United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.D., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

St. Petersburg, FL, Employer

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Docket No. 20-0131

Issued: September 11, 2020

Appearances: Case Submitted on the Record

Stephanie M. Leet, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On October 21, 2019 appellant, through counsel, filed a timely appeal from a 

September 27, 2019 decision.2 The Clerk of the Appellate Boards assigned Docket No. 20-0131.

 

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 The Board notes that, following September 27, 2019, 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

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

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

follows.

On November 15, 1998 appellant, then a 49-year-old air traffic controller, filed a traumatic 

injury claim (Form CA-1) alleging that on that date he injured his low back and groin when he 

slipped on a wet floor while in the performance of duty. The Office of Workers’ Compensation 

Programs (OWCP) accepted the claim, assigned File No. xxxxxx744, for cervical and lumbosacral 

strain, cervical and lumbar disc displacement, sciatica, lumbar neuritis, an aggravation of brachial 

neuritis, and chronic pain syndrome.4 It paid appellant wage-loss compensation on the 

supplemental rolls as of March 1, 2001 and then on the periodic rolls as of October 30, 2005.

In a report dated June 5, 2019, Dr. Kenneth P. Botwin, a Board-certified physiatrist, noted 

that appellant had sustained occupational injuries on July 4, 1977 and November 15, 1998. He 

diagnosed displacement of a lumbar and cervical intervertebral discs without myelopathy, sciatica, 

lumbar radiculitis, lumbar myofascial pain, lumbar stenosis, back muscle spasm, lumbar spinal 

enthesopathy, and insomnia. Dr. Botwin advised that appellant required physical therapy, in 

particular BioWave treatment, aquatic therapy, and massage therapy, to treat his cervical and 

lumbar intervertebral disc displacement, sciatica, and radiculitis. He opined that BioWave therapy, 

aquatic therapy, and massage therapy would improve his ability to function and reduce his need 

for pain medication. 

On September 5, 2019 Dr. Kenechukwu Ugokwe, a Board-certified neurosurgeon serving 

as a district medical adviser (DMA), advised that the proposed BioWave treatment, massage 

therapy, and aquatic therapy were causally related to appellant’s accepted employment injury. He 

found, however, that the treatments were not medically necessary as there was insufficient 

evidence supporting the effectiveness of BioWave treatment and massage therapy. Dr. Ugokwe 

further opined that a home exercise program would benefit appellant to the same extent as aquatic 

therapy.

By letter dated September 27, 2019, OWCP indicated that it had authorized physical 

therapy for an extended period that had not resulted in increased function or decreased disability. 

It advised that a DMA had reviewed appellant’s claim on September 5, 2019 and found that further 

physical therapy or services were not medically necessary.

The Board has duly considered the matter and finds that the letter dated September 27, 

2019, while not accompanied by appeal rights, constitutes a final adverse decision by OWCP. In 

the letter, OWCP denied appellant’s request for further authorization for BioWave treatment, 

massage therapy, and aquatic therapy as a DMA had found that further such services were no 

longer medically necessary. The letter noted that a copy of the DMA’s findings was enclosed.

 

3 Docket No. 17-0233 (issued December 20, 2017).

4 OWCP had previously accepted that on July 4, 1977 appellant sustained thoracic, lumbar, and cervical strains and 

cervical radiculitis under File No. xxxxxx162. It administratively combined appellant’s claims with File No. 

xxxxxx744 designated as the master file. 
3

The Board notes that section 8124(a) of FECA5and section 10.126 of its implementing 

regulations6require that final decisions of OWCP contain findings of fact and a statement of 

reasons. A decision should contain a correct description of the basis for the denial in order that 

the parties of interest have a clear understanding of the precise defect of the claim and the kind of 

evidence which would overcome it.7

The Board finds that the September 27, 2019 decision was incomplete as OWCP did not 

provide findings regarding the medical evidence appellant submitted from Dr. Botwin, nor did it 

provide a statement of reasons explaining its determination that the opinion of the DMA 

constituted the weight of the evidence on the issue of authorization for BioWave treatment, aquatic 

therapy, and massage therapy. Appellant, therefore, was not apprised of the deficiencies that 

OWCP had found in the medical evidence. Although the September 27, 2019 decision included a 

copy of the DMA’s report, OWCP did not discharge its responsibility to set forth findings of fact 

and a clear statement of reasons explaining its disposition so that appellant could understand the 

basis for the decision, as well as the precise defect and the evidence needed to overcome the denial 

of authorization for physical therapy.8

Accordingly, the case must be remanded to OWCP to properly consider all of the evidence 

and provide clear reasons regarding its disposition of appellant’s request for authorization for 

BioWave treatment, aquatic therapy, and massage therapy. Following this and other such further 

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

 

5 5 U.S.C. § 8124(a).

6 20 C.F.R. § 10.126.

7 L.R., Docket No. 15-0235 (issued December 21, 2015); Patrick Michael Duffy, 43 ECAB 280 (1991).

8 R.M., Docket No. 19-0163 (issued July 17, 2019).
4

IT IS HEREBY ORDERED THAT the September 27, 2019 decision of the Office of 

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

consistent with this order of the Board.

Issued: September 11, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board