United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.K., Appellant

and

DEPARTMENT OF THE NAVY, NAVY 

INSTALLATIONS COMMAND, 

Portsmouth, VA, Employer

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Docket No. 19-1009

Issued: October 22, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 8, 2019 appellant filed a timely appeal from a March 13, 2019 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 lumbar spinal fusion surgery. 

FACTUAL HISTORY

On June 28, 2017 appellant, then a 64-year-old substance abuse counselor, filed a traumatic 

injury claim (Form CA-1) alleging that he strained his lower back on June 9, 2017 when he reached 

for objects that were falling off a dolly while in the performance of duty. He reported that he was 

moving items to his new office. On the reverse side of the claim form, the employing 

 

1

5 U.S.C. § 8101 et seq.
2

establishment indicated that the alleged injury occurred in the performance of duty and that 

appellant had not stopped work. 

By decision dated August 2, 2017, OWCP accepted appellant’s claim for right-side 

sciatica. 

On July 27, 2017 appellant underwent a lumbar spine magnetic resonance imaging (MRI) 

scan, interpreted by Dr. Hiten B. Patel, a Board-certified psychiatrist. Dr. Patel noted degenerative 

disc disease, severe central canal stenosis at L3-4 and L4-5, moderate central canal stenosis at L2-

3, mild central canal stenosis at L1-2 and L5-S1, multilevel foraminal stenosis most prominent at 

L4-5, and grade 1 anterolisthesis at L4-5. 

In an August 8, 2017 examination note, Dr. Felix Kirven, a Board-certified orthopedic 

surgeon, reviewed appellant’s history and recounted his complaints of lumbar pain. Sensory 

examination revealed decreased sensation of L5 dermatomes bilaterally in the lower extremities. 

Upon examination of appellant’s lower lumbar spine, Dr. Kirven observed forward bending of 50 

degrees, extension to neutral, and side-bending of 20 degrees. Phalen’s spinal test was positive. 

Dr. Kirven diagnosed right-side sciatica, herniated disc at L4-5 with stenosis at L4-5, and grade 1 

spondylolisthesis at L4-5. He recommended a posterior lumbar laminectomy at L4-5, 

transforaminal interbody fusion at L4-5, posterior bone grafting L4-5, and bilateral lateral 

instrumented fusion L4-5.

On August 10, 2017 OWCP received Dr. Kirven’s request seeking authorization for 

lumbar spine fusion surgery. 

In an October 7, 2017 report, Dr. Nizar Souayah, a Board-certified psychiatrist and 

neurologist serving as an OWCP district medical adviser (DMA), reviewed a statement of accepted 

facts (SOAF) and noted that appellant’s claim was accepted for right side sciatica. He discussed 

the medical treatment that appellant had received and opined that the requested lumbar spine fusion 

surgery was not medically necessary to treat appellant’s accepted lumbar injury. The DMA

explained that the medical evidence of record failed to establish that appellant had failed all 

conservative therapies, including epidural injections, acupuncture, chiropractic treatment, or other 

structured pain management strategy. 

By decision dated November 2, 2017, OWCP denied authorization for lumbar spine fusion 

surgery finding that the weight of the medical evidence rested with the October 7, 2017 report of 

the DMA. 

On June 7, 2018 appellant requested a review of the written record by a representative of 

OWCP’s Branch of Hearings and Review. He indicated that he was providing medical 

documentation which showed the medical treatment, including epidural steroid shots and physical 

therapy, that he had received. 

Appellant submitted additional reports dated August 8, 2017 to May 1, 2018 from

Dr. Kirven who noted his treatment of appellant for his lumbar conditions. 

In a May 2, 2018 letter, Dr. Kirven recounted that appellant continued to experience lower 

back pain with bilateral leg numbness and tingling. He reported that appellant had failed 

conservative therapy, including three epidural injections, trigger point injections, physical therapy, 
3

and non-steroid, anti-inflammatory medication. Dr. Kirven requested approval for a lumbar 

decompressive laminectomy at L4-5 with an instrumented posterior fusion at L4-5 and disc 

excision at L4-5 with posterior bone grafting at L4-5 with an interbody fusion at L4-5.

By decision dated June 28, 2018, an OWCP hearing representative denied appellant’s 

request for a review of the written record finding that his request had not been made within 30 

days of the November 2, 2017 decision. 

Appellant subsequently requested reconsideration of the November 2, 2017 decision on 

July 9, 2018. 

On July 19, 2018 OWCP referred appellant, along with the SOAF and a copy of the record, 

to Dr. James Schwartz, a Board-certified orthopedic surgeon, for a second opinion evaluation to 

determine if the conditions of lumbar intervertebral disc disorder with radiculopathy, lumbar 

spondylolisthesis, and lumbar spinal stenosis were causally related to the July 9, 2017 employment 

injury and if the proposed lumbar decompressive laminectomy at L4/5 with fusion surgery was 

appropriate and medically necessary for the accepted lumbar injury.

In an August 18, 2018 second opinion report, Dr. Schwartz reviewed appellant’s history, 

including the SOAF, and noted that the claim was accepted for right-side sciatica. He recounted 

appellant’s complaints of burning pain in the back of his right leg down to the back of the knee. 

Upon examination of appellant’s lumbar spine, Dr. Schwartz observed essentially no lumbar 

extension, right and left lateral bending to 5 degrees, and rotation to 5 to 10 degrees with pain. 

Straight leg raise testing on the right at 45 degrees with burning down his right leg and on the left 

to 60 degrees with pain. Dr. Schwartz diagnosed right-side sciatica and permanent aggravation of 

lumbar spinal stenosis with claudication as causally related to the June 9, 2017 employment injury 

and lumbar spinal stenosis with claudication L4-5, not related to the June 9, 2017 employment 

injury. He reported that appellant needed an L4-5 lumbar decompression, but he was unclear, 

given appellant’s age and activity level, whether lumbar fusion surgery was necessary. 

Dr. Schwartz explained that a lumbar decompression surgery may produce significant lumbar 

instability, but there was no evidence of lumbar instability at the present time. He concluded that 

lumbar decompression surgery was an accepted medical practice to treat appellant’s lumbar injury, 

but he explained that fusion surgery was not yet necessary unless instability was caused by the 

decompression surgery.

In a September 8, 2018 letter, Dr. Kirven noted his disagreement with Dr. Schwartz’s 

opinion that lumbar fusion surgery was not required to treat appellant’s accepted lumbar injury. 

He indicated that appellant’s severe central canal stenosis would require a wide laminectomy. 

Dr. Kirven explained that, without an instrumented posterior spinal fusion, appellant’s spine would 

be unstable, considering the amount of decompression that was needed. He reported that, although 

his proposed surgery was more extensive than a simple decompressive surgery, the surgery would 

benefit appellant. 

OWCP determined that there was a conflict in medical opinion between the treating 

physician, Dr. Kirven, and OWCP’s second opinion physician, Dr. Schwartz, regarding whether 

the conditions of lumbar intervertebral disc disorder with radiculopathy, lumbar spondylolisthesis , 

and lumbar spinal stenosis were causally related to the June 9, 2017 employment injury and 

whether the proposed lumbar decompressive laminectomy at L4-5 with fusion was appropriate 

and necessary for the accepted employment injury. It referred appellant to Dr. Mohammad H. 
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Zamani, a Board-certified orthopedic surgeon, for an impartial medical examination in order to 

resolve the conflict in medical opinion. 

In a November 20, 2018 report, Dr. Zamani described the June 9, 2017 employment injury 

and reviewed appellant’s medical records. He noted that diagnostic testing did not support a 

diagnosis of herniated disc at L4-5. Upon examination of appellant’s lumbar spine, Dr. Zamani 

observed pain on palpation of the lower lumbar area. Straight leg raise testing in the sitting position 

revealed some tightness of the hamstring without pain. Dr. Zamani indicated that appellant no 

longer suffered from radiculopathy due to his June 9, 2017 employment injury and, therefore, the 

requested surgery was not required. He further reported that appellant suffered from an 

exacerbation of a preexisting spinal stenosis condition, which existed by natural history and that 

there would come a time that required some surgery. 

By decision dated January 11, 2019, OWCP denied modification of the November 2, 2017 

decision. It found that the special weight of the medical evidence rested with the November 20, 

2018 decision of Dr. Zamani, the impartial medical examiner.

On February 13, 2019 appellant requested reconsideration. 

In a January 22, 2019 letter, Dr. Kirven recounted that appellant continued to have 

symptomatic back and left lower extremity weakness due to his June 9, 2017 employment injury. 

He noted his disagreement with Dr. Zamani’s opinion regarding causation and appellant’s 

treatment. Dr. Kirven reported that as Dr. Schwartz, OWCP’s second-opinion examiner, had 

agreed that appellant was in need for a simple decompression lumbar surgery, OWCP should 

authorize a simple decompression surgery.

By decision dated March 13, 2019, OWCP denied modification of the January 11, 2019 

decision. It found that the special weight of the medical evidence rested with the November 20, 

2018 decision of Dr. Zamani, the impartial medical examiner, who opined that the requested 

lumbar decompressive laminectomy and with fusion surgery was not appropriate and necessary to 

treat appellant’s accepted June 9, 2017 employment injury. 

LEGAL PRECEDENT

Section 8103(a) of FECA2 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 by 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. 3 

In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in 

determining whether a particular type of treatment is likely to cure or give relief.4 The only 

limitation on OWCP’s authority is that of reasonableness.5 

 

2

Id.

3

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

4 R.C., Docket No. 18-0612 (issued October 19, 2018); W.T., Docket No. 08-812 (issued April3, 2009).

5 D.C., Docket No. 18-0080 (issued May 22, 2018); Mira R. Adams, 48 ECAB 504 (1997).
5

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.6

To be entitled to reimbursement of medical expenses, a claimant has the burden of proof 

to establish that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition.7

 Proof of causal relationship must include supporting rationalized 

medical evidence.8 In order for a surgical procedure to be authorized, a claimant must submit 

evidence to show that the procedure was for a condition related to the employment injury and that 

the surgery was medically warranted.9 Both of these criteria must be met in order for OWCP to 

authorize payment.10

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an 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 For 

a conflict to arise, the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

13

 When 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.14

ANALYSIS

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

The Board finds that OWCP improperly determined that a conflict in medical opinion 

evidence existed between Dr. Kirven, appellant’s treating physician, and Dr. Schwartz, OWCP’s 

 

6 E.L., Docket No. 17-1445 (issued December 18, 2018); L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); 

Daniel J. Perea, 42 ECAB 214 (1990).

7

J.T., Docket No. 18-0503 (issued October 16, 2018); Debra S. King, 44 ECAB 203, 209 (1992).

8 C.L., Docket No. 17-0230 (issued April24, 2018); M.B., 58 ECAB 588 (2007); Bertha L. Arnold, 38 ECAB 

282 (1986).

9

J.R., Docket No. 18-0603 (issued November 13, 2018); Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. 

Benton, 15 ECAB 48, 49 (1963).

10 J.L., Docket No. 18-0990 (issued March5, 2019); R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331, 

333 (2000).

11 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

12 20 C.F.R. § 10.321.

13 Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

14 Id.; Gloria J. Godfrey, 52 ECAB 486 (2001).
6

second-opinion examiner, regarding whether the proposed lumbar decompressive and fusion 

surgery were medically necessary to treat appellant’s accepted lumbar injury. In an August 8, 

2017 and May 2, 2018 letter, Dr. Kirven recommended a posterior lumbar laminectomy at L4-5 

and bilateral lateral instrumented fusion at L4-5. He explained that appellant had failed 

conservative treatment and still experienced lower back pain. In an August 18, 2018 report,

Dr. Schwartz determined that lumbar decompressive surgery was an appropriate course of 

treatment for appellant’s accepted lumbar injury, but he was not sure if fusion surgery was 

necessary unless instability was caused by the decompression surgery. He also noted that appellant 

would need an evaluation of his hips in order to determine if lumbar decompression surgery may 

produce significant lumbar instability.

The Board finds that Dr. Schwartz’s August 18 2018 report lacked sufficient medical 

rationale and is not of equal weight to Dr. Kirven’s reports as OWCP had determined. In 

determining the probative value of medical evidence, the Board considers such factors as the 

opportunity for and thoroughness of examination performed by the physician, the accuracy and 

completeness of the physician’s knowledge of the facts and medical history, the care of analysis 

manifested, and the medical rationale expressed in support of the physician’s opinion.15 In this 

case, Dr. Schwartz agreed that appellant needed lumbar decompressive surgery. He disagreed on 

whether lumbar fusion surgery was necessary. 

The Board finds that Dr. Schwartz did not provide a conflicting opinion on whether lumbar 

decompressive surgery was medically necessary and appropriate to treat appellant’s accepted 

lumbar injury. The Board also notes that Dr. Schwartz did not provide an unequivocal opinion 

that the proposed lumbar fusion surgery was not medically necessary. Dr. Schwartz noted that it 

was unclear from the record if lumbar fusion surgery was necessary and indicated that additional 

evaluation was needed. Medical opinions that are speculative or equivocal in character are of 

diminished probative value.16 The Board finds, therefore, that this report is of diminished 

probative value and is insufficient to create a conflict in medical opinion with Dr. Kirven.17 As 

there was no conflict in medical evidence between Dr. Kirven and Dr. Schwartz pursuant to 5 

U.S.C. § 8128(a), the referral to Dr. Zamani was for a second opinion examination.18

In a November 20, 2018 report, Dr. Zamani reviewed the medical evidence of record and 

provided examination findings related to appellant’s lumbar spine. He determined that appellant’s 

lumbar radiculopathy had resolved and, therefore, the proposed lumbar decompressive and fusion 

surgery was not medically necessary to treat appellant’s accepted lumbar injury. The Board finds 

 

15 C.D., Docket No. 17-1623 (issued February 20, 2018); James T. Johnson, 39 ECAB 1252, 1256 (1988).

16 D.B., Docket No. 18-1359 (issued May 14, 2019); Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a 

physician supporting causal relationship need not be one of absolute medical certainty, the opinion must not be 

speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of medical certainty).

17 See supra note 11.

18 See S.M., Docket No. 19-0397 (issued August7, 2019) (the Board found that at the time of the referral for an 

impartial medical examination there was no conflict in medical opinion evidence; therefore, the referral was for a 

second opinion examination); see also Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (the Board found that, as 

there was no conflict in medical opinion evidence, the report of the physician designated as the impartial medical 

examiner was not afforded the special weight of the evidence, but instead considered for its own intrinsic value as he 

was a second opinion specialist).
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that there is now a conflict in medical evidence between Dr. Kirven and Dr. Zamani regarding 

whether the proposed lumbar decompressive and fusion surgery was medically necessary and 

appropriate to treat his accepted June 9, 2017 employment injury.

Because there is an unresolved conflict in medical opinion regarding whether the requested 

lumbar decompressive and fusion surgery was medically necessary to treat appellant’s accepted 

June 9, 2017 employment injury, the case shall be remanded to OWCP for referral to an impartial 

medical examiner pursuant to section 8123(a) of FECA.19 After this and such further development 

as OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the March 13, 2019 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: October 22, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

19 Supra notes 11 and 13.