United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.E., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Southeastern, PA, Employer 

__________________________________________ 

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Docket No. 15-1150 

Issued: May 10, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 27, 2015 appellant, through counsel, filed a timely appeal from a February 20, 

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 met its burden of proof to terminate appellant’s wage-loss 

compensation effective August 21, 2014. 

On appeal, counsel makes numerous arguments against OWCP’s decision to terminate 

compensation benefits effective August 21, 2014. He contends that other physicians of record, 

other than Dr. Michele Y. Holding, appellant’s attending Board-certified physiatrist, found that 

appellant could not return to her regular work duties. Counsel further contends that the 

employing establishment misrepresented her full-duty clerk position because a description of this 

 1

 5 U.S.C. § 8101 et seq.
2

position is inconsistent with the actual requirements of the position. He therefore contends that 

the medical evidence of record does not establish that appellant can return to her regular position. 

Counsel also contends that OWCP and the employing establishment’s investigatory 

practices were improper and in violation of FECA and the Board’s precedent decision in F.S.,2

by allowing the employing establishment’s Office of Inspector General (OIG) to show a 

surveillance video to appellant’s treating physician. He states that the facts of the instant case 

are identical to the facts in F.S. particularly as Dr. Holding had consistently maintained that 

appellant was unable to return to her regular clerk duties and that she had lifting, bending, sitting, 

and twisting restrictions prior to contact with OIG. Counsel notes that Dr. Holding’s 

December 27, 2013 duty status report (Form CA-17), which OWCP relied upon to terminate 

appellant’s compensation, does not support its termination as the report lists her continuing work 

restrictions. He further contends that Dr. Holding’s January 3, 2014 statement entirely consists 

of hearsay declarations as her statement was written by an agent from OIG based on his 

observations of Dr. Holding viewing the videotape. 

FACTUAL HISTORY 

This case has previously been before the Board.3 In a March 25, 1999 decision, the 

Board reversed OWCP’s October 5, 1995 and December 19, 1996 decisions which terminated 

appellant’s compensation effective October 5, 1999 for refusal of an offer of suitable work 

pursuant to 5 U.S.C. § 8106(c). The Board found that there was an unresolved conflict in the 

medical opinion evidence between Dr. Arnold Sokol, an attending Board-certified osteopathic 

family practitioner, and Dr. Roy M. Lerman, a second opinion Board-certified physiatrist, as to 

whether appellant could perform the duties of the offered modified distribution clerk position. 

The facts of the case, as set forth in the prior decision, are hereby incorporated by reference. The 

relevant facts are set forth below. 

OWCP accepted that on January 19, 1986 appellant, then a 34-year-old clerk, sustained a 

lumbosacral sprain and a herniated disc at L3-4 while removing bags from a bulk mail container 

at work. 

Following the Board’s March 25, 1999 decision, OWCP paid wage-loss compensation 

for temporary total disability and provided medical care. She was ultimately placed on the 

periodic rolls. 

On January 23, 2014 the employing establishment advised OWCP that OIG surveillance 

videos had been taken from August 20, 2009 to January 3, 2014 demonstrating that appellant 

was physically active at the same time her physicians found that she was restricted and unable to 

perform routine daily activities and was totally disabled. In the video, appellant was observed 

running with her grandchildren, running alone in a market parking lot on a separate occasion, 

bending for extended periods while digging and pulling weeds in her backyard, aggressively 

reaching and pulling a pull cord on a lawn mower multiple times, lifting the lawn mower from 

 2 F.S., Docket No. 11-863 (issued September 26, 2012). 

3

 Docket No. 97-1400 (issued March 25, 1999). 
3

the ground, loading and unloading groceries, bending and reaching from a cart, and unloading 

the cart at her car. 

The investigative report included, among other things, an interview memorandum dated 

December 27, 2013 and signed by Dr. Holding and a witness on January 3, 2014. The OIG agent 

who conducted the interview also signed the memorandum, under penalty of perjury, that 

Dr. Holding’s statement was given to him on the same day. Dr. Holding was shown highlights 

of the investigative surveillance videos by OIG agents. She provided a history of her treatment 

of appellant’s back condition. Dr. Holding noted that appellant complained about back pain that 

radiated to her legs and her pain had been consistent throughout her office visits without 

improvement. She noted that appellant’s pain kept her from work. Appellant advised 

Dr. Holding that she was only physically able to wash dishes, wash one load of laundry, and 

vacuum for 15 minutes. Based on her review of the surveillance video, however, Dr. Holding 

advised that appellant’s condition had not been consistent with what she had viewed on the 

video. She showed no restriction while lifting, bending, lifting a lawn mower, and running. 

Dr. Holding concluded that appellant was “able to return to her normal position as a clerk with 

the [employing establishment] without restriction.” 

In a December 27, 2013 Form CA-17 report, Dr. Holding reiterated that appellant had 

sustained lower back pain and lumbar radiculopathy due to the January 19, 1986 employment 

injuries. On that form she further reported that appellant was capable of performing her full-time 

regular manual clerk work, 8 hours a day with restrictions which included lifting up to 75 pounds 

intermittently for 6 hours, sitting intermittently 30 minutes, standing, bending, pushing, pulling, 

reaching above the shoulder, and operating a mail sorting machine 1 hour, and walking 2 hours a 

day. 

By letter dated April 3, 2014, OWCP notified appellant that it proposed to terminate her 

wage-loss compensation benefits based on Dr. Holding’s December 27, 2013 medical opinion.4

 

It afforded appellant 30 days to submit additional evidence or argument if she was in 

disagreement with the proposed action. 

In an April 29, 2014 letter, counsel disagreed with the proposed termination of benefits. 

He suggested that any evidence that was procured by an OIG visit with appellant’s attending 

physician should not be used against her to terminate her compensation benefits. Counsel cited 

the Board’s decision in F.S.

5

 He also contended that Dr. Holding’s previous medical records 

indicated that she agreed appellant had limitations regarding appellant’s ability to return to her 

clerk position. 

Counsel requested a copy of the physical evidence obtained or produced during the OIG 

investigation. By letter dated May 22, 2014, OWCP informed appellant’s counsel that it would 

provide him with the investigative discs that the employing establishment’s OIG had provided to 

appellant’s treating physician. 

 4

 The Board notes that OWCP’s August 21, 2014 notice only addressed the proposed termination of appellant’s 

wage-loss compensation benefits. It did not address her right to receive medical benefits under FECA. 

5 F.S., supra note 2. 
4

On May 27, 2014 OWCP again notified appellant that it proposed to terminate her wageloss compensation benefits based on Dr. Holding’s medical opinion. 

By letter dated August 1, 2014, OWCP sent the OIG’s surveillance compact discs which 

covered the period 2009 to 2011 and 2013 for counsel’s review. He was afforded 15 days to 

submit comments or explanation on the accuracy of the images. Appellant was copied on the 

August 1, 2014 correspondence. 

In an August 21, 2014 decision, OWCP terminated appellant’s wage-loss compensation 

effective that day. It found that she had failed to submit any evidence to counter the weight 

accorded to Dr. Holding’s opinion that she no longer had any disability due to her accepted 

January 19, 1986 employment-related injuries. 

By letter dated September 2, 2014, appellant, through counsel, requested an oral hearing 

before an OWCP hearing representative. In a December 4, 2014 letter, counsel requested that 

the request for an oral hearing be changed to a request for a review of the written record. 

In a February 20, 2015 decision, an OWCP hearing representative affirmed the 

August 21, 2014 decision terminating appellant’s wage-loss compensation. He found that the 

weight of the medical evidence regarding this matter continued to rest with the opinion of 

Dr. Holding. 

LEGAL PRECEDENT 

Once OWCP has accepted a claim and pays compensation, it bears the burden to justify 

modification or termination of benefits.6 It may not terminate compensation without establishing 

that the disability had ceased or that it was no longer related to the employment.7 OWCP’s 

burden of proof includes the necessity of furnishing rationalized medical opinion evidence based 

on a proper factual and medical background.8

ANALYSIS 

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation effective August 21, 2014. 

OWCP accepted that appellant sustained a lumbar sprain and herniated disc at L3-4 while 

in the performance of duty on January 19, 1986. It terminated her wage-loss compensation 

effective August 21, 2014 as she no longer had any disability causally related to the accepted 

employment injuries. OWCP based its termination on the opinion of Dr. Holding, an attending 

Board-certified physiatrist. The Board finds, however, that Dr. Holding’s opinion is insufficient 

 6 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 

7 Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 

ECAB 541 (1986). 

8 J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988). 
5

to meet OWCP’s burden of proof to establish that appellant no longer had any employmentrelated disability. 

Dr. Holding, in her December 27, 2013 Form CA-17 report, found that appellant had 

lower back pain and lumbar radiculopathy due to the January 19, 1986 employment injuries. In 

the December 27, 2013 report she further found that appellant could perform her regular clerk 

duties, eight hours a day. She then noted appellant’s limitations, which included lifting up to 75 

pounds intermittently 6 hours, sitting intermittently 30 minutes, standing, bending, pushing, 

pulling, reaching above the shoulder, and operating a mail sorting machine 1 hour, and walking 2 

hours a day. However, to be of probative value, a physician’s opinion must be one of reasonable 

medical certainty.9

 Dr. Holding’s opinion as to whether appellant had any continuing 

employment-related residuals is equivocal in nature and not to a reasonable degree of medical 

certainty. Moreover, she failed to provide any medical rationale to support her opinion that 

appellant could return to work with no restrictions due to the employment injuries. Dr. Holding 

did not relate her diagnosed lumbar radiculopathy condition to the accepted January 19, 1986 

lumbar sprain and herniated disc at L3-4 at issue in the present case.10 The Board has 

consistently held that a medical opinion not fortified by rationale is of limited probative value.11 

The Board therefore finds that OWCP has failed to meet its burden of proof to terminate 

appellant’s wage-loss compensation effective August 21, 2014 based on Dr. Holding’s opinion. 

It does not establish that her employment-related residuals and disability had ceased. 

On appeal, counsel contends that OWCP violated FECA and the Board’s decision in 

F.S.,12 by allowing the employing establishment’s OIG to show a surveillance video to 

appellant’s treating physician. As the Board has already found that OWCP did not meet its 

burden of proof to terminate appellant’s wage-loss compensation effective August 21, 2014, it is 

unnecessary to address these further contentions. 

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss compensation effective August 21, 2014. 

 9 See Beverly R. Jones, 55 ECAB 411 (2004). 

10 Where a claimant claims that a condition not accepted or approved by OWCP was due to an employment 

injury, the claimant bears the burden of proof to establish that the condition is causally related to the employment 

injury through the submission of rationalized medical evidence. T.M., Docket No. 08-975 (issued 

February 6, 2009). 

11 A.D., 58 ECAB 149 (2006). 

12 F.S., supra note 2. 
6

ORDER 

IT IS HEREBY ORDERED THAT the February 20, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: May 10, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board