United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Kingston, MA, Employer

__________________________________________

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Docket No. 17-0607

Issued: November 6, 2017

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 25, 2017 appellant, through counsel, filed a timely appeal from a 

September 14, 2016 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.

ISSUE

The issue is whether OWCP abused its discretion by denying authorization for a lumbar 

procedure.

 

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

On February 19, 2013 appellant, then a 53-year-old city carrier, injured his back when 

stepping out of his mail truck. OWCP accepted his claim for lumbar strain and left sacroiliac

strain. Appellant stopped work on February 19, 2013 and received wage-loss compensation 

benefits for intermittent periods of disability. 

Appellant submitted a July 30, 2008 magnetic resonance imaging (MRI) scan which 

revealed a right paracentral disc protrusion at L4-5 with deviation of the right L4 nerve root, 

mild left-sided L4-5 facet arthropathy, and no evidence of spondylosis. A June 26, 2013 MRI 

scan indicated mild multilevel degenerative disc disease, facet joint osteoarthritis most

pronounced at L4-5, and mild bilateral neural foraminal stenosis.

Appellant was treated by Dr. Jennifer L. Kurz, a Board-certified physiatrist. On June 25, 

2014 Dr. Kurz diagnosed low back and leg pain. She administered a left L5-S1 interlaminar 

epidural steroid injection and sacroiliac joint injection with fluoroscopic needle guidance. In 

December 11, 2014 reports, Dr. Kurz noted that on February 19, 2013 appellant was stepping off

his vehicle and sustained a back injury. She diagnosed lumbar spondylosis and sciatica and 

indicated that his condition was caused or aggravated by his employment. Dr. Kurz indicated 

that appellant could return to work with restrictions. 

On February 5, 2015 Dr. Kurz noted appellant’s complaints of severe chronic axial lower 

back pain with new radicular left leg pain. She indicated that he had known chronic lumbar 

spondylosis and lumbar facet pain which was responsive short term to facet injections. 

Appellant reported an increase in radicular neuropathic pain in the left L4-5 dermatomal 

distribution and pins and needles in his right foot. Dr. Kurz noted findings of limited lumbar 

extension, increasing axial facet pain, tenderness overlying the lumbar facet regions, pain along 

the left L4-5 dermatomes, decreased left hip flexor strength and left knee flexion strength, and 

reduced sensation along the right L5-S1. She diagnosed chronic axial lower lumbar spine pain 

from facet pain syndrome and spondylosis. Dr. Kurz recommended physical therapy and lumbar 

radiofrequency lesioning for the lower lumbar facets. In a March 2, 2015 duty status report

(Form CA-17), she returned appellant to work with restrictions.

On March 2, 2015 OWCP authorized the sacroiliac joint injections performed on 

June 25, 2014. 

Dr. Kurz subsequently requested authorization for a lumbar spine procedure designated 

as a destruction of lumbar sacroiliac facet joint (also referred to as lumbar facet radiofrequency 

intervention) on March 4, 2015.

By letter dated March 6, 2015, OWCP notified Dr. Kurz that her request for authorization 

of the lumbar procedure could not be approved at that time. It indicated that further medical 

development was required before the request could be approved or denied.3 

 

3 OWCP continued to authorize Dr. Kurz’ requests for foraminal epidural injections. 
3

On April 20, 2015 OWCP requested that a district medical adviser (DMA) address 

whether the requested lumbar procedure was warranted and necessitated by the accepted lumbar 

strain and left sacroiliac strain of February 19, 2013. In a June 14, 2015 report, the DMA noted 

reviewing the medical record and a statement of accepted facts. He indicated that the proposed 

lumbar procedure, destruction of lumbosacral facet joint, should not be approved as warranted 

and necessitated by the work injury of February 19, 2013. The DMA noted that any invasive 

procedure would never be indicated for a diagnosed strain, which was a temporary, self-limiting 

soft tissue injury which would resolve expeditiously and uneventfully. He further indicated that 

records dating back to 2008 indicate a long-standing history of low back pain. The medical 

adviser referenced the July 30, 2008 lumbar MRI scan which revealed right paracentral disc 

protrusion at L4-5 with deviation of the right L4 nerve root, and mild left-sided L4-5 facet 

arthropathy. He opined that appellant underwent multiple facet joint and epidural injections 

without long-term efficacy. The DMA also indicated that the medical literature lacked longterm, controlled, double-blind studies validating a cure, or substantial benefit from destruction of 

lumbosacral facet joints. He opined that, based on the totality of the available medical 

documentation, the requested lumbar procedure was not medically necessitated, and certainly not 

causally related to the February 19, 2013 work injury.

By decision dated June 16, 2015, OWCP denied authorization for the requested lumbar 

procedure the evidence of record did not support that this procedure was medically necessary to 

address the effects of the accepted work-related conditions.

On June 22, 2015 appellant requested a telephone hearing before an OWCP hearing 

representative. On July 17, 2015 he withdrew his request for an oral hearing and requested 

reconsideration.

Evidence submitted in support of his request for reconsideration included additional 

reports from Dr. Kurz. In a December 11, 2014 report, Dr. Kurz noted that appellant presented 

with left axial lumbar facet pain from a work injury. She indicated that he responded well to 

lumbar facet injections and would be a candidate for lumbar facet radiofrequency lesioning. 

Dr. Kurz advised that this procedure would help target appellant’s region of residual lumbar 

axial facet pain long-term. She noted examination findings of tenderness along the left L3-4 and 

L4-5 facet line and intact leg strength with the exception of left hip flexion weakness. Dr. Kurz 

diagnosed chronic axial spine pain. In a July 9, 2015 treatment note, she noted appellant’s

chronic axial low back pain from a work injury. Dr. Kurz noted his ongoing progressive chronic 

left-sided axial low back pain in the L4 and L5 lumbar facet regions was refractory to 

conservative therapies, including medications, physical therapy, and trigger point injections. 

Lidocaine and Marcaine injections provided temporary relief in symptoms. Dr. Kurz indicated 

that appellant was interested in pursuing lumbar radiofrequency denervation to help more 

permanently modify his severe, chronic, left lumbar facet pain. An accompanying July 9, 2015

letter requested approval for left L3-5 lumbar facet radiofrequency lesioning therapy. Dr. Kurz 

indicated that appellant underwent lumbar facet blocks with short-term relief and she opined that 

radiofrequency lesioning therapy would provide prolonged relief.

On September 17, 2015 Dr. Kurz noted treating appellant for progressive low back pain

and leg weakness. Appellant underwent two sets of comparative dual diagnostic lumbar blocks 

with positive short-term pain relief. Dr. Kurz noted findings and diagnosed chronic low back 
4

pain, deconditioning, and increased radicular pain sensation possibly from muscle tightness or

myalgia rather than radiculopathy. She recommended aggressive reconditioning physical 

therapy and an electromyogram (EMG). On September 18, 2015 Dr. Kurz requested medical 

authorization for destruction of the lumbar sacral facet joint procedure.

By decision dated October 14, 2015, OWCP denied modification of its prior decision.

On December 16, 2015 appellant again requested reconsideration. 

In support of his request, appellant submitted reports from Dr. Kurz dated April 16 and 

November 30, 2015 noting his treatment for chronic axial low back pain with increased radicular 

left leg pain. Dr. Kurz noted that he developed a right foot neuroma and underwent surgery.4 

She opined that appellant’s back pain was likely at medical maximum improvement. Dr. Kurz

noted his treatment and advised that lumbar epidural steroid injections and lumbar diagnostic 

facet blocks provided only temporary relief. She noted findings on physical examination and

diagnosed ongoing radicular left L5 leg pain, chronic axial back pain, lumbar spondylosis and 

lumbar facet degenerative changes in the setting of work-related injury. Dr. Kurz recommended 

lumbar facet radiofrequency intervention to target appellant’s facet pain permanently. She

opined that his low back pain was all related to his work injury. A November 12, 2015 EMG of 

the lower extremities revealed no abnormalities. 

In a medical necessity note dated November 30, 2015, Dr. Kurz diagnosed severe, 

chronic, progressive lumbar facet arthropathy attributable to a work injury sustained on 

June 19, 2013.5 She indicated that, before the work injury, appellant did not suffer from terrible 

low back pain. Dr. Kurz opined that surgery would not help his pain, previous lumbar facet 

blocks were diagnostic/therapeutic for transient relief, and he was not a candidate for long-term 

opioid therapy. She advised that lumbar facet radiofrequency lesion intervention would give

appellant more sustained relief and a better quality of life. Dr. Kurz also submitted form reports 

noting his status and his work restrictions. A lumbar spine x-ray dated November 30, 2015 

revealed spondylolysis without spondylolisthesis at L5, mild rotatory scoliosis, and multilevel 

degenerative changes at L5-S1. 

By decision dated January 29, 2016, OWCP denied modification of its October 14, 2015

decision. 

On April 25, 2016 appellant again requested reconsideration. He submitted an April 14, 

2016 report from Dr. Kurz who continued to treat him for chronic axial work-related low back 

pain. Dr. Kurz diagnosed chronic lumbar discogenic pain and recommended daily core 

conditioning and continued work modifications. In another April 14, 2016 report, she opined 

that appellant suffered from intractable lumbar discogenic pain radiating into the left hip and 

thigh in the L4-5 nerve root distribution. Dr. Kurz noted that MRI scan imaging revealed L4-5, 

 

4 The record contains a June 23, 2015 report from Dr. Michael O’Gorman, a Board-certified general surgeon, who 

treated appellant for wound dehiscence status postsurgical repair of right foot Morton’s neuroma. He diagnosed 

chronic ulcer of right foot.

5 This appears to be a typographical error and should be February 19, 2013.
5

L5-S1 disc bulges and facet arthritis which can contribute to foraminal narrowing and 

compression of L4 and L5 nerve roots. 

In an attending physician’s report (Form CA-20) dated April 14, 2016, Dr. Kurz 

diagnosed lumbar facet arthropathy causing severe chronic low back pain. She noted by 

checking a box marked “yes” that appellant’s condition was caused or aggravated by an 

employment activity. In a return to work slip dated April 14, 2016, Dr. Kurz continued 

appellant’s work restrictions. On May 4, 2016 she performed a L4-5 interlaminar epidural 

steroid injection and diagnosed low back pain and leg pain. 

In reports dated June 9 and 30, and August 22, 2016, Dr. Kurz noted appellant’s 

treatment and diagnosed chronic, axial low back pain related to degenerative disc bulging, 

lumbar facet arthritis, and active trigger points in the lumbar paraspinals. She performed a 

trigger point injection at bilateral lumbar paraspinals. In a June 30, 2016 duty status report,

Dr. Kurz continued appellant’s work restrictions and on August 29, 2016, she diagnosed lumbar

radiculopathy and advised that he was totally disabled. In a June 30, 2016 attending physician’s 

report, she diagnosed lumbar facet arthropathy and lumbar degenerative disc disease causing 

severe low back pain. Dr. Kurz checked a box marked “yes” that appellant’s condition was 

caused or aggravated by an employment activity. She continued his work restrictions. A 

June 30, 2016 return to work slip advised that appellant could return to work light duty with 

restrictions on lifting over 40 pounds. On August 29, 2016 Dr. Kurz indicated that he could 

return to work two days following an injection for pain management with additional restrictions. 

By decision dated September 14, 2016, OWCP denied modification of its

January 29, 2016 decision. 

LEGAL PRECEDENT

Section 8103(a) of FECA 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.6 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 

the shortest amount of time.7 OWCP has administrative discretion in choosing the means to 

achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.8

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 

 

6

5 U.S.C. § 8103(a). 

7 Dale E. Jones, 48 ECAB 648-49 (1997). 

8 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). 
6

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.9

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

appellant has the burden of proof to establish that the expenditure is incurred for treatment of the 

effects of an employment-related injury or condition.10 Proof of causal relationship in a case 

such as this must include supporting rationalized medical evidence.11 Therefore, in order to 

prove that the procedure is warranted, appellant must establish that the procedure was for a 

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

warranted. Both of these criteria must be met in order for OWCP to authorize payment.12

ANALYSIS

In the present case, OWCP accepted that appellant sustained a lumbar strain and left 

sacroiliac strain on February 19, 2013. Appellant seeks authorization for a proposed destruction 

of the lumbosacral facet joint procedure. The Board finds that the medical evidence of record is 

insufficient to establish that the proposed procedure is causally related to the February 19, 2013 

employment injury.

Appellant provided multiple reports from Dr. Kurz requesting approval for left L3-5 

lumbar facet radiofrequency lesioning therapy. On December 11, 2014 and February 5, 2015

Dr. Kurz initially recommended lumbar radiofrequency lesioning for the lower lumbar facets. 

On July 9, 2015 she noted that facet blocks which only provided short-term relief from pain. 

Dr. Kurz advised that, because of the short-term nature of lumbar injections, appellant wanted to 

pursue radiofrequency lesioning therapy for prolonged relief. On November 30, 2015 she

recommended lumbar radiofrequency lesioning and diagnosed severe, chronic, progressive 

lumbar facet arthropathy attributable to the work injury. Dr. Kurz also referenced appellant’s 

preexisting lumbar condition and that, prior to the work event, he did not suffer from terrible low 

back pain. These reports are of diminished probative value. The Board initially notes that 

OWCP has only accepted a lumbar strain and left sacroiliac strain as a result of appellant’s

February 19, 2013 work injury, and there is no medical rationalized evidence to establish that 

other diagnosed conditions such as lumbar facet arthropathy, are causally related to the accepted 

injury.13 Furthermore, an opinion that a condition is causally related to an employment injury 

because the employee was asymptomatic before the injury is insufficient, without supporting 

rationale, to support causal relationship.14 The Board notes that these reports failed to provide a 

 

9 W.M., Docket No. 17-0337 (issued August 8, 2017).

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

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

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

13 For conditions not accepted by OWCP as being employment related, it is the employee’s burden of proof to 

provide rationalized medical evidence sufficient to establish causal relation, not OWCP’s burden to disprove such 

relationship. Alice J. Tysinger, 51 ECAB 638 (2000).

14 Kimper Lee, 45 ECAB 565 (1994).
7

rationalized opinion explaining how the proposed procedure was causally related to the accepted

work injuries and why it was medically warranted. The need for rationale is particularly 

important where the record contains a July 30, 2008 MRI scan documenting preexisting low 

back condition, specifically a disc protrusion at L4-5 with deviation of the right L4 nerve root 

and left-sided L4-5 facet arthropathy.15

Similarly, reports from Dr. Kurz dated April 16, July 9, September 17 and November 30, 

2015, and April 14, 2016 noted appellant’s continued treatment for chronic axial low back pain 

from a work injury. She advised his condition was refractory to conservative therapies and 

indicated that he was interested in pursuing lumbar radiofrequency. Dr. Kurz diagnosed facet 

arthritis, degenerative disc disease, ongoing radicular left L5 leg pain, chronic axial back pain, 

and chronic lumbar discogenic pain due to the work injury. However, her reports failed to 

provide a rationalized opinion regarding causal relationship between the proposed lumbar 

procedure and the employment injury, and also addressing why the requested procedure was 

medically warranted.16 Also, OWCP has not accepted that appellant sustained facet arthritis, 

degenerative disc disease or chronic lumbar discogenic pain as a result of his February 19, 2013 

work injury, and there is no medical rationalized evidence to support such a conclusion.17 

Other reports provided by Dr. Kurz are of limited probative value as they do not 

specifically address whether the requested procedure is causally related to the accepted lumbar 

strain and left sacroiliac strain and whether the procedure is medically warranted.18

Additionally, the Board notes that OWCP sought the advice of its medical adviser in this

matter. In a June 14, 2015 report, OWCP’s medical adviser has opined that the proposed lumbar 

facet radiofrequency lesioning procedure was not indicated in the treatment of appellant’s 

employment-related injury of February 19, 2013. He noted that OWCP had only accepted strains 

and that an invasive procedure was not indicated for such conditions. The medical adviser also 

noted that the record indicated that appellant had a prior history of a low back condition and that 

medical literature did not support that the proposed procedure would offer substantial benefits.

The only limitation on OWCP’s authority is approving or disapproving service under 

FECA is one of reasonableness.19 Because appellant did not submit a reasoned medical opinion 

explaining how the February 19, 2013 work injury caused or contributed to his need for the 

requested procedure, OWCP properly acted within its discretionary authority to deny 

 

15 See S.C., Docket No. 17-0490 (issued June 27, 2017); R.R., Docket No. 16-1118 (issued November 7, 2016) 

(the need for rationale is particularly important where the evidence indicated that appellant had a preexisting 

condition).

16 Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are 

entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001). 

17 See Alice J. Tysinger, supra note 13.

18 See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an 

employee’s condition is of limited probative value on the issue of causal relationship). 

19 Supra note 8.
8

authorization for the requested procedure. Therefore, the Board finds that OWCP did not abuse 

its discretion under section 8103 in denying approval of lumbar procedure. 

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 by denying authorization for a 

lumbar procedure.

ORDER

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

Compensation Programs dated September 14, 2016 is affirmed.

Issued: November 6, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board