United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.J., Appellant 

and 

FEDERAL JUDICIARY, U.S. PROBATION 

OFFICE, Tampa, FL, Employer 

__________________________________________ 

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Docket No. 14-376 

Issued: May 15, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On December 4, 2013 appellant filed a timely appeal from a July 18, 2013 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 abused its discretion by denying appellant an attendant’s 

allowance pursuant to 5 U.S.C. § 8111 and 5 U.S.C. § 8103. 

FACTUAL HISTORY 

On June 16, 2008 appellant, a 47-year-old probation officer, injured his ribs, right 

shoulder, back and neck when the vehicle he was driving was struck by another motor vehicle. 

He filed a claim for benefits on June 19, 2008, which OWCP accepted for a fracture of the right 

 1

 5 U.S.C. § 8101 et seq. 
2

humerus. The claim was subsequently accepted for adhesive capsulitis of the right shoulder; 

other affections of the right shoulder region not elsewhere classified; and a closed fracture of 

fourth posterior rib on the right. Appellant did not return to work. 

In a letter to OWCP dated October 29, 2010, appellant indicated that his wife had been 

providing personal care for him as an attendant. He was unable to care for himself due to his 

June 2008 work injury. Appellant stated that he had been unsuccessfully requesting information 

regarding reimbursement or payment by OWCP for his wife’s services. He asked OWCP to 

provide him with the necessary documentation to obtain such reimbursement. 

By letter dated December 10, 2010, OWCP advised appellant that it required additional 

information from him and his treating physician in order to determine whether he was eligible 

for payment of an attendant’s allowance. It stated that 20 C.F.R. § 10.314 allowed payment for 

services of an attendant where medical documentation supported that he required assistance to 

care for basic personal care needs. OWCP advised that there was no provision for payment of 

tasks, such as cooking, laundry, housekeeping, shopping or yard work. On review of the medical 

records, it did not appear that appellant was unable to drive or to care for himself the majority of 

the time. Further, if such services were approved, payment for such services was limited to 

$1,500.00 per month by regulation. OWCP advised that such services must be rendered by a 

home health aide, licensed practical nurse or similarly trained individual. It attached a form for 

appellant’s treating physician to complete and address the necessity for an attendant. 

In a December 22, 2010 letter, appellant requested reimbursement for the services of a 

personal attendant, his wife, for various periods from June 16, 2008 to September 27, 2010. He 

contended that he could not perform the basic activities of daily living as a result of the 

June 2008 work injury. Appellant stated that his injuries and the subsequent treatment rendered 

him incapable of driving or getting in and out of his car without his wife’s assistance. He 

asserted that he was unable to go to the bathroom, bathe, shave, prepare meals, take medication, 

dress himself or perform other aspects of personal hygiene without his wife’s assistance. 

Appellant stated that his wife was qualified to serve as an attendant because she had served as a 

candy striper at a hospital, volunteered in the geriatric unit at a local hospital, volunteered with 

the Red Cross and was a child care teacher’s assistant. His wife’s educational experience 

included being a nursing major at Georgia College & State University, nursing pharmacology 

and a semester of nursing practicum at a local convalescence facility. Appellant stated that his 

wife held an associate degree in education, a B.S. in human services with a concentration in 

counseling and victim services. He noted that she had begun coursework in pursuit of her 

master’s degree in social work. 

By letter dated April 12, 2011, Dr. Mark E. Farmer advised OWCP that he had initially 

declined to complete the reimbursement form because appellant did not need any current home 

care. After speaking with appellant, such care was needed at the time he underwent surgery in 

2008 and for the immediate aftermath of the surgery; although this was not consistent with the 

dates indicated on the form. Dr. Farmer asked OWCP to send another form so that he could 

complete and submit it with the proper dates supporting the necessity for an attendant. 

By decision dated September 1, 2011, OWCP denied appellant’s request for an 

attendant’s allowance for the period June 16, 2008 to September 27, 2010 under sections 8103 
3

and 8111. Although the records he submitted indicated that his wife drove him to and from 

medical appointments, this did not meet the statutory criteria for having her reimbursed as an 

attendant. While appellant’s wife submitted extensive transcripts and school records, which 

purported to show that she had a medical background and training; she failed to establish that she 

was certified or had a business license as required to be paid as a qualified attendant. It also 

determined that she failed to submit any actual work history in the field. 

On February 10, 2012 appellant requested reconsideration of the September 1, 2011 

decision. 

On November 14, 2011 Dr. Farmer completed the reimbursement form. He had most 

recently examined appellant on April 27, 2010 and found a limited range of motion in the right 

shoulder with mild tenderness. When asked to explain why appellant’s condition warranted the 

services of an attendant, Dr. Farmer stated that, as of July 11, 2008, the date he performed right 

shoulder surgery and for the postsurgery period, appellant was unable to use his right arm as 

expected. This necessitated additional surgery, which was performed on April 20, 2010. 

Appellant was again unable to use his right arm. Dr. Farmer stated that appellant required the 

services of an attendant as of July 7, 2008, the date of the initial consultation and preoperative 

period of July 11, 2008 to April 19, 2010, a period of 21 months. From April 10 to June 7, 2010, 

the second preoperative period which lasted eight weeks, appellant also required an attendant. 

Dr. Farmer stated that the actual duties of appellant’s wife, his attendant, included basic nursing 

duties, assisting with activities of daily living, dressing, grooming, personal hygiene, 

transferring, providing physical therapy due to surgery, providing assistance due to precautions 

required by taking prescription narcotics and driving appellant to and from the hospital and 

physical therapy appointments. 

By decision dated April 9, 2012, OWCP denied modification of the September 1, 2011 

decision. It found that appellant did not submit sufficient medical evidence to establish that the 

service of an attendant was necessary constantly within the meaning of section 8111 or factual 

evidence that the attendant providing these services had the requisite qualifications. OWCP 

found that Dr. Farmer’s November 14, 2011 report did not adequately demonstrate that appellant 

required the services of an attendant on a constant basis in accordance with the statutory criteria. 

Further, it found that appellant’s wife did not establish that she met the criteria for having the 

medical or vocational background to be considered as a home health aide, licensed practical 

nurse or similarly trained individual. 

By letter dated March 31, 2013, appellant requested reconsideration. He submitted 

literature regarding nursing programs at John Hopkins University, Valdosta State University and 

Georgia College. 

By decision dated July 18, 2013, OWCP denied modification of the April 9, 2012 

decision. 

LEGAL PRECEDENT 

FECA provides for an attendant’s allowance under section 8111(a). OWCP may pay an 

employee who has been awarded compensation an additional sum of not more than $1,500.00 a 
4

month when it finds “that the service of an attendant is necessary constantly because the 

employee is totally blind or has lost the use of both hands or both feet or is paralyzed and unable 

to walk or because of other disability resulting from injury making him [or her] so helpless as to 

require constant attendance.”2

According to 20 C.F.R. § 10.314, in the exercise of discretion afforded by 5 U.S.C. 

§ 8111, the cost of providing attendant’s services will be paid by OWCP under 5 U.S.C. § 8103, 

for personal care services that have been determined to be medically necessary and are provided 

by a home health aide, licensed practical nurse or similarly trained individual. 5 U.S.C. 

§ 8103(a) 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.3

 In interpreting section 8103(a), the Board 

has recognized that OWCP has broad discretion in approving services provided under FECA to 

ensure that an employee recovers from his or her injury to the fullest extent possible in the 

shortest amount of time.4

 OWCP has administrative discretion in choosing the means to achieve 

this goal and the only limitation on its authority is that of reasonableness.5

 

The Board has held that OWCP may pay an attendant’s allowance upon a finding that a 

claimant has established the need of constant care. The claimant is not required to need aroundthe-clock care, he or she has only to have a continually recurring need for assistance in personal 

matters. The attendant’s allowance, however, is not intended to pay an attendant for 

performance of domestic and housekeeping chores such as cooking, cleaning, doing the laundry 

or providing transportation services. It is intended to pay an attendant for assisting a claimant in 

his personal needs such as dressing, bathing or using the toilet.6 

A claimant bears the burden of proof to establish by competent medical evidence that he 

or she requires attendant care within the meaning of FECA.7

 An attendant’s allowance is not 

granted simply upon the request of a disabled employee or upon the request of his or her 

physicians. The need for attendant care must be established by rationalized medical opinion 

evidence.8

 2

 5 U.S.C. § 8111(a). 

3 Id. at § 8103(a). 

4 Dale E. Jones, 48 ECAB 648, 649 (1997). 

5 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). 

6 Nowling D. Ward, 50 ECAB 496 (1999). 

7 Bonnie M. Schreiber, 46 ECAB 989 (1995). 

8 Id. 
5

ANALYSIS 

OWCP accepted appellant’s claim for fracture of the right humerus, adhesive capsulitis 

of right shoulder; other affections of shoulder region not elsewhere classified, right; and closed 

fracture of fourth posterior rib on the right. Appellant asserted that he was entitled to 

reimbursement for the services of a personal attendant, his wife, from June 16, 2008 to 

September 27, 2010, due to the fact that he could not perform the basic activities of daily living 

as a result of his June 2008 work injury. 

In an April 12, 2011 letter, Dr. Farmer noted that he initially declined appellant’s request 

to support the claim for reimbursement for an attendant’s allowance because he did not believe 

that appellant required any home care. He reconsidered the matter after appellant told him that 

he needed such care at the time he underwent surgery in 2008 and for the immediate aftermath of 

said surgery. Dr. Farmer subsequently submitted an attendant’s allowance form on 

November 14, 2011. As of April 27, 2010, the date of his most recent examination, appellant’s 

condition warranted the services of an attendant from July 11, 2008 through June 7, 2010 

because he was unable to use his right arm as expected following right shoulder surgery. 

Dr. Farmer described the duties of appellant’s wife as an attendant, which included basic nursing 

duties, assisting with activities of daily living, dressing, grooming, personal hygiene, 

transferring, providing physical therapy due to surgery, providing assistance due to precautions 

required by taking prescription narcotics and driving appellant to and from the hospital and 

physical therapy appointments. He did not provide any additional explanation or detail. 

Dr. Farmer did not discuss appellant’s condition in the weeks following surgery or support why 

he was so helpless that he needed constant, recurring assistance for such personal needs as 

dressing, bathing or going to the bathroom in accordance with the statutory criteria. He did not 

adequately address why such personal care was required for a period of almost two years. 

The Board finds that the medical evidence is not sufficient to establish that attendant’s 

services were medically necessary. Based on the probative medical evidence of record, OWCP 

did not abuse its discretion by denying appellant’s claim for an attendant’s allowance. 

Appellant has submitted letters which generally described his wife’s duties as an 

attendant and her purported qualifications to serve as such. OWCP properly found that the 

evidence was not sufficient to meet the requisite statutory requirements outlined above. In 

M.C.,

9

 the Board found that having provided service to the elderly or treating elderly parents did 

not establish that the employee’s sister, housemate or his family were experienced professionals 

or trained as home health aides or a licensed practical nurse. While the housemate’s wife was a 

medic in the Israeli Army, the Board also found that there was no evidence of record to establish 

any training similar to a home health aide or a licensed practical nurse. In this case, appellant 

contended that his wife had nursing training. He failed to submit sufficient evidence to establish 

that his wife’s training was equivalent to that of a home health aide or a licensed practical nurse. 

The Board has reviewed the evidence of record and finds, for the reasons stated, that 

OWCP did not abuse its discretion by denying appellant’s request for an attendant’s allowance. 

 9

 Docket No. 09-2314 (issued August 20, 2010). 
6

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(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

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

for an attendant’s allowance. 

ORDER 

IT IS HEREBY ORDERED THAT the July 18, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 15, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board