United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.C., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

KEESLER AIR FORCE BASE, Biloxi, MS, 

Employer 

__________________________________________ 

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Docket No. 15-0080 

Issued: August 24, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 15, 2014 appellant filed a timely appeal of a September 8, 2014 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 this case.2

ISSUE 

The issue is whether OWCP abused its discretion in denying authorization for C5-6 and 

C6-7 cervical disc arthroplasty surgery. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the September 8, 2014 decision, OWCP received additional evidence. 

Appellant also submitted new evidence with his appeal to the Board. However, the Board may only review

evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., 

Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. 

Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

FACTUAL HISTORY 

On July 23, 2009 appellant, then a 39-year-old electronic integrated systems mechanic, 

filed a traumatic injury claim (Form CA-1) alleging that on that date he sustained a right forearm 

contusion/laceration, shoulder strain, and back strain as the result of his losing his footing and 

slipping down a ladder on a flight deck. OWCP accepted the claim for right shoulder and upper 

arm sprain, right superior glenoid labrum lesion, right wrist sprain, and right forearm contusion, 

which was subsequently expanded to include right rotator cuff tear, brachial radiculitis or 

neuritis, and cervical intervertebral disc displacement without myelopathy. 

In a September 4, 2013 report, Dr. Donald D. Dietze, a treating Board-certified 

neurological surgeon, reported that appellant was seen for neck pain complaints. Diagnoses 

included cervical radiculitis, cervicalgia, cervical herniated nucleus pulposus at C5-6, C6-7, 

cervical disc disorder, and right shoulder rotator cuff injury. A review of a magnetic resonance 

imaging (MRI) scan revealed significant persistent C5-6 central disc herniation, and progression 

of the left C6-7 disc herniation. Dr. Dietze discussed the surgery options with appellant and 

recommended anterior disc replacement surgery. 

On December 2, 2013 OWCP received Dr. Dietze’s request for authorization to perform 

cervical spine surgery on appellant. 

In a December 12, 2013 report, an OWCP medical adviser reviewed the medical 

evidence from Dr. Dietze. He advised OWCP to request Dr. Dietze to provide his rationale as to 

why disc arthroplasty surgery at C5-6 and C6-7 should be performed on appellant. 

In a letter dated April 10, 2014, Angela Geraci from the scheduling department of 

Dr. Dietze’s practice, stated she was provided clarification as requested from Dr. Dietze as to 

why the recommended surgery should be authorized. She attached copies of his prior reports 

including the most recent April 10, 2014 report, physical therapy reports and diagnostic 

tests/studies supporting the request for authorization of C5-6 and C6-7 anterior cervical 

discectomy and stabilization with total disc arthroplasty. 

Dr. Dietze, in reports dated August 2, September 18, November 21, December 2, 2013, 

and April 10, 2014, provided physical examination findings. Diagnoses from the reports 

included right shoulder rotator cuff injury, C5-6 cervical disc disorder, C6-7 cervical herniated 

nucleus pulposus, cervicalgia, and cervical radiculitis. In all the reports, Dr. Dietze noted 

discussing surgical options with appellant who agreed to surgery on December 2, 2013. In the 

April 10, 2014 letter, he related that review of a recent MRI scan showed progression of the C6-7 

left disc herniation and significant persistent C5-6 central disc herniation. Dr. Dietze opined that 

the only option for significant benefit or resolution was artificial disc replacement surgery. 

In an April 28, 2014 report, the medical adviser reviewed the relevant medical evidence 

and concluded that surgery should not be authorized. He found that while C5-6 and C6-7 

pathology was present cervical disc replacement arthroplasty surgery has not been approved for 

use in more than one level where there is evidence or radiculopathy or myelomalacia at the level 

in question “and no evidence for symptomatic cervical disc disease at more than one level.” 

In a May 3, 2014 report, Dr. Dietze related that a July 26, 2013 MRI scan revealed 

persistent C5-6 broad based posterior disc herniation and a new C6-7 disc herniation, which 
3

“represented a progression of the prior bulge with annular tear.” These findings were discussed 

with appellant on August 1, 2013 and that he believed cervical surgery was the only option 

offering “potential improvement in his condition.” Appellant rejected the surgrical option on 

August 1, 2013, but during the November 20, 2013 examination decided that the recommended 

surgery should be done. Dr. Dietze evaluated appellant on March 18, 2014 when appellant 

reported a worsening of his condition and again recommended surgery to improve function and 

lessen appellant’s pain. 

By decision dated May 13, 2014, OWCP denied appellant’s request for authorization of 

C5-6 and C6-7 cervical disc arthroplasty surgery as it found that the requested surgery could not 

be authorized as it was an off label use of the device. 

On May 29, 2014 appellant requested reconsideration and submitted medical evidence in 

support of his request. 

In a May 28, 2014 report, Dr. Dietze stated that he had reviewed the denial of his request 

to authorize two-level cervical disc artifical disc replacement as it was only approved for one 

level. He stated that two level artificial cervical disc replacement has recently been approved by 

the Federal Drug Agency (FDA). Thus, utilization of this surgery “is NO longer an off-label 

usage.” (Emphasis in the original.) 

On July 11, 2014 appellant was referred for a second opinion evaluation with 

Dr. James T. Tran, a Board-certified neurological surgeon, to determine whether the requested 

surgery should be approved. 

In an August 18, 2014 report, Dr. Tran responded to the questions posed by OWCP. He 

stated that there was evidence of left C6-7 disc degeneration and bulges and C5-6 stenosis based 

on a July 26, 2013 MRI scan. He recommended cervical facet joint injections with 

radiofrequency treatment for pain relief over six to eight months. Lastly, Dr. Tran disagreed 

with Dr. Dietze that the FDA had approved artifical discs for use of more than one level disc 

disease for C3 to C7. He indicated that artificial disc surgery was only approved by the FDA for 

one-level cervical disc disease from C3 to C7. 

On August 28, 2014 the medical adviser reviewed Dr. Tran’s report and concurred that 

the requested surgery not be authorized. 

By decision dated September 8, 2014, OWCP denied modification. 

LEGAL PRECEDENT 

Section 8103 of FECA3

 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.4

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

 3 Supra note 1.

4 Id. at § 8103; see R.L., Docket No. 08-855 (issued October 6, 2008); Sean O’Connell, 56 ECAB 195 (2004), 

Thomas W. Stevens, 50 ECAB 288 (1999). 
4

discretion in approving services provided under FECA.5

 The only limitation on OWCP’s 

authority is that of reasonableness.6 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.7

 

Section 8123(a) of FECA8

 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

 

ANALYSIS 

The Board finds that the case is not in posture for a decision as there is a conflict in the 

medical evidence with regard to whether the recommended surgery should be authorized. 

OWCP accepted appellant’s claim for right shoulder and upper arm sprain, right superior 

glenoid labrum lesion, right wrist sprain, right forearm contusion, right rotator cuff tear, brachial 

radiculitis or neuritis, and cervical intervertebral disc displacement without myelopathy. 

Appellant requested authorization for C5-6 and C6-7 cervical disc arthroplasty surgery based on 

the medical reports of Dr. Dietze. By decisions dated May 13 and September 8, 2014, OWCP 

denied his request for C5-6 and C6-7 cervical disc arthroplasty surgery, finding that the 

requested surgery could not be authorized as it was an off label use of the device. 

The record reflects that Dr. Dietze discussed with appellant the recommendation for C5-6 

and C6-7 cervical disc arthroplasty surgery in his various reports. In the December 2, 2013 

report, Dr. Dietze stated that appellant agreed with the proposed surgery and a request for 

authorization was submitted. In an April 10, 2014 report, he reviewed a recent magnetic 

resonance imaging scan and opined that artificial disc replacement surgery was the only option 

for significant benefit or resolution. Similarly, in his May 3, 2014 report, Dr. Dietze reiterated 

that his opinion that the requested surgery was appropriate and should be authorized as it would 

improve appellant’s function and lessen his pain. He, in a May 28, 2014 report, related that the 

use of two level artificial disc replacement had recently been approved by the FDA so that it was 

no longer considered to be an off-label use. 

Dr. Tran, an OWCP referral physician, examined appellant and found that the requested 

surgery was not approved by the FDA and, thus, should not be authorized. In his August 18, 

2014 report, he stated that the use of artificial discs for more than one level of disc disease was 

not an approved use of the device by the FDA. In a report dated April 28, 2014, the medical 

adviser concluded that surgery should not be authorized as the FDA had not approved the use of 

 5 A.O., Docket No. 08-580 (issued January 28, 2009); Joseph P. Hofmann, 57 ECAB 456 (2006). 

6 D.C., 58 ECAB 620 (2007); Mira R. Adams, 48 ECAB 504 (1997). 

7 L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990). 

8

 5 U.S.C. § 8123(a). 

9 Id.; see J.J., Docket No. 09-27 (issued February 10, 2009); Y.A., 59 ECAB 701 (2008); Darlene R. Kennedy, 57 

ECAB 414 (2006); Geraldine Foster, 54 ECAB 435 (2003). 
5

cervical disc replacement arthroplasty surgery for use in more than one level. He, reviewed 

Dr. Tran’s August 18, 2014 report and concurred with his opinion that surgery should not be 

authorized as the FDA did not approve the use of artificial discs for more than one level of 

cervical disc disease. 

The Board finds that there remains an unresolved conflict in the medical evidence 

between Dr. Dietze, for appellant, and Dr. Tran and the medical adviser, for OWCP, regarding 

whether appellant’s request for surgery should be authorized and whether the FDA has approved 

the use of artificial discs for more than one level of cervical disc disease. Due to the unresolved 

conflict of the medical opinion, OWCP should refer appellant to an appropriate Board-certified 

specialist for an impartial medical examination, pursuant to 5 U.S.C. § 8123(a), to resolve this 

issue. After this and such other development as OWCP deems necessary, it should issue a 

de novo decision on the issue. 

CONCLUSION 

The Board finds that the case is not in posture for decision, due to a conflict in the 

medical evidence, with regard to whether appellant’s proposed surgery should be authorized. 

ORDER 

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

Compensation Programs dated September 8, 2014 is set aside and the case remanded for further 

proceedings consistent with the above opinion.10

Issued: August 24, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

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

Board effective November 16, 2015.