United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, INDIAN HEALTH SERVICE, 

Phoenix, AZ, Employer

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Docket No. 18-0573

Issued: November 5, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 23, 2018 appellant filed a timely appeal from a September 27, 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 this case.

ISSUE

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

authorization of left shoulder surgery.

FACTUAL HISTORY

On March 30, 2016 appellant, then a 60-year-old registered nurse, filed a traumatic injury 

claim (Form CA-1) alleging that on March 22, 2016 she sustained a left shoulder injury at work 

 

1 5 U.S.C. § 8101 et seq.
2

when she was helping a patient from his bed when he began to fall, causing her to lean into him 

with her left shoulder to prevent the fall. She stopped work the next day on March 23, 2016. 

Appellant did not return to work as the employing establishment could not accommodate her 

physician’s work restrictions. By decision dated April 3, 2016, OWCP accepted the claim for 

inferior subluxation of the left shoulder humerus.2 It paid appellant wage-loss compensation and 

medical benefits on the supplemental rolls as of May 7, 2016.

Appellant sought treatment with Dr. Evan Lederman, a Board-certified orthopedic 

surgeon. In a July 11, 2016 medical report, Dr. Lederman reported that a magnetic resonance 

imaging (MRI) scan of appellant’s left shoulder revealed advanced glenohumeral joint 

degenerative arthritis, large humeral osteophyte, degenerative circumferential labral pathology 

consistent with degenerative arthritis, a fairly large posterosuperior paralabral cyst, and tendinosis 

of the rotator cuff. He diagnosed left shoulder strain during the course of employment, underlying 

advanced glenohumeral joint degenerative arthritis, degenerative labrum, and nonacute paralabral 

cyst. Dr. Lederman reported that appellant had not improved despite treatment and was 

experiencing worsening mechanical pain which would suggest some damage as a result of her 

injury, despite her underlying degenerative arthritis. He suspected that most of her pain wasrelated 

to the labral pathology and large paralabral cyst. Dr. Lederman further speculated that she either 

worsened her articular cartilage damage or worsened her labral tear as a result of her injury, which 

fit the mechanism of injury.

In an August 29, 2016 report, Dr. Lederman diagnosed left shoulder advanced 

glenohumeral arthritis and labral tear. He noted that appellant was not a candidate for arthroscopic 

surgery due to the severe degenerative arthritis. However, if surgery became necessary, appellant

would require a shoulder replacement. Dr. Lederman noted that the consideration was whether 

the shoulder replacement was the responsibility of the industrial carrier or a preexisting condition. 

He reported that appellant appeared to have aggravated a preexisting condition that was 

unresponsive to conservative care and therefore, would qualify as a permanent aggravation. 

Dr. Lederman recommended that appellant be referred for another medical evaluation to determine 

causation and whether further total shoulder arthroplasty due to severe degenerative arthritis

should be performed. 

On September 15, 2016 OWCP received a request for authorization of left shoulder 

replacement surgery.

On January 18, 2017 OWCP referred appellant, the case file, a statement of accepted facts 

(SOAF), and a series of questions to Dr. Michael A. Steingart, a Board-certified orthopedic 

surgeon, for a second opinion examination as to the status of appellant’s employment-related 

injury and need for the requested surgery. The accompanying SOAF noted the accepted condition 

of inferior subluxation of the left humerus as causally related to the March 22, 2016 work injury. 

It further noted that the preexisting or concurrent medical conditions of advanced left shoulder 

glenohumeral osteoarthritis and labral tear. OWCP requested that Dr. Steingart determine all 

diagnoses related to the March 22, 2016 employment injury, whether the recommended left total 

 

2 A March 28, 2016 x-ray of the left shoulder revealed inferior subluxation of the left humeral head with underlying 

degenerative joint disease.
3

shoulder replacement surgery was medically necessary and related to the accepted injury, and the 

nature and extent of all residuals from the employment injury.

In a February 10, 2017 medical report, Dr. Steingart provided findings based upon 

appellant’s physical examination. He discussed her medical history and past diagnostic reports. 

With respect to her diagnosis, Dr. Steingart reported that appellant did not sustain a work-related 

injury on March 22, 2016 when protecting a patient from falling by leaning into the patient,

because this would not have caused dislocation or subluxation of the left shoulder. He reported 

that appellant’s chronic degenerative change of the left shoulder was ongoing and she had issues 

prior to the work-related injury. Dr. Steingart further reported that the record supported that she 

was able to carry fish with her left hand singly, which was something she said she would not be 

able to do because of her chronic left shoulder pain. He opined that appellant did not injure herself 

when trying to prevent a patient from falling3and her diagnosis was not related to her work injury. 

Dr. Steingart reported that appellant’s conditions were preexisting which were aggravated by her 

fishing trip, reiterating that she never sustained a traumatic injury on March 22, 2016. He

concluded that she was a candidate for a left total shoulder replacement, but that it was unrelated 

to any work injury. 

By decision dated April 5, 2017, OWCP denied appellant’s request for authorization of left 

shoulder surgery finding that the evidence of record did not establish that it was medically 

necessary to address the effects of her work-related injury. 

On May 1, 2017 appellant requested an oral hearing before an OWCP hearing 

representative. In a May 3, 2017 statement, she described the March 22, 2016 incident when she

prevented a 200-pound patient from falling. Appellant provided a history of her medical treatment 

and reported that she held fish during a trip to Alaska just long enough to have her photograph

taken, and was in severe pain while doing so. 

In an April 3, 2017 medical report, Dr. Lederman noted review of Dr. Steingart’s second 

opinion report which was provided to him by appellant.4 He related that he disagreed with most 

of Dr. Steingart’s conclusions, although he agreed with his opinion that appellant had degenerative 

arthritis of the left shoulder prior to her injury. Dr. Lederman also agreed that she sustained an 

injury with a significant increase in pain of her left shoulder, which would be expected to be a 

temporary aggravation. However, as one year had passed, he reported that her injury would now 

qualify as a permanent aggravation of her underlying degenerative arthritis. Dr. Lederman opined 

that appellant was a candidate for left total shoulder arthroplasty which was related to her work 

injury with an unfortunate permanent aggravation of her underlying preexisting condition.

In a May 4, 2017 report, Dr. Susan Del Sordi-Staats, an osteopathic physician, reported 

that she had been appellant’s primary care physician for over 10 years. She noted that, despite 

 

3 Dr. Steingart was provided a questionnaire which noted that appellant had taken a vacation to Alaska and posted 

pictures of herself fishing on July 16, 2016, holding up two fish with one in each arm, one weighing 20 pounds and 

one weighing 30 pounds, which exceeded her lifting restrictions. OWCP reported that this was based on a statement 

provided by the employing establishment. 

4 Dr. Lederman noted that, on March 24, 2017, OWCP requested he comment and review on Dr. Steingart’s report,

but failed to provide him with the second opinion. 
4

chronic shoulder changes seen on a left shoulder MRI scan in 2005, appellant was not treated for 

any shoulder complaints as it was not an active issue for her until March 23, 2016, when she 

presented to her office and an x-ray of her left shoulder revealed dislocation. Appellant was 

referred to an orthopedist and an updated MRI scan of the left shoulder revealed underlying severe 

degenerative changes, a ganglion cyst, and labral/rotator cuff injury. Dr. Sordi-Staats opined that

the March 22, 2016 incident clearly triggered appellant’s situation requiring surgery. She noted 

that the fact that appellant had underlying chronic degenerative shoulder issues did not change the 

fact that her work activity induced an injury to that shoulder. Dr. Sordi-Staats explained that the 

mechanism by which she helped her patient from falling would explain a dislocation, and the 

complaint of pain and limitation in movement that followed the incident were not present in that 

shoulder prior to the work injury. She reported that any activity, such as lifting a fish on a vacation, 

were activities that she had performed in the past and did not change the mechanism of injury at 

work that directly led to her need for a shoulder replacement surgery. Dr. Sordi-Staats requested 

appellant’s surgery be approved by OWCP. 

By decision dated September 27, 2017, an OWCP hearing representative affirmed the 

April 5, 2017 decision denying appellant’s request for authorization of left shoulder surgery. It 

noted that the weight of the medical evidence rested with Dr. Steingart’s opinion that appellant’s

left shoulder condition was preexisting.

LEGAL PRECEDENT

Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies 

prescribed or recommended by a qualified physician who 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.5 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.6 The Board therefore has broad administrative discretion in choosing means to 

achieve this goal. The only limitation on OWCP’s authority is that of reasonableness.7 

In order to be entitled to reimbursement for medical expenses, a claimant must establish 

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

by submitting rationalized medical evidence that supports such a connection and demonstrates that 

the treatment is necessary and reasonable.8 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.9 

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

 

5 5 U.S.C. § 8103(a).

6 See Dale E. Jones, 48 ECAB 648, 649 (1997).

7 Dr. Mira R. Adams, 48 ECAB 504 (1997).

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

9 Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).
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evidence.10 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.11

ANALYSIS

The Board finds that this case is not in posture for decision.12 

The Board notes that OWCP accepted the condition of inferior subluxation of left humerus. 

On January 18, 2017 OWCP referred appellant, the case file, the SOAF, and a series of questions 

to Dr. Steingart, serving as a second opinion physician, for review and determination regarding 

appellant’s diagnoses related to the accepted March 22, 2016 employment injury and the need for 

the requested surgery. The Board finds, however, that Dr. Steingart’s opinion was not sufficiently 

rationalized because it was based on an inaccurate background and accordingly, failed to resolve 

whether appellant’s requested surgery should be authorized as related to the March 22, 2016 

employment injury.13 

In his February 10, 2017 medical report, Dr. Steingart opined that the accepted condition 

of inferior subluxation of the left humerus was not related to the March 22, 2016 work injury, and 

that she sustained no injury to her left shoulder at work on that date.14 OWCP procedures indicate 

that, when an OWCP medical adviser, second opinion specialist, or referee physician renders a 

medical opinion based on a SOAF which is incomplete or inaccurate, or does not use the SOAF 

as the framework in forming his or her opinion, the probative value of the opinion is seriously 

diminished or negated altogether.15 Dr. Steinhart’s opinion that the left shoulder surgery should 

not be authorized because appellant’s inferior subluxation of the left humerus was not caused by 

the March 22, 2016 employment injury was outside of the SOAF and was therefore based on an 

inaccurate factual history.16 Accordingly, the Board finds that Dr. Steingart’s opinion is of limited 

or no probative value.

 

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

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

12 T.H., Docket No. 17-0025 (issued July 6, 2017). 

13 See D.B., Docket No. 14-0830 (issued August 22, 2014). 

14 L.J., Docket No. 14-1682 (issued December 11, 2015).

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.5 

(September 2009). See also A.C., Docket No. 07-2423 (issued May 15, 2008). The Board held that the SOAF did not 

accurately reflect the conditions OWCP accepted as employment related and, therefore, the physician’s report was of 

diminished probative value, and insufficient to resolve the conflict in medical opinion.

16 V.A., Docket No. 14-722 (issued May 8, 2014). See also FECA Procedure Manual, Part 3 -- Medical,

Requirements for Medical Reports, Chapter 3.600.3 (October 1990).
6

OWCP shares responsibility to see that justice is done.17 Once OWCP undertakes to 

develop the medical evidence further, it has the responsibility to do so in a proper manner. The

Board has previously explained that as OWCP undertook development of the medical evidence,

but failed to obtain an opinion that rationally resolved whether appellant’s requested left shoulder 

surgery should be authorized, OWCP has an obligation to pursue the issue further.18

OWCP shall refer appellant, together with a SOAF and her medical record, to a second

opinion physician for a rationalized medical opinion as to whether appellant’s left shoulder surgery 

should be authorized.19 After this and such further development as deemed necessary, OWCP 

shall issue an appropriate de novo decision on appellant’s request for left shoulder surgery.

CONCLUSION

The Board finds that this case is not in posture for decision

 

17 See E.W., Docket No. 17-0707 (issued September 18, 2017). 

18 Supra note 13. 

19 R.R., Docket No. 15-1055 (issued December 16, 2015).
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ORDER

IT IS HEREBY ORDERED THAT the September 27, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision of the Board.

Issued: November 5, 2018

Washington, DC

Christopher J. Godfrey, 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