United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.K., Appellant 

and 

DEPARTMENT OF THE ARMY, MATERIAL 

DEVELOPMENT & READINESS COMMAND, 

New Cumberland, PA, Employer 

__________________________________________ 

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Docket No. 15-1676 

Issued: April 11, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 4, 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 medical 

authorization for spinal cord stimulator treatment. 

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted additional evidence after OWCP rendered its April 7, 2015 decision. 

The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 

Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1). 
2 

On appeal, appellant contends that he needs a spinal cord stimulator to treat his accepted 

lower back conditions. 

FACTUAL HISTORY 

OWCP accepted that appellant, a 34-year-old shipment clerk, sustained an exacerbation 

of chronic low back pain on June 27, 1986 as a result of slipping on carbon paper and falling in 

the performance of duty. It previously accepted that he sustained a lumbosacral sprain and an 

aggravation of a preexisting herniation at L5-S1 on February 14, 1985 under claim number 

xxxxxx845, which was combined with the present claim under master file number xxxxxx873. 

Appellant was placed on the periodic rolls to receive wage-loss compensation and has not 

returned to work. 

In an August 29, 1986 report, Dr. Robert Gunderson, an orthopedic surgeon, advised that 

appellant had a June 1983 injury when lifting a sidewall of a mobile home after which he had a 

laminectomy in October 1983. He advised that appellant was doing well until February 1985 

when he was trying to move a wall. Appellant had severe pain in both legs. After this, his pain 

continued, including pain in his calves since June 27, 1986. Dr. Gunderson opined that appellant 

had a recurrently herniated disc based on diagnostic testing and that appellant’s condition was 

aggravated by the February 1985 incident. OWCP continued receiving reports of appellant’s 

treatment and status. 

OWCP referred appellant to Dr. Robert Draper, a Board-certified orthopedic surgeon, for 

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

conditions. In a June 30, 2009 report, Dr. Draper reviewed a statement of accepted facts, 

appellant’s medical history, and conducted a physical examination. He found that appellant had 

preexisting degenerative lumbar disc disease at L4-5 and L5-S1. Dr. Draper reported that 

appellant had a prior lumbar laminectomy in March 1983 at L4-5 for recurrent disc, which was 

not related to his federal employment. Appellant also had a nonwork-related removal of a small 

fatty tumor in 1983. Dr. Draper opined that appellant’s accepted lumbar condition was still 

active, but his complaints of scrotal pain and pain in the testicles were not attributable to his low 

back condition or pathology. He concluded that appellant was capable of performing light-duty 

work for six hours per day that did not require him to lift more than 20 pounds occasionally and 

10 pounds frequently. 

On January 19, 2015 appellant requested authorization for spinal cord stimulator 

treatment and submitted an October 21, 2014 report from Dr. Atom Sarkar, a neurosurgeon, who 

asserted that appellant had lumbar disc surgery and then reinjured his back, which resulted in 

back, leg, groin, and testicular pain. Dr. Sarkar explained that a spinal cord stimulator might 

help appellant’s testicular, leg, and back pain and arranged for him to be seen by pain 

management physicians for a trial for a spinal cord stimulator. 

Appellant’s request was referred to Dr. Morley Slutsky, a Board-certified occupational 

medicine physician and OWCP medical adviser, who found that spinal cord stimulators were 

used for low back conditions when all other treatments and spinal surgeries had failed and 

determined that the use of a spinal cord stimulator was not appropriate in appellant’s case 

because he had not undergone surgery at the accepted L5-S1 level. Dr. Slutsky noted that 
3 

appellant complained of radiating testicular and right leg pain, but asserted that he was unable to 

comment because he did not have a magnetic resonance imaging (MRI) scan to review. He 

found that appellant was not eligible for a spinal cord stimulator regardless of these possible 

radiculopathies. 

In response, appellant submitted a November 6, 2014 report from Dr. Shaik Ahmed, a 

Board-certified pain medicine specialist, who opined that appellant was a good candidate for 

spinal cord stimulator treatment. He asserted that appellant had severe testicular pain since 2009 

with progressive worsening of symptoms. Dr. Ahmed explained that he was unsure as to the 

etiology of appellant’s testicular pain and opined that it could be the result of nerve impingement 

from the lumbar spine, noting that appellant had an L4-5 extruded disc and L5-S1 disc 

displacement. Appellant further located pain in the lower back bilaterally with radiation down 

his right posterolateral leg into the ankle. Dr. Ahmed reported that appellant underwent a 

laminectomy several years earlier and a testicular denervation with hopes that some of the 

testicular pain would be resolved, but he had no relief. In a March 5, 2015 report, Dr. Ahmed 

reiterated his opinion that appellant might benefit from a spinal cord stimulator. He noted that 

appellant would undergo a trial and then receive a permanent lead implantation, if the trial was 

successful. 

By decision dated April 7, 2015, OWCP denied medical authorization for a spinal cord 

stimulator on the basis that the treatment was not related to appellant’s accepted conditions.3

 

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

broad discretion in approving services provided under FECA.5 OWCP has the general objective 

of ensuring that an employee recovers from his 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 contrary to both logic and probable deductions from 

                                                             3

 By order dated December 1, 2015, the Board found that the case record was incomplete as it did not provide the 

full and complete decision of OWCP’s April 7, 2015 decision and requested the Director of OWCP to transmit the 

complete contends of appellant’s case record within 30 days. Docket No. 15-1676 (issued December 1, 2015). On 

January 12, 2016 OWCP stated that, pursuant to the Board’s order, the complete decision was requested from the 

district office on December 11, 2015. On January 7, 2016 the district office provided a response indicating that 

there was no enclosure (notice of decision) to the April 7, 2015 decision and that the author of the decision was no 

longer employed with the district office. 

4

 5 U.S.C. § 8103. 

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

established facts.6 It is not enough to merely show that the evidence could be construed so as to 

produce a contrary factual conclusion.7

 

Section 20 C.F.R. § 10.126 requires OWCP to issue a decision containing findings of fact 

and a statement of reasons.8

 

ANALYSIS 

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

decision and must be remanded to OWCP. 

OWCP accepted that appellant sustained a lumbosacral sprain and an aggravation of a 

preexisting herniation at L5-S1 on February 14, 1985 and an exacerbation of chronic low back 

pain on June 27, 1986 in the performance of duty. On January 19, 2015 appellant requested 

authorization for a spinal cord stimulator to treat his accepted conditions. In a decision dated 

April 7, 2015, OWCP denied medical authorization for spinal cord stimulator treatment.

The Board finds that OWCP, in its April 7, 2015 decision, has not provided an adequate 

decision with findings of fact and a statement of reasons as to whether a spinal cord stimulator 

was appropriate treatment related to appellant’s accepted conditions. It failed to sufficiently 

discuss or analyze the reports from Drs. Sarkar and Ahmed who found that appellant continued 

to suffer residuals of his employment-related injuries and opined that he was a good candidate 

for a spinal cord stimulator to treat his accepted conditions. Moreover, OWCP’s reasoning was 

not clear. The April 7, 2015 decision contained no language regarding the standards used to 

authorize medical treatment, nor the specific reasons why authorization for the spinal cord 

stimulator was denied. 

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of 

facts and make an award for or against payment of compensation.9 Section 10.126 of Title 20 of 

the Code of Federal Regulations provides that a decision shall contain findings of fact and a 

statement of reasons.10 The Board has held that the reasoning behind OWCP’s evaluation should 

be clear enough for the reader to understand the precise defect of the claim and the kind of 

evidence which would overcome it.11 

                                                             6 Id. 

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

8

 20 C.F.R. § 10.126. See also M.M., Docket No. 14-1166 (issued December 1, 2014); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all decisions should contain findings of 

fact sufficient to identify the benefit being denied and the reason for the disallowance). 

9

 5 U.S.C. § 8124(a). 

10 Supra note 8. 

11 See M.M., supra note 8; L.M., Docket No. 13-2017 (issued February 21, 2014); D.E., Docket No. 13-1327 

(issued January 8, 2014). 
5 

The case must be returned to OWCP for a proper decision to include findings of fact and 

a clear and precise statement as to whether a spinal cord stimulator is appropriate medical 

treatment related to appellant’s accepted conditions under the customary standards. Following 

this and such further development as OWCP deems necessary, it shall issue a de novo decision. 

CONCLUSION 

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

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 for further proceedings 

consistent with this decision of the Board. 

Issued: April 11, 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