United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.U., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

La Puente, CA, Employer

__________________________________________

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Docket No. 16-1822

Issued: June 18, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 14, 2016 appellant, through counsel, filed a timely appeal from a July 18, 

2016 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. 

 

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.
2

ISSUE

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

cervical surgery.

FACTUAL HISTORY

On March 18, 2013 appellant, then a 57-year-old city carrier, filed an occupational disease 

claim (Form CA-2) alleging that he developed neck and left shoulder conditions as a result of 

repetitive lifting and tossing of parcels. On June 21, 2013 OWCP accepted his claim for left rotator 

cuff tear and cervical strain.3

Following unsuccessful courses of physical therapy, appellant’s treating physician,

Dr. Hosea Brown III, an internist, referred appellant to Dr. Serge Obukhoff, a Board-certified 

neurosurgeon. In a report dated June 28, 2013, Dr. Obukhoff examined appellant and reviewed 

his history of injury. He noted that appellant initially experienced neck pain in August 2012, which 

appellant attributed to repetitively twisting and turning his neck. Dr. Obukhoff reviewed a 

magnetic resonance imaging (MRI) scan of appellant’s cervical spine, which showed severe 

cervical canal stenosis due to a herniated disc at C4-5 and C6-7 and an effacement of the ventral 

spinal cord by herniating disc material. He requested that appellant’s accepted diagnosis be revised 

to cervical disc herniations with myelopathy, and he explained appellant’s job had for many years 

required lifting and carrying heavy objects on a regular basis. Dr. Obukhoff explained that, with 

this type of physical activity, patients often sustained injury to the ligamentous complex of axial 

spine, particularly cervical spine, and as a result of these injuries, developed accelerated 

degeneration of cervical discs and subsequently cord compression and foraminal stenosis. He 

noted that appellant was gradually developing symptoms, which correlated with his examination 

findings and clinical presentation.

In a July 9, 2013 progress report, Dr. Brown noted that Dr. Obukhoff felt that appropriate 

treatment for appellant would be a C4-5 and C6 discectomy with decompression of spinal cord 

followed by fusion. In an August 5, 2013 progress note, he noted that appellant was in the process 

of contemplating the recommended surgical intervention.

By letter dated August 5, 2013, Dr. Brown requested that OWCP expand appellant’s list of 

accepted conditions to include permanent aggravation of degenerative joint disease of the cervical 

spine, cervical intervertebral disc syndrome with myelopathy, cervical radiculopathy, left rotator 

cuff syndrome, and left-sided acromioclavicular arthropathy. He noted that the MRI scan of 

appellant’s cervical spine, in addition to x-rays, were consistent with these diagnoses. Dr. Brown 

opined that appellant’s medical conditions arose as a direct result of the performance of duties as

a city letter carrier throughout his extensive 34-year employment history. He related that, with 

regard to appellant’s neck, he indicated that appellant performed repetitive twisting and turning of 

his cervical spine when transferring parcels throughout the day from the front to the back of the 

 

3 The present claim was assigned OWCP File No. xxxxxx924. Appellant also has a prior claim before OWCP. In 

File No. xxxxxx890, OWCP accepted his January 14, 1999 traumatic injury claim for right elbow strain, right biceps 

tendinitis, and right lateral epicondylitis. OWCP File Nos. xxxxxx924 and xxxxxx890 have been administratively 

combined, with File No. xxxxxx890 serving as the master file.
3

van into the appropriate receptacles. Appellant recounted that, during this process, he was 

repetitively twisting and turning his neck from six to seven hours daily. He noticed that he 

experienced significant pain, discomfort, and stiffness in his neck upon completion of his 

employment tasks. With regard to appellant’s left shoulder, he indicated that he performed 

transfers of parcels from the front of his vehicle to the back, which caused him to develop 

progressively increasing pain and discomfort in his left shoulder as well as his neck. 

Unfortunately, this employment-related activity caused him to undergo left rotator cuff tear 

syndrome as well as accelerate, aggravate and precipitate the significant degenerative disc disease 

of the cervical spine. Dr. Brown opined that the sheer repetitive flexing and extending of the 

cervical spine required by appellant’s employment duties clearly increased the biomechanical load 

to his cervical spine as well as his left shoulder thereby causing progressive inflammation, 

desiccation, degeneration, and irritation in these areas causing both a significant degenerative disc 

disease of the cervical spine as well as a left rotator cuff syndrome. 

On October 15, 2013 Dr. Obukhoff requested authorization for cervical surgery, including 

spine fusion, insertion of a spine fixation device, application of a prosthetic device, and 

decompression. 

In an October 30, 2013 letter, OWCP informed Dr. Obukhoff that further medical 

development was needed before his request for authorization could be approved or denied. 

By letter dated November 8, 2013, OWCP referred appellant, along with the case record 

and a statement of accepted facts (SOAF) to a second opinion physician, in order to determine 

whether his diagnosed conditions were connected to the accepted injury, the current residuals,

periods of disability, current work restrictions, and whether the requested cervical surgery should 

be authorized. 

By report dated January 16, 2014, second opinion physician, Dr. Michael Einbund, a 

Board-certified orthopedic surgeon, maintained that appellant’s claim should not be expanded to 

include additional conditions due to discrepancies in his diagnostic studies. He explained that 

appellant’s MRI scan of the cervical spine described degenerative changes, as well as targetoid 

lesion, as well as subluxation. There, however, was no description of any nerve root impingement 

which would account for the multiple levels of radiculopathy described on the electromyogram 

and nerve conduction velocity (EMG/NCV) studies. Further, there is no evidence that the cervical 

strain has caused any material changes in any of appellant’s underlying conditions. Dr. Einbund 

further noted that there were no residuals from the accepted cervical strain, but there were residuals 

from the left shoulder condition. With regard to appellant’s requested surgery to his cervical spine,

Dr. Einbund observed:

“Based on [appellant’s] MRI scan, he does not appear to be a candidate for the 

proposed anterior cervical fusion. He does have a positive EMG, but his MRI scan 

reveals small disc bulges without obvious nerve root impingement.... The detailed 

abnormalities and conflicting [evidence] based on the MRI scans do not rise to the 

level of such aggressive treatment. Notably, there is evidence of an ovoid targetoid 

lesion which is also nonindustrial.... Any treatment for the cervical spine necessary 

at this time, would not be the result of the January 16, 2013 incident of repetitive 

lifting and tossing....”
4

By decision dated February 5, 2014, OWCP denied appellant’s request to expand his list 

of accepted injuries to include permanent aggravation of degenerative joint disease of the cervical 

spine, cervical intervertebral disc syndrome with myelopathy, and cervical radiculopathy. It also 

denied the requested cervical surgery. OWCP found that the weight of medical evidence rested 

with Dr. Einbund’s November 8, 2013 report.

By letter dated February 25, 2014, Dr. Brown strongly disagreed with Dr. Einbund’s 

report. He explained that Dr. Einbund erroneously claimed that appellant’s cervical spine strain 

had resolved, and that his findings on physical examination were in error. Dr. Brown noted that 

all physical examinations of appellant by himself and Dr. Obukhoff had revealed “tremendously 

decreased range of motion of the cervical spine as well as severe spasm of the paraspinal cervical 

musculature.” He noted that Dr. Einbund had mischaracterized an MRI scan report as showing 

“no disc in neck,” while Dr. Obukhoff had analyzed the same report on June 28, 2014 as 

demonstrating conditions at C4-5 and C6-7. Dr. Brown suggested that appellant undergo another 

MRI scan for additional assessment.

In a diagnostic report dated February 20, 2014, Dr. Richard Chai, Board-certified in 

diagnostic radiology and neuroradiology, examined the new MRI scan of appellant’s cervical 

spine. He stated: impressions of straightening of cervical lordosis; minimal anterolisthesis of C4 

on C5; a mild broad-based disc bulge at C3-4 effacing the ventral cerebrospinal fluid space with 

mild central canal narrowing; minimal anterolisthesis of C4 on C5 and squaring of the 

uncovertebral joins; mild broad-based disc bulge; mild central canal and bilateral foraminal 

narrowing; a mild broad-based disc bulge at C6-7 with mild central canal narrowing and mild 

bilateral foraminal narrowing; and a normal cervical spinal cord signal.

By letter dated April 16, 2014, appellant noted that OWCP had not responded to

Dr. Brown’s February 25, 2014 letter and requested that OWCP do so, as well as provide an 

impartial medical evaluation. 

On May 16, 2014 OWCP responded, noting that if appellant disagreed with its decision, 

he should exercise his appeal rights. 

On June 16, 2014 appellant requested reconsideration of OWCP’s February 5, 2014 

decision. 

By letter dated June 9, 2014, Dr. Brown noted that OWCP had not yet reviewed his 

response to Dr. Einbund’s second opinion report. He maintained that Dr. Einbund’s report did not 

provide a well-reasoned medical rationale for his claim that any treatment for the cervical spine 

necessary at this time would not be the result of the January 16, 2013 incident of repetitive lifting 

and tossing. Dr. Brown claimed that he had previously given a complete explanation of the 

medical rationale involved as to why further treatment was necessary for the employment-related 

cervical condition. He further noted that the results of the February 20, 2014 MRI scan were 

consistent with appellant’s several cervical spine conditions and entirely contradictory to

Dr. Einbund’s findings.4

 

4 On July 28, 2014 appellant underwent surgery to his left shoulder, authorized by OWCP. 
5

By letter dated October 20, 2014, OWCP referred appellant’s claim to a referee physician 

for resolution of a conflict in the medical evidence between Drs. Einbund and Brown with regard 

to the nature and extent of appellant’s injuries and requested surgical treatment. On November 25, 

2014 it informed appellant that it had scheduled an appointment with Dr. Jaime Contreras, a Boardcertified orthopedic surgeon, for a referee examination. 

In a report dated January 20, 2015, Dr. Contreras examined appellant, reviewed his medical 

history, and diagnosed appellant with multilevel intervertebral cervical disc syndrome with 

cervical radiculopathy and postoperative conditions of the left shoulder. He reviewed the MRI

scan and EMG reports of record. On examination of appellant’s cervical spine, Dr. Contreras 

noted that appellant had increased cervical lordosis, muscle guarding on palpation of the upper 

trapezius muscle, tenderness of the interspinous ligaments and transverse processes, tenderness of 

the cervical roots, and decreased motion of the cervical spine with pain. On neurological 

examination, he noted: appellant had normal bicipital, tricipital, and brachioradialis reflexes; 

normal sensation to light touch in the upper extremities; and no localized muscle atrophy of the 

upper extremities with arms at rest.5 Dr. Contreras noted, “Clinically, there are no indications for 

surgery to the neck or for additional surgery to the left shoulder to cure or relieve examinee from 

the effects of the work injuries.” 

By decision dated February 20, 2015, OWCP vacated its decision of February 5, 2014 and 

accepted additional conditions of multilevel intervertebral cervical disc syndrome and cervical 

radiculopathy. It noted that its February 5, 2014 decision was not altered as to the issue of denial 

of authorization for neck surgery.

In a report dated April 10, 2015, Dr. James T. Tran, a Board-certified neurosurgeon, noted 

that he had reviewed Dr. Contreras’ report of January 20, 2015, and found that there was no 

evidence that Dr. Contreras had read an MRI scan of the cervical spine himself. He speculated 

that Dr. Contreras had merely read an impression of an MRI scan of the cervical spine, rather than 

examining the results himself. Dr. Tran further noted that there was no evidence that Dr. Contreras 

had formal training in spinal surgery. He opined that therapy and surgical intervention for cervical 

spinal cord compression were medically necessary, because appellant experienced spinal cord 

compression causing weakness of the extremities.

On April 27, 2015 appellant requested reconsideration of OWCP’s February 20, 2015 

decision denying authorization for cervical surgery. 

By letter dated June 29, 2015, Dr. Brown again requested that OWCP approve cervical 

spine surgery as recommended by himself and Dr. Tran. He noted that Dr. Contreras offered no 

medical rationale for his opinion that cervical spine surgery was not indicated, instead simply 

stating that it was not indicated without further elaboration. Dr. Brown observed that

Dr. Contreras had not had the opportunity to review Dr. Tran’s report and that as such, his opinion 

concerning cervical spine surgery had less value. He recommended that if surgery could not be 

 

5 Dr. Contreras noted that, “Clinically, there are no indications for surgery to the neck or for additional surgery to 

the left shoulder to cure or relieve examinee from the effects of the work injuries.”
6

authorized urgently, that appellant should be sent for a follow-up referee examination in order for 

the referee examiner to review Dr. Tran’s report.

By decision dated July 23, 2015, OWCP reviewed appellant’s claim and found that the 

evidence of record was insufficient to modify its February 20, 2015 decision. It noted that

Dr. Tran’s questioning of Dr. Contreras’ qualifications and findings were insufficient to overcome 

the weight of his opinion as an impartial medical referee examiner. Specifically, OWCP noted 

that there was no requirement that Dr. Contreras had to view the MRI scan himself, rather than 

relying upon the impression of the radiologist, and that he was an orthopedic surgeon and as such 

was an appropriate specialist for appellant’s condition.

On September 9, 2015 appellant requested reconsideration of OWCP’s July 23, 2015 

decision. With his request, he attached a letter from Dr. Brown dated August 24, 2015. Dr. Brown 

stated that he had reviewed OWCP’s decision and found that OWCP’s rationale was “faulty, 

inadequate, and clearly not based upon the medical evidence in this case.” He noted that appellant 

had been “thoroughly and extensively evaluated by [Dr. Tran], who is a [B]oard-certified 

neurosurgeon, who opines that the patient clearly requires cervical spine surgery in the form of a 

posterior laminoforaminotomy and hemilaminotomy at C4-5 and C6-7 for treatment of his 

accepted work-related cervical conditions.” Dr. Brown insisted that Dr. Contreras’ lack of training 

in spinal surgery would render his opinion of less value and questioned OWCP’s reasoning in 

giving it greater value than Dr. Tran’s opinion.

By letter dated September 4, 2015, Dr. Tran noted that Dr. Contreras had “failed to perform 

a motor examination of the right upper extremity and the lower extremities. He neglected to 

perform a reflex examination of the upper and lower extremities to check for hyperreflexia, which 

is important in spinal cord compromise or compression.” Dr. Tran explained that, while the claims 

examiner had relied in good faith on Dr. Contreras’ report, the report was incomplete without a 

neurological examination, and as such should be set aside. He maintained that surgery should be 

approved; or in the alternative, that appellant should be referred to a neurosurgeon instead of an 

orthopedic surgeon for a further referee examination.

By decision dated December 8, 2015, OWCP reviewed appellant’s claim and found that 

the evidence of record was insufficient to modify its July 23, 2015 decision. It found that

Dr. Tran’s and Dr. Brown’s opinion that Dr. Contreras did not have the requisite training or 

experience to offer an opinion on the matter of whether surgery should be authorized was 

insufficient to modify its prior decision. OWCP further noted that Dr. Contreras had sufficiently 

explained his reasons for finding that appellant did not require surgery, and that OWCP had not 

received any concrete evidence to indicate that Dr. Contreras’ opinion was incorrect or 

inconclusive.

By letter dated February 5, 2016, Dr. Tran noted that OWCP indicated in its December 8, 

2015 decision that it had not received any concrete evidence to support that Dr. Contreras’ opinion 

was incorrect or inconclusive. He reiterated that Dr. Contreras’ failure to conduct a neurological 

examination was a breach of duty and that, without such an examination, Dr. Contreras’ opinion 

was insufficiently rationalized.
7

By letter dated March 28, 2016, Dr. Brown noted that appellant continued to exhibit severe 

residuals pertinent to his accepted cervical spine conditions, and that the delay in surgical 

intervention had led to a situation where appellant was experiencing tremendous harm. He noted 

that the evaluation of Dr. Contreras was inadequate in evaluating appellant’s cervical spine 

condition, and requested that appellant be sent to a neurosurgeon for an independent medical 

evaluation.

On April 19, 2016 appellant requested reconsideration of OWCP’s December 8, 2015 

decision. 

By decision dated July 18, 2016, OWCP reviewed appellant’s claim and found that the 

evidence of record was insufficient to modify its December 8, 2015 decision. It noted that

Dr. Contreras had in fact performed a neurological test, as documented in his January 20, 2015 

report, and, as such, the arguments of Drs. Tran and Brown were unfounded.6

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.7 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.8

OWCP has administrative discretion in choosing the means to achieve the goal of recovery 

from a work-related injury and 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

 

6 On April 3 and December 12, 2017 OWCP issued merit decisions which denied modification of prior decisions 

denying appellant’s request for authorization of cervical surgery. Those decisions, however, are null and void as the 

Board and OWCP may not simultaneously have jurisdiction over the same case. OWCP may not issue a decision 

regarding the same issue on appeal before the Board, in this instance, request for authorization of cervical surgery. 

See Russell E. Lerman, 43 ECAB 770, 772 (1992); Douglas E. Billings, 41 ECAB 880 (1990).

7 5 U.S.C. § 8103(a).

8 See Dale E. Jones, 48 ECAB 648-49 (1997).

9 See Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown 

through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are 

contrary to both logic and probable deductions from established facts).

10 See Minnie B. Lewis, 53 ECAB 606 (2002).
8

Once OWCP undertakes development of the record it must do a complete job in procuring 

medical evidence that will resolve the relevant issues in the case.11

ANALYSIS

The Board finds this case not in posture for decision. 

Dr. Contreras, in his January 20, 2015 report, diagnosed multilevel intervertebral cervical 

disc syndrome with cervical radiculopathy, and postoperative conditions of the left shoulder. 

Accordingly, in its February 20, 2015 decision, OWCP expanded appellant’s claim to include 

multilevel intervertebral cervical disc syndrome with cervical radiculopathy as an additional 

accepted condition. Although the condition for which surgery was requested was subsequently 

found to be work related, OWCP denied modification of its prior decision denying authorization 

for neck surgery without sending Dr. Contreras an updated SOAF and requesting a supplemental 

opinion with regard to whether cervical surgery was now warranted. 

The SOAF is the means by which factual findings are separated from medical findings and 

opinion. This separation of functions is aimed at seeing that the claims examiner does not 

inadvertently make medical decisions.12 Without a reasoned medical opinion based on a proper 

factual and medical background, resolving the conflict in light of the additional accepted 

conditions, the claims examiner in this case inadvertently made a medical decision when he denied 

appellant’s request for authorization for surgery. 

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence to see that justice 

is done. As OWCP undertook development of the evidence by referring appellant to Dr. Contreras, 

it had the duty to secure an appropriate report based on a proper factual and medical background, 

resolving the conflict in medical opinion.

13

On remand, OWCP should provide Dr. Contreras with an updated SOAF and request a 

supplemental opinion regarding whether OWCP should authorize the cervical surgery in light of 

the subsequent acceptance of intervertebral cervical disc syndrome. After such further 

development as deemed necessary, it shall issue a de novo decision.

CONCLUSION

The Board finds this case not in posture for decision.

 

11 See Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002); 

William J. Cantrell, 34 ECAB 1233 (1993); Dorothy L. Sidwell, 36 ECAB 699 (1985).

12 M.H. Docket No. 11-1117 (issued December 2, 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Statements of Accepted Facts, Chapter 2.809.2(c) (September 2009). 

13 Supra note 11.
9

ORDER

IT IS HEREBY ORDERED THAT the July 18, 2016 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for additional action consistent with 

the Board’s decision.14

Issued: June 18, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

14 Colleen Duffy Kiko, Judge, participated in this decision, but was no longer a member of the Board effective 

December 11, 2017.