United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

SUPPLY SYSTEMS COMMAND, Gulfport, MS, 

Employer

__________________________________________

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Docket No. 20-0396

Issued: April 9, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 11, 2019 appellant filed a timely appeal from August 12 and September 18, 

2019 merit decisions and a November 25, 2019 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, following the November 25, 2019 decision, OWCP received additional evidence. 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 in denying authorization for 

opioid medication after May 4, 2019; and (2) whether OWCP properly denied appellant’s request 

for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth 

below.

On July 10, 2008 appellant, then a 49-year-old materials handler, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained a right arm injury on July 8, 2008 when unloading 

pallets while in the performance of duty. He underwent OWCP-authorized right arm surgery on 

February 16, 2009 and returned to modified duty on March 2, 2009. Appellant was removed from 

federal employment for cause in April 2009. OWCP initially accepted sprain of the right elbow 

and forearm, lateral epicondylitis and later expanded acceptance of the claim to include 

entrapment/lesion of ulnar nerve right elbow, and articular cartilage disorder of the right upper arm 

elbow. OWCP paid appellant wage-loss compensation on the supplemental rolls from February 13 

to March 13, 2009. By decision dated September 29, 2009, OWCP denied his claim for disability 

compensation. 

 

3

In a November 15, 2010 decision, the Board affirmed September 29, 2009 and January 4, 2010 OWCP merit 

decisions that denied appellant’s claim for a schedule award. Docket No. 10-0823 (issued November 15, 2010). In a 

February 14, 2013 decision, the Board found that, by a July 26, 2012 decision, OWCP properly denied appellant’s 

request for a hearing. Docket No. 12-1699 (issued February 14, 2013). In a second February 14, 2013 decision, the 

Board affirmed an August 17, 2012 decision on the issue of whether appellant established clear evidence of error 

regarding the denial of his claim for disability compensation. The Board, however, found that OWCP erroneously 

issued a denial of hisrequest for reconsideration regarding his entitlement to a schedule award under the clear evidence 

of error standard. The Board remanded the case to OWCP to review and develop newly submitted medical evidence 

and issue an appropriate decision regarding appellant’s request for a schedule award. Docket No. 12-1906 (issued 

February 14, 2013). In a series of orders dismissing appeal, the Board found that there was no adverse decision over 

which it had jurisdiction. Docket No. 13-1938 (issued January 13, 2014), Docket No. 13-1275 (issued March 14, 

2014), Docket No. 14-0232 (issued April 25, 2014), Docket No. 14-1357 (issued December 1, 2014), and Docket No.

14-2006 (issued July 21, 2015). In an October 24, 2016 decision, the Board found that appellant had not met his 

burden of proof to establish more than seven percent permanent impairment of the right arm for which he received a 

schedule award, that OWCP properly refused to reopen his claim for further review of the merits of the schedule 

award, and that it properly denied his request for a hearing. Docket No. 16-0669 (issued October 24, 2016). By 

decision dated April 10, 2018, the Board found that appellant failed to establish that carpal tunnel syndrome was 

caused by the July 8, 2008 employment injury, that OWCP properly denied authorization for decompression surgery, 

and that OWCP properly refused to reopen his claim for further review of the merits on this issue. It further found 

that the case was not in posture for decision regarding the degree of impairment of appellant’s right upper extremity. 

Docket No. 17-1603 (issued April 10, 2018). By order dated October 22, 2019, the Board remanded the case to OWCP 

to obtain a complete copy of a July 11, 2018 report from Dr. Joseph McGowin, III, a Board-certified orthopedic 

surgeon, who provided a second opinion evaluation and an impairment rating. Order Remanding Case, Docket No. 

19-0601 (issued October 22, 2019). 
3

Appellant began pain management treatment with Dr. Brian Tsang, a Board-certified 

anesthesiologist, on December 8, 2011. He saw appellant on a periodic basis thereafter and 

prescribed hydrocodone and other opioid medications. 

On June 6, 2017 OWCP issued FECA Bulletin No. 17-07 providing opioid prescribing 

guidelines.4

By correspondence dated June 14, 2018, OWCP informed appellant that it was instituting 

a new policy for long-term high-dose opioid use, such as his, and would inform him, after review 

of his case, if it would require that his physician submit a Letter of Medical Necessity (LMN) prior 

to authorization of continued opioids. 

On June 15, 2018 OWCP issued FECA Bulletin No. 18-04.5 The Bulletin indicated that 

its purpose was to provide supplemental guidance on the management of cases and the 

authorization of opioid prescriptions if a claimant was receiving opioids for a work-related 

condition other than cancer. It advised that it was instituting a new supplemental policy to address 

long-term and high-dose opioid therapy, indicating that where the prescribed opioid therapy was 

deemed to require further management, completion of an LMN would be required upon its request. 

Claims examiners were directed to review factors such as the claimant’s morphine-equivalent 

dose, recent surgeries, and the cumulative continuous length of treatment in assessing the most 

appropriate action to take in each particular case.

On February 25, 2019 appellant began treatment with Dr. Benjamin Gray Guevara, a 

Board-certified orthopedic surgeon. He described upper extremity findings and diagnosed right 

elbow arthritis and right ulnar neuritis. Dr. Guevara ordered oxycodone/acetaminophen, but did 

not provide an explanation regarding why this opioid medication was medically necessary. 

In correspondence dated March 7, 2019, OWCP informed Dr. Tsang that it would allow 

one additional opioid prescription for appellant for the period March 6 to May 4, 2019, and after 

which a new LMN would be required that should include physical examination findings and 

further explanation of the need for the dispensation of opioid medication. It specifically informed 

him that if opioid usage was anticipated to be necessary beyond the 60-day authorization period, 

a complete evaluation of the patient was necessary and must be documented in a medical report. 

OWCP continued that, if Dr. Tsang were continuing to treat appellant, his report must include 

pertinent clinical diagnostic evidence, should address demonstrated improvement in both pain and 

function, and provide a rationalized explanation on the continued medical necessity of the opioid 

 

4 FECA Bulletin No. 17-07 (June 6, 2017). This bulletin advised that, since OWCP had the discretion to provide 

an injured employee medications, it was implementing a new policy and program to monitor and manage the 

prescription of opioid medications. It indicated that the new policy applied only to newly prescribed opioid use (claims 

where an opioid had not been prescribed within the past 180 days, if ever, except for those of employment-related 

cancer). The Bulletin further indicated that authorizations would require a letter of medical necessity prior to 

authorization of any opioid medication following an initial 60-day period, and described further limitations and 

procedures. It indicated that cases with continued opioid use should be reviewed by either a district medical adviser 

(DMA) or an OWCP referral physician every six months from the first authorization. 

5 FECA Bulletin No. 18-04 (June 18, 2018).
4

medication. It also asked him to provide answers to specific questions regarding appellant’s prior 

opioid medication. OWCP sent appellant a copy of the letter. 

Dr. Tsang submitted an April 4, 2019 treatment note in which he provided physical 

examination findings and described appellant’s pain level and medication regimen. He diagnosed 

chronic pain due to trauma, right elbow sprain, right elbow lateral epicondylitis, right upper limb 

lesion of ulnar nerve, other articular cartilage disorders of right shoulder, long-term opiate 

analgesic use, and uncomplicated opioid dependence. 

By letter dated April 8, 2019, OWCP informed appellant that it was instituting greater 

scrutiny of opioid medications. It informed him that he would receive 60 days of opioid 

medication, but for authorization after that period, his physician would have to complete an LMN, 

and that it would not approve more than two opioid medications at the same time. OWCP 

continued that the LMN had to be properly and fully completed or it would not be able to fill a 

prescription for opioid medication beyond the initial 60-day period. 

On April 12, 2019 OWCP received a letter dated April 8, 2019 in which appellant 

requested reimbursement for pain medication. 

In a treatment note dated May 2, 2019, Dr. Tsang described pain management treatment 

and reiterated his findings and conclusions. He completed an LMN on May 6, 2019. On the LMN, 

by checking form boxes, Dr. Tsang noted that 45 mg. oral oxycodone HCL/acetaminophen was 

requested for a diagnosis of right lateral epicondylitis, for an anticipated length of 90 days. He 

checked “Yes” to a series of form questions regarding the necessity for the prescription. Question 

40 specifically asked that he provide a narrative explaining why the opioid was medically 

necessary. Dr. Tsang left this portion of the LMN blank. 

In letters dated May 6 and June 3, 2019, OWCP informed appellant of the necessity of 

having a properly and fully completed LMN submitted in order to authorize future opioid 

medication. 

On May 10, 2019 OWCP notified Dr. Tsang’s office that authorization for opioid 

medication was denied. It indicated that there was insufficient medical documentation to support 

the use of opioid medication. 

Dr. Tsang continued to provide pain management. He submitted a second LMN on 

August 7, 2019, for the period August 7 to October 5, 2019 and again failed to include the

requested narrative statement under Question 40. 

By decision dated August 12, 2019, OWCP denied authorization for opioid medication for 

the period August 7 to October 5, 2019. It indicated that Dr. Tsang had not responded to the 

March 7, 2019 development letter addressing the need for opioid medication. OWCP explained 

that it was appellant’s responsibility to ensure that the information was provided to OWCP. It also 

wrote Dr. Tsang that day, informing him of the decision. On August 13, 2019 OWCP informed

Dr. Tsang’s clinic that authorization for oxycodone/acetaminophen was denied. 

Imari Creer, a nurse practitioner in Dr. Tsang’s office, provided treatment notes describing 

pain management on June 27, July 25, and August 22, 2019. 
5

In correspondence dated August 18 and September 2, 2019, appellant maintained that pain 

medication should be authorized. 

On September 9, 2019 OWCP issued FECA Bulletin No. 19-04.6 It provided updated 

guidance regarding the authorization of opioid products (including compounded medications 

containing an opioid), for newly prescribed opioid users for a work-related condition other than 

cancer. The Bulletin indicated that, beginning in the fall of 2019, it was instituting a new opioid 

policy to impose additional limitations and reduce the 60-day period for the required prior 

approval. This included limiting the duration of certain subsequent fills and requiring prior LMN 

authorization at 28 days and described procedures required for injured workers who were newly 

prescribed opioids and were again prescribed the medications after the initial 28-day period. 

By decision dated September 18, 2019, OWCP denied authorization for opioid medication 

for the period May 5 to July 3, 2019. It noted that it had authorized medication for the period 

March 6 to May 4, 2019 and that letters had been sent to both appellant and Dr. Tsang regarding 

updated procedures for obtaining opioids. OWCP found that it had been provided insufficient 

evidence to authorize opioid medication for this period. 

By letter dated September 17, 2019, received by OWCP on September 24, 2019 appellant 

maintained that he had been on opioid medication for years and therefore the new opioid guidelines 

were not applicable to him. 

On September 30, 2019 OWCP responded to appellant and informed him that its policy 

provided that any claimant who received his or her first opioid prescription within the last 180 

days would be classified as a new entrant. It advised him that, since he had not received any opioid 

prescription from it from February 9 through November 15, 2018, he was currently classified as a 

new entrant. OWCP continued that, as a new entrant, appellant was required to submit a LMN to 

obtain approval for opioid medication. 

On October 10, 2019 appellant forwarded a pharmacy statement that described

prescriptions for him from January 8 to December 15, 2018. The statement did not indicate who 

specifically paid for these prescriptions, indicating that some were paid by “plan,” and some by 

“patient.” 

In a report dated October 17, 2019, nurse practitioner Ms. Creer, who was employed at

Dr. Tsang’s clinic, related that she had reviewed pharmacy reports dated from January 11, 2018 

through October 17, 2019 and deemed them appropriate. 

In correspondence dated October 17, 2019, OWCP advised that it had received appellant’s 

request for his status to be changed from a new entrant to a legacy claimant. It advised him that it 

could not accommodate his request because the evidence did not support entitlement to legacy 

status. OWCP noted that appellant provided a list of prescriptions, but advised that these were not 

processed through OWCP’s web portal. 

 

6 FECA Bulletin No. 19-04 (September 9, 2019).
6

On November 19, 2019 appellant requested reconsideration of the September 18, 2019 

decision. In an attached statement he maintained that he should continue to be in legacy status as 

he had been in since 2018, seemingly indicating that, because opioid medication had previously 

been authorized, it should continue to be authorized. 

By decision dated November 25, 2019, OWCP denied appellant’s request for 

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

LEGAL PRECEDENT -- ISSUE 1

Section 8103(a) of FECA7 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 the period of disability, or aid in lessening the amount of monthly compensation.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 

In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad

discretion in approving services provided, with the only limitation on OWCP’s authority being

that of reasonableness.10 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.11

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.12

FECA Bulletin No. 18-04, issued June 18, 2018, provided supplemental guidance on the 

management of cases and the authorization of opioid prescriptions where a claimant was receiving 

opioids for a work-related condition other than cancer. It indicated that it was instituting a new 

supplemental policy to address long-term and high dose opioid therapy. The Bulletin advised that 

for long-term and/or high dose users where the prescribed opioid therapy was deemed to require 

further management, completion of an LMN would be required upon its request. Claims 

 

7 Supra note 1.

8 5 U.S.C. § 8103(a).

9 M.P., Docket No. 19-1557 (issued February 24, 2020); M.B., 58 ECAB 588 (2007).

10 J.M., Docket No. 20-0457 (issued July 16, 2020); Daniel J. Perea, 42 ECAB 214 (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).

11 P.L., Docket No. 18-0260 (issued April 14, 2020).

12 J.M., supra note 10; C.S., Docket No. 19-0516 (issued August 15, 2019).
7

examiners were to review factors such as the claimant’s morphine-equivalent dose, recent 

surgeries, and the cumulative continuous length of treatment in assessing the most appropriate 

action to take in each particular case.13

FECA Bulletin No. 19-04, issued September 9, 2019, provided updated guidance regarding 

the authorization of opioid products for newly prescribed opioid users for a work-related condition 

other than cancer. The Bulletin advised that, beginning in the fall of 2019, it was instituting a new 

opioid policy to impose additional limitations and reduce the 60-day period for the required prior 

approval.14

ANALYSIS -- ISSUE 1

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

medication after May 4, 2019.

On June 14, 2018 OWCP informed appellant that it was implementing a new policy 

regarding long-term opioid medication. In correspondence dated March 7, 2019, it informed

Dr. Tsang that it would allow one additional opioid prescription for appellant from March 6 to 

May 4, 2019, and after which a new LMN would be needed with physical examination findings 

and further explanation of the need from opioid medication. OWCP specifically informed him 

that if opioid usage was anticipated to be necessary beyond the 60-day authorization period, a 

complete evaluation of the patient was necessary and must be documented in a medical report. It

continued that if Dr. Tsang were continuing to treat appellant, his report must include pertinent 

clinical diagnostic evidence, should address demonstrated improvement in both pain and function, 

and provide a rationalized explanation on the continued medical necessity of the opioid 

medication. OWCP also asked him to provide answers to specific questions regarding appellant’s 

prior opioid medication. It sent appellant a copy of the letter. 

Dr. Tsang completed an LMN on May 6, 2019. On the LMN, by checking form boxes, he 

noted that specific opioid medication was requested for a diagnosis of right lateral epicondylitis, 

for an anticipated length of 90 days, and checked “Yes” to a number of questions regarding the 

necessity for the prescription. Question 40, which specifically asked for a narrative explaining 

why the opioid medication was medically necessary, was left blank. Dr. Tsang submitted a second

LMN on August 7, 2019 and again omitted to include a narrative statement at Question 40 

explaining why the opioid was medically necessary. Although he additionally provided treatment 

notes dated from May 2 and 30, 2019, these also did not contain a rationalized explanation as to 

why the opioid medication was medically necessary. 

Dr. Guevara also prescribed opioid medications. His report, however, also did not contain 

any explanation as to why the opioid medication was medically necessary. 

Appellant also submitted treatment notes from Ms. Creer, a nurse practitioner who is 

employed by Dr. Tsang. Certain healthcare providers such as physician assistants, nurse 

 

13 Supra note 6.

14 Supra note 8.
8

practitioners, and physical therapists are not considered physicians as defined under FECA.15 

Consequently, these reports will not suffice for purposes of establishing entitlement to FECA 

benefits.16

As noted, FECA Bulletin No. 18-04 indicates that an LMN may be required. Dr. Tsang 

failed to complete the compulsory question asking for a narrative explanation of the need for the 

opioid medication. OWCP has great discretion in determining whether a particular type of 

treatment is likely to cure or give relief, and the only limitation on OWCP’s authority is that of 

reasonableness.17 Dr. Tsang did not provide a rationalized explanation as to why the opioid was 

medically necessary. In denying appellant authorization for opioid medication, the Board finds 

that OWCP has not abused its discretion given that it has not committed manifest error, engaged 

in a clearly unreasonable exercise of judgment, or taken actions contrary to both logic and probable 

deductions from established facts.18

As to appellant’s argument that, as a legacy compensationer, he was entitled to continue to 

be reimbursed for opioid medication, FECA Bulletins No. 18-04 required that for long-term opioid 

users an LMN be fully completed to authorize opioid medication. The record in this case does not 

contain a sufficient explanation of the need for opioid medication under these provisions. 

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.

LEGAL PRECEDENT -- ISSUE 2

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

matter of right.19 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.20 One such limitation is that the request for reconsideration 

 

15 Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.” 

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals 

such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under 

FECA); J.R., Docket No. 20-0496 (issued August 13, 2020).

16 Id.

17 Supra note 14.

18 Id.

19 5 U.S.C. § 8128(a).

20 20 C.F.R. § 10.607.
9

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

sought.21

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.22 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.23

ANALYSIS -- ISSUE 2

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

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

Appellant timely requested reconsideration on November 19, 2019. In his reconsideration 

request, he merely maintained that, because opioid medication had been authorized in the past, it 

should continue to be authorized. Appellant, however, did not show in his request for 

reconsideration that OWCP erroneously applied or interpreted a specific point of law, nor did he 

advance a new and relevant legal argument not previously considered by OWCP. Consequently, 

the Board finds that he was not entitled to a review of the merits based on the first or second abovenoted requirements under 20 C.F.R. § 10.606(b)(3).24

Moreover, the evidence submitted was either duplicative or immaterial to the merit issue 

in this case. OWCP received an October 10, 2019 pharmacy statement that described prescriptions 

for appellant from January 8 to December 15, 2018 and a report dated October 17, 2019 wherein 

Nurse Practitioner Creer related that she had reviewed pharmacy reports dated from January 11, 

2018 through October 17, 2019 and deemed them appropriate. This evidence was immaterial to 

the underlying issue, i.e., that appellant had not submitted a properly completed LMN form from 

a treating physician, explaining appellant’s need for continued opioid medication. 

 

21 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 OWCP’s decision for which review is sought. Supra note 15 at 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 (iFECS). Id. at Chapter 

2.1602.4b.

22 Id. at § 10.606(b)(3); see B.R., Docket No. 19-0372 (issued February 20, 2020).

23 Id. at § 10.608.

24 J.V., Docket No. 19-0990 (issued August 26 2020).
10

The Board accordingly finds that OWCP properly determined that appellant was not 

entitled to further review of the merits of his claim pursuant to any of the three requirements under 

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.25

CONCLUSION

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

medication after May 4, 2019, and that it properly denied appellant’s request for reconsideration 

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

ORDER

IT IS HEREBY ORDERED THAT the November 25, September 18, and August 12, 

2019 decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: April 9, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

25 Id.; Susan A. Filkins, 57 ECAB 630 (2006) (when an application for reconsideration does not meet at least one 

of the three requirements enumerated under section 10.606(b), OWCP will deny the application for reconsideration 

without reopening the case for a review on the merits).