United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.J., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

HUNTINGTON MEDICAL CENTER, 

Huntington, WV, Employer 

__________________________________________ 

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Docket No. 14-1643 

Issued: April 9, 2015 

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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On July 21, 2014 appellant filed a timely appeal of a May 1, 2014 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 the case. 

ISSUE 

The issue is whether appellant established that she was entitled to disability compensation 

for intermittent hours from July 5 to December 18, 2012 when she attended aquatic therapy. 

FACTUAL HISTORY 

On June 12, 2005 appellant, then a 47-year-old nurse, tripped on a floor mounted door 

stop and twisted her knee while in the performance of duty. OWCP accepted her claim for a left 

knee medial meniscus tear and medial collateral ligament sprain. Appellant underwent 

 1

 5 U.S.C. §§ 8101-8193. 
2

arthroscopic surgery on October 19, 2005. She returned to light-duty work and received 

intermittent wage-loss compensation for periods that she did not work. 

Dr. Allen Young, a Board-certified orthopedist, treated appellant beginning July 8, 2005. 

He noted the work injury and diagnosed sprain of the knee and leg, dislocation of the patella, and 

left knee medial meniscus tear. A left knee magnetic resonance imaging (MRI) scan revealed 

grade 2 medial collateral ligament sprain and possible small peripheral tear of the medial 

meniscus, and low grade chondromalacia patella. On October 19, 2005 Dr. Charles E. 

Giangarra, a Board-certified orthopedist, performed a partial medial meniscectomy and 

chondroplasty of the left knee. He diagnosed torn medial meniscus of the left knee and 

degenerative joint disease of the left knee. 

On September 19, 2005 Dr. Giangarra requested authorization for aquatic therapy from 

September 26 to October 26, 2005 and February 10 to March 25, 2006, twice a week. OWCP 

authorized the treatment. In requests dated March 28 and October 29, 2008 and September 2, 

2009, Dr. Young requested aquatic therapy twice a week from January 8, 2008 to April 29, 2009. 

On January 28, 2010 OWCP authorized 21 units of aquatic therapy from January 8 to 

March 27, 2008. 

Appellant submitted a (Form CA-7), claim for compensation, for leave without pay for 

the time that she attended water therapy for the period April 3, 2009 to January 21, 2010 and 

January 26 to October 21, 2010. These claims were partially paid.2

 

Appellant submitted reports from Dr. Young from June 8, 2010 to February 14, 2011, 

who diagnosed sprain of other sites of the left knee and leg, and tear of the left knee medial 

cartilage or meniscus. Dr. Young noted that she was overweight with mild-to-moderate 

tenderness of the left knee medially. He continued appellant’s aqua therapy as it helped her stay 

active and continued modified work duties. Dr. Young continued submitting orders for aquatic 

therapy twice a week. 

Appellant submitted CA-7 forms claiming compensation for intermittent leave without 

pay for the periods June 30, 2011 to June 30, 2012 and October 18, 2011 to April 12, 2012. 

These claims were partially paid.3

 

Appellant submitted reports from Dr. Young dated August 14 and November 26, 2012, 

who noted findings on physical examination of obesity, and a limp with mild-to-moderate 

 2

 In a March 4, 2011 decision, OWCP granted appellant’s claim for wage-loss compensation incidental to medical 

treatment for 2.25 hours on February 9, 2010, 2.5 hours on June 8, 2010, and 2.5 hours on October 4, 2010. It 

denied compensation multiple other dates. On September 7, 2011 an OWCP hearing representative affirmed the 

March 4, 2011 decision with regard to denying compensation for the dates of February 23 and June 10, 2010, and 

reversed the decision and granted compensation for other claimed dates from January 22 to October 21, 2010. 

3

 On December 4, 2012 OWCP denied appellant’s claim for intermittent wage-loss compensation from June 30, 

2011 to June 30, 2012. It noted that it had previously granted compensation for 2.5 hours on September 14, 2011. 

On April 2, 2013 an OWCP hearing representative affirmed the December 4, 2012 decision with regard to August 9, 

October 11 and 25, November 17, and December 14, 15 and 22, 2011, January 5, May 10 and 17, 2012. The 

hearing representative set aside the decision with regard to the other dates and instructed OWCP to request that 

Dr. Young submit a report that addressed appellant’s need for aqua therapy for the period June 30, 2011 to 

June 30, 2012. 
3

tenderness medially. She reported stopping aqua therapy and having increased pain in both 

knees. Appellant noted that she changed jobs at the employing establishment and was on her 

feet. Dr. Young diagnosed left knee and leg sprain and tear of the medial meniscus of the left 

knee. He ordered that appellant return to aqua therapy twice a week for six months. Appellant 

submitted orders from Dr. Young dated December 14, 2011 and April 27, 2012 requesting 

authorization for aquatic therapy twice a week for six months. 

On April 18, 2013 appellant submitted a CA-7 form, claiming 88.5 hours of 

compensation for the period July 5 to December 18, 2012. She requested compensation for leave 

without pay for two hours per day on July 5, August 14, 28 and 30, October 16, November 27 

and December 11, 2012; 2.5 hours for November 26, 2012; and three hours for August 7, 9, 16 

and 23, September 4, 6, 11, 20 and 27, October 2, 9, 11, 18, 23, 25 and 30, November 1, 6, 15 

and 20, and December 4, 6, 13 and 18, 2012. 

In an April 19, 2013 letter, OWCP requested that Dr. Young provide medical rationale as 

to why appellant continued to need aqua therapy in relation to her work injury. It requested that 

he address whether aqua treatment was medically necessary for her work injury of June 12, 2005 

and, if so, asked that he provide rational supporting that opinion with objective findings. 

In a letter dated April 23, 2013, OWCP requested that appellant submit medical evidence 

establishing partial disability from July 5 to December 18, 2012. It authorized payment for 

August 14, 2012 for two hours and November 26, 2012 for 2.5 hours.4

Appellant submitted a March 25, 2013 report from Dr. Young who continued to treat her 

for pain and stiffness in the left knee and noted that she was doing poorly. She reported 

continuing aqua therapy twice a week which kept her knee loose. Dr. Young noted findings of 

obesity, a limp, and mild to moderate tenderness medially. He diagnosed left knee and leg 

sprain, and a left medial meniscus tear. Dr. Young continued aqua therapy twice a week for six 

months so appellant could remain active and have less pain. 

In a May 31, 2013 decision, OWCP denied appellant’s claim for compensation for the 

period June 30, 2011 to June 30, 2012. On August 1, 2013 an OWCP hearing representative set 

aside the May 31, 2013 decision and remanded the matter for further medical development. The 

hearing representative instructed OWCP to refer appellant to a second opinion physician for a 

determination of the relationship between her current symptoms and the 2005 work injury, the 

need for aqua therapy, the need for surgery, and work restrictions due to the 2005 work injury. 

Appellant submitted June 21 and July 22, 2013 reports from Dr. Young, who noted that 

appellant reported pain and stiffness in both knees. Dr. Young recommended aqua therapy twice 

a week because it kept appellant more functional and active. He noted that findings were 

unchanged and he restated his previous diagnoses. Dr. Young noted that, with regard to aqua 

therapy, appellant’s knee was bad from the injury and she could not get around well. Weekly, 

aqua therapy kept appellant’s knee from stiffening and thus allowed her to continue to function 

with her knee condition at work and home. Dr. Young noted that, as the need for therapy was 

 4

 The time allowed on August 14 and November 26, 2012 correspond with dates on which Dr. Young treated 

appellant. 
4

due to the work injury and this modality kept her functional and able to work, her employing 

establishment should pay for the time she was off work to attend the aqua therapy. 

In a decision dated August 23, 2013, OWCP denied appellant’s claim for compensation 

for the period July 5 to December 18, 2012, but noted that two hours would be paid for 

November 27, 2012.5

 Appellant requested an oral hearing.6 

OWCP referred appellant to Dr. E. Gregory Fisher, a Board-certified orthopedist, for a 

second opinion. In a December 4, 2013 report, Dr. Fisher, reviewed her history and examined 

her. On examination, appellant was morbidly obese and had a waddled bilateral altered gait. 

Left knee examination revealed nontender healed puncture wounds, tenderness on palpation over 

the medial and anterior medial side, no pain on the lateral side, and no joint effusion. The knee 

was stable with negative anterior and posterior drawer signs. The Lachman’s test was negative, 

and no medial or lateral instability on varus or valgus stresses. Range of motion was limited. 

Dr. Fisher noted the medial collateral ligament sprain was a soft tissue injury and healed and 

resolved within two months of the injury and was not clinically present on examination. He 

noted that the tear of the left medial meniscus was treated appropriately by the partial medial 

meniscectomy in October 2005 and that there were no clinical findings on examination of a 

medial meniscus tear. Dr. Fisher opined that the accepted conditions were no longer present and 

resolved. The only residuals of the June 12, 2005 work injury were the healed left knee puncture 

wounds. Dr. Fisher opined that appellant was able to perform her full duties based on 

examination findings and a review of the statement of accepted facts, job requirements and 

obtaining a functional history. He stated that she did not have medical restrictions from the 

June 12, 2005 work injury. Dr. Fisher noted that appellant reached maximum medical 

improvement in early 2006 after returning to work. There were no treatment recommendations 

for the work-related medial meniscus tear and medial collateral ligament sprain of the left knee 

since these injuries were no longer clinically present. Dr. Fisher noted that aqua therapy was 

prescribed after a meniscectomy for no more than 12 visits in a 12-week period and indicated 

that appellant had aqua therapy twice a week for over seven years which was excessive and 

patient dependent. He reiterated that no further treatment was necessary for the accepted 

conditions as they were no longer present and any treatment for the left knee was due to 

nonwork-related conditions. In a work capacity evaluation Dr. Fisher noted that appellant could 

work full time subject to restrictions that were not work related. 

On February 20, 2014 OWCP issued a notice of proposed termination of compensation 

benefits on the grounds that Dr. Fisher’s report dated December 4, 2013 established no residuals 

of the work-related employment conditions.7

 

 5

 Dr. Young treated appellant on November 27, 2012. 

6

 On October 31, 2013 appellant claimed intermittent wage-loss compensation from January 2 to 

September 26, 2013. On November 12, 2013 OWCP authorized payment for 2.5 hours on March 25 and July 22, 

2013 for medical appointments with Dr. Young. In a January 31, 2014 decision, it denied the claim for 

compensation for the period January 2 to September 26, 2013. On February 10, 2014 appellant requested an oral 

hearing. OWCP issued no decision with respect to the hearing request prior to the filling of the instant appeal. 

7

 OWCP issued no final decision with respect to this proposal prior to the filling of the instant appeal. 
5

In a letter dated March 14, 2014, appellant requested reimbursement for leave without 

pay for the time that she attended water therapy. She asserted that the water therapy classes and 

pain medications allowed her to work. Appellant also asked that her right knee be included in 

her claim as a consequential injury. She submitted reports from Dr. Young dated August 14 and 

November 26, 2012 and June 21 and July 22, 2013, all previously of record. Appellant 

submitted orders from Dr. Young dated August 14 and November 26, 2012, March 25, July 22 

and October 10, 2013 and February 26, 2014, which prescribed aquatic therapy. 

Appellant also provided reports from Dr. Young. An April 27, 2012 report from 

Dr. Young noted no changes on examination and diagnosed left knee sprain and tear of the 

medial meniscus. He continued aqua therapy and regular modified duty. An October 10, 2013 

report from Dr. Young restated appellant’s diagnoses and related that she reported continuing 

aqua therapy kept her knee loose and avoided more aggressive treatment. He continued aqua 

therapy twice a week. On February 26, 2014 Dr. Young noted appellant’s continued issues with 

her left knee. Appellant reported being seen by Dr. Fisher who found that her condition had 

resolved and that aquatic therapy was not necessary. Dr. Young restated his diagnoses and 

advised that, after her left knee surgery, arthritic inflammation set in and was persisting. 

Dr. Young did not believe appellant’s weight was the issue and noted that her weight decreased 

and she still had pain. 

In a March 17, 2014 telephone hearing, appellant indicated that she was not currently 

claiming reimbursement for aquatic therapy sessions, rather she was claiming the resulting wage 

loss for attending aquatic therapy due to her accepted work-related condition. 

In a decision dated May 1, 2014, the hearing representative affirmed OWCP’s decision 

dated August 23, 2013. 

LEGAL PRECEDENT 

Section 8103(a) of FECA states 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 the Secretary of Labor considers likely to cure, 

give relief, reduce the degree or the period of disability, or aid in lessening the amount of the 

monthly compensation. The Board has recognized that OWCP has broad discretion in approving 

services provided under section 8103, with the only limitation on OWCP’s authority being that 

of reasonableness.8

With respect to claimed disability for medical treatment, section 8103 provides for 

medical expenses, along with transportation and other expenses incidental to securing medical 

care for injuries. However, OWCP’s obligation to pay for medical expenses and other expenses 

incidental to obtaining medical care, such as loss of wages, extends only to expenses incurred for 

treatment of the effects of any employment-related condition. A claimant has the burden of 

proof, which includes the submission of supporting rationalized medical evidence.9 

 8 Joseph P. Hofmann, 57 ECAB 456 (2006); see 5 U.S.C. § 8103. 

9 Carol A. Lyles, 57 ECAB 265 (2005). 
6

A claimant has the burden of proving by a preponderance of the evidence that he or she is 

disabled for work as a result of an accepted employment injury and submit medical evidence for 

each period of disability claimed.10 Whether a particular injury causes an employee to be 

disabled for employment and the duration of that disability are medical issues.11 The issue of 

whether a particular injury causes disability for work must be resolved by competent medical 

evidence.12 To meet this burden, a claimant must submit rationalized medical opinion evidence, 

based on a complete factual and medical background, supporting a causal relationship between 

the alleged disabling condition, and the accepted injury.13

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so, would essentially allow an employee to self-certify his or her disability and 

entitlement to compensation. For each period of disability claimed, the employee has the burden 

of establishing that he or she was disabled for work as a result of the accepted employment 

injury.14

ANALYSIS 

OWCP accepted that appellant sustained employment-related medial meniscus tear of the 

left knee and left medial collateral ligament sprain from a June 12, 2005 work injury. Appellant 

had arthroscopic surgery on October 19, 2005. She claimed compensation for intermittent 

disability and time lost from work due to attending aquatic therapy from July 5 to 

December 18, 2012. OWCP did not authorize the underlying aqua therapy treatment. At her 

March 17, 2014 hearing, appellant indicated that she was not claiming reimbursement for the 

costs of the aquatic therapy. She has the burden to establish through probative medical evidence 

that she was disabled during this period or undergoing authorized medical treatment causally 

related to her accepted injury. 

OWCP referred appellant to Dr. Fisher, who in a December 4, 2013 report, noted that his 

examination was essentially normal with tenderness on palpation over the medial side and 

anterior medial side of the left knee, and advised that appellant was morbidly obese. Dr. Fisher 

opined that the accepted medial collateral ligament sprain was a soft tissue injury that resolved 

within two months of the injury and was no longer clinically present. He advised that the left 

knee medial meniscus tear was surgically treated by the partial medial meniscectomy in 2005 

and that there were no current clinical findings of a medial meniscus tear. Based on this, 

Dr. Fisher opined that the accepted conditions had resolved. He noted that the only residuals of 

the June 12, 2005 work injury were the healed puncture wounds over the left knee. Dr. Fisher 

opined that appellant was able to perform her full duties, did not have medical restrictions from 

the June 12, 2005 work injury, and needed no further treatment for the resolved injuries. He 

 10 See Fereidoon Kharabi, 52 ECAB 291 (2001). 

11 Id. 

12 See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

13 C.S., Docket No. 08-2218 (issued August 7, 2009). 

14 Sandra D. Pruitt, 57 ECAB 126 (2005). 
7

noted that aqua therapy was prescribed after a meniscectomy for no more than 12 visits in a 

12-week period; however, the record revealed that appellant had aqua therapy twice a week for 

over seven years which he opined was excessive. Dr. Fisher noted that any treatment or 

restrictions for the left knee were due to nonwork-related conditions. 

Appellant submitted reports from Dr. Young dated June 21 and July 22, 2013, who 

treated her for a work-related left knee injury. Dr. Young reported continuing aqua therapy 

twice a week, which kept her more functional, active, and reduced pain. He diagnosed left knee 

and leg sprain and tear of the medial meniscus. Dr. Young noted that appellant sustained a bad 

work-related knee injury, could not get around well, and that aqua therapy weekly helped reduce 

stiffening and allowed her to continue functioning at work and home. He opined that the need 

for aqua therapy was due to her work-related injury and kept her functional and able to work and 

that her employing establishment should pay for the time she is off work. Dr. Young did not, 

however, address specific dates for which appellant claimed compensation for the period 

July 5 to December 18, 2012 but generally opined that OWCP should pay for the time she was 

off to attend water therapy because it was related to her work injury. The issue of whether 

appellant’s disability is related to an accepted condition is a medical question which must be 

established by a physician who, on the basis of a complete and accurate factual and medical 

history, concludes that the disability is causally related to employment factors and supports that 

conclusion with sound medical reasoning.15 Dr. Young did not explain the medical reasons why 

her disability to attend aqua therapy was attributable to her work injury and reasonably 

necessary. 

On February 26, 2014 Dr. Young noted appellant’s current status and her examination by 

Dr. Fisher. He advised that arthritic inflammation set in after her meniscal repair, was persisting, 

and that aqua therapy kept her knee loose. Dr. Young further indicated that appellant’s weight 

was not an issue in her disability. He did not specifically address how the claimed work-related 

disability from July 5 to December 18, 2012 was causally related to her June 12, 2005 

employment injury or address why she would continue to reasonably require aquatic therapy in 

view of Dr. Fisher’s opinion that the work-related conditions had resolved and that aquatic 

therapy for over seven years was excessive. Therefore, this report is insufficient to meet 

appellant’s burden of proof. 

OWCP referred appellant to Dr. Fisher for a second opinion examination. Dr. Fisher 

directly addressed the aqua therapy indicating that the current aqua therapy was excessive and 

that no further treatment was necessary 

Other reports from Dr. Young noted appellant’s status and recommended aqua therapy. 

However, none of these reports clearly explain why she had any employment-related disability 

from July 5 to December 18, 2012 due to the need for a mode of treatment, which OWCP did not 

deem reasonably necessary for her condition. Therefore, these reports are insufficient to meet 

her burden of proof. 

 15 Id. 
8

CONCLUSION 

The Board finds that appellant has not established her claim for compensation for 

intermittent disability from July 5 to December 18, 2012 causally related to her accepted work 

injury. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated May 1, 2014 is affirmed. 

Issued: April 9, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board