United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Long Beach, CA, Employer

__________________________________________

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Docket No. 23-0204

Issued: September 5, 2023

Appearances: Case Submitted on the Record

Kelley Craig, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 28, 2022 appellant, through counsel, filed a timely appeal from a June 7, 

2022 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 June7, 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

ISSUE

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

C3-4 anterior cervical discectomy and fusion.

FACTUAL HISTORY

On April 22, 2005 appellant, then a 44-year-old supervisory entry officer, filed a traumatic 

injury claim (Form CA-1) alleging that she was lifting large heavy reports from a shelf when she 

pulled her left shoulder, neck, and back while in the performance of duty. She stopped work that 

same day and returned on April 25, 2005. OWCP initially accepted the claim for herniated discs 

at the C5-6 and C6-7 levels and cervical discogenic pain. It later expanded the acceptance of the 

claim to include chronic pain syndrome; displacement of cervical intervertebral disc without 

myelopathy; other and unspecified disc disorders, cervical region; other psychogenic pain;sprain 

of shoulder and upper arm, unspecified site, left; cervical spondylosis without myelopathy; and 

major depression. OWCP paid appellant wage-loss compensation on the supplemental rolls as of 

June 20, 2005, and on the periodic rolls as of October 2, 2005.

OWCP authorized anterior cervical complete discectomy C4-5, C5-6, and C6-7, partial 

vertebrectomy C4, C5, C6, and C7, fusion with allograft bone C4-5, C5-6, and C6-7, and anterior 

rigid fixation of C4-7 with Hallmark plate, performed on April 25, 2006. It authorized 

reexploration of cervical wound with removal of bone plug and repairs of left foraminal 

cerebrospinal fluid leak and reassemble bone grafting and cervical plate performed on 

April 27, 2007. OWCP authorized removal of anterior fixation plate C4-7, debridement, 

inspection of arthrodesis C4-5, C5-6, takedown of pseudoarthrosis C6-7 with partial vertebrectomy 

C6 and 7, redo fusion at C6-7 with allograft and trinity bone matrix, and placement of anterior 

fixation plate C6-7, performed on April 24, 2007. It authorized left shoulder surgery performed

on April 23, 2011 and left C4-5 hemilaminotomy and left C4-5, C5-6 posterior cervical

foraminotomy and medial fasciectomy performed on March 2, 2012. 

On February 22, 2017 OWCP received a request for authorization for C3-4 anterior 

cervical discectomy and fusion from the treating physician, Dr. Tariq Javed, a Board-certified 

neurosurgeon. 

On February 22, 2017 OWCP referred the surgical request, appellant’s medical records,

and a statement of accepted facts (SOAF) to Dr. Arnold T. Berman, a Board-certified orthopedic 

surgeon acting as the district medical adviser (DMA).

In a February 27, 2017 report, the DMA, Dr. Berman, noted that appellant had undergone 

several surgeries. He noted an April 27, 2007 reexploration of cervical wound with removal of 

bone plug, repairs of left foraminal cerebrospinal fluid leak, and reassembly of bone grafting and 

cervical plate, with a postoperative diagnosis of status post revision fusion cervical C6-7 with C6-7 

cerebrospinal fluid leak. The DMA also noted that on March 2, 2012 appellant underwent a left 

C4-5 hemilaminotomy and left C4-5, C5-6 posterior cervical foraminotomy and medial 

fasciectomy; a C4-5, C5-6 posterior arthrodesis; a C4-5, C5-6 posterior instrumentation with 

lateral mass screws and rods; micellized autologous local bone graft plus morcellized allograft

(demineralized bone matrix putty), with intraoperative fluoroscopy with professional

interpretation and intraoperative nerve physiologic monitoring, including somatosensory evoked 

potentials and motor evoked potentials monitoring; and a postoperative diagnosis of C4-5, C5-6 
3

pseudoarthrosis and left C4-5, C5-6 foraminal stenosis. Dr. Berman explained that, because of the 

complex nature of the case and multiple failed procedures, including infection, he disagreed with 

the surgical request from Dr. Javed, and opined that it would be appropriate to obtain additional 

studies and to consider other measures prior to additional surgical intervention. The DMA

recommended an electromyography (EMG) study to determine the specific level of radiculopathy

and whether or not the pain that appellant was experiencing was in fact emanating from the disc 

level under consideration at C3-4. Dr. Berman also recommended a computerized tomography 

(CT) scan of the cervical spine with sagittal reconstruction to more precisely determine the exact 

nature of the pathology, both at the level of the proposed surgery and at the levels of the prior 

surgical interventions. 

Following further development, OWCP received an August 21, 2017 clarification report 

from the DMA. Dr. Berman noted that the February 2, 2015 nerve conduction velocity (NCV) 

studies of the median and ulnar nerve were normal and the August 26, 2015 EMG, and NCV of 

the right upper extremity were normal. The DMA also noted that an April 17, 2017 repeat CT

scan of the cervical spine, when compared with the December 5, 2016 magnetic resonance imaging 

(MRI) scan and August 7, 2016 CT scan, continued to show solid fusion from C4 to C6, with

mature posterior osseous fusion mass present and mature inter body osseous fusion mass present 

at C4-5, C5-6, and C6-7. Dr. Berman further noted degenerative disease to a moderate degree at 

C4-5, the level of the proposed fusion, no evidence of any nerve root compression clinically or 

radiologically, and no electrodiagnostic evidence of nerve root compression. The DMA opined 

that, in view of the prior surgeries, there was no compelling reason for additional surgery, and no 

objective findings, either radiologically or clinically, that would justify additional surgery for 

radiculopathy. While Dr. Berman noted axial cervical spine pain, he explained this would be 

expected after the prior extensive fusion surgery and recommended conservative measures of 

exercise and possibly epidural steroid injections. The DMA opined that, because there was no 

evidence of disabling discogenic disease at C3-4, the requested surgery should not be performed, 

and noted that he had reviewed the diagnostic studies to reach this conclusion. 

On October 8, 2019 Dr. Javed again requested authorization for a C3-4 anterior cervical 

discectomy and fusion. He related that the likelihood of success was about 50/50 since appellant 

had undergone four prior surgical procedures and she still had chronic pain in the neck and 

radiating to the left shoulder and down the arm. Dr. Javed noted that the surgical procedure would 

most likely help her left shoulder pain, and less likely to help with her neck pain as her prior 

surgeries had increased stiffness and loss of movement of the neck. He also noted that there was 

a slight risk that appellant would have difficulty swallowing after the proposed cervical surgery. 

On November 5, 2019 OWCP referred the surgery request, appellant’s medical records, 

and the SOAF to another DMA to determine if the surgery request was medically necessary based 

on her accepted conditions. 

On November 16, 2019 Dr. Franklin M. Epstein, a Board-certified neurosurgeon serving 

as a district medical adviser (DMA), reviewed appellant’s medical record and the SOAF and 

opined that the surgery requested by Dr. Javed was not medically necessary. The DMA opined, 

“While I appreciate Dr. Javed’s candor, it is my medical opinion that the surgery proposed has 

very little chance -- much less than 50/50 -- of ameliorating this very chronic pain syndrome.”

Dr. Epstein explained that a fourth operation requires decisive and compelling pathology for

justification which was not present in this case. The DMA noted that the current imaging study 

demonstrated “mild[-]to[-]moderate” foraminal stenosis that appeared to be symmetric at C3-4
4

and this degree of stenosis surrounding the exiting C4 nerve roots was not sufficient to warrant 

implicating the pathology as the cause of the 14-year chronic pain syndrome. Dr. Epstein 

explained that the C4 root innervates neck muscles and the trapezius andprovides little innervation 

of the shoulder and no innervation of the arm, and therefore decompression of this root would not 

relieve the shoulder and arm symptoms. The DMA also noted evidence of substantial spinal cord 

injury at the C6-7 level, that would be a source of oppressive and intractable central pain referred 

to either or both upper extremities and opined that there was no surgical intervention that would

resolve this pathology. Dr. Epstein further noted that appellant had not worked since the work 

injury 14 years prior at age 45 and opined that ongoingcare should be minimized as her neurologic 

examination remained normal. 

In a development letter dated November 26, 2019, OWCP provided a copy of the DMA’s 

findings to appellant and requested that her physician respond. It afforded her and her physician 

30 days to submit the requested evidence. 

In a letter dated December 23, 2019, appellant, through counsel, requested an extension of 

time to respond to the November 26, 2019 development letter. 

In a report dated January 15, 2020, Dr. Michael S. Lott, a Board-certified pain medicine 

specialist, opined that appellant was unemployable due to the long segment fusion of the cervical 

spine with myelomalacia, moderate spinal stenosis above the fusion, and multiple left shoulder 

surgeries. 

On January 4, 2021 OWCP referred appellant to Dr. John G. Keating, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of her 

accepted employment-related conditions.

In a January 27, 2021 report, Dr. Keating reviewed the SOAF, and noted that appellant’s 

claim was accepted for cervical disc herniation at C5-6 and C6-7, sprain of the left shoulder, 

cervical spondylosis without myelopathy, cervical discogenic pain, and major depressive disorder. 

He also noted that surgery was requested for a C3-4 anterior approach for stabilization above the 

level that had already been fused. Dr. Keating opined that appellant was “not a candidate for 

further surgery today and based on the functional overlay that she displayed today on today’s 

examination. This is a fertile field for disaster in regard to adjacent segment surgery as high as 

C3-4.” He explained that he could not find any compelling clinical evidence on examination of 

an organic problem that could be improved with further surgery. Dr. Keating further explained 

that appellant’s history with prior surgery had been poor, and opined that the chances of the 

requested surgery being successful were minimal. He advised that she was permanently disabled 

from any gainful employment. 

By decision dated March 10, 2021, OWCP denied authorization for a C3-4 anterior cervical 

discectomy and fusion. Itfound that the evidence of record did not support that the surgery request 

was medically necessary to address the effects of appellant’s work-related injury or accepted 

conditions under FECA. 

On March 9, 2022 appellant, through counsel, requested reconsideration and submitted 

additional evidence. In a September 11, 2020 report, Dr. Javed explained that appellant presented 

with complaints of neck pain, bilateral trapezius, and shoulder pain, worse on the left than the 

right, and also had pain radiating down the arm, but her major complaint was neck pain and 
5

trapezius pain bilaterally. He noted her history of a prior C4-7 anterior cervical discectomy and 

fusion; a pseudoarthrosis at the C6-7 level requiring a refusion using an anterior cervical plate, a

C4-6 posterior decompression and instrumented fusion, findings of myelomalacia of the cervical 

spinal cord at the C6-7 level from her previous injury; and pain for management of some of the 

residual symptoms. Dr. Javed advised that an August 12, 2020 MRI scan showed development of 

junctional disease above and below the solid fusion at C4-7 from the prior anterior and posterior 

surgery. He diagnosed loss of disc height at C3-4 due to spondylosis, disc osteophyte complex 

anteriorly, and ligamentum flavum hypertrophy posteriorly, resulting in moderate spinal canal 

stenosis and mild-to-moderate bilateral foraminal stenosis, and disc osteophyte complex and 

spondylosis at the lower level below the fusion at C7-T1 resulting in mild spinal canal stenosis.

Dr. Javed explained that development of degenerative changes with spinal and foraminal stenosis

and spinal instability is a well-recognized complication of a fusion procedure in the spine and has 

been reported to occur at a rate of 3 percent a year and at a 10-year time interval following cervical 

fusion 20 to 25 percent of patients required additional surgery at the adjacent level in the cervical 

spine, based on the literature. He opined that appellant had developed junctional disease at the 

C3-4 level and early junctional changes at the C7-T1 level as a result of the previous C4-7 fusion

and that, if she had not required a C4-7 fusion as a result of her work injury, she would be unlikely 

to develop C3-4 spondylosis and ligamentum flavum hypertrophy resulting in neck pain and 

trapezius pain, within a reasonable degree of medical certainty. Dr. Javed explained that, although 

the C4 nerve root supplies the trapezius muscle, the cervical musculature, and the diaphragm, as 

mentioned by Dr. Epstein, the sensory distribution of the C4 nerve root also includes the neck and 

shoulder area, and patients with C3-4 stenosis and C4 cervical radiculopathy often have pain in 

both shoulders and the trapezius muscle causing the type of symptoms appellant was experiencing. 

He concurred with Dr. Epstein that appellant had some residual symptoms as a result of the 

myelomalacia changes seen at the C6-7 level, but her major complaint was neck pain in the 

trapezius muscle and shoulder region which was consistent with the radiological abnormality seen 

at the C3-4 level. Dr. Javed opined within a reasonable degree of medical certainty that the C3-4 

cervical spondylosis with moderate spinal stenosis accounted for the neck pain and the pain in the 

trapezius muscles and shoulder region, and had more than 50 percent chance of being helped by 

the surgery. He noted that appellant was fully aware that she would never obtain complete relief 

of all of the arm symptoms and some of the neck pain, but had been through a lengthy period of

nonsurgical treatments none of which had produced a reduction in her neck pain, trapezius pain,

and shoulder pain. Dr. Javed opined that, “based on my examination evaluation of [appellant’s]

radiological studies and review of a previous history that within a reasonable degree of medical 

certainty that a C3-4 anterior cervical discectomy and fusion would produce more than 50 percent 

relief of her neck pain trapezius pain and bilateral shoulder pain, but would not relieve the pain in 

her hands or numbness in her hands.”

In a March 2, 2022 report, Dr. Lott diagnosed spondylosis without myelopathy or 

radiculopathy, cervical region, other cervical disc disorder, chronic pain syndrome, and other longterm drug therapy. He noted that Dr. Javed recommended C3-4 surgery in September 2020, and 

it was denied by OWCP on two separate occasions. Dr. Lott recommended the surgery request be 

approved to address the left cervical radiculopathy.

In a March 11, 2022 report, Dr. Javed noted that appellant had undergone an anterior 

cervical discectomy fusion procedure from C4-5, C5-6, and C6-7, and posterior cervical surgery 

with lateral mass screw placement at the C4-5 and C5-6 level due to a work-related injury in 2005.

He noted that she was seen in his office in 2015 with complaints of neck pain associated with pain 
6

radiating into both shoulders, with right shoulder pain worse than the left, and her examination 

revealed quite significant restriction of motion of the cervical spine due to neck pain. Dr. Javed 

explained that cervical spine x-rays confirmed a solid fusion from C4-5 through C6-7 and anterior

cervical titanium plate fixation at the C6-7 level. He found cervical spondylosis at the C2-3 and 

C3-4 levels, and noted that an MRI scan of the cervical spine showed a moderately large diffuse 

disc osteophyte complex at C3-4, along with ligamentum flavum hypertrophy, resulting in 

moderate spinal canal and bilateral foraminal stenosis. Dr. Javed also found a small disc bulge at 

the C2-3 level, spondylosis at the C7-T1 level, and junctional disease at the level above her 

previous fusion, causing her neck pain and bilateral shoulder pain. He noted that appellant failed 

to respond to a lengthy period of nonsurgical treatment. Dr. Javed opined within a reasonable 

degree of medical certainty that she had approximately 50 to 60 percent chance of improvement 

of her neck pain and shoulder pain from an anterior cervical discectomy and fusion to decompress 

the spinal canal, and stabilize the cervical spine at the C3-4 level. He explained that the surgery 

was unlikely to relieve all of appellant’s neck pain symptoms, but had a reasonably good chance

with a reasonable degree of medical certainty of relieving her shoulder pain which was one of her

major complaints. Dr. Javed noted that he discussed with her at length the potential benefits and 

risks of the surgery, and she was willing to proceed with the surgery. He indicated that he 

disagreed with Dr. Keating’s opinion that a C3-4 anterior cervical discectomy and fusion is a 

“fertile field for disaster in regard to adjacent segment surgery as high as C3-4” and explained that

Dr. Javed had performed over three thousand anterior cervical procedures, many of which had

been at the C2-3 and C3-4 levels and in patients that had prior cervical procedures. Dr. Javed 

opined that, although there was a slightly high risk of complications in patients who had multiple 

surgeries in the cervical spine, he felt the requested surgery could be performed with a relatively 

low risk of complications.

By decision dated June 7, 2022, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT

Section 8103 of FECA4 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.5 In interpreting this section of FECA, the 

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

section 8103, and the only limitation on OWCP’s authority is that of reasonableness.6

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 

4

Supra note 2.

5

5 U.S.C. § 8103(a); see C.G., Docket No. 20-0784 (issued May 11, 2021); M.P., Docket No. 19-1557 (issued 

February 24, 2020); M.B., 58 ECAB 588 (2007).

6 B.I., Docket No. 18-0988 (issued March 13, 2020);see also Daniel J. Perea, 42 ECAB 214, 221 (1990) (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).
7

an employment-related injury or condition.7 Proof of causal relationship in a case such as this 

must include supporting rationalized medical evidence.8 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.9

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.10

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for authorization for a 

C3-4 anterior cervical discectomy and fusion.

In support of her request for authorization for C3-4 anterior cervical discectomy and fusion, 

appellant submitted a September 11, 2020 report from Dr. Javed, who opined that a C3-4 anterior 

cervical discectomy and fusion would produce more than 50 percent relief of her neck pain,

trapezius pain, and bilateral shoulder pain, but would not relieve the pain or numbness in her hands. 

In a March 11, 2022 report, Dr. Javed opined that she had an approximately 50 to 60 percent 

chance of improvement of her neck pain and shoulder pain from an anterior cervical discectomy 

and fusion to decompress the spinal canal and stabilize the cervical spine at the C3 -4 level. 

Appellant also provided a March 2, 2022 report from Dr. Lott, who recommended that the surgery 

request from Dr. Javed be approved to address the left cervical radiculopathy. However, these 

reports do not contain a rationalized medical opinion that the surgery was for an accepted condition 

or necessitated by the accepted April 21, 2005 employment injury.11

In his September 11, 2020 report, Dr. Javed advised that an August 12, 2020 MRI scan 

showed development of junctional disease above and below the solid fusion at C4-7 from the prior 

anterior and posterior surgery. He diagnosed loss of disc height at C3-4 due to spondylosis, disc 

osteophyte complex anteriorly, and ligamentum flavum hypertrophy posteriorly, resulting in 

moderate spinal canal stenosis and mild-to-moderate bilateral foraminal stenosis. Dr. Javed 

explained that development of degenerative changes with spinal and foraminal stenosis and spinal 

instability is a well-recognized complication of a fusion procedure in the spine and has been 

7

J.M., Docket No. 20-0565 (issued November 5, 2020); see R.M., Docket No. 19-1319 (issued December 10, 

2019); Debra S. King, 44 ECAB 209 (1992); Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981).

8 K.W., Docket No. 18-1523 (issued May 22, 2019); BerthaL. Arnold, 38 ECAB 282 (1986); ZaneH. Cassell, id.

9 P.L., Docket No. 20-0392 (issued October 28, 2020); see T.A., Docket No. 19-1030 (issued November 22, 

2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

10 See J.K., Docket No. 20-1313 (issued May 17, 2021); D.S., Docket No. 18-0353 (issued February 18, 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 6.

11 See L.W., Docket No. 21-0607 (issued October 18, 2022); see T.H., Docket No. 18-0704 (issued 

September 6, 2018). See also L.B.,Docket No. 18-0533 (issued August 27, 2018); D.K.,Docket No. 17-1549 (issued 

July 6, 2018); Charles H. Tomaszewski, 39 ECAB 461 (1988).
8

reported to occur at a rate of 3 percent a year and at a 10-year time interval following cervical 

fusion 20 to 25 percent of patients required additional surgery at the adjacent level in the cervical 

spine, based on the literature. He opined that appellant had developed junctional disease at the 

C3-4 level as a result of the previous C4-7 fusion and that, if she had not required a C4-7 fusion 

as result of her work injury, she would be unlikely to develop C3-4 spondylosis and ligamentum 

flavum hypertrophy. However, in his report dated July 27, 2022, Dr. Javed explained that cervical 

spine x-rays confirmed a solid fusion from C4-5 through C6-7 and anterior cervical titanium plate 

fixation at the C6-7 level. The Board finds that his opinion that appellant developed C3-4 

conditions due to her C4-7 conditions is not rationalized in light of his finding that she had a solid 

fusion at C4-7. 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.12 In this case, she has not 

shown how the requested surgical procedure is due to the effects of an employment-related injury 

or condition.13

The Board notes that the DMA, Dr. Berman, in a February 27, 2017 report, disagreed with 

the surgical requests from Dr. Javed and explained that, because of the complex nature of the case 

and multiple failed procedures, including infection, it would be appropriate to obtain additional 

studies and to consider other measures prior to additional surgical intervention. In an August 21, 

2017 report, Dr. Berman explained that there was no compelling reason for additional surgery and 

no objective findings, either radiologically or clinically, that would justify additional surgery for 

radiculopathy. He further opined that, because there was no evidence of disabling discogenic 

disease at C3-4, the requested surgery should not be performed.

The Board further notes that the DMA, Dr. Epstein, in a November 16, 2019 report, opined 

that the surgery requested by Dr. Javed was not medically necessary and had “very little chance 

-- much less than 50/50 -- of ameliorating this very chronic pain syndrome.” Dr. Epstein explained 

that a fourth operation required decisive and compelling pathology for justification that was not 

present in this case.

Furthermore, Dr. Keating, the second opinion physician, in his January 27, 2021 report, 

noted that surgery was requested for a C3-4 anterior approach for stabilization above the level that 

had already been fused, and opined that appellant was not a candidate for further surgery, based 

on the functional overlay that she displayed on examination. He explained that, “This is a fertile 

field for disaster in regard to adjacent segment surgery as high as C3-4” and that he could not find 

any compelling clinical evidence of an organic problem that could be improved with further 

surgery.

The Board finds that appellant has not shown that the requested procedures were causally 

related to the employment injury, and that the requested procedure was medically warranted. The 

Board therefore finds that there is no evidence that OWCP abused its discretion in denying 

authorization for her requested a C3-4 anterior cervical discectomy and fusion.14

12 Supra note 7.

13 Id.

14 S.W., Docket No. 18-1529 (issued April 19, 2019); Rosa Lee Jones, 36 ECAB 679 (1985).
9

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that OWCP did not abuse its discretion in denying appellant’s request for 

authorization for a C3-4 anterior cervical discectomy and fusion.

ORDER

IT IS HEREBY ORDERED THAT the June 7, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: September 5, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board