United States Department of Labor 

Employees’ Compensation Appeals Board 

___________________________________________ 

J.G., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

AMERICAN LAKE VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Tacoma, WA, Employer 

___________________________________________ 

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Docket No. 15-1784 

Issued: October 2, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 17, 2015 appellant filed a timely appeal from June 5 and July 28, 2015 merit 

decisions 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 501.3,2 the Board has 

jurisdiction over the merits of the claim.3

 1

 5 U.S.C. §§ 8101-8193. 

2

 The Board notes that appellant submitted evidence with his appeal to the Board. The Board cannot consider this 

evidence as its jurisdiction is limited to the evidence of record that was before OWCP at the time it issued its final 

decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012). 

3

 The instant claim was adjudicated by OWCP under file number xxxxxx947. OWCP also accepted that on 

August 17, 2000 appellant sustained a right medial meniscus tear, adjudicated under file number xxxxxx057, and on 

August 12, 2002 sustained a left ankle strain, adjudicated under file number xxxxxx965. Appellant has a second 

appeal before the Board regarding file number xxxxxx947 that will be adjudicated separately under Docket No. 

15-1448. 
2

ISSUE 

The issue is whether OWCP abused its discretion by denying appellant authorization for 

physical therapy for the period April 23 to June 23, 2015. 

On appeal appellant asserts that the medical evidence of record supports the need for 

physical therapy. He also requests a “final medical examination.” 

FACTUAL HISTORY 

On August 28, 2007 appellant, then a 53-year-old engineering equipment operator, filed 

an occupational disease claim alleging that he injured his right great toe which became infected 

and required amputation. OWCP accepted an employment-related aggravation of right great toe 

osteomyelitis. Appellant underwent a partial right great toe amputation on September 14, 2007, 

returned to modified duty in October 2007, and returned to full duty several weeks later. 

In July 2010 appellant informed OWCP that his right toe condition had worsened and he 

was being treated by the Department of Veterans Affairs (VA). Appellant’s supervisor stated 

that from November 2007 appellant performed his duties with increasing discomfort. 

In August 2010 OWCP referred appellant to Dr. David S. Whitney, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In a September 2, 2010 report, Dr. Whitney 

noted a history that in 1975, while appellant was working in private employment, he crushed his 

right foot between rollers and developed some sympathetic nerve pain and had surgery to relieve 

the pain. In 1992 appellant went to work for the employing establishment, and in 2006, when 

stepping out of a backhoe, felt something pop in his right great toe. He described symptoms of 

stabbing pain in the right foot, mainly around the area of the amputation, right ankle pain with 

weight bearing, and right hip pain. Dr. Whitney noted his review of the medical record and 

provided physical examination findings. He stated that because appellant had surgical 

amputation of the entire right great toe and distal first metatarsal, he had medial migration of the 

second and third toes of the right foot, and also rotation and contractures of the toes with blister 

and/or soft callus formation of the second right toe. Sensation was globally diminished from the 

ankle downward in the right foot. Dr. Whitney advised that appellant probably dislocated the 

dorsal metatarsophalangeal joint of the right great toe in April 2006, and with an unreduced 

deformity, the base of the right great toe became infected, and this led to the amputation. He 

opined that appellant’s right hip strain was secondary to abnormal gait following the work injury, 

and that appellant’s ongoing nerve pain and weight-bearing pain were secondary to the work 

injury. Dr. Whitney noted that appellant might require additional right foot surgery but could 

work full time, with no prolonged walking or repetitive climbing. In an attached work capacity 

evaluation, he provided physical limitations. 

On October 1, 2010 OWCP accepted right great toe osteomyelitis, right hip sprain, and 

closed dislocation of right great toe metatarsophalangeal joint. 

Appellant filed a schedule award claim on February 14, 2011. He retired on disability 

effective April 8, 2011. By letter dated September 26, 2011, OWCP informed appellant that 

maximum medical improvement had not been reached because based on Dr. Whitney’s 

evaluation additional medical treatment was recommended. 
3

In a November 29, 2011 report, Dr. Amy Duckworth, a podiatrist, noted appellant’s 

complaint of right foot problems including increased deformity and inability to wear anything 

except a slipper. She indicated that surgical options were discussed and requested authorization 

for right tendoAchilles lengthening (TAL) and amputation of all digits. 

OWCP authorized the requested surgery on March 7, 2012. On July 13, 2012 

Dr. Duckworth amputated digits two through five of the right foot and performed a TAL 

procedure of the right foot.4

In an April 22, 2015 report, Dr. Marciano B. Capati, Board-certified in family medicine, 

noted that appellant was there for ongoing care. He described the history of injury, appellant’s 

past medical and surgical history, and his complaints of right foot and hip pain. On physical 

examination of the lower extremities, Dr. Capati noted amputation of all toes on the right, a 

normal gait, normal strength, and tenderness to examination of the right calf and hip. He 

diagnosed hypertension, and calf, hip, and foot pain. Dr. Capati advised that he would treat 

appellant conservatively with physical therapy and medication. A right hip x-ray on April 22, 

2015 showed no acute fracture or dislocation, and a small area that could reflect previous trauma. 

Dr. Capati referred appellant for physical therapy that day, noting diagnoses of pain in right calf 

and pain in limb. 

Appellant was evaluated for physical therapy on April 23, 2015. The physical therapy 

provider requested authorization for eight weeks of physical therapy, to run from April 23 to 

June 23, 2015. 

On April 28, 2015 Dr. Capati reported that appellant had continued hip and lower 

extremity pain. He recommended treatment with medication, physical therapy, and massage 

therapy. 

By letter dated April 29, 2015, OWCP advised appellant that physical/occupational 

therapy for the period April 23 to June 23, 2015 could not be authorized because the record did 

not contain medical evidence that explained the need for the treatment requested due to the 

accepted conditions. Appellant began physical therapy that day. 

On April 30, 2015 Dr. Steven Teeny, a Board-certified orthopedic surgeon, noted seeing 

appellant for right hip pain. He described physical examination findings including a normal gait 

and intact sensation to the lower extremities. Dr. Teeny diagnosed right lumbago. He advised 

that appellant’s hip pain probably originated in the lumbar spine. A May 6, 2015 lumbosacral 

spine x-ray demonstrated surgical changes at the L4 level with degenerative changes from L3 to 

S1. 

On May 8, 2015 Dr. Capati recommended massage therapy to relieve right hip pain. The 

physical therapy provider requested authorization for eight weeks of physical therapy, to run 

from May 7 to July 7, 2015. Appellant continued physical therapy sessions. 

 4

 In November 2013, appellant changed his address to a post office box in Winchester, Oregon. This was 

acknowledged by OWCP on December 6, 2013. 
4

On June 1, 2015 OWCP authorized 32 units of massage therapy, for the period May 7 to 

July 5, 2015.5

In a decision dated June 5, 2015, OWCP denied authorization for physical/occupational 

therapy for the period April 23 to June 23, 2015 because the evidence did not support that the 

requested therapy was medically necessary. 

On June 23, 2015 appellant requested reconsideration. In reports dated May 6 and 

June 15, 2015, Dr. Capati described appellant’s complaint of increasing right hip and knee pain. 

He advised that appellant’s foot pain caused him to walk awkwardly, leading him to develop 

pain in the right knee and hip, and to eventually develop low back pain. In correspondence dated 

June 16, 2015, Sherri Lucke, a licensed massage practitioner, and Alicia Gilfoy, a physical 

therapist, maintained that appellant needed the requested therapy for his right hip and ankle pain 

and also requested a prosthetic device. Additional therapy was recommended. 

On June 23, 2015 OWCP denied appellant’s request. 

In a merit decision dated July 28, 2015, OWCP denied modification of the June 5, 2015 

decision because the medical evidence, from a physician, did not support that the requested 

therapy for the period April 23 to June 23, 2015 was medically necessary to address the effects 

of appellant’s accepted conditions. 

LEGAL PRECEDENT 

Section 8103 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, which OWCP considers likely to cure, give relief, reduce 

the degree or the period of disability, or aid in lessening the amount of the monthly 

compensation.6

In interpreting this section of FECA, the Board has recognized that OWCP has broad 

discretion in approving services provided under FECA. 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. The only limitation on OWCP’s authority is that of reasonableness. 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 

 5

 Appellant filed a schedule award claim on May 25, 2014. On September 3, 2014 OWCP denied his schedule 

award claim. It noted that the record did not contain a medical report sufficiently describing appellant’s current 

condition. In correspondence postmarked October 1, 2014, appellant requested a hearing. By decision dated June 3, 

2015, OWCP found that he had abandoned his request for a hearing regarding the September 13, 2014 decision. 

Appellant filed an appeal with the Board from the June 3, 2015 decision, adjudicated separately by the Board under 

Docket No. 15-1448. Supra note 3. 

6

 5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).
5

established facts. It is not enough to merely show that the evidence could be construed so as to 

produce a contrary factual conclusion.7 

While OWCP is obligated to pay for treatment of employment-related conditions, the 

employee has the burden of establishing that the expenditure is incurred for treatment of the 

effects of an employment-related injury or condition.8

ANALYSIS 

The accepted conditions in the master file in this case, file number xxxxxx947, are right 

great toe osteomyelitis, right hip sprain, and closed dislocation of right great toe 

metatarsophalangeal joint. Under subsidiary file number xxxxxx057, a right medial meniscus 

tear is accepted, and under subsidiary file number xxxxxx965, a left ankle strain is accepted. In 

decisions dated June 5 and July 28, 2015, OWCP denied appellant’s request for authorization of 

physical/occupational therapy for the period April 23 to June 23, 2015 because the evidence did 

not support that the requested therapy was medically necessary to address the effects of his 

accepted conditions. 

In April 2015, Dr. Capati, an attending family physician, recommended that appellant 

have physical therapy. On April 22, 2015 the physical therapy provider requested authorization 

for eight weeks of therapy, to begin on April 23, 2015, the date appellant was evaluated by 

physical therapists. By letter dated April 29, 2015, OWCP denied authorization and informed 

appellant that the medical evidence did not explain the need for treatment due to the accepted 

conditions. 

Lay individuals such as physician assistants, nurses, and physical therapists are not 

competent to render a medical opinion under FECA9

 and the opinions of Ms. Lucke, a massage 

practitioner, and Ms. Gilfoy, a physical therapist, are of no probative medical value as to the 

need for therapy in this case. 

The only restriction on OWCP’s authority to authorize medical treatment is one of 

reasonableness. In a treatment note dated April 22, 2015, Dr. Capati diagnosed calf, hip, and 

foot pain and advised that he would treat appellant conservatively with physical therapy and 

medication. He referred appellant for physical therapy that day, indicating that it was for right 

calf and limb pain, neither of which are accepted conditions. 

On May 8, 2015 Dr. Capati recommended massage therapy to relieve hip pain as right 

hip sprain is an accepted condition. This was authorized by OWCP on June 1, 2015. On 

June 15, 2015 Dr. Capati described appellant’s complaint of increasing right hip and knee pain. 

He advised that appellant’s foot pain caused him to walk awkwardly, leading him to develop 

pain in the right knee and hip, and eventually low back pain. Dr. Capati, however, did not 

adequately explain the need for treatment to provide relief of the accepted conditions. Thus, 

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

8 Kennett O. Collins, Jr., 55 ECAB 648 (2004). 

9 David P. Sawchuk, 57 ECAB 316 (2006). 
6

OWCP did not abuse its discretion when it denied appellant’s request for physical therapy for the 

period April 23 to June 23, 2015.10

As to appellant’s request that OWCP perform a “final examination,” the determination of 

the need for an examination, the type of examination, the choice of locale, and the choice of 

medical examiners are matters within the province and discretion of OWCP.11

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 when it denied appellant’s 

request for physical therapy for the period April 23 to June 23, 2015. 

ORDER 

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

Compensation Programs dated July 28 and June 5, 2015 are affirmed. 

Issued: October 2, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 See D.K., 59 ECAB 141 (2007). 

11 J.T., 59 ECAB 293 (2008).