United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Clarksdale, MS, Employer

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Docket No. 17-1825

Issued: February 23, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 29, 2017 appellant filed a timely appeal from April 20 and August 10, 2017 

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, the Board 

has jurisdiction over the merits of this case.

ISSUE

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

physical therapy.

On appeal appellant asserts that the May 4, 2017 report from his attending rheumatologist 

establishes that the requested physical therapy is necessary for the accepted conditions.

 

1 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY

On September 10, 1987 OWCP accepted that appellant, then a 39-year-old letter carrier 

sustained employment-related temporary aggravation of ankylosing spondylitis. It expanded the 

acceptance of the claim to include permanent aggravation of ankylosing spondylitis on 

June 21, 1988. OWCP also accepted thoracic or lumbar spondylosis with myelopathy.2

In July 1989, appellant began modified duty as a letter carrier for four hours per day and 

received appropriate wage-loss compensation. By decisions dated August 11, 1989 and June 10, 

1991, OWCP determined that this position fairly and reasonably represented appellant’s wageearning capacity and reduced his compensation accordingly. On April 14, 1994 appellant filed a 

recurrence of disability claim (Form CA-2a), stating that he could no longer work. OWCP 

accepted the recurrence claim, and placed appellant on the periodic compensation rolls.

Appellant came under the care of Dr. Charles R. Arkin, Board-certified in internal 

medicine and rheumatology. In 1995, OWCP authorized the purchase of a hot tub that was 

replaced in 2003. Appellant underwent physical therapy several times annually, authorized 

through October 22, 2015.

In a report dated January 31, 2017, Dr. Arkin noted seeing appellant in follow-up for

ankylosing spondylitis. He described appellant’s complaints of neck and low back pain that 

radiated into his arms and legs, and noted that he had recently been diagnosed with early 

Parkinsonism with a mild right hand tremor. Dr. Arkin listed appellant’s medications and noted

findings of tenderness to spinal examination and severely restricted cervical and lumbar range of 

motion. Diagnoses included spinal stenosis and ankylosing spondylitis of multiple sites in the 

spine. Dr. Arkin recommended six weeks of physical therapy, three times weekly, and a return 

visit in two months. He also referred appellant for a physical medicine and rehabilitation 

evaluation.

By letter dated February 8, 2017, OWCP asked that appellant’s physician provide an 

opinion regarding appellant’s work-related conditions and any disability due to the accepted 

conditions. In a February 16, 2017 response, Dr. Arkin noted that appellant had been under his 

care since 1981 when he was seen for severe back pain and was diagnosed with ankylosing 

spondylitis which had continued to worsen without improvement. He advised that appellant had 

been totally disabled due to the condition since 1994 and would not recover. Dr. Arkin 

concluded that appellant’s work permanently and irreversibly made his ankylosing spondylitis 

worse.

In March 18, 2017 correspondence, appellant maintained that physical therapy helped 

him to get out of chairs and his bed without assistance, and that medical literature supported that 

it decreased the pain and symptoms of ankylosing spondylitis. He indicated that he was 100 

 

2 The record indicates that appellant has service-related hearing loss, post-traumatic stress disorder (PTSD), a 

paraspinal nerve condition, Parkinson’s disease, and prostate cancer, for which he receives benefits from the 

Department of Veterans Affairs (VA).
3

percent disabled by the VA for PTSD,3and that the stress of dealing with OWCP aggravated that

condition. 

In correspondence dated March 22, 2017, OWCP noted that it had authorized physical 

therapy for an extended period of time and advised appellant of the medical information needed 

to authorize continued physical therapy. In a March 22, 2017 report, received by OWCP on 

April 3, 2017, Dr. Arkin advised that appellant’s accepted ankylosing spondylitis was totally 

disabling and would not improve but that physical therapy, massage therapy, electric stimulation, 

and ultrasound therapy helped him maintain his activities of daily living and reduced his pain 

level. He further noted that appellant could no longer take NSAID medication due to loss of 

kidney function.

On April 4, 2017 OWCP referred the case record to its medical adviser for an opinion on 

whether the requested physical therapy was medically necessary to treat the accepted conditions. 

In an April 20, 2017 report, Dr. Todd Fellars, a Board-certified orthopedic surgeon and OWCP 

medical adviser, noted his review of a statement of accepted facts and medical record. He 

indicated that the recommended physical therapy was causally related to the accepted condition, 

noting that it was often used to treat back pain, but that the recommended physical therapy was 

not medically necessary. Dr. Fellars explained that no functional gains had been outlined as a 

result of physical therapy, noting that the record did not specially explain how it would improve 

appellant’s activities of daily living. He advised that appellant should be engaged in a home 

exercise program and indicated that current studies recommended an active physical therapy 

program, not passive modalities as were recommended in this case.

By decision dated April 20, 2017, OWCP denied appellant’s request for authorization of 

physical therapy. 

On May 16, 2017 appellant requested reconsideration. He indicated that he could no 

longer utilize his hot tub because he could no longer get in and out of it safely. Appellant also 

indicated that because his chest did not expand normally it was difficult to perform home 

exercises. He requested that OWCP furnish a motorized bed. 

In a May 3, 2017 report, Dr. Arkin advised that he began treating appellant for

ankylosing spondylitis in 1981, and that he continued to have severe pain, especially in the low 

spine area, complicated by moderate disc bulging and facet arthritis in the thoracic spine. He

repeated appellant’s medications and examination findings. Dr. Arkin indicated that appellant 

received physical therapy once or twice a year which decreased some of his neck and back pain, 

and that he tried to do home exercises on a fairly regular basis. He advised that with physical 

therapy, it was easier for appellant to turn in bed and be more active at home. Dr. Arkin related

that appellant felt that physical therapy helped him breathe a little easier because he had marked 

restriction of the chest wall secondary to the ankylosing spondylitis. He referred appellant for an 

orthopedic evaluation, noting that appellant could be a candidate for a block. On May 4, 2017

Dr. Arkin indicated that, since the beginning of appellant’s ankylosing spondylitis diagnosis, he

had been doing home exercises consisting of utilizing heating pad, ice packs, a transcutaneous

electrical nerve stimulation (TENS) unit, and an extended hand held massager, and these helped 

 

3 Supra note 2.
4

him to function daily and not be totally incapacitated due to pain. He advised that appellant was 

no longer able to safely get in and out of his hot tub due to several slips and near-falls, and that

his adjustable bed was no longer functional such that he had to sleep in a recliner since he could 

not lie flat in a bed. Dr. Arkin opined that physical therapy provided relief during a severe flare, 

which occurred once or twice a year, noting that this helped to make movements like turning 

over in bed, getting out of a chair, and walking easier, and also helped appellant breathe easier 

due to the marked restriction of the chest wall secondary to ankylosing spondylitis.

In an August 10, 2017 decision, OWCP denied modification of its prior decision. It 

noted that the evidence submitted was insufficient because it did not clearly explain how 

physical therapy would increase function or decrease appellant’s level of disability.

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 monthly compensation.4 

While OWCP is obligated to pay for treatment of employment-related 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.5 

Section 10.310(a) of OWCP’s implementing regulations provides that an employee is 

entitled to receive all medical services, appliances or supplies which a qualified physician 

prescribes or recommends and which OWCP considers necessary to treat the work-related 

injury.6 OWCP procedures provide that nonmedical equipment such as waterbeds, saunas, 

weight-lifting sets, exercise bicycles, etc., may be authorized only if recommended by the 

attending physician and if OWCP finds that the item is likely to cure, give relief, reduce the 

degree or the period of disability, or aid in lessening the amount of monthly compensation.7

In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad 

discretion in approving services provided, with the only limitation on OWCP’s authority being 

that of reasonableness.8 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. 

 

4 5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

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

6 20 C.F.R. § 10.310(a).

7 Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3.d(5) 

(October 1995); see also Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.17.h 

(June 2014); D.J., Docket No. 13-1637 (issued December 16, 2013).

8 See D.K., 59 ECAB 141 (2007).
5

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.9 

ANALYSIS

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

for authorization of continued physical therapy. OWCP initially accepted appellant’s claim in 

1987. The accepted conditions are permanent aggravation of ankylosing spondylitis and thoracic 

or lumbar spondylosis with myelopathy.

Appellant, who had been working four hours of modified duty daily, stopped work 

completely in 1994 and was placed on the periodic compensation rolls. He had received physical 

therapy several times a year beginning in 1988, and last authorized through October 22, 2015. 

On January 31, 2017 Dr. Arkin, an attending rheumatologist, recommended physical therapy, 

three times per week for six weeks. In merit decisions dated April 20 and August 10, 2017, 

OWCP denied authorization for continued physical therapy. OWCP found the weight of the 

medical evidence rested with the opinion of Dr. Fellars, its medical adviser. 

In his April 20, 2017 report, Dr. Fellars indicated that, while the recommended physical 

therapy was causally related to the accepted condition, it was not medically necessary. He 

indicated that no functional gains had been outlined as a result of physical therapy, noting that 

the record did not specially explain how it would improve appellant’s activities of daily living. 

Dr. Fellars advised that appellant should be engaged in a home exercise program, not passive 

modalities as were recommended in this case.

In reports dated March 2, May 3, and 4, 2017, Dr. Arkin advised that appellant’s accepted 

condition was totally disabling and would not improve. He opined that physical therapy once or 

twice a year, including massage therapy, electric stimulation, and ultrasound therapy, decreased 

some of his neck and back pain, and helped him maintain his activities of daily living. It assisted 

in movements such as turning over in bed, getting out of a chair, and walking, while also helping

appellant breathe easier. 

The Board finds, however, that Dr. Arkin did not provide a sufficient explanation as to 

how the continued physical therapy would reduce the degree or period of disability, or aid in 

lessening the amount of monthly compensation.10 

For these reasons, OWCP did not abuse its discretion in denying appellant’s request to 

authorize continued physical therapy. It explained that the medical evidence submitted provided 

insufficient explanation for the necessity of continued physical therapy and found that the weight 

of the evidence rested with Dr. Fellars, who advised that the requested physical therapy was not 

 

9 Minnie B. Lewis, 53 ECAB 606 (2002).

10 Supra notes 4 and 5.
6

medically necessary. The Board finds that it was not unreasonable for OWCP to deny 

authorization for continued physical therapy.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 by denying appellant 

authorization for physical therapy.

ORDER

IT IS HEREBY ORDERED THAT the August 10 and April 20, 2017 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: February 23, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

11 D.K., supra note 8.