United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Laguna Hills, CA, Employer

__________________________________________

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Docket No. 19-0113

Issued: July 12, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On October 19, 2018 appellant filed a timely appeal from a July 24, 2018 merit decision 

and a September 7, 2018 nonmerit 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 the case.

2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.
2

ISSUES

The issues are: (1) whether OWCP abused its discretion by denying authorization for 

appellant’s lumbar laminectomy; and (2) whether OWCP properly denied appellant’s request for 

reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On July 27, 2015 appellant, then a 55-year-old distribution clerk, filed an occupational 

disease claim (Form CA-2) alleging that on February 26, 2015 she first realized that she had 

developed a lumbar condition due to repetitive work tasks she had performed for 28 years in the 

performance of duty. She did not stop work. 

On October 9, 2015 OWCP accepted the claim for aggravation of intervertebral disc 

disorder with myelopathy, lumbar region. It later expanded acceptance of the claim to include

radiculopathy, lumbar region; lumbar annular tear; and lumbar facet arthrosis. 

In an August 3, 2016 report, Dr. Robert J. Jackson, a Board-certified neurosurgeon, noted

appellant’s history of injury dating back to February 2015 and indicated that she had an 

exacerbation of severe lumbar back pain and lumbar radiculopathy. He noted that a February 2015

magnetic resonance imaging (MRI) scan revealed severe spinal stenosis. Dr. Jackson further noted 

that appellant underwent physical therapy since that time which helped stabilized her pain, but it 

provided no significant improvement. He noted that her electromyography scan revealed bilateral 

anterior tibialis neuropathy and peroneus longus irritation. Dr. Jackson examined appellant and 

discussed treatment options to include continued conservative treatment. Regarding surgery, he

indicated that “[i]f all the treatment alternatives fail, and [her] symptoms continued, surgical 

intervention would be a reasonable approach.” Dr. Jackson explained that appellant had severe 

spinal stenosis at L4-5 and moderate stenosis at L5-S1 which would “likely need to be addressed 

surgically at some point in the future.” He noted that she wished to pursue conservative treatment 

as her pain was manageable and she had a high pain tolerance. 

A May 3, 2017 MRI scan read by Dr. Qiging Ge, a diagnostic radiology specialist, revealed 

at L4-5 a four millimeter anterolisthesis with severe facet arthropathy, severe central canal 

stenosis, and mild to moderate bilateral foraminal narrowing; as well as moderate central canal 

stenosis and mild-to-moderate bilateral neural foraminal narrowing at L5-S1, when compared to a 

prior study from March 13, 2015, with no significant interval change. 

In a June 21, 2017 report, Dr. Jackson examined appellant, reviewed the May 3, 2017 MRI

scan, and recommended an L4, L5, and S1 lumbar laminectomy with decompression and fusion 

with instrumentation. 

In a separate report also dated June 21, 2017, Dr. Neeraj Gupta, an orthopedic surgeon, 

noted that appellant reported continued back pain radiating into her right leg with numbness. He 

diagnosed repetitive work injury, industrial-related, lumbosacral sprain and strain with disc 

bulging, moderate-to-severe stenosis, and radiculopathy in the right lower extremity. Dr. Gupta 

advised that he agreed with Dr. Jackson’s June 21, 2017 recommendation for surgery. 
3

On July 27, 2017 OWCP referred appellant for a second opinion evaluation with

Dr. Steven Ma, a Board-certified orthopedic surgeon. 

In an August 29, 2017 report, Dr. Ma reviewed the statement of accepted facts, appellant’s 

history of injury, and medical treatment records. He reported findings from his physical 

examination, and noted that the x-rays of her lumbar spine and pelvis revealed degenerative 

spondylosis of L4 and L5, and narrowing of the L5-S1 disc space and small spurs from L4 to S1. 

Dr. Ma diagnosed aggravation of lumbar intervertebral disc disorder. He addressed Dr. Jackson’s 

June 21, 2017 report and explained that appellant “was told that the second MRI [scan] was much 

worse than the previous MRI [scan] and that is the basis for the surgery.” Dr. Ma noted that the 

radiologist indicated that there was no significant interval change from the original MRI scan and 

that her physical examination was essentially the same. He also noted that appellant believed that 

she would have 90 percent success rate with surgery which would alleviate her symptoms for 20 

years. Dr. Ma indicated that he did not know of any such procedure of any nature that would give 

such high results for such a long time. He concurred with Dr. Jackson’s original opinion of 

August 3, 2016, which found that surgery was unnecessary, and he disagreed with Dr. Jackson’s 

June 21, 2017 recommendation for surgery.

In a development letter dated January 2, 2018, OWCP advised appellant that the evidence 

of record was insufficient to authorize the requested surgery because it did not appear to be 

medically necessary. It requested that she provide a copy of Dr. Ma’s second opinion report to her 

treating physician for a supplemental opinion. OWCP afforded appellant 30 days to submit the 

requested evidence.

In response, OWCP received reports dated December 10, 2015, September 7, 2017, and 

January 11, February 22, April 5, and May 31, 2018 from Dr. Hosea Brown, III, a treating Boardcertified internist. In his September 7, 2017 report, Dr. Brown indicated that Dr. Ma’s opinion

was “biased, unfair, unethical” and that there was inappropriate delay of surgical authorization. 

However, he also indicated that he was awaiting Dr. Ma’s report. In his January 11, 2018 report,

Dr. Brown indicated that appellant had been thoroughly evaluated by a Board-certified orthopedic 

neurosurgeon, who opined that she was a candidate for surgical intervention. He noted that he 

continued to treat her and requested authorization for the lumbar spine surgery. 

OWCP received reports dated May 17, July 12, September 20, October 18, and 

November 29, 2017, and January 10, February 21, March 1, 21, and 22, April 18, May 16, and 

June 27, 2018, from Dr. Neil R. Soni, Board-certified in physical medicine and rehabilitation, who 

requested authorization for transforaminal lumbar epidural injections, myelography, fluoroscopy,

and acupuncture therapy, and noted that appellant was awaiting authorization for lumbar spine 

surgery recommended by Dr. Jackson. 

By decision dated July 24, 2018, OWCP denied authorization for appellant’s requested L4, 

L5, and S1 lumbar laminectomy. It found that the weight of the medical opinion evidence rested 

with Dr. Ma who indicated that there was no significant change in the MRI scans warranting the 

prescribed surgery and that appellant was provided with incorrect information regarding the 

expected results of the surgery. As a result, OWCP determined that the medical evidence of record 

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

employment injuries.
4

On August 16, 2018 appellant requested reconsideration.

In an August 8, 2018 report, Dr. Soni requested authorization for pain management,

including medication and acupuncture. 

In August 9, 2018 reports, Dr. Brown noted that he had received and reviewed Dr. Ma’s 

report. He indicated that he disagreed that surgical intervention was unnecessary. Dr. Brown 

explained that he had continued to treat appellant and explained that she continued to have 

objective findings which showed that her conditions were deteriorating. He repeated his opinion 

that her surgery should be authorized. 

By decision dated September 7, 2018, OWCP denied appellant’s request for 

reconsideration without conducting a merit review.

LEGAL PRECEDENT -- ISSUE 1

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 period of disability, or aid in lessening the amount of monthly compensation.4 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.5

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.6

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

discretion in approving services provided under section 8103, with the only limitation on OWCP’s 

authority being that of reasonableness.7 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.8 To be entitled to 

reimbursement of medical expenses, a claimant has the burden of proof to establish that the 

 

3 5 U.S.C § 8103.

4 See J.L., Docket No. 18-0990 (issued March 5, 2019); D.C., Docket No. 18-0080 (issued May 22, 2018); 

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

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

6 20 C.F.R. § 10.310(a).

7 N.M., Docket No. 18-1584 (issued March 15, 2019); see D.K., 59 ECAB 141 (2007).

8 See N.M., id.; Minnie B. Lewis, 53 ECAB 606 (2002).
5

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

condition.

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

medical evidence.9 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.10 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.11

ANALYSIS -- ISSUE 1

The Board finds that OWCP did not abuse its discretion in denying authorization for 

appellant’s lumbar laminectomy.

For a surgical procedure to be authorized, the evidence must establish 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.12

Appellant’s attending physicians, Drs. Jackson, Gupta, and Brown, indicated that the 

requested surgery was needed based on the deterioration of her condition. However, they did not 

provide a rationalized explanation, based upon medical findings, that the proposed surgery was in 

fact medically necessary.13

The Board notes that Dr. Ma, the second opinion physician, provided a rationalized opinion 

to explain why the surgery was unnecessary. Dr. Ma indicated that the radiologist determined that 

there were no significant interval changes from the original MRI scan and that appellant’s physical 

examination was essentially the same. He also noted that Dr. Jackson’s original report found no 

need for surgery at that time, based upon the February 2015 MRI scan, and had not explained why 

her May 3, 2017 MRI scan reflected a change in her condition, such that the surgical procedure 

was medically necessary. Dr. Ma further explained that appellant also had an unrealistic 

expectation of what the proposed surgery would provide as she believed that the surgery would 

have 90 percent success rate and would alleviate her symptoms for 20 years, but he noted that there 

was no procedure which was known to have such results. The Board finds that he accurately 

 

9 N.G., Docket No. 18-1340 (issued March 6, 2019); M.B., 58 ECAB 588 (2007).

10 See N.G, id.; R.C., 58 ECAB 238 (2006).

11 D.C., supra note 4; D.K., 59 ECAB 141 (2007); Daniel J. Perea, 42 ECAB 214, 221 (1990).

12 See J.L., supra note 4; R.C., 58 ECAB 238 (2006).

13 R.C., Docket No. 12-0437 (issued October 23, 2012).
6

summarized the relevant medical evidence, provided detailed findings on examination, and 

reached conclusions about her proposed surgery which comported with his findings.14

The Board thus finds that OWCP did not abuse it discretion in denying authorization for 

the proposed lumbar surgery. As noted above, the only restriction on OWCP’s authority to 

authorize medical treatment is one of reasonableness.15 As Dr. Ma explained that the proposed 

surgery was not medically necessary, the Board finds that OWCP acted reasonably in denying 

appellant’s request for authorization for lumbar laminectomy.

16

Appellant may submit new evidence and/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.

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.17 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.18 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.19

A timely application for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (1) shows that OWCP erroneously applied or 

interpreted a specific point of law; (2) advances a relevant legal argument not previously 

considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.20 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration, without 

reopening the case for a review on the merits.21

 

14 See J.L., supra note 4; Manuel Gill, 52 ECAB 282 (2001).

15 Supra note 11. 

16 B.L., Docket No. 15-1452 (issued September 20, 2016).

17 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on [the Secretary’s] own motion or on application.” 5 U.S.C. § 8128(a).

18 20 C.F.R. § 10.607.

19 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be

received by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual, 

Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document 

receipt date of the request for reconsideration as indicated by the received date in the integrated Federal Employees’

Compensation System. Id. at Chapter 2.1602.4b.

20 Id. at § 10.606(b)(3).

21 Id. at § 10.608(a), (b); C.C., Docket No. 18-0136 (issued March 14, 2019); see also E.R., Docket No. 09-1655 

(issued March 18, 2010).
7

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a).

Appellant’s request for reconsideration did not show that OWCP erroneously applied or 

interpreted a specific point of law or advance a new and relevant legal argument not previously 

considered by OWCP. Consequently, she was not entitled to a review of the merits based on the 

first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

The Board further finds that appellant has not submitted relevant and pertinent new 

evidence in support of her request for reconsideration under 20 C.F.R. § 10.606(b)(3). The Board 

notes that the underlying issue in this case is whether OWCP abused its discretion by denying 

authorization for her lumbar laminectomy. Authorization for surgery is a medical issue which, on 

reconsideration, must be addressed by relevant medical evidence not previously considered.22

On reconsideration, OWCP received August 9, 2018 reports from Dr. Brown, and an 

August 8, 2018 report from Dr. Soni. The reports from Dr. Brown were cumulative and 

substantially similar to his previously submitted reports. The Board has held that the submission 

of evidence which repeats or duplicates evidence already in the case record does not constitute a 

basis for reopening a case.

23

 The report from Dr. Soni, while new, did not address the underlying 

issue of the need for surgery. Evidence which does not address the particular issue under 

consideration does not constitute a basis for reopening a case.

24

 Thus, appellant is not entitled to 

a review of the merits of her claim based on the third above-noted requirement under section 

10.606(b)(3).

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that OWCP has not abused its discretion by denying authorization for 

appellant’s lumbar laminectomy. The Board further finds that OWCP properly denied her request 

for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

 

22 See Bobbie F. Cowart, 55 ECAB 746 (2004).

23 See L.R., Docket No. 18-0400 (issued August 24, 2018).

24 H.H., Docket No. 18-1660 (issued March 14, 2019).
8

ORDER

IT IS HEREBY ORDERED THAT the September 7 and July 24, 2018 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: July 12, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board