United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.M., Appellant

and

DEPARTMENT OF THE NAVY, 

PHILADELPHIA NAVAL SHIPYARD, 

Philadelphia, PA, Employer

__________________________________________

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Docket No. 17-1244

Issued: November 7, 2017

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 16, 2017 appellant, through counsel, filed a timely appeal from a May 11, 2017 

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 in denying appellant’s request for 

authorization of lumbar surgery.

FACTUAL HISTORY

On May 21, 1991 appellant, then a 43-year-old oiler, filed a traumatic injury claim (Form 

CA-1) alleging that on April 22, 1991 he sustained injuries when he slipped and fell on a 

manhole cover. He stopped work and did not return. OWCP accepted the claim for a 

lumbosacral strain and herniated L4-5 disc. On February 15, 1996 appellant underwent

authorized surgery performed by Dr. Michael Gratch, an orthopedic surgeon. The procedure 

included spinal fusion L4-5, bilateral discectomy L4-5, bilateral L5 foraminotomies, left 

autogenous iliac bone graft and insertion of electrical stimulator. Appellant initially received 

medical and wage-loss compensation on the supplemental rolls. He received compensation on 

the periodic rolls as of June 16, 2002.

Dr. Randall Smith, an attending physician and Board-certified orthopedic surgeon, 

indicated in a November 10, 2000 work restriction evaluation (Form OWCP-5) that appellant 

could work four hours per day with restrictions. He reported that appellant was limited to 20 

pounds lifting. OWCP referred appellant for a second opinion examination with Dr. Anthony 

Salem, a Board-certified orthopedic surgeon. In a report dated July 25, 2001, Dr. Salem 

provided a history and results on examination. He reported on an OWCP-5 form dated July 26, 

2001 that appellant could work eight hours per day with restrictions that included 30 pounds 

lifting.

OWCP found that a conflict in the medical evidence and referred appellant for an 

impartial examination with Dr. E. Balasubramanian, a Board-certified orthopedic surgeon. In a 

report dated March 26, 2002, Dr. Balasubramanian provided a history and results on 

examination. He opined that appellant could work full time in a light-duty capacity. In a report 

dated July 21, 2003, Dr. Balasubramanian opined that appellant would be able to perform the 

duties of an assembler.

By decision dated October 14, 2003, OWCP reduced appellant’s wage-loss compensation 

based on a wage-earning capacity of $280.00 per week as an assembler.3

The record indicates that on May 2, 2005 appellant, through counsel, again requested 

reconsideration of the wage-earning capacity decision. Appellant submitted additional medical

 

3 On September 19, 2002 a vocational rehabilitation specialist completed a job classification form for the selected 

position of assembler Department of Labor, Dictionary of Occupational Titles No. 723.684-010. The specialist 

indicated the job was light duty, available full time in appellant’s area, with wages from $280.00 to $320.00 per 

week. In a letter dated March 3, 2003, OWCP advised appellant that it proposed to reduce his compensation 

because he had the capacity to earn wages as an assembler. Following the October 14, 2003 reduction of appellant’s 

compensation benefits, he requested a hearing before an OWCP hearing representative. A hearing was held on 

June 29, 2004. By decision dated October 18, 2004, an OWCP hearing representative affirmed the October 14, 2003 

loss of wage-earning capacity determination. She found that OWCP had properly followed its procedures in 

reducing appellant’s compensation based on the wage-earning capacity in the selected position of assembler.
3

evidence, including an October 11, 2004 report from Dr. Smith, who provided results on 

examination. Dr. Smith diagnosed low back syndrome, degenerative disc disease, degenerative 

joint disease, left-sided sciatica, and peridural adhesions. The record reflects that OWCP took no 

action on this claim.

On June 30, 2011 appellant also filed a claim for a recurrence of disability (Form CA-2a). 

Appellant asserted the date of recurrence of disability was August 4, 2008, and he wrote that he 

had remained under medical care since the original injury. He submitted a May 24, 2011 report 

from Dr. Lily Voepel, a Board-certified physiatrist. Dr. Voepel opined that appellant’s back 

condition had worsened. She wrote that appellant had adjacent segment disease and more 

degenerative changes of the lower spine, which were partly due to the aging process but also due 

to the 1996 surgery. 

OWCP denied the claim for a recurrence of disability by decision dated March 22, 2012. 

It found the evidence was insufficient to warrant modification of the October 14, 2003 loss of 

wage-earning capacity determination.

Appellant, through counsel, requested a hearing before an OWCP hearing representative 

on April 16, 2012. By decision dated June 14, 2012, the hearing representative set aside the 

March 22, 2012 decision. She noted that OWCP had never issued a decision with respect to the 

May 2, 2005 reconsideration request. In addition, the hearing representative found OWCP had 

not properly considered all the relevant evidence, including the May 24, 2011 report from

Dr. Voepel.

Upon further review of the evidence, by decision dated March 20, 2013, OWCP denied 

modification of the loss of wage-earning capacity determination. It found the special weight of 

the medical evidence rested with the referee physician, Dr. Balasubramanian. 

Appellant submitted a July 30, 2016 report from Dr. Richard Hynes, a Board-certified 

orthopedic surgeon. Dr. Hynes reported that appellant had been injured at work and had

undergone surgery 20 or 25 years earlier. He indicated that appellant reported ongoing back 

pain. Dr. Hynes provided results on examination, and found sagittal imbalance of lumbar spine, 

significant mismatch of pelvic incidence and lumbar lordosis with a kyphosed fused L4-5

segment, adjacent level severe stenosis L3-4 above and severe neural foraminal stenosis L5-S1 

below with retrolisthesis. As to surgery, he wrote that appellant’s back condition was complex, 

and he needed a posterior column osteotomy with an L4-5 fusion. Dr. Hynes noted that there 

was no guarantee as to what percentage of improvement would result.

On October 18 2016 OWCP noted that a request for authorization had been received for 

additional spinal fusion, insertion of a spine fixation device, and application of a spine prosthetic

device.

OWCP referred the case to an OWCP medical adviser for an opinion as to whether the 

proposed surgery was medically necessary to treat the employment-related injuries. In a report 

dated October 31, 2016, Dr. William Tontz, an OWCP medical adviser, opined that the proposed 

surgery was not medically necessary. He wrote that a low back fusion should be considered in 

patients with six months of symptoms, with further indicators such as segmental instability. 
4

Dr. Tontz opined that there is a lack of support for fusion surgery for low back pain with failure 

to participate effectively in postoperate rehabilitation, total disability over six months, active 

psychiatric diagnosis, and narcotic dependence. He noted that there was no recent magnetic 

resonance imaging (MRI) or computerized tomography (CT) scan to warrant fusion. 

By letter dated November 3, 2016, OWCP requested that appellant submit additional 

medical evidence. It forwarded the report of Dr. Tontz and advised him to submit a medical 

report from Dr. Hynes discussing the need for surgery.

On January 30, 2017 appellant submitted a January 16, 2017 lumbar MRI scan report 

from Dr. Thomas Foster, a Board-certified radiologist. Dr. Foster reported findings that included 

congenital canal stenosis with multilevel ligament hypertrophy and facet arthropathy. 

Appellant also submitted evidence from physician assistants. 

On February 2, 2017 OWCP requested a supplemental report from Dr. Tontz. In a report 

dated February 14, 2017, Dr. Tontz again opined that the proposed surgery was not medically 

necessary. He noted the results of the January 16, 2017 MRI scan and indicated that there was 

no instability. Dr. Tontz reiterated that the proposed surgery was not medically necessary. 

By decision dated February 16, 2017, OWCP denied the request for authorization of 

spinal surgery. It found the medical evidence did not establish the proposed surgery was 

warranted.

Appellant, through counsel, requested reconsideration of OWCP’s February 16, 2017 

decision on February 21, 2017, and submitted additional evidence from physician assistants.

Counsel contended that, since OWCP had determined that the weight of the medical evidence 

rested with its medical adviser Dr. Tontz, who had not examined appellant, it should refer 

appellant to a second opinion medical specialist to resolve the issue of authorization for lumbar 

surgery.

By decision dated May 11, 2017, OWCP denied modification of its February 16, 2017 

decision. It found that “[n]o medical evidence was submitted in conjunction with the request for 

reconsideration or showing that your lumbar spine is no longer stable as a result of your accepted 

work[-]related injury.” Therefore, surgery was not medically warranted.

LEGAL PRECEDENT

5 U.S.C. § 8103(a) provides for the furnishing of services, appliances and supplies 

prescribed or recommended by a qualified physician which OWCP, under authority delegated by 

the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or 

aid in lessening the amount of monthly compensation.4 In interpreting section 8103(a), the 

Board has recognized that OWCP has broad discretion in approving services provided under 

FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in 

 

4

5 U.S.C. § 8103(a).
5

the shortest amount of time.5 OWCP has administrative discretion in choosing the means to 

achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.6 

While OWCP is obligated to pay for treatment of employment-related conditions, 

appellant has the burden of establishing that the expenditure is incurred for treatment of the 

effects of an employment-related injury or condition.7 Proof of causal relationship in a case such 

as this must include supporting rationalized medical evidence.8 Medical rationale is a medically 

sound explanation for the opinion offered.9 Therefore, in order to prove that the surgical 

procedure is warranted, appellant must submit evidence to show that the procedure was for a 

condition causally related to the employment injury and that the surgery was medically 

warranted. Both of these criteria must be met in order for OWCP to authorize payment.10

ANALYSIS

Appellant seeks authorization for proposed low back fusion surgery. OWCP accepted 

that appellant sustained lumbosacral strain and herniated L4-5 disc on April 22, 1991 when he 

slipped and fell on a manhole cover. The record indicates that appellant underwent an initial 

lumbar fusion surgery on February 15, 1996.

Attending physician Dr. Hynes opined in his July 30, 2016 report that appellant needed 

additional lumbar fusion surgery. Dr. Hynes, however, failed to provide a rationalized medical 

opinion on the issue, failed to provide a complete medical history, and he acknowledged that 

appellant’s back condition was complex. Dr. Hynes wrote that appellant needed fusion surgery 

but failed to clearly explain how the spinal fusion surgery was medically necessary due to the 

accepted conditions and failed to provide a detailed medical explanation of the need for 

surgery.

11

 Appellant must submit evidence that shows that the requested medical procedure is 

both due to a condition causally related to an employment injury and that it is medically 

warranted.12 Dr. Hynes did not substantiate that the requested procedure was medically 

warranted. His opinion is therefore of limited probative value.

 

5 Dale E. Jones, 48 ECAB 648, 649 (1997).

6 Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown 

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

contrary to both logic and probable deductions from established facts).

7

See Debra S. King, 44 ECAB 203, 209 (1992).

8

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).

9

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641 

(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).

10 See Cathy B. Millin, 51 ECAB 331, 333 (2000).

11 See C.J., Docket No. 16-1693 (issued July 13, 2017). 

12 See L.C., Docket No. 16-1797 (issued March 10, 2017).
6

Dr. Foster provided findings from a January 16, 2017 MRI scan, but offered no opinion 

as to whether the request for lumbar surgery should be authorized. A medical opinion which 

lacks any explanation as to how or why the employment injury contributed to the need for the 

requested surgery, is of limited probative value.13 As such, Dr. Foster’s report is of limited 

probative value. 

The only other evidence appellant submitted was from a physician assistant. This 

evidence is of no probative medical value as a physician assistant is not a physician under 

5 U.S.C. § 8101(2).14

The probative evidence on the issue rests with Dr. Tontz, OWCP’s medical adviser. In 

his October 31, 2016 and February 14, 2017 reports, Dr. Tontz explained that the proposed 

surgery was not medically necessary. He noted appellant’s history and the accepted conditions, 

and indicated that there was a lack of support for surgery due to the accepted conditions. 

Moreover, Dr. Tontz noted that results of a January 16, 2017 MRI scan did not show instability,

and reiterated in his February 14, 2017 report that the proposed surgery was not medically 

necessary. His opinion constitutes the weight of the medical evidence.15

OWCP has discretion with respect to authorization for surgery. Based on the medical 

evidence of record, the Board finds that it did not abuse its discretion in this case.16

On appeal counsel argues that OWCP did not follow its procedures and should have 

referred appellant for a second opinion examination. The record indicates OWCP followed its 

procedures in this case. When spinal surgery was proposed, the case was routed to OWCP’s

medical adviser.17 If the medical adviser’s opinion is negative, or there is a need for additional 

clinical data, the claims examiner may: (1) refer for a second opinion examination; or (2) seek 

additional information from the attending physician.18 OWCP attempted to secure an additional 

report from Dr. Hynes, and received a January 16, 2017 MRI scan. This was sent to OWCP’s

medical adviser, Dr. Tontz, who reiterated his opinion in the February 14, 2017 report that the 

proposed surgery was not medically necessary. The Board finds that OWCP properly followed 

its procedures in this case. 

 

13 See G.G., Docket No. 17-0504 (issued August 8, 2017). 

14 George H. Clark, 56 ECAB 162 (2004). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay 

individuals such as physician assistants, nurses and physical therapists are not competent to render a medical opinion 

under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law).

15 Supra note 13. 

16 See L.C., Docket No. 16-1797 (issued March 10, 2017).

17 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.10(d) (October 2010).

18 Id.
7

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that OWCP did not abuse its discretion in denying appellant’s request 

for authorization of lumbar surgery.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated May 11, 2017 is affirmed. 

Issued: November 7, 2017

Washington, DC

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board