United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Dodge City, KS, Employer 

__________________________________________ 

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Docket No. 15-1646 

Issued: September 1, 2016 

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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 29, 2015 appellant filed a timely appeal of a May 4, 2015 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)(1) and 501.3, the Board has jurisdiction 

to consider the merits of the case. 

ISSUE 

The issue is whether OWCP properly denied authorization for appellant’s cervical spine 

surgery. 

 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.
2

FACTUAL HISTORY 

This case has previously been before the Board. The relevant facts are as follows. On 

October 10, 2006 appellant, then a 56-year-old letter carrier, filed an occupational disease claim 

(Form CA-2) alleging that he developed neck and right shoulder conditions due to carrying his 

mailbag in the performance of duty. OWCP accepted his claim on December 11, 2006 for sprain 

of the right shoulder and rotator cuff as well as cervical spondylosis with myelopathy. 

By decision dated June 17, 2011, OWCP denied appellant’s request for cervical spine 

surgery and recurrence of disability. It found that he had not submitted sufficient medical 

opinion evidence to establish that his current condition and requested surgery were causally 

related to his accepted employment injuries. 

Appellant’s attending physician, Dr. Nazih Moufarrij, a Board-certified neurosurgeon, 

performed an anterior cervical discectomy and fusion at C4-5, C5-6, and C6-7 on April 22, 2011. 

Appellant requested a review of the written record by an OWCP hearing representative 

on June 30, 2011. Dr. Moufarrij submitted a note dated September 20, 2011 opining, “In my 

expert opinion, I believe that carrying mail for 28 years has contributed to aggravating a 

preexisting degenerative disc disease of the cervical spine. This led to severe symptoms, as well 

as MRI [magnetic resonance imaging] scan findings, that necessitated a three-level anterior 

cervical discectomy and fusion.” 

In a decision dated December 15, 2011, OWCP’s hearing representative found that 

appellant had not met his burden of proof to establish that his 2011 cervical condition or that 

surgery was causally related to his employment. He found that there was no rationalized medical 

opinion evidence supporting appellant’s claim. 

Counsel requested reconsideration on June 21, 2012 and submitted a report from 

Dr. Alexander Neel, a Board-certified orthopedic surgeon, dated May 9, 2012. Dr. Neel noted 

that appellant’s work requirement of carrying a mailbag and opined that wearing a loaded 

unilateral mail carrying bag caused the mail carrier to lift to one side with a compensatory 

deviation of the neck away from the side on which the bag is worn. He concluded, “I believe 

that this constant strain of the muscles and carrying the neck in a laterally tilted fashion could 

certainly lead to accelerated cervical arthritis and arthrosis which in turn can certainly lead to 

foraminal encroachment and central stenosis.” Dr. Neel also noted that appellant had no 

recreational activities which would contribute to these conditions or major neck injuries. 

By decision dated November 1, 2012, OWCP reviewed the merits of appellant’s claim 

and denied modification of its prior decision. The matter then proceeded to the Board. In a 

June 18, 2013 decision,3

 the Board set aside OWCP’s November 1, 2012 decision finding that 

the case was not in posture for a decision as appellant’s attending physicians supported that the 

surgery was causally related to his accepted employment injury. The Board directed OWCP to 

refer appellant for a second opinion examination. 

 3

 Docket No. 13-317 (issued June 18, 2013). 
3

On August 7, 2013 OWCP referred appellant for a second opinion evaluation with 

Dr. Paul Stein, a Board-certified neurosurgeon. In a report dated September 12, 2013, Dr. Stein 

listed appellant’s medical history, his current symptomology, and provided findings on 

examination. He reviewed the statement of accepted facts and responded to OWCP’s questions. 

Dr. Stein determined that there were no objective medical findings to show that appellant’s 

cervical condition and the need for surgery was caused by his federal employment. He noted, 

“These are degenerative changes which are often progressive over time absent trauma or external 

conditions. The work activity may have increased his level of discomfort, but the primary factor 

was a progressive degenerative condition.” Dr. Stein concluded that appellant’s cervical 

condition was a natural progression of an underlying preexisting condition and was not 

specifically caused by his job duties. He further opined that the cervical spine surgery was 

appropriate and reasonable in regard to appellant’s cervical degenerative disc disease which was 

not caused or aggravated by his employment. 

By decision dated November 19, 2013, OWCP denied authorization for appellant’s 

cervical disc surgery performed on April 22, 2011. Counsel requested an oral hearing from 

OWCP’s Branch of Hearings and Review on November 26, 2013. 

 In a May 5, 2014 decision, a hearing representative set aside the November 19, 2013 

decision and remanded the case for resolution for a conflict of medical opinion evidence between 

Drs. Stein, Neel, and Moufarrij regarding whether appellant’s cervical surgery was necessary to 

treat an employment-related condition. 

 Dr. Moufarrij completed a note on September 11, 2014 and opined: “I think that given 

that you have done this job for 30 years consisting of repetitive bending, lifting, stooping, and 

twisting with weights varying between 35 pounds for the mail and up to 70 pounds when dealing 

with parcels, it is likely that this has contributed to your neck problem.” 

 On January 29, 2015 OWCP referred appellant, a statement of accepted facts (SOAF) and 

a list of questions to Dr. Hisham Majzoub, a Board-certified neurosurgeon, for an impartial 

medical examination to resolve the conflict of medical opinion evidence between Drs. Stein and 

Moufarrij on the causal relationship of appellant’s cervical condition and the need for surgery. It 

asked that Dr. Majzoub review the SOAF, which included appellant’s assertion that his neck and 

right shoulder were strained by the weight of his mailbag, as well as his accepted conditions of 

right rotator cuff strain and cervical spondylosis with myelopathy. OWCP also asked that 

Dr. Majzoub respond to specific questions. These questions included: (1) whether there were 

objective medical findings to show that appellant’s cervical condition and need for surgery were 

caused by his work activities; (2) whether appellant’s cervical condition was a natural 

progression of his underlying preexisting condition or was caused by his job duties; (3) whether 

the surgery was appropriate as a result of the accepted conditions and needed to give relief, or 

reduce the degree and period of disability; (4) whether the effects of the work injury had ceased; 

(5) whether the effects of the work injury prevented appellant from performing any work 

activities; (6) whether he recommended current treatment and if so, what; and (7) whether 

appellant had any work restrictions due to his March 1, 2004 employment injury, and if so, what 

those restrictions were.
4

 In a report dated April 13, 2015, Dr. Majzoub described appellant’s employment history 

of carrying a mailbag on his right side from 1983 through 2003 and his development of neck 

pain in 2004. He reviewed appellant’s medical history and provided findings on physical 

examination noting that appellant’s motor and sensory examinations revealed no deficit. 

Dr. Majzoub diagnosed degenerative cervical spine disease which required surgery. He 

concluded that appellant’s cervical surgery was successful and that appellant had no current 

deficits. Dr. Majzoub opined that appellant’s cervical spine disease was independent of his work 

as a mail carrier. He opined that carrying mail did not affect the cervical spine and that 

appellant’s cervical spine disease was related to degenerative disc disease not to his federal 

employment duties including carrying a mailbag. 

By decision dated May 4, 2015, OWCP denied appellant’s request for approval of 

cervical disc surgery. It found that Dr. Majzoub’s report was entitled to the special weight of the 

medical evidence and established that appellant’s cervical condition was not caused or 

aggravated by his employment duties. 

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.4 While OWCP is obligated to pay for treatment of employment-related 

conditions, the employee has the burden of establishing that the expenditure is incurred for 

treatment of the effects of an employment-related injury or condition.5 

In interpreting this section of FECA, the Board has recognized that OWCP has broad 

discretion in approving services provided under section 8103, with the only limitation on 

OWCP’s authority being that of reasonableness.6 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.7

 To be entitled to reimbursement of medical expenses, a claimant has the burden of 

establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include 

supporting rationalized medical evidence.8 In order for a surgical procedure to be authorized, a 

claimant must submit evidence to show that the surgery is for a condition causally related to an 

 4

 5 U.S.C. § 8103; J.H., Docket No. 12-1950 (issued February 13, 2013). 

5 Kenneth O. Collins, Jr., 55 ECAB 648 (2004). 

6 See D.K., 59 ECAB 141 (2007). 

7 Minnie B. Lewis, 53 ECAB 606 (2002). 

8 M.B., 58 ECAB 588 (2007). 
5

employment injury and that it is medically warranted. Both of these criteria must be met in order 

for OWCP to authorize payment.9 

When there are opposing reports of virtually equal weight and rationale, the case will be 

referred to an impartial medical specialist pursuant to section 8123(a) of FECA which 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 and resolve the conflict of medical evidence.10 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.11

In situations where there are opposing medical reports of virtually equal weight and 

rationale, and the case is referred to an impartial medical specialist for the purpose of resolving 

the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper 

factual background, must be given special weight.12

ANALYSIS 

The Board finds that OWCP improperly denied appellant’s request for approval of 

cervical spine surgery. 

OWCP accepted appellant’s claim for sprain of the right shoulder and rotator cuff as well 

as cervical spondylosis with myelopathy due to his employment duty of carrying a mailbag. 

Dr. Moufarrij performed an anterior cervical discectomy and fusion at C4-5, C5-6, and C6-7 on 

April 22, 2011. He and Dr. Neel opined that this surgery was necessary due to appellant’s 

employment-related cervical condition. OWCP found that the evidence of record did not 

establish that the surgery was necessary due to appellant’s employment-related conditions. 

Appellant appealed. The Board remanded the case for OWCP to make a referral to a second 

opinion physician. Dr. Stein, as the second opinion physician, determined that appellant’s 

cervical surgery was not causally related to his federal employment. OWCP properly found that 

there was a conflict of medical opinion evidence between appellant’s attending physicians, Drs. 

Neel and Moufarrij, and the second opinion physician, Dr. Stein, regarding whether appellant’s 

degenerative cervical spine condition and resultant surgery was causally related to his 

employment. 

To resolve the conflict of medical evidence, OWCP referred appellant to Dr. Majzoub 

along with a statement of accepted facts and a list of questions. The Board finds that 

Dr. Majzoub’s opinion conflicts with the SOAF. The SOAF made clear that OWCP had 

accepted appellant’s claim for right rotator cuff strain and cervical spondylosis with myelopathy. 

Dr. Majzoub did not mention these accepted conditions in his report. As a medical professional, 

 9 R.C., 58 ECAB 238 (2006). 

10 5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007). 

11 R.C., supra note 8. 

12 Nathan L. Harrell, 41 ECAB 401, 407 (1990). 
6

Dr. Majzoub is entitled to reject causal relationship between appellant’s employment and his 

accepted condition, but if he does so without convincing medical rationale, his opinion has little 

probative or evidentiary value.13 The Board has found that when the referral physician does not 

use the SOAF as the framework in forming his or her opinion, the probative value of the opinion 

is seriously diminished or negated altogether.14 

Dr. Majzoub repeatedly opined that appellant’s employment duties of carrying mailbags 

did not and would not impact his cervical spine. He found that appellant had degenerative disc 

disease and that this condition was the cause of his cervical spine condition which required 

surgery. Dr. Majzoub opined that appellant’s cervical spine disease was independent of his work 

as a mail carrier. He stated that carrying mail did not affect the cervical spine and that 

appellant’s cervical spine disease was related to degenerative disc disease not to his federal 

employment. The Board has held that medical conclusions unsupported by rationale are of little 

probative value.15 In this case, the certainty with which Dr. Majzoub expressed his opinion 

cannot overcome the lack of medical rationale explaining the basis of that opinion. The Board 

finds that Dr. Majzoub did not explain why he believed that appellant’s underlying conditions as 

well as his anterior cervical discectomy and fusion were due to degenerative disc disease rather 

than the accepted condition of cervical spondylosis with myelopathy.16 The Board further notes 

that Dr. Majzoub did not respond to the specific questions posed by OWCP. 

The Board finds that OWCP abused its discretion when it denied authorization of 

appellant’s cervical spine surgery based on Dr. Majzoub’s report.17 This report cannot resolve 

the existing conflict of medical opinion evidence as it is not well rationalized and based on a 

proper factual background, and cannot be accorded special weight. 

On remand OWCP should request a supplemental report from Dr. Majzoub addressing 

the defects in his April 13, 2015 report by noting the accepted conditions and providing clear 

medical reasoning for his opinions regarding these conditions and any relationship to appellant’s 

need for cervical spine surgery. After this and such other development as OWCP deems 

necessary, OWCP should issue a de novo decision regarding appellant’s claim for authorization 

of cervical spine surgery. 

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether OWCP 

abused its discretion by denying appellant’s request for authorization of cervical spine surgery. 

 13 See P.B., Docket No. 08-1024 (issued January 7, 2009); Willa M. Frazier, 55 ECAB 379 (2004). 

14 Id. 

15 Supra note 11. 

16 Id. 

17 C.M., Docket No. 14-1302 (issued May 5, 2015). 
7

ORDER 

IT IS HEREBY ORDERED THAT the May 4, 2015 decision of the Office of Workers’ 

Compensation Programs is set aside and remanded for further development consistent with 

decision of the Board. 

Issued: September 1, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board