United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.W., Appellant 

and 

DEPARTMENT OF TREASURY, INTERNAL 

REVENUE SERVICE NATIONAL OFFICE, 

Richmond, VA, Employer 

__________________________________________ 

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Docket No. 15-0020 

Issued: August 17, 2016 

Appearances: Case Submitted on the Record

Martin Kaplan, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 2, 2014 appellant, through counsel, filed a timely appeal from a 

September 21, 2014 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) and 

501.3, the Board has jurisdiction over the merits of this case. 

 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

ISSUE 

The issue is whether OWCP abused its discretion by denying appellant’s request for 

cervical surgery. 

FACTUAL HISTORY 

This case has previously been before the Board. By decision dated May 6, 2014, the 

Board remanded the case, finding that OWCP abused its discretion in denying appellant’s 

request for cervical surgery without properly resolving a conflict in medical opinion as to 

whether the surgery was medically necessary for the accepted employment injury.3 The findings 

and facts as set forth in the prior decision are incorporated herein by reference. The relevant 

facts are set forth below. 

On December 3, 2009 appellant, then a 60-year-old tax examiner, filed an occupational 

disease claim (Form CA-2) alleging that she developed hand, back, neck, shoulder, and arm 

problems as a result of repetitive data entry from her federal employment duties. 

In a June 16, 2009 medical report, Dr. Glenn Graves, Board- certified in family medicine, 

diagnosed radicular arm pain with possible herniated nucleus pulposus or other cervical 

pathology aggravated by work. 

Dr. Rodney Schmidt, a Board-certified diagnostic radiologist, reported on June 18, 2009 

that a magnetic resonance imaging (MRI) scan of the cervical spine revealed degenerative disc 

disease with bilateral foraminal narrowing at C5-6 and degenerative disc disease with right 

foraminal narrowing at C6-7. 

In a June 24, 2009 medical report, Dr. George A. Petroff, a Board-certified neurologist, 

reported that appellant complained of pain in the right arm and neck and numbness and tingling 

in the right arm, shoulder, and hand. Appellant’s symptoms were continuous and began in 

April 2009. Based on review of the MRI scan which showed C5-6 and C6-7 disc bulge with 

foraminal impingement, Dr. Petroff diagnosed cervical radiculopathy. 

By decision dated March 17, 2010, OWCP accepted the claim for brachial neuritis or 

radiculitis. 

On January 12, 2012 OWCP referred appellant to Dr. Donald Mauldin, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In his February 20, 2012 report, 

Dr. Mauldin opined that there was no clear relationship between appellant’s symptoms and her 

employment, noting that there was no objective documentation as to why work would cause her 

brachial neuritis or significant radiculitis. He stated that tremors were the significant component 

of appellant’s complaints which were not related to degenerative disc disease in her cervical 

spine and as such, no clear linkage between her present symptoms and her work activity. 

Dr. Mauldin noted that he did not believe that an anterior cervical disc and fusion at C5-6 and 

C6-7 would resolve her significant upper extremity tremors and her chronic localized neck pain 

 3

 Docket No. 13-2093 (issued May 6, 2014). 
3

to the very lower portion of her cervical spine without a significant component of major 

radiculopathy. He also noted that appellant needed an additional independent evaluation by a 

Board-certified neurosurgeon relative to the status of her cervical spine and should also be seen 

by a neurologist to determine if her tremors were work related. Dr. Mauldin further noted that 

there was no objective evidence as to why she could not do office-type work with restrictions. 

By letter dated May 17, 2012, OWCP provided Dr. Anthony Hicks, appellant’s treating 

physician and Board-certified in internal medicine, with a copy of the second opinion report for 

review. 

In a May 22, 2012 report, Dr. Hicks responded to OWCP’s May 17, 2012 request and 

disagreed with Dr. Mauldin’s findings. He further pointed out that Dr. Mauldin was not a 

qualified spinal surgeon and thus, his opinion was of limited probative value as to whether 

cervical surgery was necessary. 

In medical reports dated June 5 to 16, 2012, Dr. Scott Spann, a Board-certified orthopedic 

surgeon, diagnosed cervicalgia, spinal stenosis in the cervical region, degeneration cervical 4 

disc, and brachial neuritis/radiculitis. He submitted a request for surgical intervention and 

recommended an anterior cervical discectomy and fusion of the C5-6 and C6-7 levels. 

The case file was referred to Dr. Michael M. Katz, a district medical adviser (DMA) and 

Board-certified orthopedic surgeon, for an opinion on appellant’s diagnosed conditions and 

whether surgical intervention was warranted. In a July 31, 2012 report, the DMA diagnosed 

brachial neuritis or radiculitis, recommended surgery, and opined that the surgical procedure was 

related to the accepted work-related injury. 

On August 17, 2012 OWCP found a conflict of opinion between the reports of Dr. Hicks 

and Dr. Mauldin regarding the nature and extent of appellant’s employment-related condition 

and need for surgery. OWCP Form CA-19A Memorandum Referral noted that a referee 

examination was required from a Board-certified neurosurgeon due to a conflict of opinion. It 

referred appellant, the case file, a statement of accepted facts (SOAF), and a series of questions 

to Dr. Joshua T. Woody for a referee examination and opinion on the need for her requested 

surgery. OWCP requested that Dr. Woody provide an opinion regarding whether she was totally 

disabled due to her work injury, whether the surgery requested was due to the accepted work 

injury, and whether her accepted condition of brachial neuritis and radiculitis was caused by her 

work duties. 

In a September 10, 2012 referee report, Dr. Woody responded to the questions provided 

by OWCP. Specifically, question six asked, “Is the diagnosis medically connected to the work 

injury by direct cause, aggravation, precipitation, or acceleration.” Dr. Woody responded that 

the accepted condition of aggravated brachial neuritis or radiculitis was not caused by appellant’s 

work duties and that her condition was a result of age-related degenerative changes. He further 

noted that surgery was due to cervical degenerative disc disease and central canal stenosis, which 

was a nonwork-related issue. 
4

By decision dated September 28, 2012, OWCP denied appellant’s request for cervical 

surgery finding that the weight of the medical evidence rested with Dr. Woody. It noted that he 

concluded that the requested surgery was not a result of the accepted work-related condition. 

On November 28, 2012 appellant underwent anterior cervical discectomy and fusion 

from C5-6 and C6-7. 

By letter dated July 8, 2013 appellant, through counsel, requested reconsideration of 

OWCP’s September 28, 2012 decision. 

By decision dated August 23, 2013, OWCP affirmed the September 28, 2012 denial of 

authorization for cervical surgery, finding that the weight of the medical evidence rested with 

Dr. Woody. 

On May 6, 2014 appellant appealed to the Board. The appeal was docketed as 13-2093.4

 

As previously noted, in a May 6, 2014 decision, the Board set aside the August 23, 2013 decision 

finding that OWCP abused its discretion in denying authorization for cervical surgery because it 

failed to resolve the conflict in medical opinion. The Board noted that Dr. Woody was not 

Board-certified and the CA-19A form directed OWCP to refer appellant for a referee 

examination by a Board-certified neurosurgeon. Furthermore, both Dr. Hicks, appellant’s 

treating physician, and Dr. Mauldin, the second opinion referral physician, noted that appellant 

should be evaluated by a neurosurgeon. As there remained an outstanding conflict in medical 

opinion, it remanded the case for further medical development. 

On remand, OWCP referred appellant, the SOAF, and the case file to Dr. Lloyd 

Youngblood, Board-certified in neurological surgery, to resolve the conflict between Dr. Hicks 

and Dr. Mauldin. In a June 18, 2009 “Questions for Determination,” OWCP requested that 

Dr. Youngblood respond to the following question: Was the anterior cervical discectomy and 

fusion of the C5-6 and C6-7 warranted? 

In a July 22, 2014 report, Dr. Youngblood provided findings on physical examination, 

summarized past medical records, and detailed appellant’s medical history. He noted only one 

question to be addressed: “Was the anterior cervical discectomy and fusion of the C5-6 and 

C6-7 warranted?” Dr. Youngblood responded, “The second opinions by Dr. Mauldin and 

Dr. Woody, both independent [o]rthopedic [s]urgeons, are more accurate and better informed 

regarding the ‘wear and tear diseases of life’ that were/are present in this case. Dr. Hicks’ 

statements are inconsistent with the structural changes and pathophysiology in this case that 

necessitated surgical intervention. Surgery was reasonable, appropriate, and effective; it 

corrected an age-related wear and tear disease, not a condition related in any way to work-related 

activities.” 

By decision dated September 21, 2014, OWCP affirmed the September 28, 2012 decision 

denying appellant’s request for cervical surgery, finding that the weight of the medical evidence 

rested with Dr. Youngblood. 

 4 Id.
5

LEGAL PRECEDENT 

Section 8103 of FECA5 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. In interpreting this section of FECA, the Board has recognized that OWCP has 

broad discretion in approving services provided under FECA. 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 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.6 

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.7

 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.8

In a situation where OWCP secures an opinion from an impartial medical examiner for 

the purpose of resolving a conflict in the medical evidence and the opinion from such examiner 

requires clarification or elaboration, OWCP has the responsibility to secure a supplemental 

report from the examiner for the purpose of correcting the defect in the original opinion.9 If an 

impartial medical specialist is unable to clarify or elaborate on his original report or if his 

supplemental report is also vague, speculative, or lacking in rationale, OWCP must submit the 

case record and a detailed SOAF to a second impartial specialist for the purpose of obtaining his 

rationalized medical opinion on the issue.10

ANALYSIS 

OWCP determined that a conflict existed between Dr. Hicks, appellant’s treating 

physician, and Dr. Mauldin, a second opinion referral physician, regarding the nature and extent 

 5

 5 U.S.C. § 8103. 

6 Daniel J. Perea, 42 ECAB 214 (1990). 

7

 5 U.S.C. § 8123(a). 

8 Nathan L. Harrell, 41 ECAB 402 (1990). 

9 Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988). 

10 Harold Travis, 30 ECAB 1071, 1078 (1979). 
6

of appellant’s employment-related condition and need for surgery. Following the Board’s 

May 6, 2014 decision, it referred appellant to Dr. Youngblood, Board-certified in neurological 

surgery, for an impartial medical evaluation (referee examination) to resolve the conflict. By 

decision dated September 21, 2014, OWCP denied appellant’s request for cervical surgery 

finding that the weight of the medical opinion evidence rested with the opinion of him serving as 

the impartial medical specialist. 

In his July 22, 2014 report, Dr. Youngblood responded to the only question posed by 

OWCP regarding whether the anterior cervical discectomy and fusion of the C5-6 and C6-7 was 

warranted. He responded that the surgery was reasonable, appropriate, and effective. However, 

Dr. Youngblood added that “The second opinions by Dr. Mauldin and Dr. Woody, both 

independent [o]rthopedic [s]urgeons, are more accurate and better informed regarding the ‘wear 

and tear diseases of life’ that were/are present in this case. Dr. Hicks’ statements are inconsistent 

with the structural changes and pathophysiology in this case that necessitated surgical 

intervention. Surgery was reasonable, appropriate, and effective; it corrected an age-related wear 

and tear disease, not a condition related in any way to work-related activities.” 

The Board finds that the opinion of Dr. Youngblood is equivocal regarding whether the 

accepted work-related condition of brachial neuritis or radiculitis caused or contributed to 

appellant’s need for cervical surgery. Dr. Youngblood failed to acknowledge that the conditions 

of brachial neuritis/radiculitis were, in fact, accepted employment-related conditions. His report 

was couched in such vague terms that it did not provide sound medical rationale for his opinion 

as to whether the cervical surgery was or was not related, either wholly or in part, to the accepted 

conditions of brachial neuritis or radiculitis. Moreover, it is unclear what condition 

Dr. Youngblood is referring to as he only generally opined that surgery corrected an age-related 

disease and not a condition related to work-related activities. The Board has consistently held 

that a medical opinion not fortified by rationale is of limited probative value.11 As noted above, 

the only restriction on OWCP’s authority to authorize medical treatment is one of 

reasonableness. However, the opinion on which OWCP relies must contain sufficient medical 

rationale to support OWCP’s decision.12 Dr. Youngblood found that the cervical surgery was 

appropriate medical treatment, but he did not provide a rationalized medical opinion, of his own, 

as to whether the accepted conditions necessitated the cervical surgery. 

On remand, OWCP should further develop the medical evidence and obtain a 

supplemental report from Dr. Youngblood to address the issue of whether appellant’s accepted 

brachial neuritis or radiculitis contributed to the need for surgery.13 If Dr. Youngblood is unable 

to clarify or elaborate on his original report or if his supplemental report is also vague, 

speculative, or lacking in rationale, OWCP must submit the case record and a detailed SOAF to a 

new impartial specialist for the purpose of obtaining a rationalized medical opinion on the 

 11 A.D., 58 ECAB 149 (2006). 

12 See A.W., Docket No. 14-0708 (issued January 2, 2015). 

13 T.H., Docket No. 14-326 (issued February 5, 2015). Once OWCP undertakes development of the record it 

must do a complete job in procuring medical evidence that will resolve the relevant issues in the case. Phillip L. 

Barnes, 55 ECAB 426 (2004); see also Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 

53 ECAB 430 (2002); William J. Cantrell, 34 ECAB 1233 (1993); Dorothy L. Sidwell, 36 ECAB 699 (1985). 
7

issue.14 Following this and any other further development as deemed necessary, OWCP shall 

issue an appropriate merit decision on appellant’s request for surgery. 

CONCLUSION 

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

properly denied appellant’s request for cervical surgery and the case is remanded to OWCP for 

further development. 

ORDER 

IT IS HEREBY ORDERED THAT the September 21, 2014 decision of the Office of 

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

consistent with this decision of the Board.15

Issued: August 17, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 14 Supra note 8. 

15 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.