United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.C., Appellant 

and 

DEPARTMENT OF THE ARMY, ARMY FIELD 

ARTILLARY CENTER, Fort Sill, OK, Employer 

__________________________________________ 

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Docket No. 15-1373 

Issued: December 22, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 5, 2015 appellant filed a timely appeal of a May 18, 2015 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 in denying appellant’s request for an 

attendant allowance. 

FACTUAL HISTORY 

This case has previously been before the Board. On March 11, 1994 appellant, then a 35-

year-old engineering equipment operator, filed a traumatic injury claim (Form CA-1) alleging 

that he injured his neck on March 10, 1994 when he was involved in a motor vehicle accident. 

 1

 5 U.S.C. § 8101 et seq. 
2

On February 9, 1995 OWCP accepted the claim for cervical and thoracic strains, aggravation of 

preexisting spondylitic spondylolisthesis and authorized L4-5 fusion surgery. It subsequently 

expanded appellant’s claim to include temporary aggravation of major depressive disorder and 

chronic urinary retention. Appellant stopped work on March 10, 1994 and OWCP subsequently 

placed him on the periodic rolls for total disability, effective September 18, 1994. 

By decision dated July 6, 2005, the Board affirmed a November 10, 2004 OWCP 

decision reducing appellant’s compensation based on its determination that the constructed 

position of hotel clerk represented his wage-earning capacity.2

 The facts and circumstances 

surrounding the prior appeals are incorporated by reference. 

In a February 28, 2013 memorandum of call appellant inquired as to whether his wife 

could serve as his attendant and be compensated for that service. The memorandum revealed 

that appellant was experiencing difficulty due to a bladder condition resulting from his recent 

back surgery. OWCP noted that it was developing the issue of whether his bladder condition 

was causally related to the March 10, 1994 employment injury. 

In a letter dated March 15, 2013, OWCP advised appellant that prior to issuing a decision 

on whether payment for attendant services could be authorized, additional information was 

required from both him and his treating physician. 

In a March 15, 2013 memorandum of call, appellant asked what was required for his wife 

to be considered and compensated for attendant services. 

In a November 26, 2013 OWCP received appellant’s July 2, 2013 response to questions 

regarding his request for services of an attendant. Appellant stated that he needed help with his 

range of motion, personal grooming, and transportation to medical appointments. In addition, he 

related that someone was needed to carry his catheter supplies. The attendant’s services would 

be for eight hours per day barring any medical appointments. The attendant would be his wife 

and her qualification was that she has taken care of him since March 10, 1994. In concluding, 

appellant stated that his wife was his attendant and a fair and reasonable payment would be 

$720.00 per week or $2,880.00 per month. 

On November 26, 2013 form report, Dr. John W. Ellis, a treating Board-certified family 

practitioner, indicated that appellant was examined that day. Examination findings showed that 

his back condition had worsened, he struggled with daily chores/activities, and was seen for a 

consequential depression injury. Dr. Ellis opined that the services of an attendant would be 

required for the rest of appellant’s life and that he is currently living at home. At present, 

appellant has the attendant services of his wife. Dr. Ellis checked that appellant needs assistance 

with travel, walking bathing himself, dressing himself, getting out of bed, taking exercise, and 

getting out of doors. 

On March 11, 2014 OWCP advised appellant of an April 1, 2014 appointment it had 

scheduled on his behalf with Dr. Sameer Abdullah Mohammed, a second opinion Board-certified 

psychiatrist. In an April 1, 2014 report, Dr. Mohammed diagnosed recurrence major depressive 

 2

 Docket No. 05-0370 (issued July 6, 2005). 
3

disorder, generalized anxiety, chronic back pain, bilateral L4-S1 spinal nerve root impairment, 

spondylolisthesis, left hand carpal tunnel, spondylitis, left shoulder traumatic arthritis, migraine 

headaches, diabetes mellitus, neurological bladder dysfunction, and sexual dysfunction. He 

opined that appellant was totally disabled due to the psychological disorder, but “should be able 

to return to work with appropriate treatment” in two to three years. 

On April 24, 2014 OWCP expanded appellant’s accepted conditions to include temporary 

aggravation of major depressive disorder and retention of urine. 

On April 20, 2015 appellant submitted a March 5, 2015 emergency room report from 

Duncan Regional Hospital stating that appellant was seen for back pain. Under mode of 

discharge, the report noted “ambulated” and accompanied by family member. In a functional 

assessment, it stated that appellant was independent for daily living activities. 

In a May 12, 2015 report, an OWCP medical adviser reviewed the medical evidence of 

record, including the questionnaire completed by Dr. Ellis requesting attendant services, a 

March 5, 2015 emergency room report, and an April 1, 2014 report by Dr. Mohammed. The 

medical adviser opined that the medical evidence did not show that appellant qualified for 

attendant services under FECA. 

In a May 18, 2015 decision, OWCP denied appellant’s request for attendant allowance as 

the medical evidence “lacks documentation which supports that the claimant requires constant 

care and attendance within the meaning of FECA.” 

LEGAL PRECEDENT 

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

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

monthly compensation.3 OWCP has broad discretionary authority in determining whether the 

particular service, appliance or supply is likely to affect the purposes specified in FECA.4

 The 

only limitation on OWCP’s discretionary authority is that of reasonableness.5

 Abuse of 

discretion is generally shown through proof of manifest error, clearly unreasonable exercise of 

judgment or actions taken that 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.6

 3

 5 U.S.C. § 8103(a). 

4 L.D., 59 ECAB 648 (2008); Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority 

in the administration of FECA and must exercise that discretion to achieve the objectives of section 8103). 

5 Daniel J. Perea, 42 ECAB 214 (1990). 

6 Joseph P. Hofmann, 57 ECAB 456 (2006). 
4

Section 8111 of FECA provides that the Secretary of Labor may pay an employee who 

has been awarded compensation an additional sum of not more than $1,500.00 a month, as the 

Secretary considers necessary, when the Secretary 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 the 

injury making him so helpless as to require constant attendance.7 

OWCP will pay for the services of an attendant up to a maximum of $1,500.00 a month 

when the need for such services has been medically documented. In the exercise of the 

discretion afforded by 5 U.S.C. § 8111(a), the Director has determined that, except where 

payments were being made prior to January 4, 1999, direct payments to the claimant to cover 

such services will no longer be made. Rather, the cost of providing attendant services will be 

paid under section 8103 of FECA and medical bills for these services will be considered under 

20 C.F.R. § 10.801. The Director has based this decision on the following factors: 

“(a) The additional payments authorized under section 8111(a) should not be 

necessary since OWCP will authorize payment for personal care services under 5 

U.S.C. § 8103, whether or not such care includes medical services, so long as the 

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

provided by a home health aide, licensed practical nurse or similarly trained 

individual. 

“(b) A home health aide, licensed practical nurse or similarly trained individual is 

better able to provide quality personal care services, including assistance in 

feeding, bathing and using the toilet. In the past, provision of supplemental 

compensation directly to injured employees may have encouraged family 

members to take on these responsibilities even though they may not have been 

trained to provide such services. By paying for the services under section 8103, 

OWCP can better determine whether the services provided are necessary and 

adequate to meet the needs of the injured employee. In addition, a system 

requiring the personal care provider to submit a bill to OWCP, where the amount 

billed will be subject to OWCP’s fee schedule, will result in greater fiscal 

accountability.”8

 

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. The claimant is not required to need 

around-the-clock care, but need demonstrate only a continually recurring need for assistance in 

personal matters. The attendant allowance is not intended to pay for the 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 the claimant in personal 

needs such as dressing, bathing, or using the toilet. An attendant allowance is not granted simply 

 7

 5 U.S.C. § 8111(a). 

8

 20 C.F.R. § 10.314; see Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability 

Cases, Chapter 2.812.6(d) (May 2012). 
5

on the request of a claimant or physician. The need for attendant care must be established by 

rationalized medical opinion evidence.9

 

ANALYSIS 

FECA provides that OWCP may pay for the service of an attendant when based on 

probative medical evidence. OWCP has broad discretion in the matter and the Board will not 

disturb its decision in the absence of proof that OWCP abused its discretion. 

Dr. Ellis, an attending Board-certified family practitioner, submitted a form report in 

which he concluded that the services of an attendant required for the rest of appellant’s life and 

that he is currently living at home. He checked that appellant needs assistance with travel, 

walking, bathing himself, dressing himself, getting out of bed, taking exercise, and getting out of 

doors. However, Dr. Ellis failed to explain why appellant needed help in personal needs such as 

dressing, walking, getting out of bed, exercising, going outdoors, or bathing on a constant 

basis.10

The second opinion referral physician, Dr. Mohammed, a Board-certified psychiatrist, 

concluded that appellant was disabled due to an employment-related temporary aggravation of 

major depressive disorder and retention of urine. He did not address whether appellant required 

an attendant. 

An OWCP medical adviser reviewed the questionnaire completed by Dr. Ellis, a 

March 5, 2015 Duncan Regional Hospital Emergency Room report and an April 1, 2014 report 

by Dr. Mohammed, a second opinion Board-certified psychiatrist, and opined that the medical 

adviser did not establish that the services of an attendant was necessary. Based on the probative 

medical evidence, the Board finds that it was reasonable for OWCP to deny authorization of 

attendant’s allowance. 

Section 8111(a) pertains to the issue of an attendant allowance. If a claimant 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 the injury making him so helpless as to require constant 

assistant attendance, OWCP has discretion to pay an allowance. Dr. Ellis did not adequately 

explain how appellant’s cervical and thoracic strains, aggravation of preexisting spondylitic 

spondylolisthesis, temporary aggravation of major depressive disorder, and chronic urinary 

retention left him so helpless as to require constant attendance for his personal needs.11 

 9 M.C., Docket No. 09-2314 (issued August 20, 2010); L.D., supra note 6; Thomas Lee Cox, 54 ECAB 

509 (2003). 

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

11 See E.L., Docket No. 12-791 (issued August 29, 2012) (although the attending physician indicated that the 

claimant would have need for attendant services two to four weeks after surgery, he did not discuss the claimant’s 

condition or explain how the claimant needed recurring help with personal needs such as dressing or bathing). Cf. 

K.H., Docket No. 06-832 (issued November 30, 2006) (reversing the denial of an attendant allowance where the 

opinions of an OWCP medical adviser and treating physician were well rationalized and uncontradicted by other 

evidence). 
6

Moreover, OWCP’s medical adviser concluded that, based on an emergency room report which 

stated that appellant was ambulatory at the time of discharge and independent for daily life 

services and Dr. Mohammad’s April 1, 2014 second opinion report, the medical evidence of 

record does not support that appellant qualifies for an attendant. 

It is not enough that a claimant faces difficulty with some activities of daily living.12 The 

claimant must demonstrate a sufficient level of helplessness with his personal care. In the case, 

of M.C.,

13 the Board found that the claimant had submitted competent rationalized medical 

evidence to establish her need for attendant care. She would have only limited use of her right 

upper extremity following surgery and her left upper extremity was totally paralyzed due to Erbs 

Palsy, a condition with which she was born. The Board affirmed the denial of an attendant 

allowance on other grounds -- services must be provided by a home health aide, licensed 

practical nurse or similarly trained individual -- but the need for attendant services was 

established because the claimant’s injury-related surgery had effectively left her without the use 

of both hands. 

The medical opinion evidence in this case does not establish such helplessness. When 

asked to explain his need for an attendant, appellant stated that he needed help with his range of 

motion, personal grooming, and transportation to medical appointments as well as requiring 

someone to carry his catheter supplies. The evidence of record does not demonstrate that he was 

so helpless that he required constant care. 

In the absence of a well-rationalized medical opinion, the Board finds that OWCP 

properly exercised its discretion in denying appellant’s request for an attendant allowance. 

Accordingly, the Board will affirm OWCP’s May 18, 2015 decision. 

Appellant may submit new evidence or argument as part of a formal 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 attendant allowance. 

 12 M.T., Docket No. 11-1121 (issued November 17, 2011) (a referral physician indicated that, while the claimant 

did have difficulty with some activities of daily living, she was capable of performing her basic personal needs of 

hygiene, independent eating and personal care). 

13 Docket No. 09-2314 (issued August 20, 2010). 
7

ORDER 

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

Compensation Programs dated May 18, 2015 is affirmed. 

Issued: December 22, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board