United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Memphis, TN, Employer 

__________________________________________ 

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Docket No. 16-1812 

Issued: March 15, 2017 

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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On September 12, 2016 appellant filed a timely appeal from an April 26, 2016 merit 

decision and an August 16, 2016 nonmerit 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. 

ISSUES 

The issues are: (1) whether OWCP abused its discretion in denying appellant’s request 

for authorization of medical equipment; and (2) whether OWCP properly denied appellant’s 

request for reconsideration of his claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On March 24, 1989 appellant, then a 32-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on March 15, 1989 he injured his lower back as a result of 

 1

 5 U.S.C. § 8101 et seq. 
2

lifting sacks of mail. According to a statement of accepted facts (SOAF) dated December 19, 

1991, his claim was initially accepted for back sprain. By decision dated October 27, 2004, 

OWCP accepted appellant’s claim for a herniated nucleus pulposus (HNP) at L5-S1. A SOAF 

dated December 10, 2015 noted that his accepted conditions included lumbar sprain and 

displacement of the lumbar intervertebral disc. Appellant received compensation benefits for the 

period February 14, 2008 through April 30, 2010. 

Appellant filed a claim (Form CA-7) on July 15, 2010 for compensation due to leave 

without pay commencing May 1, 2010. OWCP denied this claim on September 28, 2010.2

 

In a progress report dated May 8, 2014, Dr. Rommel G. Childress, a Board-certified 

orthopedic surgeon, noted that appellant was experiencing pain in the back and legs on a daily 

basis. 

By letter dated June 23, 2014, appellant requested medical items and accommodations for 

his accepted condition including a stair lift, an adjustable bed with a mattress and box spring, a 

bathtub with jets to ease his back pain, and as well as repairs to a ramp OWCP built on his home. 

On September 22, 2014 Dr. Childress recommended that appellant use a bathtub with jets 

and an adjustable bed. He explained that the bathtub and adjustable bed could relieve appellant’s 

chronic pain. In a report dated October 10, 2014, Dr. Childress noted that appellant continued to 

have difficulty with his back and legs, and remarked that appellant had sought treatment at a pain 

clinic. 

Dr. Childress reported on November 17, 2014 that appellant was ambulatory with a 

crutch, and he renewed appellant’s Lortab prescription. By letter dated January 27, 2015, he 

reviewed a magnetic resonance imaging (MRI) scan of appellant’s spine, noting that his 

continued difficulties were consistent with the testing. 

By letter to OWCP dated May 26, 2015, Dr. Childress noted that he had treated appellant 

for acute and chronic lumbar sprain and a herniated disc at L5-S1. He requested and 

recommended that appellant have a gym membership at a center with a hot tub and whirlpool in 

order for appellant to undergo water therapy three to four times per week. Dr. Childress noted 

that this therapy would help appellant maintain reasonable strength and capability in his back. 

On August 10, 2015 OWCP authorized a jet shower head to be used in a hot shower, an 

adjustable bed board placed between a mattress and a box spring with orthopedic pillows, and 

one year of hydrotherapy with aquatic exercises at the YMCA. 

In a report dated August 28, 2015, Dr. Childress noted that, while OWCP had authorized 

a jet shower head, appellant already had one, and explained that the bathtub with jets was 

necessary because appellant had trouble standing in the shower for extended periods of time. He 

further noted that the adjustable bed board would be cumbersome for appellant given the nature 

 2

 The record does not reflect that appellant returned to work or received wage-loss compensation benefits after 

May 1, 2010. Appellant’s claim remained open for medical treatment. 
3

of his condition. Dr. Childress recommended a queen size bed with individually adjustable 

sides. 

On September 24, 2015 OWCP authorized installation of a tub with a jet and one year of 

hydrotherapy with aquatic exercise at a different facility, the Kroc Center. On the same date it 

denied authorization for a double bed noting that appellant had not provided a note with medical 

rationale for the necessity of a double bed, but instead only addressed his desire to sleep with his 

spouse. 

In a report dated November 9, 2015, Dr. Childress noted that appellant’s condition 

required him to use a cane, crutches, or a wheelchair for activities of daily living. He noted that 

appellant had radicular pain that made both lower extremities numb at times, with pain going 

down his left lower extremity. 

In January 25, 2016 letter, Dr. James T. Galyon, a Board-certified orthopedic surgeon 

noted his opinion that appellant refused to have a physical examination. Therefore, he was 

unable to qualify the completeness of his findings. 

In a supplement medical report from the second opinion examiner, dated March 10, 2016, 

Dr. Galyon replied to OWCP’s query as to whether appellant’s request for an adjustable mattress 

and chairlift were medically necessary. He opined that appellant did not need an adjustable 

mattress, jetted bathtub,3

 or chairlift, and noted that a shower chair would be a reasonable 

accommodation for appellant’s condition. Dr. Galyon opined, “I do not believe that the other 

equipment that I have just referred as being unnecessary, would in any way improve 

[appellant’s] condition.” 

By decision dated April 26, 2016, OWCP approved only hydrotherapy at the Kroc Center 

and a shower chair. It denied authorization for an adjustable mattress, widening of the home 

doorway, installation of a heavy chairlift, a jetted bathtub, modification of appellant’s existing 

bathroom, and repair of a cracked ramp. OWCP noted that the medical evidence supported 

authorization of hydrotherapy, but that there was no medical evidence supporting the remainder 

of her requests for authorization. Regarding the cracked ramp, it noted that the crack was minor, 

and that a recommendation was made to monitor the ramp and reassess in 12 to 24 months. 

On August 3, 2016 appellant requested reconsideration of OWCP’s April 26, 2016 

decision. With his request, he submitted letters and reports from Dr. Childress dated from 

May 8, 2014 through March 4, 2016, which were previously of record. Appellant also submitted 

two reports from Dr. Childress not previously of record, dated May 9 and July 28, 2016. In the 

May 9, 2016 report, Dr. Childress noted that appellant had visited for a follow-up on his 

condition, and recommended the use of a cane for activities outside the home. In the July 28, 

2016 report, he noted that appellant experienced increased pain and difficulty and that he had 

requested a lumbar facet block to manage his pain. 

 3

 The jetted bathtub had previously been authorized on September 24, 2015. 
4

By decision dated August 16, 2016, OWCP denied appellant’s request for 

reconsideration, noting that he had failed to submit relevant and pertinent new evidence in 

support of his claim. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies 

prescribed or recommended by a qualified physician who 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.4

 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.5

In interpreting section 8103, 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.6

 In order to be entitled to 

reimbursement for medical expenses, a claimant must establish that the expenditures were 

incurred for treatment of the effects of an employment-related injury by submitting rationalized 

medical evidence that supports such a connection and demonstrates that the treatment is 

necessary and reasonable.7

 While OWCP is obligated to pay for treatment of employmentrelated 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 -- ISSUE 1 

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

widen the home doorway, installation of a heavy chairlift, modification of appellant’s existing 

bathroom, repair of a cracked ramp, an adjustable bed, and a jetted bathtub. 

OWCP accepted appellant’s claim for an HNP at L5-S1, lumbar sprain, and displacement 

of the lumbar intervertebral disc. Appellant submitted a report from Dr. Childress dated May 26, 

2015, which recommended hydrotherapy to treat appellant’s accepted conditions. By letter dated 

June 23, 2014, he requested medical items and accommodations for his accepted condition 

including a stair lift, an adjustable bed with a mattress and box spring, a bathtub with jets to ease 

his back pain, and repairs to a ramp OWCP built on his home. On September 22, 2014 

 4

 5 U.S.C. § 8103(a). 

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

6 Dr. Mira R. Adams, 48 ECAB 504 (1997). 

7 See Debra S. King, 44 ECAB 203 (1992). 

8 Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004). 
5

Dr. Childress recommended that appellant use a bathtub with jets and an adjustable bed. He 

explained that the bathtub and adjustable bed could relieve appellant’s chronic pain. On 

August 10, 2015 OWCP authorized a jet shower head to be used in a hot shower, an adjustable 

bed board placed between a mattress and a box spring with orthopedic pillows, and one year of 

hydrotherapy with aquatic exercises at the YMCA. In a report dated August 28, 2015, 

Dr. Childress noted that, while OWCP had authorized a jet shower head, appellant already had 

one, and explained that the bathtub with jets was necessary because he had trouble standing in 

the shower for extended periods of time. He further noted that the adjustable bed board would be 

cumbersome for appellant given the nature of his condition, and recommended a queen size bed 

with individually adjustable sides. On September 24, 2015 OWCP then authorized a tub with a 

jet. 

In a report from a second opinion examiner, Dr. Galyon, dated March 10, 2016, 

responding to OWCP’s query as to whether appellant’s request for an adjustable mattress and 

chairlift were medically necessary, he opined that appellant did not need an adjustable mattress, 

jetted bathtub, or chairlift, and noted that a shower chair would be a reasonable accommodation 

for appellant’s condition. 

By decision dated April 26, 2016, OWCP approved hydrotherapy at the Kroc Center and 

a shower chair. It denied authorization for an adjustable mattress, widening of the home 

doorway, installation of a heavy chairlift and a jetted bathtub, modification of appellant’s 

existing bathroom, and repair of a cracked ramp. 

The Board finds that OWCP did not abuse its discretion in this case as there is no medical 

of record supporting authorization for widening of the home doorway, installation of a heavy 

chairlift, modification of appellant’s existing bathroom, repair of a cracked ramp, an adjustable 

bed, and a jetted tub. 

The Board notes that Dr. Childress did not specifically recommend authorization for 

widening of the home doorway, installation of a heavy chairlift, modification of appellant’s 

existing bathroom, or repair of a cracked ramp. There was no evidence presented with 

appellant’s request for these items as to why these items were necessary due to his accepted 

injury. As previously noted, while OWCP is obligated to pay for treatment of employmentrelated conditions, the employee has the burden of proof to establish that the expenditure is 

incurred for treatment of the effects of an employment-related injury or condition.9

While Dr. Childress did recommend a bathtub with jets to relieve chronic pain due to 

appellant’s trouble standing in a tub, OWCP authorized a jet shower head and shower chair for 

appellant, hydrotherapy and aquatic exercises at the YMCA, and a tub with a jet. He offered no 

medical explanation as to why appellant would require the tub with multiple jets to relieve pain, 

given these other authorizations for hydro/aquatic therapy. Dr. Childress did not provide the 

necessary medical explanation as to how the jetted tub would cure, reduce the period of 

 9 Id. 
6

disability, or aid in lessening the amount of monthly compensation.10 The Board also notes that 

Dr. Galyon’s March 10, 2016 report suggested that jetted bathtub was not medically necessary. 

Regarding appellant’s request for an adjustable bed, Dr. Childress related on 

September 22, 2014 that an adjustable bed would relieve appellant’s chronic pain. OWCP 

thereafter authorized an adjustable bed board. In an August 28, 2015 report, Dr. Childress 

opined that the adjustable bed board would be cumbersome for appellant. However, Dr. Galyon 

opined in his March 10, 2016 report that he did not believe that the adjustable bed would in any 

way improve appellant’s condition. Again, there is no rationalized medical evidence of record 

establishing that an adjustable bed, instead of an adjustable bed board, was medically necessary 

and would reduce the period of disability, or aid in lessening the amount of monthly 

compensation. 

OWCP has administrative discretion in choosing the means to achieve the goal of 

recovery from a work-related injury and the only limitation on OWCP’s authority is that of 

reasonableness.11

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 established facts. It is not enough to merely show that the evidence 

could be construed so as to produce a contrary factual conclusion.12

The Board finds that OWCP did not abuse its discretion by denying authorization of the 

requested items. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.13 Section 10.608(b) of OWCP’s regulations 

provide that when an application for reconsideration does not meet at least one of the three 

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.14

 10 See E.J., Docket No. 10-0743 (issued November 2, 2010). 

11 See 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). 

12 See Minnie B. Lewis, 53 ECAB 606 (2002). 

13 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007). 

14 Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008). 
7

ANALYSIS -- ISSUE 2 

The issue presented on appeal of the August 16, 2016 decision is whether appellant met 

any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for 

review of the merits of his claim. In his August 3, 2016 request for reconsideration, appellant 

did not show that OWCP erroneously applied or interpreted a specific point of law, or advance a 

new and relevant legal argument not previously considered. Thus, he is not entitled to a review 

of the merits of his claim based on the first and second above-noted requirements under section 

10.606(b)(3). 

The underlying issue is whether OWCP abused its discretion in denial of authorization 

for an adjustable mattress, widening of the home doorway, and installation of a heavy chairlift, a 

jetted bathtub, modification of appellant’s existing bathroom, and repair of a cracked ramp. A 

claimant may be entitled to a merit review by submitting relevant and pertinent new evidence, 

but appellant did not submit any relevant and pertinent new evidence with his request for 

reconsideration. 

The evidence submitted in support of reconsideration included a narrative statement from 

appellant, which is not medical evidence and therefore is irrelevant to the issue of whether 

OWCP abused its discretion.15 Appellant also submitted various reports from Dr. Childress, of 

which only two had not previously been record: the reports of May 9 and July 28, 2016. In the 

May 9, 2016 report, Dr. Childress noted that appellant had visited for a follow up on his 

condition, and recommended the use of a cane for activities outside the home. In the July 28, 

2016 report, he noted that appellant experienced increased pain and difficulty and that he had put 

in a request for a lumbar facet block to manage appellant’s pain.16

As neither the May 9, 2016 report nor the July 28, 2016 report discussed the 

authorization of requested items, they are irrelevant to the underlying issue on reconsideration, 

and therefore insufficient to warrant reconsideration of appellant’s claim. 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

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

for widening of the home doorway, installation of a heavy chairlift, modification of appellant’s 

existing bathroom, repair of a cracked ramp, a jetted bathtub, and adjustable mattress. The 

Board further finds that OWCP properly denied appellant’s request for reconsideration of his 

claim pursuant to 5 U.S.C. § 8128(a). 

 15 See C.L., Docket No. 14-1585 (issued December 16, 22014). 

16 Johnnie B. Causey, 57 ECAB 359, 364 (2006). 
8

ORDER 

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

Compensation Programs dated August 16 and April 26, 2016 are hereby affirmed. 

Issued: March 15, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board