United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.L., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

Orlando, FL, Employer

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Docket No. 20-1299

Issued: May 5, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On June 15, 2020 appellant filed a timely appeal from an April 29, 2020 merit decision of 

the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards 

assigned Docket No. 20-1299.

On May 14, 2013 appellant, then a 47-year-old federal air marshal, filed an occupational 

disease claim (Form CA-2) alleging that she sustained an aggravation of a right knee condition 

due to factors of her federal employment. OWCP accepted the claim for aggravation of internal 

derangement of the right medial meniscus, right chondromalacia patellae, and derangement of the 

left meniscus not elsewhere classified. Appellant stopped work on February 18, 2013 and returned 

March 14, 2014.

1 The Board notes that following the April 29, 2020 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

On September 17, 2018 Dr. Mark A. Seldes, Board-certified in family medicine, discussed 

appellant’s continued complaints of pain and swelling in her knees bilaterally. He provided 

examination findings and noted that she had requested a renewal of physical and massage therapy 

prescriptions.

On November 27, 2018 OWCPreceived a request for physical/occupationaltherapy and/or 

massage therapy for a period beginning September 17, 2018. Dr. Seldes prescribed physical/

occupational and/or massage therapy.

In a development letter dated November 28, 2018, OWCP informed appellant that it had 

received a request to authorize physical therapy for her knees for the period September 24 through

December 13, 2018. It advised her of the type of evidence needed, including a report from her 

attending physician addressing her injury-related residuals and explaining the need for physical 

therapy and/or massage therapy. OWCP afforded appellant 30 days to submit the necessary 

evidence.

In a report dated December 17, 2018, Dr. Seldes reviewed OWCP’s November 28, 2018 

development letter. He advised that appellant required physical and massage therapy due to her 

pain in both knees and because she refused “any further opiate therapy.” Dr. Seldes opined that 

physical therapy would help to decrease her daily pain, improve her daily disability, and allow her 

to perform her activities of daily living without as much discomfort.

By decision dated February 20, 2019, OWCP denied authorization for physical therapy

and/or massage therapy.

Appellant appealed to the Board. By order dated February 20, 2020, the Board found that 

the case was not in posture for a decision and remanded for OWCP to consider all of the evidence 

and provide clear reasons regarding its denial of appellant’s request for authorization for physical 

therapy in a de novo decision.2

OWCP subsequently received February 19 and April 23, 2019 reports, wherein Dr. Seldes 

continued to diagnose bilateral internal knee derangement, bilateral torn medial menisci, bilateral 

knee osteoarthritis, chondromalacia of the right knee joint, and status post arthroscopic left knee 

partial lateral meniscectomy and repair. Dr. Seldesstrongly recommended continued physical and 

massage therapy as appellant continued to have difficulties with climbing stairs, prolonged 

ambulation, standing, sitting, and reclining due to pain in her knees. He also found that her 

bilateral knee condition had deteriorated and recommended possible surgical intervention.

In an April 14, 2020 development letter, OWCP advised appellant that additional medical 

evidence was required from her treating physician before further physical therapy and/or massage 

therapy could be authorized. It noted that physical therapy and/or massage therapy had been 

furnished for an extended period of time, but had not resulted in the increased function or decrease 

in the level of disability from the conditions accepted due to her May 14, 2013 employment injury. 

2 Docket No. 19-0831 (issued February 20, 2020).
3

By decision dated April 29, 2020, OWCP again denied appellant’s request for

authorization for physical and/or massage therapy. It reviewed Dr. Seldes’ reports as well as its 

procedures3 and found that pain alone was not a basis to grant a request for authorization for 

therapy.

The Board has duly considered this matter and finds that this case is not in posture for 

decision. Section 10.121 of OWCP’s regulations provides that if a claimant submits factual 

evidence, medical evidence, or both in support of his or her claim, but OWCP determines that this 

evidence is not sufficient to meet the burden of proof, it will inform the claimant of the additional 

evidence needed and provide the claimant at least 30 days to submit the evidence required. 4 It is 

well established that proceedings under the Federal Employees’ Compensation Act5(FECA) are 

not adversarial in nature. OWCP shares responsibility in the development of the evidence and has 

an obligation to see that justice is done.6 The nonadversarial policy of proceedings under FECA 

is reflected in OWCP’s regulations at section 10.121.

7

As the 30-day period for submission of additional evidence, which began with the April 14, 

2020 development letter, had not expired at the time OWCP issued its April 29, 2020 decision 

denying appellant’s claim, the Board finds that it did not fulfill its responsibility under section

10.121 of its regulations.8

Thus, the Board finds that this case must be remanded for proper application of section

10.121 of OWCP’s regulations, allowing appellant 30 days to respond to the request for additional 

evidence, to be followed by a de novo decision. Accordingly,

3 Federal (FECA) Procedures Manual, Part 2-- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.19(b) (September 2010).

4

20 C.F.R. § 10.121.

5

5 U.S.C. § 8101 et seq.

6

J.H., Docket No. 19-1476 (issued March 23, 20201); H.T.,Docket No. 18-0979 (issued February 4, 2019); John J. 

Carlone, 41 ECAB 354, 358-60 (1989).

7

Supra note 6; J.H., id.

8

Supra note 6; see J.V., Docket No. 13-0295 (issued April17, 2013)(finding that when OWCP failed to provide 

30 days to submit requested evidence, it failed to follow its regulation at 20 C.F.R. § 10.121).
4

IT IS HEREBY ORDERED THAT the April 29, 2020 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this order of the Board.

Issued: May 5, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board