United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Plano, TX, Employer

__________________________________________

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Docket No. 19-0432

Issued: July 23, 2019

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 December 18, 2018 appellant filed a timely appeal from a November 2, 2018 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.2

ISSUE

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

stair climber/stair lift and a walk-in tub.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the November 2, 2018 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

FACTUAL HISTORY

On December 1, 2010 appellant, then a 56-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that she sustained bilateral pain and stiffness in both knees as 

a result of repetitive job duties. She noted that she first became aware of her claimed condition on 

April 4, 2010 and related it to her federal employment on October 29, 2010. On the reverse side 

of the claim form the employing establishment noted that appellant stopped work on 

November 22, 2010.

On January 12, 2011 OWCP accepted appellant’s claim for bilateral unspecified 

derangement of her knees and left knee medial meniscus tear. Appellant underwent left total knee 

replacement surgery on January 9, 2012 and total right knee replacement surgery on 

October 8, 2012. She returned to full-time limited-duty work on July 14, 2014.

By decision dated January 26, 2016, OWCP granted appellant a schedule award for 23

percent permanent impairment of the left lower extremity and 25 percent permanent impairment 

of the right lower extremity.

In a report dated February 24, 2017, Dr. Christopher R. Mann, an osteopath, noted 

appellant’s history of injury and treatment, and requested medical authorization for a stair 

climber/stair lift and a walk-in tub/safety rails. He indicated that her home was situated such that 

her bedroom was upstairs, and she had no option of living on the ground floor so as to avoid 

ascending and descending stairs. Dr. Mann opined that the single-leg lift on multiple stairs, 

multiple times per day was highly suspect for causing persistent stress on the knee as it tended to 

put harsh medial pressure on the knee and possibly induce the varus angle into the knee. He 

requested that the stair climber/stair lift be installed, and indicated that it would significantly 

reduce the risk of falling on the stairs, and reduce any mechanical abnormal stress on the knees 

when going up and down to and from her bedroom. In addition, Dr. Mann requested that a “stepin tub” or safety rails be installed to facilitate bathing safely.

On July 28, 2017 OWCP asked its district medical adviser (DMA) for an opinion regarding 

the medical necessity of the requested durable medical equipment (DME) including the stair 

climber/stair lift and walk-in tub. With its request, it listed a statement of accepted facts and two 

questions. 

In a September 27, 2017 report, Dr. William Tontz, Jr., a Board-certified orthopedic 

surgeon, serving as the DMA, noted appellant’s history of injury and accepted medical conditions. 

He answered “yes” to the question of request for whether the stair/climber lift and walk-in tub was 

causally related to the accepted medical conditions; however, he responded “no” with regard to 

whether the stair/climber lift and walk-in tub was medically necessary.

On November 1, 2017 appellant filed a notice of recurrence (Form CA-2a) indicating that 

she stopped work on September 14, 2017 due to a worsening of her accepted conditions. On

November 7, 2017 OWCP accepted appellant’s recurrence claim, effective September 14, 2017.

OWCP found a conflict in the medical opinion evidence between appellant’s attending 

physician, Dr. Mann, and its DMA, Dr. Tontz, regarding the medical necessity of the requested 
3

stair/climber lift and walk-in tub. On December 13, 2017 it referred appellant to Dr. Adam Carter, 

Board-certified in physical medicine and rehabilitation, for a referee examination to resolve the 

conflict.

In a report dated January 2, 2018, Dr. Carter determined that the DME request was causally 

related to appellant’s accepted employment-related injuries. With regard to whether the equipment

was medically necessary, he noted that appellant owned a walk-in shower with a shower bench 

and a hand-held shower head, and that she ascended and descended her stairs at home with bilateral 

canes at a modified independent level. Dr. Carter related that, given appellant’s high level of 

independent function, he believed it was most reasonable that appellant be authorized bathing rails 

for safety. He indicated that appellant did not require a walk-in tub. Dr. Carter also noted that he 

believed the stair climber/stair lift would debilitate her further. He determined that, based on her 

physical examination and medical history, appellant was sufficiently independent and did not need 

the walk-in tub and stair climber/stair lift.

On February 21, 2018 OWCP requested that Dr. Carter address whether appellant required 

another total left knee arthroscopy due to the accepted injury.

By decision dated February 22, 2018, OWCP denied appellant’s requested authorization 

for a walk-in tub and stair climber/stair lift, finding that the evidence of record did not support that 

it was medically necessary to address the effects of her employment-related condition.

In a supplemental report dated February 26, 2018, Dr. Carter opined that appellant did 

require another total left knee arthroscopy as she had aseptic loosening of the left knee prosthesis. 

He also noted that appellant’s initial total left knee arthroscopy was necessitated by her 

employment injury that the joint had worn out over time, and needed to be replaced. Dr. Carter

concluded that appellant’s proposed total left knee arthroscopy was medically necessary and 

causally related to her accepted employment injury.

In a report dated April 12, 2018, Dr. Mann reiterated his request for authorization of a stair 

climber/stair lift and walk-in tub. He indicated that, in light of appellant’s need for a second total 

knee replacement of both knees, it furthered her need to have the equipment installed in her home. 

Dr. Mann pointed to multiple medical literature references in arguing that appellant would be at a 

huge risk for further injury should OWCP deny the equipment. He noted that exerting any type of 

force on her knees postsurgery was not recommended, and should be avoided as there was a 

legitimate risk the stress on the prosthesis could have caused it to become aseptically loosened. 

Dr. Mann reiterated that it was highly likely that the stress placed on her surgically-repaired knees 

from ascending and descending stairs caused her need for a subsequent surgery. He indicated that 

current biomechanical literature supported his view that appellant’s regular exposure to excessive 

contact and shear forces directly contributed to the simultaneous aseptic loosening of both 

prosthesis over time.

On May 7, 2018 appellant underwent a revision of left total knee arthroplasty.

On September 5, 2018 appellant requested reconsideration of the February 22, 2018 

decision regarding her request for medical equipment.
4

By decision dated November 2, 2018, OWCP denied modification of its February 22, 2018 

decision, finding that the weight of medical evidence rested with the referee physician, Dr. Carter.

LEGAL PRECEDENT

Section 8103 of FECA3 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

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.6 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.7 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.8

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

Section 8123(a) of FECA which provides that, if there is disagreement between the 

physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician (known as a referee physician or impartial medical

specialist) who shall make an examination.10 This is called a referee examination and OWCP will 

 

3 Supra note 1.

4 5 U.S.C. § 8103; G.A., Docket No. 18-0872 (issued October 5, 2018); see Thomas W. Stevens, 50 ECAB 

288 (1999).

5 G.A., id.; Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6 M.B., Docket No. 17-1679 (issued February 8, 2018); see D.K., 59 ECAB 141 (2007).

7 See A.W., Docket No. 16-1812 (issued March 15, 2017).

8 M.G., Docket No. 18-0099 (issued April 26, 2018); see Debra S. King, 44 ECAB 203 (1992).

9 M.G., id.; see Minnie B. Lewis, 53 ECAB 606 (2002).

10 5 U.S.C. § 8123(a); C.L., Docket No. 17-0230 (issued April 24, 2018); R.S., Docket No. 10-1704 (issued May 13, 

2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
5

select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.11 When there exists opposing reports of virtually equal weight and rationale and the 

case is referred to an impartial medical specialist for the purpose of resolving the conflict, the 

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.12

ANALYSIS

The Board finds that this case is not in posture for decision.

OWCP accepted that appellant sustained an employment-related bilateral unspecified 

derangement of her knees, left knee medial meniscus tear, and bilateral localized primary lower 

leg osteoarthritis. On January 9, 2012 appellant underwent left total knee replacement surgery. 

On October 8, 2012 she underwent right total knee replacement surgery. 

In his report dated February 24, 2017, Dr. Mann requested medical authorization for a stair 

climber/stair lift and a walk-in tub/safety rails. He requested that the stair climber/stair lift be 

installed, as it would significantly reduce the risk that she would fall on the stairs, and reduce 

mechanical abnormal stress on the knees when ascending and descending stairs from her bedroom. 

In addition, Dr. Mann requested that a “step-in tub” or safety rails be installed to facilitate bathing 

safely. 

On July 28, 2017 OWCP asked its DMA for an opinion regarding the medical necessity of 

the requested DME including the stair climber/stair lift and walk-in tub. In his September 27, 2017 

report, Dr. Tontz indicated that the requested authorization for medical equipment was causally 

related to the accepted conditions; however, he also determined that the equipment was not 

medically necessary as appellant did not need such equipment to function at her normal level. 

OWCP determined that there was a conflict of medical opinions between Drs. Mann and 

Tontz and on December 13, 2017 it properly referred appellant to Dr. Carter for a referee 

examination to resolve the conflict. 

In his January 2, 2018 report, Dr. Carter determined that the DME request was causally 

related to appellant’s accepted employment-related injury. However, he concluded that, because 

appellant owned a walk-in shower with a shower bench and a hand-held shower head, and because 

she was able to ascend and descend her stairs at home with bilateral canes at a modified 

independent level, the requested DME was not medically necessary.13 Dr. Carter indicated that 

neither a walk-in tub nor a stair climber/stair lift were medically necessary.

The Board finds that Dr. Carter sufficiently explained that appellant did not medically need 

a walk-in bath as her home was equipped with a walk-in shower. OWCP properly denied 

 

11 20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006); C.L., id.

12 See C.L., supra note 10; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

13 Dr. Carter also related that, given appellant’s “high level of independent function,” he believed it was most 

reasonable for the bathing rails for safety. OWCP did not thereafter deny authorization for bathing rails. 
6

authorization of the walk-in bath tub based upon this rationalized opinion of the impartial medical 

examiner which is afforded the special weight.

14

With regard to the request for stair climber/stair lift OWCP subsequently requested that

Dr. Carter address whether appellant required a second total left knee total arthroscopy causally 

related to the accepted employment injury. However, prior to receipt of Dr. Carter’s supplemental 

report, OWCP denied appellant’s request for the stair climber/stair lift on February 22, 2018. 

Dr. Carter opined in his February 26, 2018 report that appellant did require a second total left knee 

arthroscopy causally related to her accepted employment injury as her first prosthesis had worn 

out. Appellant underwent the authorized left-knee revision on May 7, 2018. On September 5, 

2018 she requested reconsideration of the denial of her request for medical equipment. OWCP 

did not thereafter ask Dr. Carter to clarify whether the requested stair climber/stair lift was 

medically necessary following appellant’s May 7, 2018 revision of left total knee arthroplasty. 

The Board notes that proceedings under FECA are not adversarial in nature and OWCP is 

not a disinterested arbiter. The claimant has the burden of proof to establish entitlement to 

compensation. However, OWCP shares responsibility in the development of the evidence to see 

that justice is done.15 Once it undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case.16

On remand OWCP shall request that Dr. Carter clarify his opinion regarding appellant’s 

request for authorization of the stair climber/stair lift in light of his opinion that appellant required 

a second authorized total left knee arthroscopy. After such further development as deemed

necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

 

14 Supra note 13. 

15 T.R., Docket No. 17-1961 (issued December 20, 2018); William J. Cantrell, 34 ECAB 1223 (1983).

16 Id.; Richard F. Williams, 55 ECAB 343, 346 (2004).
7

ORDER

IT IS HEREBY ORDERED THAT the November 2, 2018 decision of the Office of 

Worker’s Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision of the Board.

Issued: July 23, 2019

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