United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.N., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Pittsburgh, PA, Employer

__________________________________________

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Docket No. 20-1315

Issued: July 6, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 22, 2020 appellant filed a timely appeal from a January 21, 2020 merit decision 

of the Office of Workers’ Compensation Programs (OWCP) and an April 6, 2020 nonmerit 

decision.1 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 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, it was asserted that oral argument should be granted because the medical 

evidence of record established that OWCP should have approved the requested right knee injections. The Board, in 

exercising its discretion, denies appellant’s request for oral argument because this matter requires an evaluation of the 

medical evidence presented. As such, the arguments on appeal can adequately be addressed in a decision based on a 

review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve 

a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as 

submitted to the Board.

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the April 6, 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

ISSUES

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

for authorization of right knee viscosupplementation injections; and (2) whether it properly denied 

appellant’s request for a review of the written record by an OWCP hearing representative as 

untimely filed, pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On September 12, 2013 appellant, then a 48-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on September 11, 2013 he hopped over a two-foot wide torrent 

of water during a thunderstorm and sustained a right knee injury and aggravated a left ankle injury 

while in the performance of duty. On February 1, 2014 he filed a notice of recurrence (Form 

CA-2a) alleging that on January 25, 2014 he aggravated his right knee when he stepped on a 

snow-covered newspaper and twisted his knee while in the performance of duty.4 OWCP accepted 

the claim for derangement of the posterior horn of the right medial meniscus. 

On August 21, 2014 appellant underwent an OWCP authorized arthroscopic partial right 

medial meniscectomy, excision of medial synovial plica, and limited synovectomy. Following a 

period of recuperation, he returned to full-time limited-duty work on October 14, 2014. Appellant

continued to receive medical treatment. 

On October 12, 2015 OWCP obtained a second opinion report from Dr. Shaka Walker, a 

Board-certified orthopedic surgeon, who diagnosed status post right knee arthroscopy with medial 

meniscus debridement, and operative findings of medial and anterior compartment degenerative 

arthritis. He opined that the accepted injury caused osteoarthritis of the right knee, with 

mechanical symptoms of giving way and catching. Dr. Walker recommended a medial unloader 

brace and possible viscosupplementation injections with hyaluronic acid. 

In a February 28, 2017 report, Dr. David P. Fowler, a Board-certified orthopedic surgeon, 

diagnosed significant arthritis of the right knee causally related to the accepted injury. He 

administered a series of hyaluronic acid viscosupplementation injections to the right knee in 

October and November 2017.5 Dr. Fowler administered a second series of viscosupplementation 

injections in September and October 2018 and a third series on July 12, 19, and 25, 2019. 

On August 14, 2019 Dr. Fowler requested that OWCP authorize the right knee 

viscosupplementation injections administered on July 12, 19, and 25, 2019. 

In a development letter dated August 20, 2019, OWCP explained the additional evidence 

needed to authorize the requested procedures, including a detailed narrative report from appellant’s 

attending physician setting forth the objective findings necessitating treatment, a description of the 

treatment provided, the period and extent of disability, and medical rationale addressing whether 

 

4 February 12, 2014 right knee x-rays showed small marginal osteophytes in the medial compartment with modest 

joint space narrowing, indicative of the development of mild medial compartment osteoarthritis since 2012 

radiographs. A March 11, 2014 magnetic resonance imaging scan of the right knee demonstrated a longitudinal tear 

of the anterior horn and complex tear of the posterior horn of the medial meniscus. 

5 April 12, 2018 right knee x-rays showed moderate medial and mild patellofemoral compartment degenerative 

changes, with a degree of medial compartment joint space narrowing similar to 2016 imaging studies. 
3

the diagnosed condition had been caused or aggravated by the accepted right knee condition. It

afforded him 30 days to submit the requested evidence. 

In response, appellant submitted July 12 and 19, 2019 chart notes by Dr. Fowler diagnosing 

primary osteoarthritis of the right knee and noting viscosupplementation injections. In a July 25, 

2019 progress note, Dr. Fowler indicated that appellant had completed a series of hyaluronic acid 

injections to the right knee. In a duty status report (Form CA-17) of even date, Dr. Fowler noted 

work restrictions. 

By decision dated January 21, 2020, OWCP denied authorization for the July 12, 19, and 

25, 2019 viscosupplementation injections, finding that appellant had not submitted medical 

evidence to establish that the requested treatment was medically necessary to address the effects 

of the accepted right knee injury. 

In a March 6, 2020 letter received by OWCP on March 17, 2020,

6

appellant requested a 

review of the written record by a representative of OWCP’s Branch of Hearings and Review. He 

submitted additional medical evidence and copies of medical evidence previously of record. 

In a March 6, 2020 report, Dr. Fowler diagnosed post-traumatic, work-related right knee 

arthritis. In a duty status report (Form CA-17) of even date, he noted work restrictions. 

By decision dated April 6, 2020, OWCP denied appellant’s request for a review of the 

written record, finding that the request was untimely filed. The request was dated March 6, 2020, 

more than 30 days following the January 21, 2020 decision. The hearing representative informed 

appellant that his case had been considered in relation to the issues involved, and that the issues 

could be equally addressed by requesting reconsideration and submitting evidence not previously 

considered. 

LEGAL PRECEDENT -- ISSUE 1

Section 8103(a) of FECA7provides that the United States shall furnish to an employee who 

is injured while in the performance of duty, the services, appliances, and supplies prescribed by 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 the monthly compensation.8 

In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in 

determining whether a particular type of treatment is likely to cure or give relief.9 The only 

limitation on OWCP’s authority is that of reasonableness.10

While OWCP is obligated to pay for treatment of employment-related conditions, appellant 

has the burden of proof to establish that the expenditures were incurred for treatment of the effects 

 

6 The postmark is not found in the record. 

7 5 U.S.C. § 8103(a).

8

Id.; see Thomas W. Stevens, 50 ECAB 288 (1999).

9 R.C., Docket No. 18-0612 (issued October 19, 2018); W.T., Docket No. 08-0812 (issued April 3, 2009).

10 D.C., Docket No. 18-0080 (issued May 22, 2018); Mira R. Adams, 48 ECAB 504 (1997).
4

of an employment-related injury or condition.11 Proof of causal relationship in a case such as this 

must include supporting rationalized medical evidence.12 In order for a surgical procedure to be 

authorized, appellant must establish that the procedure was for a condition causally related to the 

employment injury and that the procedure was medically warranted.13 Both of these criteria must 

be met in order for OWCP to authorize payment.14

Abuse of discretion is 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.15

ANALYSIS -- ISSUE 1

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

authorization of right knee viscosupplementation injections.

OWCP accepted derangement of the posterior horn of the right medial meniscus and 

authorized arthroscopic partial right medial meniscectomy, excision of medial synovial plica, and 

limited synovectomy. Dr. Walker, an OWCP referral physician, indicated in his October 12, 2015 

report that viscosupplementation injections could improve appellant’s right knee symptoms. 

Dr. Fowler subsequently administered a series of viscosupplementation injections to the right knee 

in October and November 2017, a second series in September and October 2018, and a third series 

on July 12, 19, and 25, 2019. 

As noted, the only restriction on OWCP’s authority to authorize medical treatment is one 

of reasonableness.16 Although Dr. Fowler requested that OWCP authorize the third series of 

viscosupplementation injections, he did not explain how and why this treatment would cure, give 

relief, reduce the degree or period of disability, or aid in lessening the amount of any compensation 

paid.17 The Board notes that, while Dr. Walker noted that viscosupplementation injections could 

ameliorate appellant’s symptoms, Dr. Fowler reported that appellant remained symptomatic after 

undergoing two series of hyaluronic acid injections, thus necessitating a third series. Dr. Fowler

did not relate any specific objective findings, which noted that the accepted right knee condition 

 

11 R.M., Docket No. 19-1319 (issued December 10, 2019); J.T., Docket No. 18-0503 (issued October 16, 2018); 

Debra S. King, 44 ECAB 203, 209 (1992).

12 K.W., Docket No. 18-1523 (issued May 22, 2019); C.L , Docket No. 17-0230 (issued April 24, 2018); M.B., 58 

ECAB 588 (2007); Bertha L. Arnold, 38 ECAB 282 (1986).

13 T.A., Docket No 19-1030 (issued November 22, 2019); Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. 

Benton, 15 ECAB 48, 49 (1963).

14 J.L., Docket No. 18-0990 (issued March 5, 2019); R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331, 

333 (2000).

15 D.S., Docket No. 18-0353 (issued February 18, 2020); E.L., Docket No. 17-1445 (issued December 18, 2018); 

L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990).

16 20 C.F.R. § 10.310(a); see P.L., Docket No. 18-0260 (issued April 14, 2020).

17 P.L., id.
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had improved, or would improve in the future due to a third series of injections.18 The evidence 

of record does not substantiate that the previous two series of injections, which began in 

October 2017, had been curative or provided relief of appellant’s accepted right knee conditions. 

The Board thus finds that OWCP did not abuse its discretion in denying his request for 

authorization. 

On appeal, appellant contends that the medical evidence of record, including reports 

submitted following OWCP’s January 21, 2020 decision, establishes that OWCP should approve 

the requested viscosupplementation injections as work related. As explained above, the medical 

evidence submitted prior to January 21, 2020 was insufficient to establish that the requested 

injections were necessitated by the accepted injury. 

Appellant may submit new evidence or argument with a written request for reconsideration

to OWCP within one year of this decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R. §§ 10.605 

through 10.607.

19

 

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with 

a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance 

of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”

20

 

Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide 

that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a 

representative of the Secretary.21 A claimant is entitled to a hearing or review of the written record 

as a matter of right only if the request is filed within the requisite 30 days as determined by 

postmark or other carrier’s date marking and before the claimant has requested reconsideration.22 

Although there is no right to a review of the written record or an oral hearing, if not requested 

within the 30-day time period, OWCP may within its discretionary powers grant or deny 

appellant’s request and must exercise its discretion.23

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for a review of the written 

record before an OWCP hearing representative as untimely filed, pursuant to 5 U.S.C. § 8124(b).

Appellant had 30 days following OWCP’s January 21, 2020 merit decision to request a 

review of the written record before a representative of OWCP’s Branch of Hearings and Review. 

As his request for a review of the written record was dated March 6, 2020, more than 30 days after 

 

18 Id.

19 20 C.F.R. § 501.2(c).

20 Supra note 1 at § 8124(b)(1).

21 20 C.F.R. §§ 10.616, 10.617.

22 Id. at § 10.616(a).

23 W.H., Docket No. 20-0562 (issued August 6, 2020); P.C., Docket No. 19-1003 (issued December 4, 2019); M.G.,

Docket No. 17-1831 (issued February 6, 2018); Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 

ECAB 155 (1999).
6

OWCP’s January 21, 2020 decision, it was untimely filed and he was, therefore, not entitled to a 

review of the written record as a matter of right.24 Section 8124(b)(1) is unequivocal on the time 

limitation for requesting a hearing.25

OWCP also has the discretionary power to grant an oral hearing or review of the written 

record even if the claimant is not entitled to a review as a matter of right. The Board finds that 

OWCP, in its April 6, 2020 decision, properly exercised its discretion noting that it had considered 

the matter in relation to the issue of authorization of the requested viscosupplementation injections

and determined that the issue could be equally well addressed through a reconsideration 

application. The Board has held that as the only limitation on OWCP’s authority is reasonableness, 

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 deduction 

from established facts.26 The Board finds that the evidence of record does not indicate that OWCP 

abused its discretion in connection with its denial of appellant’s request for a review of the written 

record.

Accordingly, the Board finds that OWCP properly denied appellant’s request for a review 

of the written record as untimely filed, pursuant to 5 U.S.C. § 8124(b)(1).

CONCLUSION

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

authorization of right knee viscosupplementation injections. The Board further finds that OWCP 

properly denied appellant’s request for a review of the written record by an OWCP hearing 

representative as untimely filed, pursuant to 5 U.S.C. § 8124(b).

 

24 Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis 

of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings 

and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011); see also G.S., Docket No. 18-0388 (issued 

July 19, 2018). As the case record does not include the date of the postmark, OWCP utilized the date of the request 

for a review of the written record.

25 5 U.S.C. § 8124(b)(1); see M.K., Docket No. 19-0428 (issued July 15, 2019); R.H., Docket No. 18-1602 (issued 

February 22, 2019); William F. Osborne, 46 ECAB 198 (1994).

26 See T.G., Docket No. 19-0904 (issued November 25, 2019); Daniel J. Perea, 42 ECAB 214 (1990).
7

ORDER

IT IS HEREBY ORDERED THAT the April 6 and January 21, 2020 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: July 6, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board