United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Fort Collins, CO, Employer

__________________________________________

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Docket No. 18-0503

Issued: October 16, 2018

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 8, 2018 appellant filed a timely appeal from a November 6, 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 to 

consider the merits of the case.2

ISSUE

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

lumbar surgery.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the November 6, 2017 decision OWCP received additional evidence in this claim. 

However, the Board’s jurisdiction is limited to a review of the evidence that was in the record at the time OWCP 

issued its final decision. Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-0176 (issued September 23, 2009).
2

FACTUAL HISTORY

On December 16, 2015 appellant, then a 39-year-old rural carrier associate, filed a 

traumatic injury claim (Form CA-1) alleging that on December 15, 2015 she slipped on ice and

fell, injuring her back while in the performance of duty. She stopped work on December 16, 2015

and received continuation of pay. On January 29, 2016 OWCP accepted the claim for strained 

neck muscle, low back strain, concussion, loss of consciousness. It later expanded acceptance of 

the claim to include pain disorder with psychological factors. OWCP paid appellant wage-loss 

compensation benefits effective January 30, 2016.

In a report dated January 21, 2016, Dr. John Ray, a Board-certified orthopedic surgeon, 

related that he had examined appellant following her December 15, 2015 slip and fall. He 

diagnosed lumbar intervertebral disc disorders with radiculopathy and recommended back surgery. 

Dr. Ray completed a note on June 1, 2016 and reported that appellant requested fusion surgery. 

He diagnosed intervertebral disc disorders with radiculopathy, lumbar region. Dr. Ray requested 

a psychological evaluation in consideration of an L4-5 fusion.

In a report dated June 16, 2016, Dr. Joel Cohen, a clinical psychologist, examined appellant 

and diagnosed adjustment disorder with depressed mood. His testing was suggestive of poor 

prognosis for optimal response from invasive procedures. Dr. Cohen diagnosed somatic 

symptoms disorder, and adjustment reaction with depressed mood. He noted that he was 

concerned that appellant was not ready to deal with the process of surgery. Dr. Cohen concluded,

however, that if surgical intervention was medically necessary it could proceed, followed by 

additional psychological interventions. 

On June 17, 2016 Dr. Ray provided a history of injury and found that appellant’s 

psychological evaluation resulted in a recommendation of surgery. On physical examination he 

noted mild loss of lumbar lordosis, normal symmetric gait, limited range of motion of the lumbar 

spine due to discomfort, altered sensation over the left lateral calf, and normal muscle strength. 

Dr. Ray reviewed appellant’s lumbar magnetic resonance imaging scan and diagnosed a large 

central disc protrusion at L4-5 substantially narrowing each lateral recess at that level. He opined 

that this finding was consistent with her back and lower extremity pain. Dr. Ray recommended a 

L4-5 decompression and posterior lumbar fusion.

By development letter dated June 20, 2016, OWCP informed appellant that the evidence 

of record was insufficient to establish that the requested treatment was medically necessary or 

causally related to her accepted conditions. It requested that appellant obtain a rationalized 

medical report explaining how her diagnosed condition and proposed surgery was related to her 

accepted employment injuries. OWCP afforded appellant 30 days to provide the requested 

information. 

On June 22, 2016 OWCP expanded the acceptance of appellant’s claim to include 

intervertebral disc disorders with radiculopathy L4-5, L5-S1 and intervertebral disc displacement 

L4-5 and L5-S1.

On July 19, 2016 OWCP referred appellant for a second opinion evaluation with Dr. John 

Douthit, a Board-certified orthopedic surgeon.
3

Dr. William Briggs, a Board-certified orthopedic surgeon, completed a report on July 22, 

2016 and opined that appellant had exhausted conservative treatment options. He recommended 

that she consider a fusion, but noted that she was going to be at high risk afterwards with regard 

to pain control issues.

In a report dated August 22, 2016, Dr. Douthit, reviewed the statement of accepted facts 

(SOAF), appellant’s history of injury, her medical treatment records, and her reports of back pain. 

He performed a physical examination finding meaningful clinical findings were obscured because 

of her extreme pain behavior. Dr. Douthit reported that appellant had no sensory or motor losses 

and had no objective physical findings. He diagnosed depression and possible aggravation of 

degenerative disease of the lumbar spine. Dr. Douthit found that appellant’s severe depression 

with severe pain behavior was obscuring all clinical findings. He determined that she was currently 

a poor candidate for surgery, and noted his strong opposition to surgery as treatment for appellant 

until her depression was improved.

By decision dated September 7, 2016, OWCP denied authorization for appellant’s 

requested surgical lumbar spinal fusion. It found that the weight of the medical opinion evidence 

rested with Dr. Douthit who concluded that appellant’s obesity was hindering her recovery and 

distorting medical findings as well as noting that appellant had a severe psychiatric disorder 

making her a poor candidate for surgery. OWCP determined that the weight of the medical 

evidence did not establish that the requested treatment was medically necessary for appellant’s 

accepted employment injuries. 

On September 30, 2016 appellant requested an oral hearing and review of the written 

record from OWCP’s Branch of Hearings and Review. In a letter dated October 11, 2016, OWCP 

informed appellant that the September 7, 2016 decision was issued in error and that a new decision 

would be issued following her impartial medical examination.

Dr. Ray examined appellant on September 22, 2016. On physical examination he found 

sensation was altered over the left lateral calf and giveaway weakness on strength testing. Dr. Ray

noted symptom magnification, but continued to recommend posterior lumbar fusion.

In a report dated September 30, 2016, Dr. Raymond P. van den Hoven, a Board-certified 

physiatrist, noted appellant’s history of injury, performed a physical examination and reviewed the 

result of his electrodiagnostic studies. He found no evidence of lumbar radiculopathy in either 

lower extremity based upon the electrodiagnostic studies. Dr. van den Hoven noted that appellant 

had a legitimate source of low back pain with degeneration at the L4-5 and L5-S1 levels. However, 

he also reported significant nonorganic findings including severe weakness of the right lower 

extremity and complaints of numbness in a nondermatomal pattern in her right leg. 

Dr. van den Hoven concluded, “I think [appellant] has some genuine pathophysiology in her 

lumbar spine, and if it were not for the significant nonorganic findings, in my opinion L4-5 fusion 

would be a reasonable option.”

In a letter dated October 6, 2016, OWCP referred appellant for an impartial medical 

examination with Dr. Alfred Lotman, a Board-certified orthopedic surgeon, to resolve the conflict 

of medical opinion between Dr. Douthit, OWCP’s second opinion physician, and appellant’s 
4

treating physicians Dr. Ray and Dr. Briggs, regarding appellant’s need for lumbar spinal fusion 

surgery.

Dr. Lotman completed his report on November 14, 2016. He reviewed appellant’s history 

of injury, the SOAF, as well as her medical history, and performed a limited examination as 

appellant was in a wheelchair. Dr. Lotman noted her marked and extreme pain behaviors and 

reported that he could not detect a motor, sensory, or reflex abnormality. He reported that 

sensation to light touch was diminished in both legs in a nondermatomal pattern which would 

change when examined repeatedly. Dr. Lotman could not detect any muscle atrophy. In response 

to OWCP’s questions, he opined that appellant did not meet the criteria for surgery due to 

significant psychological overlay. Dr. Lotman opined that her diagnosed condition did not warrant 

surgical intervention.

By decision dated November 17, 2016, OWCP denied authorization for surgical lumbar 

spinal fusion, finding that Dr. Lotman’s report was entitled to the special weight of the medical 

evidence.

On December 12, 2016 appellant requested an oral hearing before an OWCP hearing 

representative.

On December 29, 2016 OWCP expanded acceptance of the claim to include major 

depressive disorder, and undifferentiated somatoform disorder.

By decision dated February 3, 2017, an OWCP hearing representative found that

Dr. Lotman’s report was insufficiently rationalized to resolve the conflict of medical opinion and 

remanded the case for OWCP to obtain a supplemental report.

In a report dated March 7, 2017, Dr. Lotman explained that lumbar fusion was not 

medically necessary and that appellant was not a good surgical candidate for multiple reasons. He 

noted on his previous examination he could not detect motor, sensory, or reflex abnormality. 

Dr. Lotman further noted that appellant’s sensory loss in both legs was in a nondermatomal pattern 

and shifted on repeat sensory examination. He was also unable to detect muscle atrophy. 

Dr. Lotman noted that in order to justify operative interventions, clinical findings, clinical course, 

and diagnostic tests must all be consistent resulting in a reasonable likelihood of at least a 

measurable and meaningful functional and symptomatic improvement. He also determined that 

nonphysiologic modifiers of pain presentation or nonoperative conditions mimicking 

radiculopathy or instability must be ruled out prior to elective surgical intervention. Dr. Lotman

opined that appellant did not meet these criteria as she had no repeatable specific neurologic 

findings, marked somatoform pain behaviors, negative electrodiagnostic studies, and 

unexplainable inconsistencies. He concluded that appellant was not a suitable candidate for 

surgery for these reasons.

By decision dated March 14, 2017, OWCP denied appellant authorization for a lumbar 

spinal fusion finding that this treatment was not medically necessary to address effects of her 
5

December 15, 2015 work-related conditions. It found that Dr. Lotman’s reports were entitled to 

the special weight of the medical opinion evidence.3 

On August 7, 2017 appellant requested reconsideration of the March 14, 2017 decision.

She submitted reports dated June 13, 15, and 2017 from Dr. William D. Boyd, a licensed clinical 

psychologist, which noted that appellant complained of symptoms consistent with depression. On 

June 29, 2017 Dr. Boyd opined that appellant was cleared from a psychological perspective for 

surgery. On July 27, 2017 Dr. Cohen agreed that there were no overt emotional or behavioral 

factors which would preclude appellant as a candidate for surgical intervention.

In a report dated August 31, 2017, Dr. Ray reviewed appellant’s diagnostic testing and 

diagnosed advanced degenerative disc and facet changes at L4-5 resulting in lateral recess stenosis 

and modic changes. He recommended posterior lumbar fusions.

By decision dated November 6, 2017, OWCP reviewed the merits of appellant’s claim, but

denied modification of its prior decision. It found that there were multiple issues as to whether 

appellant was a suitable candidate for surgical intervention, including whether she was 

psychologically fit and whether the physical evidence warranted surgical intervention. OWCP 

determined that the medical reports of record were insufficient to establish that the requested spinal 

fusion was medically necessary.

LEGAL PRECEDENT

Section 8103 of FECA4 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 period of disability, or aid in lessening the amount of monthly compensation.5 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.6

Section 10.310(a) of OWCP’s implementing regulations provides that an employee is 

entitled to receive all medical services, appliances, or supplies which a qualified physician 

prescribes or recommends and which OWCP considers necessary to treat the work-related injury.7 

Its procedures provide that nonmedical equipment such as waterbeds, saunas, weight-lifting sets, 

exercise bicycles, etc., may be authorized only if recommended by the attending physician and if 

 

3 On April 24, 2017 appellant requested an oral hearing from OWCP’s Branch of Hearings and Review. By decision 

dated May 8, 2017, OWCP’s Branch of Hearings and Review denied this request as untimely and determined in its 

discretion that appellant’s claim could equally well be addressed through the reconsideration process.

4

Id. at § 8103.

5 D.C., Docket No. 18-0080 (issued May 22, 2018); Thomas W. Stevens, 50 ECAB 288 (1999).

6 D.C., id.; Kennett O. Collins, Jr., 55 ECAB 648 (2004).

7 20 C.F.R. § 10.310(a).
6

OWCP finds that the item is likely to cure, give relief, reduce the degree or the period of disability, 

or aid in lessening the amount of monthly compensation.8

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

approving services provided under FECA. OWCP has the general objective of ensuring that an 

employee recovers from his or her injury to the fullest extent possible in the shortest amount of 

time. It therefore has broad administrative discretion in choosing means to achieve this goal. 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) of FECA which 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 (known as a referee physician or impartial medical 

specialist) who shall make an examination.11 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 When there exists opposing 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.13 In situations where there are 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 on a proper factual background, must be given special weight.14

ANALYSIS

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

authorization of lumbar surgery.

 

8 Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3.d(5) 

(October 1995); Federal (FECA) Procedure Manual, Part 2 -- Claims, Durable Medical Equipment, Chapter 

2.810.17.h (June 2014); D.J., Docket No. 13-1637 (December 2013).

9 D.C., supra note 5; D.K., 59 ECAB 141 (2007); Daniel J. Perea, 42 ECAB 214, 221 (1990).

10 Id.; see also Minnie B. Lewis, 53 ECAB 606 (2002).

11 5 U.S.C. § 8123(a); C.L., Docket No. 17-0230 (issued April 24, 2018); R.S., Docket No. 10-1704 (issued May 13, 

2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).

12 20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006); C.L., id.

13 See C.L., supra note 11; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

14 C.L., supra note 11; Nathan L. Harrell, 41 ECAB 401, 407 (1990).
7

OWCP accepted that, as a result of a fall while at work on December 15, 2015, appellant 

sustained strained neck muscle, low back strain, concussion, loss of consciousness, pain disorder 

with psychological factors, intervertebral disc disorders with radiculopathy at L4-5 and L5-S1, 

intervertebral disc displacement L4-5 and L5-S1, major depressive disorder, and undifferentiated 

somatoform disorder.

Appellant’s attending physicians Dr. Ray and Dr. Biggs recommended lumbar spinal 

fusion. OWCP referred appellant for a second opinion evaluation with Dr. Douthit who 

determined that appellant had no objective physical findings, was currently a poor candidate for 

surgery, and his strong opposition to surgery as treatment for her. It properly found that there was 

a conflict of medical opinion regarding the need and appropriateness of surgery for appellant. 

Consequentially, OWCP referred appellant to Dr. Lotman to resolve the conflict, pursuant to 

5 U.S.C. § 8123(a).

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

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

evidence, and found that lumbar fusion was not medically warranted. As noted, for a surgical 

procedure to be authorized, a claimant must show that the surgery is for a condition causally related 

to the accepted work injury and that it is medically warranted.

15

In his November 14, 2016 report, Dr. Lotman reviewed appellant’s history of injury, the 

SOAF, as well as her medical history, and performed a physical examination. He reported that he 

could not detect a motor, sensory, or reflex abnormality. Dr. Lotman also found that sensation to 

light touch was diminished in both legs in a nondermatomal pattern which would change when 

examined repeatedly. Furthermore, he could not detect any muscle atrophy. In response to 

OWCP’s questions, Dr. Lotman opined that appellant did not meet the criteria for surgery due to 

significant psychological overlay and appellant’s diagnosed lumbar spine condition did not 

warrant surgical intervention. In his supplemental report dated March 7, 2017, Dr. Lotman 

explained that in order to justify operative interventions, clinical findings, clinical course, and 

diagnostic tests must all be consistent resulting in a reasonable likelihood of at least a measurable 

and meaningful functional and symptomatic improvement. He opined that appellant did not meet 

these criteria as she had no repeatable specific neurologic findings, marked somatoform pain 

behaviors, negative electrodiagnostic studies, and unexplainable inconsistencies. Dr. Lotman 

determined that appellant was not a suitable candidate for surgery for these reasons.

The Board finds that Dr. Lotman’s reports represent the special weight of the medical 

evidence and that OWCP properly relied on his reports in denying the requested surgery. The 

Board finds that he had full knowledge of the relevant facts and evaluated the course of her 

condition, his opinion is based on proper factual and medical history, and his report contained a 

detailed summary of this history. Dr. Lotman addressed the medical records and made his own 

examination findings to reach a reasoned conclusion regarding appellant’s condition and to support 

that lumbar spinal fusion was not medically warranted.

Following Dr. Lotman’s March 7, 2017 report, appellant provided additional medical 

evidence from her treating psychologists, Drs. Cohen and Boyd addressing emotional suitability 

 

15 See C.L., supra note 11; P.F., Docket No. 16-0693 (issued October 24, 2016).
8

for surgery. On June 29, 2017 Dr. Boyd found that she was cleared from a psychological

perspective for surgery. On July 27, 2017 Dr. Cohen agreed with Dr. Boyd that there were no 

overt emotional or behavioral factors which would preclude appellant as a candidate for surgical 

intervention. These reports are insufficient to overcome the special weight accorded Dr. Lotman’s 

reports or to create a new conflict as the reports only address one aspect of his rationale for denying 

authorization for surgery, appellant’s emotional reactions. Dr. Lotman also found that surgery was 

inappropriate based on appellant’s lack of objective reproducible physical findings.

In his August 31, 2017 report, Dr. Ray reviewed appellant’s diagnostic testing and 

diagnosed advanced degenerative disc and facet changes at L4-5 resulting in lateral recess stenosis 

and modic changes. He recommended a posterior lumbar fusion. Dr. Ray did not provide any 

new results of examination and did not address the concerns raised by Dr. Lotman. Reports from 

a physician who was on one side of a medical conflict that an impartial medical examiner resolved 

are generally insufficient to overcome the special weight of the impartial medical examiner, or to 

create a new conflict.16 While Dr. Ray asserted that the need for lumbar fusion was related to the 

December 15, 2015 work injury, he failed to explain the findings on physical examination which 

supported his opinion. Absent a well-rationalized explanation regarding the clinical basis for his 

opinion that appellant required a lumbar fusion, his opinion is of limited probative value.17

The Board concludes that Dr. Lotman’s opinion that the lumbar fusion was not medically 

warranted as appellant did not have objective findings on physical examination supporting the 

need for surgery is entitled to special weight and represents the weight of the evidence.18

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

FECA is one of reasonableness.19 In the instant case, appellant requested surgery. OWCP obtained 

an impartial medical examination through Dr. Lotman who found that surgery was not warranted. 

It therefore had sufficient evidence upon which it made 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 properly denied authorization for lumbar spinal fusion 

surgery.

 

16 C.L., supra note 11; D.C., Docket No. 16-0430 (issued August 29, 2016).

17 Id.

18 Id.

19 Supra note 9.
9

ORDER

IT IS HEREBY ORDERED THAT the November 6, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 16, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board