United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

Y.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tacoma, WA, Employer 

__________________________________________ 

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Docket No. 15-1949 

Issued: April 11, 2016 

Appearances: Case Submitted on the Record

Howard Graham, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 28, 2015 appellant, through counsel, filed a timely appeal from a 

September 4, 2015 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. 

ISSUE 

The issue is whether OWCP properly terminated compensation for wage-loss and 

medical benefits, effective March 8, 2015. 

FACTUAL HISTORY 

On November 22, 2004 appellant, then a 42-year-old clerk, filed an occupational disease 

claim (Form CA-2) alleging that she sustained depression and anxiety as a result of her federal 

employment. On the claim form she alleged that harassment from a coworker had contributed to 

 1

 5 U.S.C. § 8101 et seq. 
2

her condition. Appellant submitted a statement describing an October 28, 2004 incident 

involving the coworker yelling at her. The medical evidence included a December 22, 2004 

report from Dr. Stephen Langer, a psychologist, who diagnosed post-traumatic stress disorder, 

mild, with depressive and anxious features. 

OWCP accepted the claim on August 12, 2005 for major depressive disorder, single 

episode, and anxiety. Appellant received wage-loss compensation from January 10, 2005 and 

was placed on the periodic compensation rolls as of July 9, 2006. 

In a statement of accepted facts (SOAF) dated October 27, 2005, OWCP indicated that 

the accepted compensable work factor was an October 24, 2004 employment incident where a 

coworker shouted at appellant in front of others. Appellant was referred for a second opinion 

examination by Dr. Linda Miller, an osteopath specializing in psychiatry. In a report dated 

July 17, 2006, Dr. Miller opined that the accepted conditions had resolved. By report dated 

August 24, 2006, she indicated that she had reviewed an August 7, 2006 Minnesota Multiphasic 

Personality Inventory (MMPI) and it did not alter her opinions. Dr. Miller again opined in an 

October 20, 2006 report that the employment-related conditions had resolved and appellant’s 

current stress was related to Equal Employment Opportunity (EEO) claims she was pursuing. 

Dr. Langer indicated in a December 14, 2006 report that he disagreed with Dr. Miller’s 

conclusions. According to Dr. Langer, appellant remained disabled due to an employmentrelated emotional condition. 

OWCP found that a conflict in the medical evidence existed and, pursuant to 5 U.S.C. 

§ 8123(a), selected Dr. John Hamm, a Board-certified psychiatrist, to resolve the conflict. In a 

report dated April 5, 2007, Dr. Hamm opined that appellant had a slow development of 

depression, anxiety, and paranoia that most likely preceded her interaction with the coworker. 

He further opined that appellant’s current pathology was not related to an October 28, 2004 

incident, as this was the type of incident that would cause transient emotional distress, but not a 

psychiatric illness. Dr. Hamm found that appellant was disabled from work and nonwork-related 

stressors needed to be addressed in her treatment. 

By letter dated September 18, 2007, OWCP advised appellant it proposed to terminate 

compensation based on the report from Dr. Hamm. By decision dated October 31, 2007, it 

terminated compensation for wage-loss and medical benefits. 

Appellant requested a hearing, which was held on March 26, 2008. By decision dated 

July 8, 2008, the hearing representative reversed the October 31, 2007 termination decision. He 

found the factual evidence had established “mistreatment” by the coworker based on repeated 

criticisms of appellant and demeaning behavior prior to the October 28, 2004 incident, and this 

was a compensable work factor. According to the hearing representative, other allegations 

relating to administrative matters such as performance awards and EEO proceedings were not 

compensable. Since the SOAF provided to Dr. Hamm and Dr. Miller did not include a complete 

discussion of accepted compensable work factors, the hearing representative found the medical 

evidence was insufficient to support a termination of benefits. 
3

On August 25, 2009 OWCP prepared a new SOAF, identifying four compensable work 

factors: (1) the October 28, 2004 incident, (2) the coworker did not put mail in its proper place 

and left it for appellant, (3) the coworker pressured appellant to work faster and criticized her in 

front of other employees, and (4) the coworker spoke to appellant in a loud threatening manner. 

Appellant was referred to Dr. Larry Bornstein, a Board-certified psychiatrist, for a second 

opinion evaluation. In a report dated September 11, 2009, Dr. Bornstein opined that the 

“accepted condition of major depression continues” and appellant was disabled for work. 

The record contains a March 29, 2011 report of investigation by the employing 

establishment’s Office of Inspector General (OIG). The cover letter reports that appellant may 

have misrepresented her physical and mental capabilities to medical providers. 

On July 26, 2011 OWCP again prepared a SOAF with the four compensable work factors 

identified in the August 25, 2009 SOAF. Appellant was referred to Dr. Richard Schneider, a 

Board-certified psychiatrist, for a second opinion evaluation. In a report dated August 23, 2011, 

Dr. Schneider opined that appellant did not have PTSD as she did not meet the requirement for 

such a diagnosis. He indicated that he concurred with Dr. Hamm that appellant’s current 

pathology was not related to work incidents, particularly an October 28, 2004 incident. 

Dr. Schneider further opined that the accepted conditions “are fixed and stable, but not resolved. 

They are chronic and preexisting.” In a report dated September 8, 2011, Dr. Schneider indicated 

that he had reviewed a surveillance video from the fall of 2010, with appellant running in 

marathons, shopping, and chatting with friends. He opined that his diagnosis would now be 

malingering, and appellant was able to return to work. 

By letter dated January 26, 2012, OWCP advised appellant it proposed to terminate 

compensation for wage-loss and medical benefits. Appellant, through counsel, submitted a 

February 17, 2012 letter objecting to the proposed termination. Counsel argued that relevant 

materials had not been provided to appellant, including the surveillance video.2

 In a report dated 

March 13, 2012, Dr. Langer opined that he disagreed with Dr. Schneider. He opined that 

appellant continued to have residuals of the employment-related conditions and was disabled 

from work. 

OWCP again determined that a conflict in the medical evidence existed, and selected 

Dr. Douglas Robinson, a Board-certified psychiatrist, to resolve the conflict. In a report dated 

September 26, 2012, Dr. Robinson diagnosed panic disorder with agoraphobia, and depressive 

disorder. He noted the results of an MMPI and found that the surveillance video, while not 

prima facie evidence of malingering, was inconsistent with appellant’s claimed degree of fear in 

 2

 By letter dated February 1, 2012, appellant’s counsel requested a copy of the case record, including a copy of 

the surveillance video. OWCP sent appellant’s counsel a copy of the surveillance video on February 27, 2012. As 

the Board noted in F.S., Docket No. 11-863 (issued September 26, 2012) and in P.S., Docket No. 13-1018 (issued 

June 19, 2014) the investigative practices of an employing establishment’s inspection service, including obtaining 

surveillance videos, are not within the jurisdiction of the Board. However, the Board has noted that although video 

footage may be of some value to a physician asked to render a medical opinion, it may also be misleading if material 

facts are omitted. Thus, OWCP is obliged to notify the claimant when such footage is given to a physician and, 

upon request, provide a copy of the recording and a reasonable opportunity to respond to its accuracy. A.P., Docket 

No. 13-30 (issued March 18, 2013). 
4

public locations. Dr. Robinson opined that appellant did not suffer from any psychological 

effects from the four accepted work factors. 

By letter dated November 14, 2012, OWCP advised appellant that it proposed to 

terminate compensation for wage-loss and medical benefits. Appellant submitted a report from 

Dr. Langer dated December 28, 2012. Dr. Langer reported that he disagreed with 

Dr. Robinson’s conclusions. He agreed that appellant did not have PTSD, but opined that 

appellant remained disabled due to an employment-related emotional condition. 

OWCP prepared a SOAF dated April 22, 2013, again listing four accepted employment 

factors. Dr. Robinson was requested to submit an additional report. In a report dated May 19, 

2013, he opined that, if depressive symptoms were still present, they were not related to the 

accepted employment factors. 

On June 28, 2013 OWCP found that the April 22, 2013 SOAF contained omissions and 

errors and would be corrected. It indicated that it was setting aside the proposed termination. A 

proposed June 28, 2013 SOAF again listed the four factors as compensable, with the addition of 

October 28, 2004 as the date the coworker spoke to appellant in a loud, threatening manner. The 

SOAF now included a description of the clerk position, and deleted references to medical 

appointments and observations from the 2010 surveillance video. On August 12, 2013 OWCP 

finalized the proposed changes to the SOAF. 

Appellant, through counsel, filed an appeal with the Board of the August 12, 2013 

OWCP findings. By order dated March 21, 2014, the Board dismissed the appeal.3

 The Board 

found it did not have jurisdiction over an adverse OWCP final decision. 

OWCP referred appellant for a second opinion examination by Dr. Russell Vandenbelt, a 

Board-certified psychiatrist. In a report dated June 25, 2014, Dr. Vandenbelt reviewed medical 

records and provided results on examination. He opined that the type of interaction described in 

the SOAF might lead to a temporary increase in anxiety or depressive symptoms, but this would 

abate within a few months. Dr. Vandenbelt opined that it was unreasonable to conclude that 

appellant had any current condition causally related to a remote set of circumstances in the 

workplace. 

By letter dated July 30, 2014, OWCP advised appellant that it proposed to terminate 

compensation for wage-loss and medical benefits. Appellant submitted a November 25, 2013 

report from Dr. Langer, who diagnosed PTSD with depressive and anxious features. He reported 

appellant’s condition was improving slightly, but he did not expect a full or partial recovery. 

According to Dr. Langer, appellant could have returned to work in 2006 if she did not work 

under the same supervisors who tolerated the harassment from the coworker. 

In a report dated October 3, 2014, Dr. Langer reported that appellant continued to show 

significant symptoms of major depressive disorder, and he found no evidence her condition had 

resolved. He opined that he disagreed with Dr. Vandenbelt’s conclusions. Dr. Langer asserted 

that appellant did qualify for a PTSD diagnosis. He wrote that he was unable to secure a change 

 3

 Docket No. 13-1936 (issued December 19, 2013). 
5

in her employment, and “[a]t that point, her disability became more entrenched, to the point that 

she deteriorated significantly, although she is now doing somewhat better. [Appellant’s] chronic 

depression and anxiety as well as her suspiciousness are directly caused by the events leading to 

the OWCP claim.” 

OWCP again found a conflict in the medical evidence existed and selected Dr. Gary 

Hudak, a Board-certified psychiatrist, as an impartial examiner to resolve the conflict. By letter 

dated December 11, 2014, appellant, through counsel, objected to the selection. Appellant 

asserted that Dr. Hudak was a “contract” physician for the Department of the Army. 

In a report dated January 7, 2015, Dr. Hudak indicated that he examined appellant on 

December 23, 2014. He provided results on examination, reviewed medical records, a 

September 17, 2009 MMPI-2, the 2010 surveillance video, and the SOAF. Dr. Hudak reported 

that, while appellant had subjective symptoms, “the only objective evidence in the claim file is 

the elevated F and F(b) scales of the aforementioned MMPI-2 which denote grossly exaggerated 

symptoms as well as the telling surveillance video which denote no objective evidence to support 

the claimant’s subjective psychological complaints.” He opined that there were no residuals of 

the accepted conditions related to the work environment. Dr. Hudak found that appellant did not 

have a work-related mental health disorder and could return to work. 

By letter dated January 21, 2015, OWCP requested that Dr. Hudak review additional 

reports from Dr. Langer.4

 By report dated February 6, 2015, Dr. Hudak indicated that his 

opinion remained the same. 

On February 12, 2015 OWCP prepared a new SOAF that indicated an additional accepted 

compensable factor was established: the coworker engaged in demeaning and threatening 

behavior toward appellant prior to October 28, 2004. In a report dated March 4, 2015, 

Dr. Hudak indicated that he had reviewed the February 12, 2015 SOAF. He indicated that his 

opinion remained the same. 

By decision dated March 5, 2015, OWCP terminated compensation for wage-loss and 

medical benefits effective March 8, 2015. It found Dr. Hudak represented the weight of the 

medical evidence. 

Appellant, through counsel, timely requested a review of the written record by an OWCP 

hearing representative on April 6, 2015. By decision dated September 4, 2015, the hearing 

representative affirmed the termination of benefits. She found there was no conflict in the 

medical evidence, as Dr. Vandenbelt did not have an accurate SOAF. In addition, the hearing 

representative found that Dr. Hudak still represented the weight of the medical evidence, as he 

provided a rationalized medical opinion that outweighed the unrationalized opinion of 

Dr. Langer. 

 4

 The January 7, 2015 report from Dr. Hudak reviewed numerous reports from Dr. Langer. The reports referred 

to in the January 21, 2015 letter appear to be handwritten treatment notes. 
6

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of proof to justify termination or 

modification of compensation. After it has been determined that an employee has disability 

causally related to his employment, OWCP may not terminate compensation without establishing 

that the disability had ceased or that it was no longer related to the employment.5

The Board has noted that in assessing medical evidence the weight of such evidence is 

determined by its reliability, its probative value, and its convincing quality. The factors which 

enter in such an evaluation include the opportunity for and thoroughness of examination, the 

accuracy and completeness of the physician’s knowledge of the facts and medical history, the 

care of the analysis manifested, and the medical rationale expressed is support of the physician’s 

opinion.6 Medical rationale is a medically sound explanation for the opinion offered.7

ANALYSIS 

In the present case, OWCP accepted that appellant sustained major depressive disorder, 

single episode, and anxiety, as a result of compensable work factors occurring on or before 

October 28, 2004. The issue is whether the medical evidence is sufficient to meet OWCP’s 

burden of proof to terminate compensation for wage-loss and medical benefits effective 

March 8, 2015. 

The Board notes that the hearing representative correctly found there was no conflict 

under 5 U.S.C. § 8123(a) with respect to the June 25, 2014 report of Dr. Vandenbelt, a second 

opinion physician, and the reports from Dr. Langer, the attending physician.8 Dr. Vandenbelt did 

not have a complete and accurate SOAF as a background for his opinion. OWCP modified the 

SOAF on February 12, 2015 and included an additional compensable work factor. A SOAF 

must provide a complete background with accepted factors and conditions.9 When a medical 

report is based on an incomplete or inaccurate SOAF, it is of diminished probative value.10 

Therefore his report is of diminished probative value and is insufficient to create a conflict. 

Even though Dr. Hudak was not an impartial medical examiner under 5 U.S.C. § 8123(a), his 

report may still constitute the weight of the medical evidence as a second opinion physician.11

 5 Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503. 

6 Gary R. Sieber, 46 ECAB 215 (1994). 

7 See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 

641 (1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical). 

8

 Under 5 U.S.C. § 8123 (a), if there is a disagreement between an OWCP physician and an attending physician, a 

third physician shall be selected to make an examination. 

9 See Barbara A. Palmer, Docket No. 06-0591 (issued July 6, 2006). 

10 L.J., Docket No. 14-1682 (issued December 11, 2015); V.H., Docket No. 14-0433 (issued July 3, 2014). 

11 Cleopatra McDougal-Saddler, 47 ECAB 480 (1996). 
7

The Board affirms the finding of OWCP that Dr. Hudak represents the weight of the 

medical evidence in this case. Dr. Hudak provided a detailed medical report reviewing the 

numerous medical reports and evidence of record. He unequivocally opined that appellant did 

not have continuing residuals of an employment-related condition. Dr. Hudak noted that the 

only objective evidence consisted of a 2009 MMPI-2, which indicated that appellant was 

exaggerating her symptoms. Dr. Hudak provided a rationalized medical opinion that appellant 

did not have a continuing employment-related emotional condition. His opinion was based on an 

accurate background, as he reviewed the February 12, 2015 SOAF and thereafter reiterated his 

opinion. 

The Board finds his opinion is of diminished probative value. Dr. Langer, for example, 

continued to refer to a diagnosis of PTSD. The physicians of record consistently found that 

appellant did not have PTSD, and this was not an accepted condition. Moreover, Dr. Langer 

does not explain why he opined that appellant continues to have a condition causally related to 

incidents that occurred in 2004 and earlier. He acknowledged that she could have returned to 

work in 2006 if she had different supervisors. It is well established that a fear of a future injury 

or reaction after a return to work is not compensable.12

On appeal, appellant’s counsel argues that Dr. Hudak’s opinion was not well rationalized, 

as he relied on stale evidence such as videotape more than four years old and an MMPI 2 that 

was six years old. As discussed above, Dr. Hudak had a complete background and provided a 

rationalized medical opinion. Counsel again argues that the SOAF was insufficient, asserting 

that it did not describe the severity of appellant’s harassment. The record contains the significant 

history of the development of the SOAF. The February 12, 2015 SOAF discussed the accepted 

compensable work factors and provided a detailed and accurate factual background. Counsel 

also argues that the September 4, 2015 hearing representative decision imposed a burden on 

appellant to provide evidence of disability. The decision properly placed the burden of proof on 

OWCP to terminate compensation and found OWCP had met its burden of proof. Counsel 

argues that Dr. Hudak relied on medical reports that were found to be of diminished probative 

value and was not told to ignore such evidence. Dr. Hudak was provided a complete medical 

background and he provided an opinion based on his own examination. There was no reason to 

exclude any medical report from the record.13 

Counsel further argues that OWCP used leading questions, citing as an example a request 

that the physician explain, if there were residuals of the accepted conditions, how appellant had 

residuals with no exposure to the work environment since 2005. A rationalized medical opinion 

would have to provide such an explanation to be of probative value. The Board finds the 

questions provided do not constitute improper leading questions. Appellant’s counsel also 

argues that Dr. Hudak was not properly selected as an impartial medical examiner. As discussed 

 12 See W.R., Docket No. 11-1024 (issued October 18, 2011); L.W., Docket No. 08-1034 (issued 

February 13, 2009). 

13 See Terrance R. Stath, 45 ECAB 412 (1994) (reports excluded because OWCP might have influenced the 

opinion of the physician, such as through improper contact, are distinguished from reports that are of diminished 

probative values for other procedural reasons). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Developing and Evaluating Medical Evidence, Chapter 2.810.12 (September 2010). 
8

above, Dr. Hudak was properly considered a second opinion physician, and was not a referee 

physician under 5 U.S.C. § 8123(a). 

The Board finds that the medical evidence of record was sufficient to meet OWCP’s 

burden of proof in this case. Dr. Hudak provided a well-rationalized opinion that represents the 

weight of the medical evidence. 

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 properly terminated compensation for wage-loss and 

medical benefits effective March 8, 2015. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 4, 2015 is affirmed. 

Issued: April 11, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board