United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.B., Appellant

and

U.S. POSTAL SERVICE, OGDEN PARK POST 

OFFICE, Chicago, IL, Employer

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Docket No. 23-0406

Issued: September 11, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 27, 2023 appellant filed a timely appeal from a November 22, 2022 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.2

ISSUE

The issue is whether OWCP properly denied appellant’s request for authorization of 

lumbar spinal fusion, decompression, and microdisectomy surgery.

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the November 22, 2022 decision and on appeal, appellant submitted additional 

evidence to OWCP. However, the Board’s Rules of Procedureprovides: “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

FACTUAL HISTORY

On January 23, 2021 appellant, then a 49-year-old postal collection and delivery worker, 

filed a traumatic injury claim (Form CA-1) alleging that on January 15, 2021, he sprainedhis lower 

back when a customer’s vehicle hit his postal vehicle while in the performance of duty. He stopped 

work on January 16, 2021. 

OWCP initially accepted the claim for strain of muscle, fascia, and tendon at neck level; 

strain of muscle and tendon of back wall of thorax; and strain of lumbar region. It later expanded 

the acceptance of the claim to include L5-S1 herniated disc and foraminal stenosis, and right 

shoulder incomplete rotator cuff tear or rupture. OWCP paid appellant wage-loss compensation 

on the supplemental rolls effective March 6, 2021, and on the periodic rolls as of June 20, 2021.

A February 4, 2021 magnetic resonance imaging (MRI) scan of the lumbar spine, read by

Dr. Elliot Wagner, a Board-certified diagnostic radiologist, revealed broad-based posterior 

herniation of L5-S1 disc, with bilateral foraminal components, causing mild-to-moderate 

narrowing of central canal and neural foramina, bilaterally, and that the herniation measured eight 

millimeters (mm) in size. It also revealed diffuse protrusion of L4-5 disc, causing mild narrowing

of the central canal and neural foraminal narrowing, and that the bulge measured approximately

two mm; and mild facet arthropathy at L4-5 and L5-S1 levels and minimal retrolisthesis of L5 

vertebra over S1.

In a March 15, 2021 report, Dr. Anis O. Mekhail, a Board-certified orthopedic surgeon,

noted that appellant had a history of back pain in 2016, not from an injury, and that after a few 

sessions of physical therapy, the pain resolved and there were no further symptoms until the present 

injury. He provided an impression of large L5-S1 herniated disc, foraminal stenosis, and 

significant degeneration. Dr. Mekhail recommended decompression, microdisectomy, and fusion,

as appellant had significant back pain, significant foraminal stenosis, and significant degeneration

of the disc, which was “almost completely bone-on-bone.” He noted that with physical therapy 

and possibly work conditioning, appellant should be able to return to work between six weeks on 

light duty and three months at full duty. 

In an April 21, 2021 report, Dr. Kenechukwu Ugokwe, a Board-certified neurosurgeon

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

(SOAF) and the medical evidence of record, including Dr. Mekhail’s March 15, 2021 report. He

agreed with Dr. Mekhail’s opinion that appellant’s current condition and recommended surgery 

was causally related to his accepted employment injury. However, Dr. Ugokwe disagreed that the 

proposed surgery was medically necessary. He indicated that appellant’s MRI scan revealed no 

radiographic evidence of significant element compression or instability.

By letter dated April 27, 2021, OWCP notified appellant that the proposed spinal fusion, 

decompression, and microdisectomy could not be approved. It found that the medical evidence of 

record did not support that it was medically necessary to address the effects of his work-related 

injury. OWCP explained that there was no radiographic evidence of significant neural element 

compression or instability on the MRI scan. It advised appellant that, if he desired a formal

decision with appeal rights, he should submit a written request.
3

In a May 19, 2021 workers’ compensation request for authorization form, Dr. Mekhail

repeated his request for the spinal fusion, decompression, and microdisectomy. In an 

accompanying narrative report, he disagreed with DMA’s opinion that appellant’s symptoms were 

not supported by MRI scan findings. Dr. Mekhail explained that the MRI scan clearly revealed 

that disc herniation below L5-S1 was causing compression on the thecal sac and foraminal 

stenosis. He further explained that appellant’s spinal condition was causing weakness and 

prolonged pressure on the nerve and that appellant could suffer permanent nerve damage.

Dr. Mikhail noted that the MRI scan was consistent with his clinical findings and that appellant 

had significant weakness in his left gastrocnemius that matched the findings from his MRI scan.

In a June 20, 2021 report, Dr. Ugokwe reiterated his opinion that the requested spinal 

fusion, decompression, and microdisectomy was not medically necessary because the MRI scan 

did not show any evidence of instability or significant enough stenosis to warrant aggressive 

decompression with the resultant instability. He noted that the MRI scan revealed mild-tomoderate central canal and foraminal stenosis at L5-S1.

By decision dated June 29, 2021, OWCP denied authorization for spinal fusion, 

decompression, and microdisectomy. It found that the weight of the medical evidence rested with

the DMA, Dr. Ugokwe, who concluded that the requested treatment was not medically necessary 

because the MRI scan did not show any evidence of instability or significant enough stenosis to

warrant aggressive decompression with the resultant instability.

In an August 19, 2021 report, Dr. Mekhail continued to opine that the proposed surgery 

was medically necessary to treat appellant’s work-related condition of L5-S1 herniated disc, and 

his diagnosed conditions oflumbar radiculopathy and degenerative disc disease. He also reiterated 

that appellant’s spinal conditions were affecting his quality of life. 

On January 4, 2022 appellant requested reconsideration of the June 29, 2021 decision.

On March 14, 2022 OWCP referred appellant for a second opinion evaluation with

Dr. Junaid Makda, a Board-certified orthopedic surgeon.

In a May 13, 2022 report, Dr. Makda noted appellant’s history of injury and treatment and

provided his examination findings. He opined that a spinal fusion, decompression, and 

microdisectomy appeared to be a definitive treatment option, and that other options included 

epidural injections into the disc spaces. Dr. Makda noted that he read the MRI scan report but did 

not have the ability to review the images. He noted that the report suggested foraminal narrowing 

and central canal and neural foraminal stenosis and that he did not have any flexion/extension 

radiographs to suggest any kind of instability. Dr. Makda explained that he was not a spine 

surgeon and deferred treatment to a qualified neurosurgeon or an orthopedic spine surgeon. He 

opined that to his knowledge, “the MRI does show stenosis that if left untreated for an extended 

period of time can potentially cause permanent neurological damage.”

On June 15, 2022 OWCP referred appellant for a second opinion evaluation with Dr. Harel 

Deutsch, a Board-certified neurosurgeon.
4

In a July 17, 2022 report, Dr. Deutsch reviewed the SOAF and the medical record, and 

noted appellant’s reports of back pain. He examined appellant and concurred with the DMA that 

appellant would not benefit from the requested surgery. Dr. Deutsch explained that there was no 

significant stenosis or instability, and his physical examination and the MRI scan were both 

consistent with mild degenerative changes. He also noted that the physical examination findings 

were inconsistent with appellant’s reported history, and that even with the diagnosis of lumbar 

herniated disc, appellant would not be a candidate for lumbar fusion. Dr. Deutsch advised that he

was able to return to work in a full-time capacity without further treatment. 

On August 11, 2022 OWCP requested that Dr. Mekhail review Dr. Deutsch’s second 

opinion report and, within 30 days from the date of the letter, indicate whether he concurred with 

the report. It explained that, “if no response is received, this office will conclude that you are in 

full agreement with the contents of the second opinion report dated 07/13/2022.” No response was 

received.

By decision dated September 21, 2022, OWCP denied modification of the June 29, 2021 

decision.

On November 21, 2022 appellant requested reconsideration.

In an August 26, 2022 report, Dr. Mekhail noted that appellant had a positive straight leg 

raising examination on that day and weakness on isolated plantar flexion testing with appellant 

trying to stand on his tiptoes on the left side. He indicated that he disagreed with Dr. Deutsch’s

conclusion that appellant had only mild degenerative changes. Dr. Mekhail noted that appellant 

had significant degeneration of the L5-SI disc and a broad disc bulge on the left side which 

explained the left S1 radiculopathy. He disagreed that appellant’s reported history was 

inconsistent with his examination findings and opined that “[t]here is no way the patient would

know the S1 radiculopathy and fake his weakness and his distribution of the S1 radiculopathy. So 

I believe the patient is sincere. I believe the pathology explains his symptoms....” Dr. Mekhail 

reiterated his request for approval for surgery.

By decision dated November 22, 2022, OWCP denied modification of the September 21, 

2022 decision. 

LEGAL PRECEDENT

Section 8103(a) 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 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. 4 

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

3

5 U.S.C. § 8103(a).

4

Id.; see J.K., Docket No. 20-1313 (issued May 17, 2021); Thomas W. Stevens, 50 ECAB 288 (1999).
5

has the burden of proof to establish that the expenditures were incurred for treatment of the effects 

of an employment-related injury or condition.5

Section 10.310(a) of OWCP’s implementing regulations provide 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, with the only limitation on OWCP’s authority being 

that of reasonableness.7 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. 8

Abuse of discretion is 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.9

FECA provides that, if there is disagreement between an OWCP-designated physician and 

an employee’s physician, OWCP shall appoint a third physician who shall make an examination. 10 

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

rationale.11

ANALYSIS

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

5 M.P., Docket No. 19-1557 (issued February 24, 2020); R.M., Docket No. 19-1319 (issued December 10, 2019);

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

6

20 C.F.R. § 10.310(a); see D.W., Docket No. 19-0402 (issued November 13, 2019).

7 B.I., Docket No. 18-0988 (issued March 13, 2020);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).

8

Id.

9 P.L., Docket No. 18-0260 (issued April14, 2020); 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, supra note 7.

10 5 U.S.C. § 8123(a); see20 C.F.R. § 10.321;L.C.,Docket No. 20-866 (issued February 26, 2021);B.I.,supra note 

7; Shirley L. Steib, 46 ECAB 309 (1994).

11 L.C., id.; Darlene R. Kennedy, 57 ECAB 414, 416 (2006); James P. Roberts, 31 ECAB 1010 (1980).
6

OWCP accepted appellant’s traumatic injury claim for strain of muscle, fascia, and tendon 

at neck level; strain of muscle and tendon of back wall of thorax; strain of lumbar region; L5-S1 

herniated disc; and foraminal stenosis. 

Appellant’s treating physician, Dr. Mekahil, thereafter, sought authorization for 

decompression, microdisectomy, and fusion to treat appellant’s accepted lumbar conditions. He 

explained in a March 15, 2021 report, that appellant had significant back pain, significant 

foraminal stenosis, and significant degeneration of the discs, which was “almost completely boneon-bone.” In a May 19, 2021 report, Dr. Mekhail noted that appellant’s MRI scan clearly revealed 

that disc herniation below L5-S1 was causing compression on the thecal sac and foraminal 

stenosis, that appellant’s spinal condition was causing weakness and prolonged pressure on the 

nerve, and that appellant could suffer permanent nerve damage. In an August 26, 2022 report, he 

noted that appellant had significant degeneration of the L5-SI disc and a broad disc bulge on the 

left side which explained his left SI radiculopathy. Dr. Mekhail disagreed that appellant’s reported 

history was inconsistent with his examination findings, and opined that “[t]here is no way the 

patient would know the S1 radiculopathy and fake his weakness and his distribution of the S1

radiculopathy. So I believe the patient is sincere. I believe the pathology explains his 

symptoms....”

By contrast, Dr. Ugokwe, OWCP’s DMA, opined in reports dated April 21 and June 20, 

2021, that the requested surgical procedures were not medically necessary. He explained that 

appellant’s MRI scan revealed no radiographic evidence of significant element compression or 

instability. The DMA further explained that the MRI scan revealed mild-to-moderate central canal 

and foraminal stenosis at L5-S1.

OWCP’s second opinion physician, Dr. Deutsch, in a July 17, 2022 report, concurred with 

the DMA that appellant would not benefit from the requested surgery. He explained that there was 

no significant stenosis or instability, and the physical examination and MRI scan were both 

consistent with mild degenerative changes. Dr. Deutsch further explained that his physical 

examination findings were inconsistent with appellant’s reported history, that a diagnosis of 

lumbar herniated disc did not make appellant a candidate for lumbar fusion, and that appellant was 

able to return to work in a full-time capacity without further treatment. As Dr. Mekhail, appellant’s 

attending physician, Dr. Ugokwe, OWCP’s DMA, and Dr. Deutsch, OWCP’s second opinion 

physician, disagreed as to whether appellant’s request for surgery was medically warranted for the 

treatment of his accepted back conditions, the Board finds that there is a conflict in the medical 

opinion evidence. The case must therefore be remanded for referral to an impartial medical 

examiner, pursuant to 5 U.S.C. § 8123(a). Following this and other such further development as 

deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.
7

ORDER

IT IS HEREBY ORDERED THAT the November 22, 2022 decision of the Office of 

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

consistent with this decision of the Board.

Issued: September 11, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board