appropriate bypass code. Upon the entering of a bypass code, the MMA will select the next 

physician in the rotation.11 

ANALYSIS 

The Board finds that OWCP failed to properly select Dr. Mitrick as the impartial medical 

specialist. 

It is well established that OWCP has an obligation to verify that it selected Dr. Mitrick in 

a fair and unbiased manner. It maintains records for this very purpose.12 The current record 

contains a Form MEO23 listing Dr. Mitrick as the selected physician. The MEO23 indicates that 

an evaluation specialist selected Dr. Mitrick after OWCP bypassed over 20 physicians. 

OWCP procedures provide that a referee physician should be selected only through the 

use of the MMA in the absence of exceptional circumstances. It states: 

“[W]here exceptional circumstances exist (such as when an esoteric specialty is 

required, or the [MMA] does not contain any physicians of the required specialty 

within a 200-mile radius of the claimant’s home zip code), scheduling outside of 

 9

 20 C.F.R. § 10.321. 

10 See J.N., Docket No. 13-289 (November 15, 2013); C.P., Docket No. 10-1247 (issued September 28, 2011). 

11 Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.5 (July 2011, 

December 2012, May 2013); see also R.C., Docket No. 12-468 (issued October 15, 2012) (where the Board first 

discussed the application of the MMA and found that appellant’s reasons for objecting to the list of impartial 

medical specialists provided by OWCP were not valid). 

12 See J.W., Docket No. 12-331 (issued January 14, 2013). 
7

the [MMA] may be appropriate. If this occurs, the scheduler should consult an 

appropriate directory of Board-certified medical specialists to obtain names of 

suitable physicians for referral. Documentation outlining the rationale for this 

decision must be placed in the case file, and the decision must be approved by a 

[s]upervisory [c]laims [e]xaminer or higher level authority”13

The record in this case contains an e-mail dated March 24, 2014 from a claims examiner 

to a medical scheduler requesting the status of the case and a response from the scheduler 

indicating that an appointment was set up by a third-party scheduling facility with a physician 

who had to be added to the system. There is no indication that the scheduling was approved by a 

supervisory claims examiner. OWCP further did not provide rationale for going outside the 

MMA other than to note that 20 physicians had been bypassed. 

Additionally, the screen shots showing that physicians were bypassed are not fully legible 

and thus are insufficient to show that OWCP properly bypassed these physicians.14 The Board 

has placed great importance on the appearance as well as the fact of impartiality, and only if the 

selected procedures which were designed to achieve this result are scrupulously followed may 

the selected physician carry the special weight accorded to an impartial medical specialist.15 

Consequently, the Board finds that Dr. Mitrick cannot be considered the impartial medical 

specialist as OWCP has not met its obligation to establish that it properly followed its selection 

procedures.16 The Board will remand the case to OWCP for selection of another impartial 

medical specialist to determine if any additional surgical procedures should be authorized and if 

appellant’s claim should be expanded to include additional conditions. After such further 

development as deemed necessary, OWCP should issue a de novo decision. 

CONCLUSION 

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

 13 Federal (FECA) Procedure Manual, supra note 11 at Chapter 3.500.5(b) (July 2011, December 2012, 

May 2013). 

14 See B.S., Docket No. 10-2343 (issued September 28, 2011) (where the Board remanded the case for selection of 

a new impartial medical examiner as OWCP failed to establish that it properly followed its procedures for selection 

of the impartial medical examiner as the screen shots in the record were illegible). 

15 See N.C., Docket No. 12-1718 (issued April 11, 2013); L.W., 59 ECAB 471 (2008). 

16 See supra note 14. 
8

ORDER 

IT IS HEREBY ORDERED THAT the November 5, 2014 decision of the Office of 

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

consistent with this opinion of the Board. 

Issued: June 5, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board