United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.A., Appellant 

and 

DEPARTMENT OF COMMERCE, BUREAU 

OF THE CENSUS, Dallas, TX, Employer 

__________________________________________ 

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Docket No. 15-1073 

Issued: November 25, 2015 

Appearances: Case Submitted on the Record

Lenin V. Perez, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 7, 2015 appellant, through her representative, filed a timely appeal from a 

March 9, 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. 

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to justify termination of 

appellant’s wage-loss compensation and medical benefits for her accepted injuries effective 

July 3, 2013; (2) whether appellant has established that she had continuing disability after 

July 3, 2013. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On October 29, 1996 appellant, then a 44-year-old field representative, filed a claim for 

traumatic injury (Form CA-1), alleging injuries to her head, back, shoulders, wrists, knee, foot, 

ankle, and hand that occurred when she fell down stairs on October 9, 1996. OWCP accepted 

the claim for lumbar sprain, right knee contusion, traumatic left temporomandibular joint injury, 

traumatic bilateral carpal tunnel syndrome, right knee osteochondral fracture, ganglion cyst of 

the right wrist, and loss of teeth.2 Appellant stopped work on October 10, 1996. 

On April 28, 1997 appellant was placed on the periodic rolls for compensation benefits. 

Through the years appellant continued to receive medical treatment from Dr. Reed Stone, 

a Board-certified neurologist, and Dr. Jeffrey L. Katzell, an orthopedic surgeon. 

In a progress report dated October 14, 2009, Dr. Katzell related that appellant was seen 

for follow-up evaluation for flare up of back pain with radiation to the back of her knee and calf. 

He related that appellant’s problems were caused by her work injury, over a decade ago. 

Dr. Katzell explained that over five years ago a magnetic resonance imaging (MRI) scan showed 

stenosis at L4-5, and L5-S1. He further related that appellant now had so much spasm, 

recurrence of back pain and leg radiculopathy, that she could not even lie in bed without 

exacerbation of her symptomatology. Dr. Katzell noted that a recent MRI scan showed herniated 

discs with stenosis. 

Dr. Stone related in a January 18, 2010 progress note that appellant was seen for ongoing 

hand complaints, was being treated for carpal tunnel syndrome, and now had a trigger finger of 

the right hand. 

In a progress note dated March 3, 2010, Dr. Katzell related that appellant had developed 

work-related post-traumatic knee arthritis, flexion contracture of the right knee with retropatellar 

tenderness, a Baker’s cyst, posterior swelling, restricted knee flexion and extension. He also 

noted that, because of the flexion contracture, she had altered her gait and had worse back pain, 

with radiculopathy to the right leg with spasm, positive leg raise, and restricted flexion. 

To obtain current medical evidence related to appellant’s capacity to work, OWCP 

referred her for a second opinion examination. On June 9, 2010 a workers’ compensation 

specialist for the employing establishment sent OWCP a letter and a video disc. The specialist 

noted that “Although [appellant’s] physician has asserted that she is totally disabled from all 

employment, the video [depicts appellant] walking, bending, stooping, lifting, carrying, twisting, 

turning, sweeping, [and] reaching -- demonstrating her ability to do virtually the entirety of the 

physical required of her regular job as a Field Representative.” Enclosed along with the letter 

was an investigation report, which described the occurrences on the surveillance video. 

In the second opinion report dated June 11, 2010, Dr. Kirk E. Maes, a Board-certified 

orthopedic surgeon, stated “I believed that the predominance of her current symptoms are 

exaggerated and primarily related to the degenerative process, and are no longer significantly 

 2

 The Board notes that the original decision accepting appellant’s injuries does not appear in the case record. 
3

related to the work injury. I believe the work injury should be closed and she should be left to be 

disabled from an arthritic standpoint related to a primary degenerative process not a posttraumatic process.” 

OWCP determined that a conflict in the medical evidence existed between appellant’s 

treating physicians (Dr. Stone and Dr. Katzell) and Dr. Maes. It arranged for an impartial 

medical examination in order to resolve the conflict, but canceled the appointment due to the 

receipt of new video evidence from the employing establishment. OWCP sent the new evidence 

and a statement of accepted facts to Dr. Maes’ for issuance of an addendum report. 

On January 11, 2011 OWCP sent appellant’s former counsel, Paul Felser, a copy of the 

case file on both CD-ROM and paper. 

Dr. Maes issued his addendum report on February 17, 2011. In his report, he noted: 

“I do not believe that any of [appellant’s] alleged disability stems from the work 

injury. I originally believed that she was disabled, in large part from a 

psychosocial standpoint, and not due to any physical abnormalities. I now believe 

that [appellant] has no disability at all and is malingering. She has a 14-year 

history of nonwork and complaints of chronic pain which is no longer causing any 

obvious disability.[...] [Appellant’s] exaggeration of pain in the arms and knees, 

and to a lesser extent in the back has been chronic. I believe that the cause of this 

pain is predominantly degenerative and psychosocial and is not causing any 

disability at all.[...] The current video surveillance totally supports this opinion.” 

Dr. Maes also stated: 

“I believe [appellant’s] prognosis is exceptionally poor. She has not returned to 

work since the time of her original injury. [Appellant] has been classified as 

totally and permanently disabled, but I believe this is an error. She is apparently 

on social security and Medicare (according to her report.) I would not offer 

[appellant] any further treatments from a Workers’ Compensation standpoint. 

Her ongoing issues are degenerative and psychosocial, or fabricated, and are not 

related to her original injury in 1996.” 

On April 1, 2011 OWCP forwarded Dr. Maes’ report to Dr. Reed Stone, appellant’s 

primary treating physician of record and a Board-certified psychiatrist and neurologist, for 

commentary. On April 19, 2011 Dr. Stone responded, noting that appellant underwent 

osteochondral grafting of her right knee medial femoral condyle in 1998, a procedure that he 

stated would not have been performed but for a full-thickness cartilaginous lesion. He further 

noted that a February 1, 2011 MRI scan performed on appellant’s left knee revealed objective 

findings of chondromalacia of the patella, a focal cartilage fissure, and chondromalacia of the 

lateral femoral condyle. Dr. Stone recommended additional MRI scans of the right knee and 

arthroscopic evaluation of the left knee. He noted, “[A]t this time, I cannot clearly determine the 

cause of her left knee condition and, in particular, determine whether or not it is related to her 

[w]orkers’ [c]ompensation injury.” 
4

By letter dated April 1, 2011, OWCP sent a copy of the video evidence submitted by her 

employing establishment to appellant’s former counsel and enclosed it along with that letter. 

In a second opinion report dated August 17, 2012, Dr. Sorrell I. Strauss, a dentist, 

examined appellant’s right temporomandibular joint. He noted that she had 85 percent motion in 

all normal directions. Dr. Strauss stated that appellant’s diagnosed condition was directly caused 

by the 1996 injury and recommended additional treatment. 

In a second opinion report dated August 13, 2012, Dr. Peter Millheiser, a Board-certified 

orthopedic surgeon, examined the records of appellant’s treatment and conducted a physical 

examination. He reviewed the video surveillance and opined that appellant’s subjective 

complaints outweighed her orthopedic findings. Dr. Millheiser noted that appellant had related 

that she could only perform minimal activities around her house and that if she went out or 

worked in the garden she would have severe pain. However, the surveillance video obtained on 

May 1 and October 18, 2010 showed that appellant was able to walk normally outside. 

Dr. Millheiser noted: 

“[Appellant] hung a basket full of plants. She stood bent over and could arise 

from a bent over position apparently without problems. [Appellant] could carry 

objects. She could help someone unload a framed door from the rear of a vehicle. 

This involved lifting the door as well. [Appellant] carried half the door entering 

into a garage. She bent over to look at objects to put into a garbage container. 

[Appellant] was able to get in and out of a vehicle and lay and bend without 

problems. She was noted to be bent over gathering things on numerous 

occasions. [Appellant] walked without difficulty to a neighbor’s house. She was 

able to carry some object to the neighbor’s house. [Appellant] was able to use a 

broom and walk back in front of the garage. She could bend to pick up potted 

plants and carry them to the side of the house with walking.” 

Dr. Millheiser concluded that appellant exaggerated her complaints. He indicated that 

[she] should be evaluated by a psychiatrist to make sure that she was taking the proper 

medications. As far as activities were concerned, appellant’s only limitations would be due to 

the right knee osteoarthritis. Therefore Dr. Millheiser concluded that appellant was capable of 

performing light-duty work with restrictions. 

On September 13, 2012 OWCP requested clarification of Dr. Strauss’ August 17, 2012 

report. Dr. Strauss clarified by letter dated October 19, 2012, noting that appellant would need 

continued splint therapy and possibly surgery, though noting that “surgery is highly unlikely.” 

He clarified that her dental injury would not preclude her from performing her date-of-injury 

position or participating in vocational rehabilitation. 

By letter dated January 24, 2013, OWCP notified appellant that it had scheduled an 

appointment with a referee examiner to resolve a conflict in the medical evidence. 

On January 11, 2013 appellant requested a copy of her entire case record, including the 

video surveillance provided by the employing establishment. She also requested to participate in 

the process for selection of an independent medical examiner (IME). On January 17, 2013 
5

OWCP replied, noting that appellant needed to provide a valid reason for requesting 

participation, including but not limited, to documented bias. 

On January 29, 2013 OWCP requested a copy of the surveillance video from the 

employing establishment, noting that it had mailed its last copy with a referral to a referee 

examiner. It informed appellant that it did not have an extra copy to provide to her by letter of 

the same date. 

By letter dated February 14, 2013, appellant stated that the selected IME physician, 

Dr. Ian Fries, a Board-certified orthopedic surgeon, was biased because he appeared to rely 

largely on IMEs for income, did not have a regular practice, and had addressed the American 

Academy of Orthopedic Surgeons as a public speaker on the issue of work-related injuries. 

OWCP responded to appellant’s February 14, 2013 letter on February 22, 2013. It noted 

that she was allowed the opportunity to provide evidence regarding selection of Dr. Fries as an 

IME. OWCP found that she had not provided a valid reason to support her request to participate 

in the selection process, noting that her claim that Dr. Fries may be biased was unfounded. It 

stated, “You have not provided any documented evidence to substantiate this. Your perceptions 

do not have a factual basis.” Regarding appellant’s claim that Dr. Fries did not have a regular 

practice, OWCP noted, “Dr. Fries is Board-certified [and] it is logical that any entity, which 

requests an opinion from a specialist, regardless of the field of expertise [...] is willing to pay a 

fee to obtain an unbiased expert’s opinion on the matter. This is nothing new. Dr. Fries is being 

paid a fee to conduct an [i]ndependent [m]edical [e]xamination.” 

In a referee report dated March 1, 2013, Dr. Fries extensively reviewed appellant’s 

medical history and conducted an examination. He noted that “none of her current diagnoses are 

medically connected to the October 9, 1996 slip and fall. Several diagnoses mentioned in 

appellant’s records including right de Quervain’s tendinitis, complex regional pain syndrome, 

and a right volar wrist ganglion are no longer viable considerations.” In reviewing Dr. Stone’s 

reports, he noted that Dr. Stone had included a summary of a handwritten report from a 

psychiatrist regarding appellant’s daughter’s psychiatric conditions. Dr. Fries did not use this 

information in the evaluation of appellant’s conditions. He stated: 

“The charade lasted more than sixteen years. [Appellant] does not have current 

pathology reasonably related to her unwitnessed October 9, 1996 accident. She 

does not have any condition -- related or unrelated to that fall -- rendering her 

fully disabled from gainful employment. Degenerative arthritis of her knees 

might be considered in restrictions of ambulation, stair climb, and squatting, as 

well her age and obesity may be factors. However, video evidence does not 

support any work restrictions.” 

Regarding her capability to return to gainful employment, Dr. Fries noted, “Yes, she is capable 

of gainful employment based upon the lack of objective findings of impairment, and video 

evidence.” Regarding appellant’s capability for vocational rehabilitation, he concluded, “It is 

unlikely rehabilitation will change her employability, as the main factor limiting her is her 

claimed intolerance to any work.” Appellant noted to Dr. Fries that she had not seen the video, 

and explained that on May 1, 2010, she took two Vicodin prior to helping her husband with a 
6

garage door. Dr. Fries noted that this did not explain the findings of the March 18, 2010 video. 

Regarding the findings of the video, he noted, 

“On March 18, 2010 [appellant] is seen in her garden bending over to the ground. 

May 1, 2010 outside her garage, she and her husband lift a full door and door 

frame assembly from the back of an SUV, and move it into their garage. 

[Appellant] later helps her husband place the door assembly in the door opening, 

demonstrating good bilateral hand strength. 

“[Appellant] ambulates normally during the entire video without resting, and 

without knee supports. She bends to the ground multiple times, without 

hesitation. 

“[Appellant] folds towels on the SUV floor that were under the door assembly. 

She picks up objects from the ground. [Appellant] carries a load of towels into 

the garage from the SUV. She bends multiple times to 90 degrees over a garbage 

can to inspect objects. [Appellant] reaches overhead to close the SUV hatch back. 

“[Appellant] easily enters the SUV driver’s seat, and repositions it from the side 

of the garage to the front garage section. She then exits the SUV with no 

difficulty, flexing and extending her knees, and then uses right and left hands to 

open the door latches, and then the back SUV door. [Appellant] shakes out a 

towel with both hands. She carries a tool case across the street. [Appellant] 

assists [in] placement of the door hardware using both hands. She sweeps the 

front garage apron. 

“[Appellant] dons work gloves, and carries garden supplies in both hands. She 

bends over touching the bottom of a garden fence.” 

In a report dated June 19, 2013, Dr. Samy Bishai, Board-certified in emergency medicine, 

responded to Dr. Fries’ independent medical report. He stated that the length of the report and 

medical history “in itself is a testament to [appellant’s] long-standing chronic problems that she 

suffered as a result of the injuries of October 9, 1996. The majority of her treating physicians 

have clearly indicated and diagnosed all the medical problems she is going through as a result of 

the injuries of October 9, 1996.” Dr. Bishai noted that objective tests reviewed by Dr. Fries 

indicated that appellant had severe disabling arthritis. He further took issue with Dr. Fries’ 

statement that she complained of her right knee joint injury 19 days after a fall, noting that she 

filed a traumatic injury claim immediately. He stated, “It is my opinion, within a reasonable 

degree of medical certainty, that the osteochondral fracture is directly the result of the injury that 

the patient sustained in the accident of October 9, 1996.” Dr. Bishai opined that appellant 

needed a total knee replacement, and noted that she had not been afforded the opportunity to 

view the surveillance videos. 

On May 24, 2013 OWCP proposed to terminate appellant’s compensation for medical 

benefits and wage loss due to the orthopedic conditions, finding that the weight of the medical 

evidence established no continuing residuals of her work-related conditions. It noted that 

medical benefits for her oral injuries, i.e., temporomandibular joint disorder and broken teeth, 
7

would not be terminated for additional medical treatment, and that these injuries did not preclude 

her from full-duty work. 

By letter dated June 23, 2013, appellant stated that she still had not received a copy of the 

video surveillance evidence. She stated that her former attorney had requested a copy in writing, 

but that it was never received. Appellant noted, “Without it I do not possess complete medical 

evidence as I am entitled to. I wish to make comments about the video and enter the comments 

into my file and cannot without first viewing the video.” 

By decision dated July 2, 2013, OWCP terminated appellant’s medical and wage-loss 

benefits effective July 3, 2013, based upon Dr. Fries’ independent medical examination. 

By letter dated July 2, 2013, OWCP sent the original video surveillance of appellant from 

the employing establishment to her, noting that it did not have another copy. 

On July 6, 2013 appellant requested an oral hearing before an OWCP hearing 

representative. Appellant resubmitted medical evidence from her physicians in support of her 

request, as well as a statement noting that she had not received a copy of the surveillance video 

and that the activities on the video were “emergency in nature.” 

The hearing was held on December 9, 2013. Appellant repeated her claims that she had 

not been provided with a copy of the video surveillance prior to OWCP’s decision to terminate 

her compensation. She noted that Dr. Maes had not mentioned the video in his initial report, that 

he had stated that she was totally disabled in his initial report, and that he had submitted an 

addendum report after viewing the video. Appellant stated that she had never been charged with 

fraud. Appellant’s representative stated that showing the physicians video surveillance of 

appellant “tainted the doctors’ opinions.” Appellant’s current representative noted that her 

response to her activities in the videos would be that “she was taking Vicodin when she was 

helping her husband, and she didn’t do anything but drag a door for about three feet.” He further 

noted that the video was edited, stating that “they only showed like segments that they wanted to 

show.” 

By letter dated January 7, 2014, the employing establishment offered comments in 

response to the December 9, 2013 hearing. It noted that OWCP had sent a copy of the video 

surveillance to appellant’s counsel along with a letter dated April 1, 2011. The employing 

establishment further noted that the investigative report, including a full description of the 

surveillance video, had been sent to appellant along with the entire case file on January 11, 2011. 

By letter dated January 16, 2014, appellant’s former counsel, Paul Felser, noted that “Our 

records do not reflect the receipt of any video documentation from either the Department of 

Labor or your employing agency.” 

On January 27, 2014 appellant provided OWCP with a statement, noting that she had not 

yet received a copy of the transcript of the hearing, and stating, “I have never been charged with 

any crime or fraud charges; therefore, that clears me of any wrongdoing.” 

By decision dated February 5, 2014, the hearing representative affirmed OWCP’s July 2, 

2013 termination of benefits. She noted that on April 1, 2011, OWCP sent a copy of the video 
8

surveillance to “David Felser” at the correct address for Paul Felser. Appellant was also sent a 

copy of the video at her correct address. The hearing representative found that the video 

surveillance had been provided to appellant’s prior counsel and appellant and presumed received 

under the mailbox rule and that appellant had been afforded an opportunity to comment and 

actually weighed in on the contents of the video surveillance at the hearing. 

On July 24, 2014 appellant, through her representative, requested reconsideration of the 

decision dated February 5, 2014. He reiterated earlier arguments that appellant had not been 

afforded the opportunity to comment on the contents of the video surveillance prior to 

termination of her benefits. Along with the request, appellant resubmitted voluminous records of 

evidence. 

In an office note dated August 23, 2012, Dr. Steven Saslow, a Board-certified orthopedic 

surgeon, noted that he had performed an injection on appellant’s right knee. 

On March 14, 2014 Dr. Eduardo Gonzalez, an anesthesiologist, diagnosed appellant with 

cervical disc syndrome with radiculopathy; lumbar disc syndrome with radiculopathy; internal 

derangement of the right and left shoulder joints; internal derangement of the right and left knee 

joints; internal derangement of the left hip joint; bilateral carpal tunnel syndrome; and 

temporomandibular joint disorder and internal derangement. 

In a report dated May 8, 2014, Dr. Stone diagnosed appellant with thoracic or 

lumbosacral neuritis or radiculitis; displacement of lumbar intervertebral disc without 

myelopathy; reflex sympathetic dystrophy of the upper limb; and carpal tunnel syndrome. 

By decision dated March 9, 2015, OWCP performed a merit review of appellant’s entire 

case file and found that she had not submitted sufficient medical evidence to overcome the 

weight afforded to Dr. Fries’ medical opinion. It therefore denied modification. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim, it has the burden of justifying termination or modification 

of compensation benefits.3

 After it has determined that an employee has disability causally 

related to his or her federal employment, OWCP may not terminate compensation without 

establishing that the disability has ceased or that it is no longer related to the employment.4

 The 

right to medical benefits for an accepted condition is not limited to the period of entitlement for 

disability. To terminate authorization for medical treatment, OWCP must establish that a 

claimant no longer has residuals of an employment-related condition, which requires further 

medical treatment.5

FECA provides that, if there is a disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint 

 3 Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000). 

4 Mary A. Lowe, 52 ECAB 223, 224 (2001). 

5 Id.; Leonard M. Burger, 51 ECAB 369 (2000). 
9

a third physician who shall make the examination.6 The implementing regulations state that if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

physician to make an examination. This is called a referee or impartial examination and OWCP 

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

connection with the case.7

To be of probative value, a medical opinion must be based on a complete factual and 

medical background, must be of reasonable medical certainty, and be supported by medical 

rationale.8

 Medical rationale is a medically sound explanation for the opinion offered.9

It is well established that, when a case is referred to an impartial medical specialist for the 

purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and 

based on a proper factual and medical background, must be given special weight.10

In the absence of evidence to the contrary, it is presumed that a notice mailed to an 

addressee in the ordinary course of business was received by the addressee.11 The appearance of 

a properly addressed copy in the case record, together with the mailing custom or practice of the 

sender, will raise a presumption that the original was received by the addressee. This is known 

as the mailbox rule.12

ANALYSIS -- ISSUE 1 

In the present case, OWCP found that a disagreement existed between Drs. Katzell and 

Stone, appellant’s primary physicians of record, and Drs. Maes and Millheiser, second opinion 

physicians, as to whether appellant continued to have residuals of her October 9, 1996 

employment injury. 

In accord with 5 U.S.C. § 8123(a), OWCP referred the case to Dr. Fries for a referee 

examination and an opinion as to whether appellant continued to have employment-related 

residuals. In his March 1, 2013 report, Dr. Fries noted that “none of her current diagnoses are 

medically connected to the October 9, 1996 slip and fall.[...] The charade lasted more than 

sixteen years. [Appellant] does not have current pathology reasonably related to her unwitnessed 

October 9, 1996 accident. She does not have any condition -- related or unrelated to that fall -- 

 6

 5 U.S.C. § 8123(a). 

7

 20 C.F.R. § 10.321. 

8 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

9 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). 

10 Gloria J. Godfrey, 52 ECAB 486, 489 (2001). 

11 See Larry L. Hill, 42 ECAB 596, 600 (1991). 

12 S.A., Docket No. 14-1345 (issued December 15, 2014). 
10

rendering her fully disabled from gainful employment. Degenerative arthritis of her knees might 

be considered in restrictions of ambulation, stair climb, and squatting, as well her age and obesity 

may be factors. However, video evidence does not support any work restrictions.” 

Appellant previously had questioned Dr. Fries on the issue of bias and requested that 

OWCP involve her in the referee selection process. OWCP responded formally on February 14, 

2013, finding that appellant had not provided evidence of Dr. Fries’ bias such that OWCP was 

required to involve her in the selection process. The Board finds that OWCP properly denied 

appellant’s request.13

In a report dated June 19, 2013, Dr. Bishai responded to Dr. Fries’ independent medical 

report. He stated that the length of the report and medical history “in itself is a testament to 

[appellant’s] long-standing chronic problems that she suffered as a result of the injuries of 

October 9, 1996. The majority of her treating physicians have clearly indicated and diagnosed 

all the medical problems she is going through as a result of the injuries of October 9, 1996.” 

Dr. Bishai noted that objective tests reviewed by Dr. Fries indicated that appellant had severe 

disabling arthritis. He further took issue with Dr. Fries’ statement that she complained of her 

right knee joint injury 19 days after a fall, noting that she filed a traumatic injury claim 

immediately. Dr. Bishai stated, “It is my opinion, within a reasonable degree of medical 

certainty, that the osteochondral fracture is directly the result of the injury that the patient 

sustained in the accident of October 9, 1996.” He opined that appellant needed a total knee 

replacement, and noted that she had not been afforded the opportunity to view the surveillance 

videos. 

The Board finds that Dr. Fries provided a rationalized medical opinion in this case. The 

number of physicians finding disability and the length of time over which appellant’s case was 

accepted is irrelevant to whether Dr. Fries’ opinion was rationalized. Only his reasoning and 

interpretation of the evidence is relevant. Dr. Fries extensively documented appellant’s prior 

medical history and gave well-supported reasons for finding that appellant was no longer 

suffering residuals of her work-related injury. As a referee physician, Dr. Fries’ report is entitled 

to special weight. 

Regarding appellant’s accepted temporomandibular joint disorder, the Board notes that 

Dr. Fries did not make findings regarding this condition. OWCP’s second opinion physician, 

Dr. Strauss had related on August 17, 2012 that appellant still required medical treatment of this 

condition. He clarified in his October 19, 2012 report that this condition did not disable 

appellant. In the preliminary notice of termination of benefits OWCP stated that appellant would 

continue to receive medical benefits for this condition. The Board concludes that while the final 

termination decision of July 2, 2013 was silent regarding this condition, appellant remains 

 13 Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 

3.500.4(f) (July 2011). OWCP’s procedures provide that a claimant who asks to participate in selecting the referee 

physician or who objects to the selected physician should be requested to provide his or her reason for doing so. 

OWCP is responsible for evaluating the explanation offered. Examples of circumstances under which the claimant 

may participate in the selection include (but are not limited to): (a) Documented bias by the selected physician; 

(b) Documented unprofessional conduct by the selected physician; (c) A female claimant who requests a female 

physician when a gynecological examination is required; or (d) A claimant with a medically documented inability to 

travel to the arranged appointment when an appropriate specialist may be located closer. 
11

entitled to medical benefits for her accepted temporomandibular joint disorder and the evidence 

establishes that it does not prevent a return to work. 

The Board finds that OWCP met its burden of proof to terminate wage-loss compensation 

and medical benefits effective July 3, 2013, with the exception of medical benefits for her 

accepted temporomandibular joint disorder. 

On appeal, counsel argues that appellant’s procedural rights were deprived because she 

was unable to view the surveillance video taken of her by the employing establishment before 

her benefits were terminated. He further argues that Dr. Fries’ report improperly relies upon 

medical evidence that actually belonged to appellant’s daughter. 

As noted above, the mailbox rule provides that the appearance of a properly addressed 

copy in the case record, together with the mailing custom or practice of the sender, will raise a 

presumption that the original was received by the addressee.14 The record contains a properly 

addressed copy of the video evidence submitted by her employing establishment to appellant’s 

former counsel, dated April 1, 2011, which was also sent to appellant’s address of record.15 As 

such, the Board finds that the mailbox rule raises the presumption that such video evidence was 

received by appellant and her former representative. Mr. Felser’s letter of January 16, 2014 is 

not sufficient to rebut this presumption. Furthermore, the Board notes that appellant received an 

investigative report containing a full summary of the events on the surveillance tapes on 

January 11, 2011, and that she was afforded the opportunity to respond, and actually responded 

to, the contents of the tapes in her hearing of December 9, 2013. As such, she was not deprived 

of any procedural rights. 

Regarding counsel’s accusation that Dr. Fries’ report improperly relied upon medical 

evidence belonging to appellant’s daughter, the Board notes that he was quoting from 

Dr. Stone’s report and actually noted that this evidence did not belong to appellant. Dr. Fries did 

not rely upon this evidence in his finding that appellant no longer suffered residuals of her workrelated injury. 

The Board therefore finds that OWCP met its burden of proof to terminate appellant’s 

wage-loss and medical benefits as of July 3, 2013. 

LEGAL PRECEDENT -- ISSUE 2 

After termination of benefits clearly warranted on the basis of the evidence, the burden 

for reinstating compensation shifts to the claimant. To prevail, the claimant must establish by 

the weight of the reliable, probative and substantial evidence that she had an employment-related 

disability which continued after termination of compensation benefits. 

 14 Supra note 11. 

15 The letter was properly addressed to Attorney Felser, at the correct P.O. Box, city, state and zip code. 

Although the first name of Mr. Felser was David not Paul, the Board finds this harmless error. The Board notes that 

the letter with the copy of the surveillance video was not returned to OWCP as undeliverable. 
12

ANALYSIS -- ISSUE 2 

Following the termination of her compensation benefits appellant submitted additional 

medical evidence. In an office note dated August 23, 2012, Dr. Saslow noted that he had 

performed an injection on appellant’s right knee. As this report predated the termination of 

benefits and offered no opinion regarding causal relationship, it is of no probative value 

regarding the issue of appellant’s continuing disability after July 3, 2013. 

Appellant also submitted a March 14, 2014 report from Dr. Gonzalez and a May 8, 2014 

report from Dr. Stone. These physicians diagnosed a number of cervical, lumbar, shoulder, knee, 

and hip conditions, as well as carpal tunnel syndrome, and temporomandibular joint disorder. 

Neither physician however offered a rationalized medical opinion explaining how these 

conditions were causally related to appellant’s accepted October 9, 1996 employment injury, or 

why any of these conditions would cause continuing disability. These reports are therefore of 

diminished probative value.16 

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 met its burden of proof to terminate wage-loss compensation 

and medical benefits effective July 3, 2013, except that appellant remains entitled to medical 

benefits for her accepted right temporomandibular joint condition. The Board further finds that 

appellant has not established continuing disability on July 3, 2013. 

 16 See I.J., 59 ECAB 408 (2008). 
13

ORDER 

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

Compensation Programs dated March 9, 2015 is affirmed as modified. 

Issued: November 25, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board