United States Department of Labor

Employees’ Compensation Appeals Board

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R.A., Appellant

and

U.S. POSTAL SERVICE, COLORADO 

SPRINGS POST OFFICE, 

Colorado Springs, CO, Employer

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Docket No. 22-1389

Issued: May 22, 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 September 26, 2022 appellant filed a timely appeal from an August 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.

ISSUE

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

authorization of maintenance massage therapy.

FACTUAL HISTORY

On September 15, 2009 appellant, then a 62-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed reflex sympathetic dystrophy (RSD) as a 

1

5 U.S.C. § 8101 et seq.
2

result of repetitive factors of his federal employment including sorting, casing, lifting, and 

delivering mail. He noted that he first became aware of his condition on May 5, 2009 and its 

relationship to his federal employment on July 23, 2009.2 On September 29, 2009 OWCP

accepted the claim for cervical and left shoulder sprains. It subsequently authorized massage 

therapy treatment for appellant’s left shoulder, cervical spine, bilateral arm, and upper back 

conditions commencing March 2, 2011. 

On October 23, 2012 OWCP expanded the acceptance of appellant’s claim to include left 

shoulder impingement syndrome, left superior labrum anterior and posterior (SLAP) lesion, left 

biceps tendinitis, and aggravation of cervical stenosis and cervical degenerative disc disease. 

OWCP subsequently authorized continued massage therapy treatment commencing 

September 3, 2012.

In outpatient progress notes dated May 4, August 4, and December 1, 2020, Dr. Jack L. 

Rook, an attending Board-certified physiatrist, noted that he performed follow-up evaluations of 

appellant’s neck and left shoulder work-related conditions every three to four months. He related 

that appellant had no maintenance massage therapy for two months due to the coronavirus 

pandemic, but that he had resumed treatment once per week and was feeling better.

In prescription notes dated August 5, 2020, and January 15, 2021, Dr. Rook ordered 

massage therapy.

In a development letter dated January 27, 2021, OWCP listed appellant’s accepted 

conditions, and informed appellant of the deficiencies of his request for massage therapy. It noted 

that while massage therapy had been furnished for an extended period, it had not resulted in the 

anticipated increased function or decreased level of disability. OWCP requested that appellant 

submit a report containing a rationalized medical opinion that explained, inter alia, the need for 

prolonged or intensive treatment of his accepted conditions. It afforded him 30 days to respond.

OWCP subsequently received medical evidence, includingmedical records from Dr. Rook. 

In prescription notes dated October 10, 2021, and January 3, March 13 and 29, and June 22, 2022,

Dr. Rook continued to order massage therapy.

In outpatient progress notes dated February 24, May 18, August 26, and December 16, 

2021, and April 14, 2022, Dr. Rook addressed the need for maintenance massage therapy to treat 

appellant’s neck and left shoulder conditions. In the February 24, 2021 outpatient progress note, 

he specifically responded to OWCP’s January 27, 2021 development letter. Dr. Rook noted that 

appellant continued to suffer from left shoulder and neck problems. He reported that a left shoulder 

magnetic resonance imaging (MRI) scan demonstrated a rotator cuff tear. Dr. Rook further 

reported that a cervical MRI scan demonstrated severe spinal stenosis at the C5-6 level associated 

with severe foraminal narrowing; a thecal sac at the C5-6 level which narrowed to 6.3 millimeters 

(mm); and a thecal sac at C6-7 which narrowed to 7.4 mm. On physical examination, he observed 

a palpable spasm of the left-sided paracervical muscles extending to the left uppertrapezius. These 

muscles were soft and non-tender on the right side. There was diminished left shoulder active 

2 Appellant retired from the employing establishment in 2012.
3

range of motion compared to the right shoulder. Dr. Rook indicated that appellant required 

prolonged maintenance massage therapy once per week to help control the muscle spasm in his 

left-sided neck and left shoulder region, which was perpetuated by the underlying abnormalities 

in his cervical spine and left shoulder that were identified on MRI scans. He advised that the 

muscle spasm caused additional discomfort on top of the orthopedic abnormalities, which impaired 

appellant’s function. Dr. Rook indicated that after each massage treatment appellant had almost 

one week of clinical improvement with an overall decrease in his muscle spasm, which resulted in 

improved function in his performance of upper extremity activities. He related that appellant had

difficulty performing chores such as,shoveling snow, mowing the lawn, lower extremity dressing, 

and driving due to neck stiffness which made it difficult to look side to side and created a potential 

safety issue. Dr. Rook advised that continued massage therapy was necessary due to the 

underlying objective pathology in appellant’s cervical spine and left shoulder joint problems 

associated with his employment injury. He advised that these problems were not expected to 

spontaneously improve over time. Therefore, Dr. Rook maintained that there was no termination

date for the required maintenance treatment. Additionally, he related that surgical intervention 

was possible if appellant’s condition was not adequately controlled. Dr. Rook concluded that 

maintenance massage therapy once per week was reasonable and medically necessary to cure and 

relieve symptoms related to appellant’s work-related injury.

On July 20, 2022 Dr. Jack L. Miller, a Board-certified physiatrist serving as an OWCP 

district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and the medical 

record, including Dr. Rook’s February 24, 2021 outpatient progress note. The DMA disagreed 

with Dr. Rook’s opinion on massage therapy. He explained that with the exception of his 

February 24, 2021 report, Dr. Rook’s opinion was based on subjective findings without objective 

validation. The DMA noted that Dr. Rook did not document a physical examination of 

symptomatic areas of the neck and left shoulder. He further explained that the MRI scan results

referenced by Dr. Rook did not contain a date. The DMA maintained that, generally passive 

treatment such as, massage, wastherapeutic exercise. He concluded that appellant would be better 

served by a therapeutic home exercise program.

In additional outpatient progress notes dated August 11, 2022, Dr. Rook reiterated 

examination findings and opinion on maintenance massage therapy from his prior outpatient 

progress notes. He maintained that such treatment was reasonable and medically necessary to cure 

and relieve symptoms associated with appellant’s accepted employment injury.

OWCP, by decision dated August 22, 2022, denied appellant’s request for authorization 

for maintenance massage therapy, finding that the medical evidence of record was insufficient to 

establish that the requested therapy was necessary to treat the effects of the work-related 

conditions. 

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 

3

Id. at § 8103(a).
4

recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce 

the degree orthe 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 

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 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 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.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

4

Id.; see D.S., Docket No. 18-0353 (issued May 18, 2020); L.D., 59 ECAB 648 (2008); Thomas W. Stevens, 50 

ECAB 288 (1999).

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

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 D.S., supra note 4.

9

Id.; P.L., Docket No. 18-0260 (issued April14, 2020); D.S., supra note 4; 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); see 20 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).
5

ANALYSIS

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

OWCP accepted appellant’s occupational disease claim for cervical and left shoulder 

sprains, left shoulder impingement syndrome, left SLAP lesion, left biceps tendinitis, and 

aggravation of cervical stenosis and cervical degenerative disc disease. It authorized massage 

therapy treatment for appellant’s left shoulder, cervical, arms, and upper back conditions 

commencing March 2, 2011.

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

maintenance massage therapy to treat appellant’s accepted left shoulder and neck conditions. He 

explained in a February 24, 2021 outpatient progress note that the requested therapy was supported 

by his physical examination findings and MRI scan results. Dr. Rook noted that after each massage 

therapy treatment appellant previously received, he had nearly one week of clinical improvement 

with an overall decrease in muscle spasm in his left shoulder and neck, which improved his ability

to perform upper extremity activities. He notedthat there was no end date for the requested therapy 

as appellant’s conditions were not expected to spontaneously improve over time. Dr. Rook opined 

that the requested massage therapy treatment was reasonable and medically necessary to cure and 

relieve the accepted left shoulder and neck conditions.

By contrast, Dr. Miller, OWCP’s DMA, opined in a July 20, 2022 report, that the requested 

massage therapy was not medically necessary. He reasoned that while Dr. Rook noted appellant’s 

subjective complaints, the physician did not provide objective medical findings to support his 

opinion on massage therapy. The DMA recommended a therapeutic home exercise program which 

would better treat appellant’s accepted neck and left shoulder conditions.

As Dr. Miller, OWCP’s DMA, and Dr. Rook, appellant’s attending physician, disagreed as 

to whether appellant’s request for maintenance massage therapy was medically warranted for the 

treatment of his accepted neck and left shoulder 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.
6

ORDER

IT IS HEREBY ORDERED THAT the August 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: May 22, 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