United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.A., Appellant

and

DEPARTMENT OF THE AIR FORCE, SHAW 

AIR FORCE BASE, SC, Employer

__________________________________________

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Docket No. 18-1024

Issued: March 12, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 23, 2018 appellant, through counsel, filed a timely appeal from a December 13, 

2017 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.3

 

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.

3 The Board notes that, following the December 13, 2017 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

ISSUE

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

authorization of implant neuroelectrodes, a spine generator, and a neurostimulator.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

On July 26, 2012 appellant, then a 47-year-old high voltage electrician, filed a traumatic 

injury claim (Form CA-1) alleging that on July 25, 2012 he slipped and fell on a bucket cover 

injuring his tail bone while in the performance of duty. He stopped work on July 25, 2012 and 

returned to full-time limited-duty employment on August 1, 2012. OWCP accepted the claim for 

a contusion and sprain of the sacrum, and a contusion and sprain of the coccyx. It subsequently 

expanded acceptance of the claim to include a back contusion, a buttock contusion, an aggravation 

of degeneration of a lumbar intervertebral disc, other specified disorder of the coccyx, an 

aggravation of lumbosacral radiculitis, and an aggravation of lumbosacral spondylosis without 

myelopathy. 

An electromyogram (EMG) dated December 9, 2015 revealed active chronic right S1 

radiculopathy.

On January 19, 2016 Dr. Michael T. Warrick, a Board-certified anesthesiologist, evaluated

appellant for continued lower back pain and numbness radiating down the right leg. He noted that 

the EMG had confirmed S1 radiculopathy. Dr. Warrick diagnosed lumbar radiculopathy, lumbar 

spondylosis, and chronic pain syndrome. He opined that appellant had chronic lumbar and leg 

pain without a surgically correctable lesion. Dr. Warrick recommended neurostimulation for longterm pain relief and functional restoration. 

In a medical authorization record dated January 27, 2016, Dr. Warrick requested 

authorization for neuroelectrodes and neurostimulation implantation. 

On January 27, 2016 OWCP notified Dr. Warrick that his request for authorization of the 

neuroelectrodes and neurostimulation implantation could not be approved at that time. It indicated 

that the evidence then of record was insufficient to authorize the proposed surgery because the 

requested treatment did not appear to be medically necessary for and/or causally related to the 

accepted conditions. 

OWCP requested that a district medical adviser (DMA) address whether the requested 

surgical authorization for neuroelectrodes and neurostimulation implantation was warranted and 

necessitated by the accepted conditions. 

In a February 3, 2016 report, Dr. Nizar Souayah, a Board-certified neurologist serving as 

a DMA, reviewed the medical evidence of record and opined that neuroelectrodes and 

 

4 Docket No. 13-0164 (issued March 28, 2013) (the Board affirmed the denial of the claim, which was ultimately 

accepted).
3

neurostimulation implantation was not medically necessary. He referenced the “Medical 

Treatment Utilization Schedule” which recommended spinal cord stimulators for patients where

less invasive procedures had failed or were contraindicated for conditions. Dr. Souayah also 

referenced state workers’ compensation guidelines which recommended a spinal cord stimulator 

(SCS) for those with failed back syndrome or persistent severe disabling back pain despite 

conventional nonsurgical treatments. He noted that a thorough psychological evaluation must be 

performed prior to such a procedure. Dr. Souayah opined that there was no documentation that 

appellant had any of the above indications for a SCS. He related that, “There is no evidence of 

failed previous surgery, radiculopathy, or true neuropathic pain. There is no documentation of the 

outcome of the lumbar facet injection performed on December 2, 2016. There is no clear evidence 

of failure of more conservative therapies, including physical therapy and pain medications with 

good compliance.” 

On February 16, 2016 OWCP notified Dr. Warrick that his request for authorization of the 

neuroelectrodes and neurostimulation implantation could not be approved at that time. It indicated 

that the evidence was insufficient to authorize the proposed surgery because the requested 

treatment did not appear to be medically necessary for and/or causally related to the accepted 

conditions. OWCP provided Dr. Warrick with a copy of the DMA’s report and requested that he 

review and submit additional medical documentation. 

In a report dated March 2, 2016, Dr. Warrick provided additional information in support 

of his request for authorization for a SCS trial. He noted that appellant had sustained a work injury 

on July 25, 2012 when he fell five feet down onto metal. Since that time appellant had chronic 

back pain and progressive right leg pain. His condition was conservatively managed for over two 

years using oral medications and injections which provided marginal relief. Dr. Warrick 

diagnosed lumbar radiculopathy and chronic pain syndrome. He indicated that neurodiagnostic 

tests had confirmed chronic irreversible S1 nerve damage in his back affecting his right leg. 

Dr. Warrick advised that a SCS trial was an effective treatment for chronic nerve pain from 

radiculopathy. He opined that this treatment modality would provide substantial relief of pain 

beyond current treatment and restore appellant’s ability to work with reduced restrictions.

On March 17, 2016 OWCP requested that a DMA address whether the requested surgery 

authorization for neuroelectrodes and neurostimulation implantation was warranted and 

necessitated by the accepted conditions. It provided Dr. Warrick’s report dated March 2, 2016 for 

review. 

In an April 22, 2016 report, DMA Dr. Souayah noted that there was no clear documentation 

that appellant had exhausted all conservative therapies, including a trial of pain medication, 

without improvement. Additionally, he advised that there was no evidence that a successful 

temporary trial of a SCS had been attempted, noting that an indication for approval of stimulator 

implantation was a temporary trial demonstrating relief from pain by 50 percent, functional 

improvement, and reduced use of medication. Dr. Souayah further noted that there was no 

documentation that appellant had received psychological clearance for the SCS implantation.

On May 9, 2016 Dr. Warrick performed the SCS trial. He diagnosed lumbar radiculitis, 

disorder of the coccyx, lumbosacral spondylosis without myelopathy, lumbago, chronic pain 

syndrome, lumbar radiculopathy, and degenerative joint disease of the spine. Dr. Warrick noted 

findings of back pain, difficulty walking, numbness, and tingling. 
4

In a May 16, 2016 report, Dr. Warrick indicated that appellant had received the SCS trial 

on May 9, 2016 with an improvement in back pain. He noted appellant took Hydrocodone which 

provided good relief and he was in full compliance. Dr. Warrick diagnosed lumbar radiculitis, 

disorder of the coccyx, lumbosacral spondylosis without myelopathy, lumbago, chronic pain 

syndrome, lumbar radiculopathy, and degenerative joint disease of the spine. He advised that 

appellant had over 75 percent relief with the SCS trial and recommended a permanent SCS implant. 

On June 8, 2016 OWCP notified appellant that his request for authorization of the 

neuroelectrodes and neurostimulation implantation could not be approved at that time. It indicated 

that the evidence was insufficient to authorize the proposed surgery because the requested 

treatment did not appear to be medically necessary for and/or causally related to the accepted 

conditions. OWCP noted that, on April 22, 2016, the DMA had reviewed the claim and found that 

he had not shown a successful SCS trial, an adequate trial with pain management, or psychological 

clearance. It indicated that no further action would be taken on his request. 

In a medical authorization record dated June 8, 2016, Dr. Warrick requested authorization 

for neuroelectrodes and neurostimulator implantation. 

On June 16, 2016 Dr. Warrick noted that he had treated appellant since 2012. He indicated 

that a SCS trial in May 2016 was successful, but that he was unable to permanently implant a SCS

because of a lack of authorization.

A July 18, 20135 memorandum from Dr. Bryan J. Funke, a flight surgeon Board-certified 

in occupational medicine, discussed appellant’s history of a fall at work from a bucket lift truck 

on July 25, 2012 and subsequent treatment for sacrococcygeal contusions, chronic low back, 

tailbone pain, radicular pain, and paresthesia. He noted that a neurosurgeon had found that 

appellant was not a surgical candidate and had referred him for pain management. Dr. Funke 

opined that Dr. Warrick had exhausted all conservative measures by performing 10 lumbar 

interventions including epidural and facet injections, medial branch blocks, and radio frequency 

rhizotomies without lasting relief. He noted that the trial SCS implantation had provided good 

relief and functional improvement. Dr. Funke advised that appellant continued to experience low 

back and coccyx pain, numbness, and tingling radiating from his buttocks to his right leg in a S1 

distribution, and was taking one to three tablets of Hydrocodone daily for pain. He opined that his

physicians had exhausted all conservative treatment and recommended that OWCP approve the 

requested surgery.

On July 27, 2016 Dr. Warrick evaluated appellant for recurrent bilateral lumbosacral pain 

with radiation and numbness down both legs and into both feet. He noted that appellant had 

undergone over 10 lumbar interventions, including epidurals, facet injections, medial branch 

blocks, and rhizotomies without long-term relief. Dr. Warrick advised that appellant had engaged 

in physical therapy and home exercises, modified his work duties, and received chronic opioid 

therapy that had not improved his function sufficiently even with compliance. He again indicated 

that appellant was a good candidate for a SCS, noting that he had reported improvement of over 

60 percent in pain relief and improved function with a trial of spinal cord stimulation. 

By decision dated October 28, 2016, OWCP denied appellant’s request for authorization 

for implant neuroelectrodes, a spine generator, and a neurostimulator as the evidence of record did 

 

5 The date of the report appears to be a typographical error and should be July 18, 2016.
5

not support that this procedure was medically necessary to address the effects of the work-related 

injury.

On November 7, 2016 appellant requested an oral hearing before an OWCP hearing 

representative which was held on June 15, 2017. 

In a report dated January 31, 2017, Dr. Warrick noted that appellant had received bilateral 

L3-S1 facet injections on October 5, 2016 with more than 50 percent relief in symptoms. He 

diagnosed spondylosis of lumbosacral region without myelopathy or radiculopathy and performed 

lumbar fact injections at L3-4, L4-5, and L5-S1. 

In a July 18, 2017 report, Dr. Warrick disagreed with Dr. Souayah’s opinion regarding the 

medical necessity of implantation of a SCS for appellant’s chronic pain. He asserted that the DMA 

had contradicted himself when he found that there was no evidence of lumbar radiculopathy in 

appellant’s medical records, but noted that appellant had been diagnosed with chronic S1 

radiculopathy by EMG performed December 9, 2015. Dr. Warrick further asserted that

Dr. Souayah had found that there was no documentation showing that conservative treatment had 

failed as appellant had been complaint with medication and had undergone lumbar facet injections 

with only modest relief. He noted that Dr. Souayah had not treated appellant, who he found to be 

someone who “pushes himself to perform even with pain.” Dr. Warrick opined that appellant was 

a good candidate for SCS implantation, noting that the SCS trial had been effective in reducing 

pain and improving function. He asserted that he had “no other option to improve pain and 

functionality” and that he was trying to stay productive despite “what would for many people be 

debilitating pain.” 

By decision dated August 21, 2017, OWCP’s hearing representative affirmed the 

October 28, 2016 denial of appellant’s request for authorization of implant electrodes, a spine 

generator, and a neurostimulator.

On August 30, 2017 appellant, through counsel, requested reconsideration of the 

August 21, 2017 decision and submitted reports from Dr. Warrick dated April 20, 2016 and 

July 18, 2017, which were previously of record.

By decision dated December 13, 2017, OWCP denied modification of the August 21, 2017

decision.

LEGAL PRECEDENT

Section 8103(a) of FECA6 provides for the furnishing of services, appliances, and supplies 

prescribed or recommended by a qualified physician which 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 

 

6 Supra note 2.

7 5 U.S.C. § 8103(a); see N.G., Docket No. 18-1340 (issued March 6, 2019).
6

has recognized that OWCP has broad discretion in approving services provided under section 

8103, with the only limitation on OWCP’s authority is that of reasonableness.8

While OWCP is obligated to pay for treatment of employment-related conditions, appellant 

has the burden of proof to establish that the expenditure is incurred for treatment of the effects of 

an employment-related injury or condition.9 Proof of causal relationship in a case such as this 

must include supporting rationalized medical evidence.10 In order to prove that the procedure is 

warranted, appellant must establish that the procedure was for a condition causally related to the 

employment injury and that the procedure was medically warranted. Both of these criteria must 

be met in order for OWCP to authorize payment.11

OWCP’s procedures provide that, in cases of spinal surgery, it should refer the request to 

the DMA for review. Its procedures further provide:

“If the DMA’s opinion on the need for surgery is equivocal or negative, or if it 

indicates the need for clinical data not present in the file, the CE [claims examiner] 

may choose to prepare the file for a second opinion examination. The CE may 

alternatively choose to ask the AP [attending physician] to submit a report which 

includes the required clinical data so that the DMA may formulate an opinion on 

the medical necessity for surgery. Upon receipt of the AP’s report, the CE should 

resubmit the case record to the DMA for comment.”

12

ANALYSIS

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

On March 2, 2016 Dr. Warrick, appellant’s treating physician, discussed appellant’s 

history of a July 25, 2012 employment injury and his subsequent progressive right lower extremity 

and back pain. He noted that diagnostic testing had demonstrated irreversible nerve damage at S1 

affecting the right leg and recommended an SCS trial to relive his pain and improve his ability to 

work. 

In reports dated February 3 and April 22, 2016, Dr. Souayah, the DMA, opined that the 

evidence of record did not support that the implant neuroelectrodes, spine generator, and 

neurostimulator procedure was medically necessary to address the effects of the work-related 

injury. He found no clear documentation that Dr. Warrick had exhausted all conservative 

 

8 D.W., Docket No. 19-0402 (issued November 13, 2019); see also 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). 

9 See R.M., Docket No. 19-1319 (issued December 10, 2019); Debra S. King, 44 ECAB 203, 209 (1992). 

10 Id.; see also K.W., Docket No. 18-1523 (issued May 22, 2019); Bertha L. Arnold, 38 ECAB 282 (1986). 

11 See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000). 

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.10(d)(3) (September 2010).
7

therapies, demonstrated that pain medication had failed to improve appellant’s symptoms, or 

shown that a trial of a SCS had provided pain relief of over 50 percent. 

On May 9, 2016 Dr. Warrick performed a spinal cord stimulation trial. In a report dated 

May 16, 2016, he noted that appellant had experienced an improvement in back pain of over 75 

percent relief. 

On July 27, 2016 Dr. Warrick opined that the SCS implantation was medically necessary 

and that there were no other options to improve appellant’s pain and functionality. He indicated 

that he had satisfied the criteria for the implantation of a SCS as he had undergone more than 10 

lumbar interventions including epidurals, facet injections, medial branch blocks, and rhizotomies 

which had failed to provide long-term relief. Dr. Warrick advised that appellant had participated 

in physical therapy and home exercises programs, and complied with extended opioid therapy that 

had failed to provide functional improvement. He opined that he was a good candidate for a SCS, 

noting that he had achieved 60 percent relief from a trial SCS. In a report dated July 18, 2017,

Dr. Warrick reiterated that appellant had tried conservative treatment with medication and 

undergone lumbar facet injections with only moderate relief. He again noted that the trial SCS

had reduced his pain and improved his level of function. 

OWCP procedures provide that, regarding requests for spinal surgery, the DMA should 

evaluate the request and, if his opinion on the need for surgery is negative or equivocal, OWCP 

should ask the attending physician to submit a report with the required data or refer appellant for 

a second opinion physician.13 Upon receipt of the attending physician’s report, it should again 

submit the case record to the DMA for review. Dr. Warrick provided additional clinical data 

regarding the need for surgery in his May 16 and June 27, 2016 reports, submitted after he 

performed a SCS trial. OWCP’s, however, did not refer the case back to the DMA for an additional 

opinion in accordance with its procedures.

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. The claimant has the burden of proof to establish entitlement to compensation. However, 

OWCP shares responsibility in the development of the evidence to see that justice is done.14 Once 

it undertakes development of the record, it must do a complete job in procuring medical evidence 

that will resolve the relevant issues in the case.15

On remand OWCP should request a supplemental report from the DMA regarding whether 

appellant’s request for authorization of neuroelectrodes, a spinal generator, and a neurostimulator

implant is medically necessary and causally related to the accepted employment injury. 

Following this and other such further development as deemed necessary, OWCP shall issue 

a de novo decision. 

 

13 Id.; see also W.H., Docket No. 17-1244 (issued November 7, 2017).

14 See L.B., Docket No. 19-0432 (issued July 23, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

15 Id.
8

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the December 13, 2017 decision of the Office of 

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

action consistent with this decision of the Board. 

Issued: March 12, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board