United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.S., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, CENTER FOR DISEASE 

CONTROL, Atlanta, GA, Employer

__________________________________________

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Docket No. 19-0516

Issued: August 15, 2019

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 8, 2019 appellant, through counsel, filed a timely appeal from a December 7, 

2018 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.3

 

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.

3 The Board notes that following the December 7, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether OWCP abused its discretion in denying authorization for a compound 

medication.

FACTUAL HISTORY

On August 6, 2009 appellant, then a 53-year-old technology development coordinator, 

filed an occupational disease claim (Form CA-2) alleging that she developed bilateral arm 

epicondylitis due to factors of her federal employment. On April 30, 2010 OWCP accepted 

appellant’s claim for bilateral lateral epicondylitis. 

On December 21, 2010 appellant underwent authorized right lateral epicondylar release 

and right trigger thumb release.4 On October 25, 2011 she underwent authorized decompression 

of left lateral epicondylitis with partial ostectomy and decompression of the left ulnar nerve at the 

elbow. In addition, on August 29, 2013 appellant underwent authorized left lateral epicondyle 

debridement.

In three authorization request forms (Form CA-26) dated November 18 and December 2, 

2016, and January 4, 2017, appellant’s attending physician, Dr. Bronier L. Costas, a Boardcertified orthopedic surgeon, requested authorization from OWCP for appellant’s use of 

Gabapentin, a compound drug which was topically administered. He checked the box marked 

“yes” when asked whether the compounded drug was medically necessary for its intended use. 

On January 25, 2017 OWCP referred appellant’s case, along with a statement of accepted 

facts (SOAF) to Dr. William Tontz, Jr., a Board-certified orthopedic surgeon serving as a district 

medical adviser (DMA). OWCP requested that the DMA address whether the requested 

compound medicine was medically necessary for treatment of appellant’s accepted employment 

injury. 

In a report dated February 8, 2017, Dr. Tontz determined that the proposed topical 

treatment was not medically necessary. He noted that topical analgesics, such as this Gabapentin 

compound, were largely experimental in use with few randomized controlled trials to determine 

efficacy or safety and thus there was little to no research to support the use of such agents.

In a development letter dated February 14, 2017, OWCP advised appellant that the medical 

evidence of record was insufficient to establish that Gabapentin was medically necessary to treat 

her accepted employment-related conditions. It afforded her 30 days to submit a narrative report 

from her attending physician explaining the medical necessity for this medication. Appellant did 

not submit the requested evidence.

By decision dated March 23, 2017, OWCP denied appellant’s request for authorization of 

the compound drug Gabapentin finding that the evidence of record did not support that it was 

medically necessary to treat the effects of her accepted employment-related condition.

 

4 These procedures were performed under Master OWCP File No. xxxxxx582. OWCP File No. xxxxxx582 pertains 

to a July 14, 2019 traumatic injury claim (Form CA-1) which is accepted for right lateral epicondylitis. 
3

On March 30, 2017 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review.

OWCP subsequently received a letter dated March 6, 2017 from Dr. Costas who indicated 

that appellant had been on Dermatran, a different compound medicine to treat various tendinitis 

problems. Dr. Costas noted that she had been on this medicine for a long time and had very good 

success. He related that the newer Gabapentin compound was “slightly different” from the 

Dermatran medication, and appellant had noticed a significant difference in the effectiveness of 

the two different topical medications. 

On August 16, 2017 Dr. Costas again requested authorization from OWCP for appellant’s 

use of the Gabapentin compound. 

On August 18, 2017 OWCP referred appellant’s case record, along with the SOAF, to a 

new DMA, Dr. Todd Fellars, a Board-certified orthopedic surgeon, to determine whether the 

requested compound medication was medically necessary to treat appellant’s accepted 

employment injury. 

In a report dated August 30, 2017, the DMA determined that there was no medical evidence 

of record to support the use of topical compound medications as an analgesic and that any effect 

was likely due to a placebo response. He indicated that such medications had not been studied for 

safety or efficacy, and that there was no evidence that showed the use of Gabapentin objectively 

increased function, decreased pain, or decreased narcotic use. 

In a development letter dated September 6, 2017, OWCP advised appellant that the medical 

evidence of record remained insufficient to establish that Gabapentin was medically necessary to 

treat her accepted employment-related conditions and it afforded her 30 days to submit a narrative 

report from her attending physician containing an adequate explanation for the necessity of this 

medication. 

By decision dated October 12, 2017, OWCP again denied appellant’s request for 

authorization of the compound drug Gabapentin finding that the evidence of record did not support 

that it was medically necessary to treat the effects of her accepted employment-related condition. 

On October 16, 2017 a telephonic hearing was held regarding OWCP’s March 23, 2017 

decision.

Following the October 16, 2017 hearing, appellant submitted a letter dated October 2, 2017 

from Dr. Costas who noted that Dermatran seemed to be helping appellant rather dramatically,

along with some other measures. Dr. Costas indicated that events transpired where appellant was 

unable to obtain Dermatran any longer, was placed on a similar compound medication, and the 

new medication was not as effective as Dermatran.

On October 23, 2017 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review to review OWCP’s October 12, 2017 

decision.

By decision dated January 2, 2018, OWCP’s hearing representative set aside OWCP’s 

March 23, 2017 decision and remanded the case to OWCP finding an unresolved conflict in the 

medical opinion evidence. It also directed OWCP to amend the SOAF to include all pertinent facts 
4

in this case and the master file, and to refer appellant, along with the updated SOAF and both files,

to an independent medical examiner to determine whether Gabapentin was medically necessary 

for the accepted condition.

By decision dated January 19, 2018, OWCP’s hearing representative remanded OWCP’s

October 12, 2017 decision finding that it should be vacated for the same reasons provided in the 

January 2, 2018 decision.

On February 7, 2018 OWCP referred appellant along with the updated SOAF and medical 

record to Dr. David S. Ryan, a Board-certified orthopedic surgeon, for a second opinion 

examination. In a report dated March 22, 2018, Dr. Ryan opined that the requested compound 

medication was not medically necessary. However, he indicated that the compound medication 

was successful at treating her pain and noted that he did not know of any alternatives for appellant 

to use. Dr. Ryan related that the compound medication was safe and effective, and noted that 

appellant had tried numerous oral medications and other topical anti-inflammatory creams, none 

of which worked effectively. However, he indicated that he was unsure of whether the Gabapentin 

compound was FDA approved.

By decision dated April 19, 2018, OWCP denied appellant’s request for authorization of 

Gabapentin finding that the evidence of record did not support that it was medically necessary to 

treat the effects of her accepted employment-related condition.5

On April 30, 2018 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review to review OWCP’s April 19, 2018 

decision. The hearing was held on October 2, 2018. After the hearing, appellant submitted new 

evidence for consideration.

In a letter dated May 11, 2017, received by OWCP on October 9, 2018, Dr. Costas 

indicated that the previous anti-inflammatory topical medicine worked well. He noted that the 

prescription for that medication had run out, and it was elected to be replaced by a premanufactured formula, but that formula did not work for her. Dr. Costas indicated that he did not 

see the difference in allowing one brand of topical medicine as opposed to another. 

In a letter dated October 2, 2017, received by OWCP on October 9, 2018, Dr. Costas 

reiterated that his request to return back to the original topical compound, Dermatran, had been 

denied, and that he feared that he was unable to control appellant’s pain. 

By decision dated December 7, 2018, OWCP’s hearing representative affirmed OWCP’s 

April 19, 2018 decision finding that the evidence of record did not establish that it was an abuse 

of discretion for OWCP to deny authorization for Gabapentin.

LEGAL PRECEDENT

Section 8103(a) of FECA provides in pertinent part: 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 the Secretary of Labor considers likely 

 

5

In a separate decision of even date, OWCP denied appellant’s request for authorization of Gabapentin. The same 

rationale was used in denying the request.
5

to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of 

monthly compensation.6 In general, drugs and medications which are necessary to treat an injury 

or occupational disease may be purchased at OWCP’s expense on the recommendation of the 

attending physician. These include prescription as well as nonprescription medications.7

The Board has found that OWCP has great discretion in determining whether a particular 

type of treatment is likely to cure or give relief.8 The only limitation on OWCP’s authority is that 

of reasonableness.9 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.10

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.11 The implementing regulations provides 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.12 In situations where there exist opposing medical reports of virtually equal weight and 

rationale and the case is referred to an IME 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.13

Under the Federal (FECA) Procedure Manual, the Director has exercised discretion to 

implement practices pertaining to the selection of the IME. Unlike second opinion physicians, the 

selection of referee physicians is made from a strict rotational system. OWCP will select a 

physician who is qualified in the appropriate medical specialty and who has no prior connection 

with the case.14

 

6 5 U.S.C. § 8103(a).

7 Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Prescription and NonPrescription Drugs, Chapter 3.400.3(a) (October 1995).

8 G.B., Docket No. 18-1478 (issued February 4, 2019); see M.B., Docket No. 17-1389 (issued April 6, 2018); see 

also Vicky C. Randall, 51 ECAB 357 (2000).

9 R.C., Docket No. 18-0612 (issued October 19, 2018); see Lecil E. Stevens, 49 ECAB 673, 675 (1998).

10 R.C., id.; Rosa Lee Jones, 36 ECAB 679 (1985).

11 5 U.S.C. § 8123(a).

12 20 C.F.R. § 10.321.

13 See J.T., Docket No. 18-0503 (issued October 16, 2018); R.C., 58 ECAB 238 (2006).

14 Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).
6

ANALYSIS

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

Appellant’s treating physician, Dr. Costas, requested authorization for the compound 

medication, Gabapentin. In multiple reports, he explained that appellant had tried and failed to 

obtain relief from over the counter or other prescribed medications for her accepted employmentrelated condition of bilateral lateral epicondylitis. Dr. Costas further explained that appellant had 

tried Gabapentin and that it was much more effective than the similar topical medications. 

Dr. Tontz and Dr. Fellers, acting as OWCP DMAs, opined that the proposed topical treatment was 

not medically necessary and use of this compound was largely experimental. 

By decisions dated January 2 and 19, 2018, an OWCP hearing representative determined 

that a conflict existed in the medical opinion evidence between Dr. Costas, and OWCP’s DMAs.15 

She remanded the case to OWCP for referral of appellant for an impartial medical specialist to 

resolve the conflict of medical evidence. 

On remand, OWCP referred appellant to a second opinion physician, Dr. Ryan, rather than 

to an impartial medical specialist. However, as previously noted, the selection process differs for 

referrals to a second opinion physician, and an impartial medical specialist. The Board has 

explained that a physician selected by OWCP to serve as an impartial medical specialist should be 

one wholly free to make a completely independent evaluation and judgment. The procedures 

contemplate that the impartial medical specialists will be selected on a strict rotating basis in order 

to negate any appearance that preferential treatment exists between OWCP and a particular 

physician.16 OWCP has an obligation to verify that it selected an impartial medical specialist in a 

fair and unbiased manner. It maintains records for this very purpose.17

The Board has placed great importance on the appearance as well as the fact of impartiality, 

and only if the selection procedures which were designed to achieve this result are scrupulously 

followed may the selected physician carry the special weight accorded to an impartial specialist.18 

OWCP did not follow its procedures in selecting Dr. Ryan as a second opinion physician and thus 

the record contains an unresolved conflict in medical opinion regarding the extent of whether the 

requested compound medication should be authorized for treatment of appellant’s accepted 

employment-related condition. 

Therefore, the Board will remand the case to OWCP for further medical development. On 

remand, OWCP, as previously directed by the hearings examiner, should select an impartial 

medical examiner in accordance with its procedures to determine whether Gabapentin should be 

authorized. After such further development as deemed necessary, it shall issue a de novo decision.

 

15 Supra note 12. 

16 L.S., Docket No. 16-1789 (issued September 1, 2017); see Raymond J. Brown, 52 ECAB 192 (2001).

17 L.S., id.; see also M.A., Docket No. 07-1344 (issued February 19, 2008).

18 Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.5(e)(2) (May 2013). 
7

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the December 7, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and this case is remanded for further proceedings 

consistent with this decision of the Board. 

Issued: August 15, 2019

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