United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Pasco, WA, Employer

__________________________________________

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Docket No. 17-1088

Issued: December 4, 2017

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 24, 2017 appellant filed a timely appeal from an April 10, 2017 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 the claim.

ISSUE

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

cervical spine surgery.

FACTUAL HISTORY

On February 11, 2014 appellant, then a 54-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on that same date, he injured his neck and back when he 

slipped on snow and ice while delivering mail. He indicated that he did not hit the ground, but 

 

1

5 U.S.C. § 8101 et seq.
2

felt a pop. Appellant stopped work on the date of injury, but returned to regular duty on 

February 14, 2014 and began treatment with Dr. Janmeet Sahota, a Board-certified osteopath 

specializing in orthopedic surgery. 

Following OWCP’s initial denial of the claim on November 26, 2014, appellant requested 

reconsideration and submitted additional evidence. In a December 4, 2014 statement, he

described the claimed injury, stating that he was walking through a car sales lot when he slipped 

on snow and ice, and jerked his body about while trying to keep from hitting the ground. 

Appellant indicated that he felt a snap in his neck and back. He returned to the employing 

establishment and reported the incident to his supervisor, and then visited a medical center for 

treatment. 

Appellant stopped work on January 15, 2015 and returned on January 20, 2015. On 

February 4, 2015 he filed a notice of recurrence (Form CA-2a) indicating that on January 15, 

2015, while lifting a large parcel, he had severe neck pain which continued. 

By decision dated February 6, 2015, OWCP vacated the November 26, 2014 decision and 

accepted appellant’s claim for sprain of neck and back, lumbar region. 

Dr. Kenneth Breeden, an osteopath and associate of Dr. Sahota, followed appellant for 

pain and medication management. On February 23, 2015 he noted a history that appellant first 

injured his cervical region at home in October 2013 when two dogs jumped into his recliner and 

threw it back, and that he reinjured his neck at work approximately one year prior when he 

slipped on ice, but did not fall and jerked his head back. Dr. Breeden diagnosed chronic pain 

syndrome, cervical disc disease with myelopathy, cervical spondylosis, cervical disc 

displacement, and cervical sprain and strain. He saw appellant on an approximately monthly 

basis. Cameron Ritchie, a physician assistant working with Dr. Sahota, also provided monthly 

treatment notes.

Beginning in June 2015 Dr. Sahota requested authorization for cervical spine surgery. In 

November 3, 2015 correspondence, OWCP notified appellant that the evidence of record was 

insufficient to authorize the proposed surgery because it did not appear to be medically necessary 

for the accepted sprain of neck and sprain of back, lumbar region. It informed him of the 

medical evidence needed to support the authorization.

In an August 11, 2015 treatment note, Dr. Sahota noted appellant’s complaint of cervical 

paraspinal muscle tenderness. He diagnosed cervical stenosis, cervical spondylosis, cervical disc 

displacement, cervical disc disease with myelopathy, and degenerative disc disease of the 

cervical spine. On November 2, 2015 Dr. Sahota advised that appellant was last seen by

Mr. Ritchie on October 6, 2015 regarding the February 11, 2014 work injury. He noted 

appellant’s continued complaint of cervical pain, numbness, and tingling in his arms despite 

conservative care, and advised that appellant wished to proceed with surgery. Dr. Sahota

recommended anterior cervical discectomy with fusion from C5 to C7. He maintained that 

appellant’s daily symptoms were the result of a job injury and were consistent with the fall he 

endured while delivering mail. On December 9, 2015 Dr. Sahota noted seeing appellant for over 

a year. Examination confirmed left hand numbness, weakness, radiculopathy, and radiating pain. 

Dr. Sahota opined that all of appellant’s symptoms were a result of cervical disc herniation with 
3

cervical stenosis, maintaining that appellant did not have any previous injury, and that the workrelated slip and fall onto ice caused the cervical disc herniation with cervical stenosis. He again 

requested authorization for cervical spine surgery. In a December 10, 2015 treatment note,

Dr. Sahota reiterated his findings and conclusions. 

In February 2016 OWCP referred appellant to Dr. S. Daniel Seltzer, a Board-certified 

orthopedic surgeon, for a second opinion evaluation.

On a March 1, 2016 duty status report (Form CA-17), Dr. Sahota advised that appellant 

could work full-time restricted duty. Appellant continued monthly treatment with Dr. Breeden 

and Mr. Ritchie.

In a March 26, 2016 report, Dr. Seltzer noted his review of the statement of accepted 

facts (SOAF), the medical evidence of record including imaging studies, and OWCP questions 

for resolution. He noted that appellant continued to work full duty, but did not carry a mail 

satchel. Dr. Seltzer indicated that appellant wanted to go forward with surgery due to his pain. 

He reported that appellant’s injury at home in 2013 caused him to hit his head. Regarding the 

February 11, 2014 work injury, Dr. Seltzer noted that appellant indicated that when he slipped on 

ice, he jerked or stretched backwards and felt a pop in his neck. He advised that cervical spine 

examination was limited by guarding and complaints of pain, but noted that appellant turned his 

neck and head from side-to-side without difficulty when observed during history taking. Left 

arm examination revealed subjective weakness with give way throughout the entire extremity 

that did not conform to any specific dermatomal area. On sensory examination there was entire 

loss of sensitivity to light touch and pinprick, again not conforming to any specific dermatomal 

area. Hoffman’s test was completely negative with no sign of cervical radiculopathy. Cervical 

spine range of motion was painful and diminished, and left arm range of motion was diminished. 

Dr. Seltzer diagnosed cervical degenerative disc disease with left-sided cervical disc 

protrusion, as shown on magnetic resonance imaging (MRI) scans. He advised that this was 

preexisting and likely related to both the natural degenerative process and to appellant’s reported 

injury at home in 2013. Dr. Seltzer further indicated that his examination confirmed evidence of 

a probable left arm radiculopathy, but opined that this too represented the natural progression of 

appellant’s cervical discogenic disease. He indicated that the mechanism of injury provided by 

appellant made no sense from a biomechanical standpoint, and that his subjective complaints as 

demonstrated in the history did not support worsening, other than his increase in symptoms. 

Dr. Seltzer further advised that the February 11, 2014 employment injury caused sprains of the 

neck and lumbar region, which had resolved. As to the requested surgery, he indicated that, 

although appellant was a candidate for surgery, this was due to his underlying preexisting 

condition and not to the employment injury. 

By decision dated April 7, 2016, OWCP denied appellant’s request for authorization of 

cervical spine surgery, finding that the weight of the medical evidence rested with the opinion of

Dr. Seltzer.

On May 26, 2016 appellant requested reconsideration, accompanied by additional 

medical evidence. On March 1, 2016 Dr. Sahota advised that appellant’s cervical disc stenosis at 

C4 to C7 with left upper extremity radiculopathy was a result of a work injury. He repeated this 
4

opinion on April 26, 2016. Dr. Sahota noted that he had reviewed Dr. Seltzer’s report and 

disagreed with his findings, opining that the disc protrusion at C6-7 was an acute change related 

to the employment and that this injury resulted in exacerbation of appellant’s baseline 

degenerative disc disease. Mr. Ritchie reiterated this opinion on May 26, 2016 and ordered an 

additional MRI scan and upper extremity electrodiagnostic testing. Dr. Breeden submitted 

additional treatment notes describing pain management. 

By merit decision dated June 13, 2016, OWCP denied modification of the April 7, 2016

decision. It noted that Dr. Breeden provided no opinion regarding the cause of any diagnosed 

condition, and that Mr. Ritchie’s reports were of diminished probative value as a physician 

assistant was not considered a physician under FECA. OWCP further found Dr. Sahota’s 

opinion insufficient because he did not explain how the requested surgery was necessary to 

address the effects of the February 11, 2014 employment injury. 

Appellant again requested reconsideration on January 10, 2017. 

Medical evidence received on reconsideration included monthly treatment notes from

Dr. Breeden who reiterated his diagnoses and continued to provide pain and medication 

management. Dr. Breeden did not provide an opinion on the cause of his diagnoses. Mr. Ritchie 

also furnished monthly treatment notes reiterating his findings and conclusions.2

On October 14, 2016 Dr. Donald Dicken, a Board-certified physiatrist, examined 

appellant. He noted previously performing a December 6, 2013 upper extremity 

electromyogram/nerve conduction velocity (EMG/NCV) study that showed mild left carpal 

tunnel syndrome. The study was normal on the right. Dr. Dicken advised that an October 14, 

2016 EMG/NCV study showed possible mild left cervical radiculopathy, mild left carpal tunnel 

syndrome with no significant changes from the prior study, and a normal study on the right.

On December 13, 2016 Dr. Sahota noted his review of the October 14, 2016 EMG/NCV 

study. He advised that given the study’s findings, appellant had objective signs of cervical 

radiculopathy, and opined that he would like to proceed with surgery. Dr. Sahota reiterated his 

opinion that appellant’s cervical condition was employment related.

In February 2017 OWCP determined that a conflict in medical evidence had been created 

between the opinions of Dr. Seltzer and Dr. Sahota regarding whether the accepted February 11, 

2014 employment injury caused a new injury and/or exacerbation of appellant’s underlying 

degenerative disc disease of the cervical spine. It referred appellant to Dr. Lowell Anderson, a 

Board-certified orthopedic surgeon, for an impartial medical evaluation.

Dr. Breeden and Mr. Ritchie continued to treat appellant.

In a March 30, 2017 report, Dr. Anderson noted his review of the SOAF and the medical

evidence of record and noted appellant’s complaints of left hand numbness and aching pain 

 

2 Appellant also submitted a February 14, 2017 treatment note and duty status report in which Michael Corey 

Woolf, a second physician assistant with Dr. Sahota, noted findings and diagnoses as a result of a work injury, and 

occipital neuralgia. Mr. Woolf advised that appellant could work eight hours a day with no satchel. 
5

down the left arm. He reported that on February 11, 2014 appellant slipped, but did not fall and 

thereafter continued to work as a letter carrier, but no longer carried a satchel. Dr. Anderson 

described a past medical history of cervical injuries in 2013 and 2014, and that appellant related 

that in August 2017 he bumped his head and had a concussion, noting there was no medical 

evidence regarding this injury. Physical examination demonstrated that during the history 

portion, appellant appeared to move his neck and upper extremities comfortably without 

symptoms. Active cervical motion was minimal, and gentle passive cervical motion was 

resisted. Nonspecific pericervical soft tissue tenderness and mild left trapezius tenderness were 

present. Gross sensory examination of the left upper extremity was considered nondiagnostic. 

Dr. Anderson advised that appellant had no present lumbar condition. He diagnosed preexisting 

cervical spondylosis, opining that appellant’s present condition was a natural progression of this 

condition, noting that after full record review he was unable to document any evidence that 

appellant’s left upper extremity complaints were due to the February 11, 2014 work injury which 

did not cause a disc protrusion at C6-7 or accelerate the natural progression of appellant’s 

preexisting degenerative condition. Dr. Anderson concluded that no employment-related 

condition remained, and any surgical procedure was not indicated due to the accepted conditions. 

In a merit decision dated April 10, 2017, OWCP denied modification of the prior 

decisions, finding that the special weight of the medical evidence rested with the impartial 

medical opinion of Dr. Anderson.

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 monthly compensation.3 

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

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

an employment-related injury or condition.4 

In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad 

discretion in approving services provided, with the only limitation on OWCP’s authority being 

that of reasonableness.5 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 To be entitled to 

reimbursement of medical expenses, a claimant has the burden of proof to establish that the 

expenditures were incurred for treatment of the effects of an employment-related injury or 

condition. Proof of causal relationship in a case such as this must include supporting rationalized 

 

3

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

4 Kennett O. Collins, Jr., 55 ECAB 648 (2004).

5

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

6 Minnie B. Lewis, 53 ECAB 606 (2002).
6

medical evidence.7 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 employment injury and 

that it is medically warranted. Both of these criteria must be met in order for OWCP to authorize 

payment.8 

Section 8123(a) of FECA 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.9 The implementing regulation 

states that, if a conflict exists between the medical opinion of the employee’s physician and the 

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination. 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.10 When there exist 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 

upon a proper factual background, must be given special weight.11

ANALYSIS

The Board finds that OWCP did not abuse its discretion by denying authorization for 

cervical spine surgery. OWCP accepted neck and lumbar sprains caused by a February 11, 2014 

employment injury in which appellant slipped on ice, but did not fall. Beginning in June 2015

Dr. Sahota, an attending orthopedic surgeon, requested authorization for cervical spine surgery. 

OWCP determined that a conflict in medical opinion existed between Dr. Sahota and Dr. Seltzer, 

OWCP’s referral physician, with regard to whether the accepted February 11, 2014 work injury 

caused a new injury and/or exacerbation of appellant’s underlying degenerative disc disease of 

the cervical spine. Consequently, it referred appellant to Dr. Anderson, a Board-certified 

orthopedic surgeon, to resolve the conflict.

The Board finds that the special weight of the medical evidence rests with the opinion of

Dr. Anderson, the impartial medical specialist, who examined appellant, reviewed the medical 

evidence, and found that no surgical procedure was recommended for the accepted conditions, 

which had resolved. In his comprehensive March 30, 2017 report, Dr. Anderson noted his 

review of the SOAF and medical record and discussed appellant’s complaints of left hand 

numbness with aching pain down the left arm. After a thorough examination, he advised that 

appellant had no present lumbar condition. Dr. Anderson diagnosed preexisting cervical 

spondylosis, opining that appellant’s present condition was a natural progression of this 

condition, noting that after full record review he was unable to document any evidence that 

 

7 M.B., 58 ECAB 588 (2007).

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

9

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

10 20 C.F.R. § 10.321.

11 V.G., 59 ECAB 635 (2008).
7

appellant’s left upper extremity complaints were due to the February 11, 2014 work injury which 

did not cause a disc protrusion at C6-7 or accelerate the natural progression of appellant’s 

preexisting degenerative condition. He concluded that no employment-related condition 

remained, and a surgical procedure was not indicated for the accepted conditions.

In situations where the case is referred to an impartial medical specialist for the purpose 

of resolving a medical conflict, the opinion of such specialist, if sufficiently well rationalized and 

based upon a proper factual background, must be given special weight.12 The Board finds that

Dr. Anderson provided a well-rationalized opinion based on a complete background, his review 

of the accepted facts, the medical record, and his examination findings. Dr. Anderson’s opinion 

that the requested cervical spine procedure was not medically warranted for the accepted cervical 

and lumbar sprains is entitled to special weight and represents the weight of the evidence.13 

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

FECA is one of reasonableness.14 In the instant case, OWCP obtained an impartial medical 

examination by Dr. Anderson who clearly opined that the requested surgery was not warranted

for the accepted conditions. It, therefore, had sufficient evidence upon which it based its 

decision to deny surgery and did not abuse its discretion.

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 when it denied appellant’s 

request for authorization of cervical spine surgery.

 

12 Id.

13 P.F., Docket No. 16-0693 (issued October 24, 2016).

14 D.K, supra note 5.
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ORDER

IT IS HEREBY ORDERED THAT the April 10, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 4, 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