United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Miami, FL, Employer

__________________________________________

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Docket No. 19-1022

Issued: December 12, 2019

Appearances: Case Submitted on the Record

Capp Taylor, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On April 10, 2019 appellant, through counsel, filed a timely appeal from a February 1, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.3

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the February 1, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether OWCP abused its discretion by denying appellant’s request for an 

attendant’s allowance.

FACTUAL HISTORY

On September 23, 2015 appellant, then a 52-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on June 1, 2015 he tore his aorta when lifting boxes while in the 

performance of duty. On the reverse side of the claim form, the employing establishment indicated 

that he stopped work on June 1, 2015, and had not returned.

Appellant was hospitalized on June 1, 2015 for a thoracic aortic aneurysm. He underwent 

surgery on June 2, 2015, which included an ascending aorta dissection. Appellant’s hospital 

course was noted to have been complicated by respiratory failure, acute renal failure, atrial 

fibrillation, critical illness myopathy, and pneumonia. He underwent further surgery on June 26, 

2015, which consisted of a tracheostomy and bronchoscopy. On July 21, 2015 appellant was 

discharged from the hospital to a rehabilitation facility.

On December 19, 2017 OWCP accepted appellant’s claim for thoracic aorta dissection, 

chronic obstructive pulmonary disease (COPD), dysphagia, atrial fibrillation, heparin-induced 

thrombocytopenia (HIT), and right lower extremity acute embolism and thrombosis of unspecified 

deep veins.4 OWCP paid appellant wage-loss compensation for temporary total disability 

beginning June 2, 2015, and placed him on the periodic compensation rolls effective 

June 24, 2018. 

On July 24, 2018 appellant telephoned OWCP inquiring whether he was entitled to 

payment for “spousal assistance.”

In a letter dated July 27, 2018, counsel requested authorization for payment for home 

healthcare services provided to appellant by his wife. In support of the request for payment, he

submitted a March 1, 2018 report from Dr. Marcus St. John, a Board-certified cardiologist.

Dr. St. John noted a history of injury on June 1, 2015 and hospital course which lasted 51 

days followed by a 14-day stay at a rehabilitation hospital. He indicated that during appellant’s 

days in the critical care unit, his wife spent approximately 15 hours a day at his bedside and her 

duties included bathing him; turning and repositioning him every two hours; performing skin 

breakdown prevention techniques, therapeutic communication, therapeutic touch, and guided 

imagery; she met daily with the case worker; she was present and collaborated in the daily multidisciplinary rounds with the medical team; provided input for the development of the daily plan;

and was present for family education for case management, nursing, respiratory and physical 

therapy providers. Dr. St. John further noted that when appellant entered the step-down pulmonary 

unit and was released to a rehabilitation facility, appellant’s wife spent approximately 24 hours a 

day performing the above-noted duties, including assisting with eating and wheelchair 

transportation. Appellant was released from the rehabilitation facility on August 3, 2015 and his 

wife’s duties were expanded to include taking him to medical appointments and preparing and 

 

4 OWCP later expanded appellant’s claim to include consequential diabetes mellitus and consequential elevated 

blood pressure. 
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administering medication. Dr. St. John opined that appellant was totally disabled from work. He 

indicated that appellant’s wife spent a total of 7,208 hours assisting her husband from June 2, 2015 

to February 25, 2018.

In a letter dated August 24, 2018, OWCP reviewed the March 1, 2018 letter from

Dr. St. John and indicated that the criteria for home healthcare service is billed and paid directly 

to the professional providing attendant services and those services must be rendered by a home 

health aide, licensed practical nurse, or similarly trained individual.

On October 3, 2018 appellant, through counsel, indicated that although appellant’s wife 

was not a home health aide or home health professional, her services provided from August 4, 

2015 to February 25, 2018 should be paid as she provided services of an attendant. Counsel 

asserted that Dr. St. John’s March 1, 2018 letter noted specific services rendered by appellant’s 

wife, the necessity, the dates, and the hours involved. He further indicated that the specific services 

provided on these specific dates would not require specific qualifications, and therefore, it could 

not be said that she was not competent to perform such duties.

In a letter dated February 1, 2019, OWCP advised appellant that the criteria for home 

healthcare services is one that is billed and paid directly to the professional providing attendant 

services. 

By decision dated February 1, 2019, OWCP denied appellant’s request for an attendant’s 

allowance. OWCP advised him 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. It advised that services must be rendered by a home health aide, licensed 

practical nurse, or similarly trained individual, and found that the evidence of record did not 

support that a licensed professional provided appellant with the noted services as required under 

FECA. 

LEGAL PRECEDENT

FECA provides for an attendant’s allowance under section 8111(a).5 OWCP may pay an 

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

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, 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.6

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. Section 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 

 

5 5 U.S.C. § 8111(a).

6 See R.C., Docket No. 15-1373 (issued December 22, 2015).
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monthly compensation.7 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.8 OWCP has 

administrative discretion in choosing the means to achieve this goal and the only limitation on its 

authority is that of reasonableness.9

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.10

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.11 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.12

ANALYSIS

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

an attendant’s allowance.

Appellant requested payment for the services of a personal attendant, his wife, from June 2,

2015 to February 25, 2018, a total of 7,208 hours, due to the fact that he could not perform the 

basic activities of daily living as a result of his June 1, 2015 employment injury.

Section 10.314 of the implementing regulations provides that OWCP will authorize 

payment for personal care services if they are provided by a home health aide, licensed nurse, or 

similarly trained individual.13 The evidence of record establishes that appellant’s wife did not 

 

7 5 U.S.C. § 8103(a).

8 G.M., Docket No. 18-1710 (issued June 3, 2019); Dale E. Jones, 48 ECAB 648, 649 (1997).

9 M.K., Docket No. 19-0428 (issued July 15, 2019); 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).

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

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

12 See W.J., Docket No. 14-0376 (issued May 15, 2014).

13 20 C.F.R. § 10.314.
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qualify as a home health aide, licensed nurse, or similarly trained individual.14 Counsel confirmed 

this on October 3, 2018. The Board therefore finds that OWCP did not abuse its discretion when 

it determined that the evidence submitted was insufficient to meet the requisite statutory 

requirements outlined above. 

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 February 1, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 12, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

14 See L.H., Docket 15-1239 (issued August 22, 2016); Lee Haywood, Docket No. 03-0727 (issued March 30, 2005) 

(where the Board found that appellant’s wife did not meet the regulatory requirements of an attendant as she was not 

a home health aide, licensed nurse, or similarly trained individual).