United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.V., Appellant

and

U.S. POSTAL SERVICE, HIGHLAND POST 

OFFICE, Albuquerque, NM, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 22-0797

Issued: September 8, 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

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 25, 2022 appellant filed a timely appeal from a February 22, 2022 merit decision 

of the Office of Workers’Compensation Programs (OWCP).

1

 Pursuant to the Federal Employees’

Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to 

consider the merits of this case.

ISSUE

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

treatment of her medical conditions.

1 The Board notes that following the February 22, 2022 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

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On June 2, 1999 appellant, then a 37-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging on that date he injured his back while in the performance of duty.3 OWCP 

accepted the claim for back strain/sprain. It later expanded the acceptance of the claim to include 

lumbar spondylosis. Appellant returned to work on May 22, 2002.

On March 28, 2002 appellant filed a claim for a recurrence of disability (Form CA-2a) 

alleging that on March 18, 2002 he developed an additional right shoulder condition due to his 

April 23, 1997 and June 2, 1999 employment injuries. He stopped work on March 18, 2002 and 

returned to light-duty work on June 3, 2002. Appellant retired in August 2002 and received 

disability retirement benefits from the Office Personnel Management.

After development of the claim, OWCP, by decision dated March 18, 2003, accepted that 

appellant sustained a recurrence of disability during the period February 26 through May 22, 2002. 

Appellant continued to seek OWCP-approved treatment for his accepted right shoulder and 

low back conditions.

On April 12, 2019 appellant underwent a lumbar spine magnetic resonance imaging (MRI) 

scan which demonstrated discogenic endplate changes at L2-3, broad disc osteophyte complex and 

left-sided extruded fragment at L2-3, bilateral facet arthrosis at L3-4, L4-5, and L5-S1 with 

minimal central disc protrusion at L4-5 and lumbar spondylosis at L2-3.

In an August 9, 2019 report, Dr. Jonas Skardis, an osteopath specializing in pain medicine, 

recounted his findings on examination of appellant’s low back and right shoulder. He noted that 

appellant underwent RFA in May and that he found this procedure painful with insignificant 

symptom improvement. On physical examination,Dr. Skardis found, via ultrasound, partial width 

full-thickness distal tearing of the supraspinatus tendon, tearing of the subscapularis, with 

tendinosis, tearing of the biceps tendons and deltoid tendons. He opined that these additional right 

shoulder conditions were caused by the accepted employment injury.

In reports dated June 12 and July 15, 2020, appellant’s attending physician, Dr. David A. 

Woog, specializing in anesthesiology, diagnosed lumbosacral spondylosis without myelopathy. 

He recounted appellant’s history of medical treatment including RFA. Dr. Woog noted that 

appellant had benefited from RFA in the past, and agreed to repeat this procedure.

On July 16 and 24, 2020 Dr. Woog performed RFA on L3, L4, and L5 on the right and left 

lumbar medial branches, respectively. He recommended an additional epidural steroid injection 

at L5-S1. In a September 22, 2020 report, Dr. Woog recounted appellant’s symptoms following 

RFA and found that he believed that the RFA went very well.

3 OWCP assigned the present claim OWCP File No. xxxxxx896. Appellant has previously-accepted claims under 

OWCP File No. xxxxxx469 for an April 23, 1997 right shoulder strain, OWCP File No. xxxxxx560 for a December 1, 

1999 thoracic strain, and OWCP File No. xxxxxx720 for lumbar spondylosis developing from employment activities 

beginning in May 8, 1995. OWCP administratively combined OWCP File Nos. xxxxxx469, xxxxxx560, xxxxxx720 

and xxxxxx896, with the latter designated as the master file.
3

On November 3, 2020 and April 6, 2021Dr. Sann R. Gossum, a Board-certified orthopedic 

surgeon, recommended right shoulder arthroscopy, including biceps tenodesis, due to the 

diagnosed conditions of biceps tendinitis of the right shoulder and labral tear of the long head of 

the right biceps tendon.

In an April 1, 2021 note, Dr. Theresa Genovese-Elliott, a physician Board-certified in pain 

medicine, examined appellant due to his lumbar spondylosis and recommended an additional MRI 

scan. An April 17, 2021 MRI scan of the lumbar spine demonstrated mild degenerative changes

with left lateral disc extrusion at L2-3 with lateral recess stenosis and impingement of the L3 root.

On May 3, 2021 OWCP approved appellant’s request for right shoulder arthroscopy. He 

underwent this procedure on May 17, 2021 due to biceps tendinosis of the right shoulder.

On May 12, 2021 Dr. Genovese-Elliott reviewed the April 17, 2021 MRI scan. She noted 

that appellant had frequent RFA procedures through Dr. Whalen, and that he was adamant that 

these were helpful, but explained that she would not be able to perform extensive RFA procedures 

bilaterally. Dr. Genovese-Elliott requested L3, L4, and L5 RFA procedures in two different 

appointments.

OWCP by development letter dated June 4, 2021, informed appellant that it was unable to 

authorize his request for RFA procedures because the evidence of record was insufficient to 

establish that the proposed procedures were medically necessary for his accepted employment 

conditions. It advised him of the type of medical evidence needed to authorize the request.

On June 9, 2021 Dr. Gossum requested physical therapy following appellant’s OWCPauthorized right shoulder surgery. On July 6, 2021 OWCP informed appellant that it had approved 

physical therapy for the right shoulder.

On July 7, 2021 OWCP referred appellant, along with a statement of accepted facts

(SOAF) and a list of questions to Dr. Keith W. Harvie, an osteopath and a Board-certified 

orthopedic surgeon, for a second opinion evaluation to assess his accepted work-related conditions, 

the extent of disability, and the need for further treatment including RFA.

In an August 24, 2021 report, Dr. Harvie recounted appellant’s history of injury and 

medical history. He diagnosed right shoulder superior labrum from anterior to posterior tear, 

biceps tendon degeneration, right shoulder sprain, rotator cuff tear, impingements syndrome, 

chronic pain, and depression as related to the accepted employment injuries. Dr. Harvie noted that 

OWCP had cancelled right shoulder physical therapy and found that appellant would eventually 

require a reverse total right shoulder replacement surgery. He opined that lumbar facet injection 

and additional lumbar RFA procedures did not produce any long-term improvements and, 

therefore, should not be authorized.

By decision dated September 22, 2021, OWCP denied authorization for treatment of 

appellant’s accepted medical conditions.

OWCP received a note dated October 5, 2021, wherein Dr. Gossum reported that he had 

referred appellant for physical therapy following his right shoulder surgery and that OWCP had 

denied this request. Dr. Gossum again requested right shoulder physical therapy.
4

On October 18, 2021 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review.

OWCP received a November 12, 2021 report from Dr. Woog, diagnosingspondylosis with 

radiculopathy, lumbar region and again requesting RFA.

By decision dated February 22, 2022, OWCP’s hearing representative reviewed the written 

record and affirmed the September 22, 2021 decision. It found only that the medical evidence did 

not support that the requested RFA procedures were causally related to, and medically necessary 

to, treat appellant’s accepted medical conditions. 

LEGAL PRECEDENT

Section 8103(a) of FECA4 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 in the amount of monthly compensation. 5 

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.6

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.7

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.8 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. 9 In order to be entitled to 

reimbursement for medical expenses, a claimant must establish that the expenditures were incurred 

for treatment of the effects of an employment-related injury by submitting rationalized medical 

4

5 U.S.C. § 8103.

5

See R.B., Docket No. 21-0598 (issued May 19, 2022); N.G., Docket No. 18-1340 (issued March 6, 2019).

6

See K.E., Docket No. 21-1266 (issued May 13, 2022); D.K.,Docket No. 20-0002 (issued August 25, 2020); R.M., 

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

7

20 C.F.R. § 10.310(a); Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, 

Chapter 3.400.3.d(5) (October 1995); id. at Chapter 2.810.17.h (June 2014); K.E., id.; J.M., Docket No. 20-0457 

(issued July 16, 2020); D.W., Docket No. 19-0402 (issued November 13, 2019).

8

See D.C., Docket No. 20-0854 (issued July 19, 2021); C.L., Docket No. 17-0230 (issued April24, 2018); D.K.,

59 ECAB 141 (2007).

9

See K.E., supra note 6; D.K., supra note 6; A.W., Docket No. 16-1812 (issued March 15, 2017).
5

evidence that supports such a connection and demonstrates that the treatment is necessary and 

reasonable.10

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 to produce a contrary factual conclusion.11

FECA provides that OWCP shall determine and make a finding of fact and make an award 

for or against payment of compensation after considering the claim presented by the employee and 

after completing such investigation as it considers necessary with respect to the claim. 12 The 

reasoning behind OWCP’s evaluation should be clear enough for the reader to understand the 

precise defect of the claim and the kind of evidence which would overcome it.13

ANALYSIS

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

OWCP undertook development of the claim by referring appellant for a second opinion 

examination with Dr. Harvie. In his August 24, 2021 report, Dr. Harvie indicated that he had 

reviewed the SOAF and medical records. In regard to the request for RFA, he concluded, without 

rationale, that lumbar facet injections and additional lumbar RFA procedures did not produce any 

long-term improvements.

Dr. Harvie’s August 24, 2021 report, therefore failed to sufficiently address the underlying 

issue of whether the proposed RFA procedures were causally related to appellant’s accepted 

lumbar spondylosis and medically necessary to treat this condition.14 The Board, therefore, finds 

that his opinion is insufficient to carry the weight of the medical evidence. 15

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter.16 While the claimant has the responsibility to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence. It has the obligation to see that 

10 K.E.; id.; M.G., Docket No. 18-0099 (issued April 26, 2018); see Debra S. King, supra note 6.

11 See E.F., Docket No. 20-1680 (issued November 10, 2021); J.L.,Docket No. 18-0503 (issued October 16, 2018).

12 5 U.S.C. § 8124(a).

13 20 C.F.R. § 10.126; Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 

(February 2013).

14 See M.T., Docket No. 20-0321 (issued April26, 2021); D.T., Docket No. 20-0234 (issued January 8, 2021).

15 See M.T., id.; M.G., Docket No. 19-1791 (issued August 13, 2020).

16 M.T., id.; N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 

2019); B.A., Docket No. 17-1360 (issued January 10, 2018).
6

justice is done.17 Because Dr. Harvie, serving as OWCP’s second opinion examiner, has not

provided a rationalized opinion, the Board finds that the case must be remanded to OWCP for 

further development.

On remand OWCP shall request a supplemental report from Dr. Harvie to obtain a 

rationalized medical opinion on whether appellant’s request for authorization of RFA is medically 

necessary due to his accepted employment injuries. If Dr. Harvie is unavailable or unwilling to 

provide a supplemental opinion, OWCP shall refer appellant, together with a SOAF and a series

of questions, to a second opinion physician in the appropriate field of medicine for a rationalized 

opinion on this issue.

The Board further finds that OWCP’s hearing representative’s February 22, 2022 decision 

did not discharge its responsibility to set forth findings of fact and a clear statement of reasons 

explaining the disposition, so that appellant could understand the basis for the decision as well as 

the precise defect and the evidence needed to overcome it.18 The hearing representative did not 

make findings regarding the issue of whether or not appellant was entitled to physical therapy for 

his accepted right shoulder conditions and OWCP-approved surgery.19 He denied appellant’s 

claim without complying with the review requirements of FECA and its implementing regulations. 

The case shall therefore be remanded to OWCP for a proper decision, to include findings 

of fact and a clear and precise statement of reasons as to whether appellant is entitled to physical 

therapy for his right shoulder. 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.

17 M.T., id.; S.S.,Docket No. 18-0397 (issued January 15, 2019); see also DonaldR. Gervasi, 57 ECAB 281, 286 

(2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

18 See R.M., Docket No. 20-0163 (issued July 17, 2019); M.J.,Docket No. 18-0605 (issued April12, 2019); K.J.,

Docket No. 14-1874 (issued February 26, 2015). See also J.J., Docket No. 11-1958 (issued June 27, 2012).

19 Supra note 14.
7

ORDER

IT IS HEREBY ORDERED THAT the February 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 8, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board