United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.R., Appellant 

and 

U.S. POSTAL SERVICE, ESCONDIDO 

POSTAL STORE, Escondido, CA, Employer 

__________________________________________ 

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Docket No. 16-1832 

Issued: June 6, 2017 

Appearances: Case Submitted on the Record

Sara Kincaid, Esq., for the appellant1

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 September 15, 2016 appellant, through counsel, filed a timely appeal of a May 26, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction to consider the merits of this case.3

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 

3

 The Board notes that, following the May 26, 2016 decision, OWCP received additional evidence. However, the 

Board may only review evidence that was in the record at the time OWCP issued its final decision. Thus, the Board 

is unable to review this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 

(issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 

281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s 

wage-loss compensation effective March 8, 2015; and (2) whether appellant met her burden of 

proof to establish any continuing disability on and after March 8, 2015 causally related to her 

accepted employment injuries. 

On appeal counsel argues that OWCP failed to meet its burden of proof to terminate 

appellant’s compensation benefits. She also argues that appellant was not sent to an appropriate 

specialist. 

FACTUAL HISTORY 

On March 21, 2003 appellant, then a 48-year-old passport clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on that day she injured her back when she made a hard landing 

while sitting down in a chair.4

 She did not stop work on the day of her injury, but started 

working a modified job as a “clerk/rehab” beginning March 22, 2003.5 On August 9, 2003 

appellant filed a new Form CA-1 alleging that on August 5, 2003 she injured her right knee, 

shoulder, and neck when her left leg collapsed while she was trying to photograph a customer.6 

She stopped work on August 5, 2003 and has not returned to work. 

From 2003 through 2013 OWCP accepted the conditions of low back strain, L5-S1 

herniated disc, cauda equine with neurogenic bladder, aggravation of thoracic/lumbosacral 

radiculitis/neuritis, aggravation lumbar (L5-S1) intervertebral disc displacement without 

myelopathy, closed left tibia fracture with fibula, acute cystitis, urinary incontinence, right open 

trimalleolar ankle fracture, right ankle medial malleolus fracture, closed ankle bimalleolar 

fracture, bilateral carpal tunnel syndrome, paralytic ileus, and pain disorder related to 

psychological disorders. 

OWCP paid wage-loss compensation for the period September 20 to November 1, 2003 

on the daily rolls for disability before placing appellant on the periodic rolls for temporary 

disability beginning November 2, 2003. 

Surgeries authorized by OWCP included L4-5 disc excision and L4-5 fusion on 

October 30, 2003, interbody lumbar fusion on January 3 and June 20, 2007, right carpal tunnel 

release on November 2, 2007, left carpal tunnel release on September 23, 2008, and exploration 

of fusion, removal of hardware, and laminectomy decompression on May 18, 2009. 

In a May 20, 2010 report, Dr. Timothy A. Peppers, a treating Board-certified orthopedic 

surgeon, reported that appellant was seen for a follow-up evaluation of her accepted cauda 

 4

 OWCP was assigned File No. xxxxxx091. 

5

 Appellant was given work restrictions of no repetitive twisting or bending and no climbing, squatting, or 

stooping. 

6

 OWCP assigned File No. xxxxxx034. On November 18, 2003 OWCP combined OWCP File Nos. xxxxxx034 

and xxxxxx091 with the latter as the Master File. 
3

equina syndrome and post-laminectomy lumbar spine syndrome. He provided physical 

examination findings and noted that she complained of increased pain complaints and inability to 

stand for more than a few minutes. Dr. Peppers diagnosed lumbar spine post-laminectomy 

syndrome, probable arachnoiditis, cauda equina syndrome, chronic back and leg pain due to 

above, and chronic bladder dysfunction due to cauda equina syndrome. He opined that appellant 

was totally disabled from work. 

The record contains progress notes and reports from Dr. Peppers covering the period 

July 1, 2010 to June 30, 2011 indicating that appellant continued to be totally disabled and 

unable to work. 

In reports dated May 30 and June 11, 2012, Dr. Yogesh Patel, a treating Board-certified 

anesthesiologist and pain medicine physician, noted that appellant was referred by Dr. Peppers 

for treatment of her low back pain. Medical and employment injuries and appellant’s pain 

complaints were noted by Dr. Patel. Dr. Patel diagnosed spinal cord injury, lumbar 

radiculopathy, depressive disorder, peripheral neuropathy, lumbar spinal stenosis, bladder and 

bowel incontinence, lumbar spondylosis, and lumbar post-laminectomy syndrome.7

 

In a March 12, 2013 investigative report, an investigator related that he had observed 

appellant’s activities on 13 different occasions over the period December 14, 2012 to 

March 12, 2013. He observed appellant driving three different vehicles with no difficulty on 

seven occasions. The investigator also observed appellant speeding in excess of 90 miles per 

hour, walking without her cane, pushing a grocery cart without any assistance, extending her 

right arm above shoulder level to close her vehicle’s door, and reaching and grasping glasses 

from top shelves. 

On October 3, 2013 OWCP referred appellant to Dr. Frederick Close, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine the extent of her disability. 

In a separate letter to appellant dated October 3, 2013, OWCP advised that a surveillance 

video provided by the employing establishment had been provided to the second opinion 

physician and had become part of the record. 

In an October 24, 2013 report, Dr. Close, based upon a physical examination, review of 

the statement of accepted facts, and medical records, diagnosed bilateral carpal tunnel releases, 

status post lumbar laminectomies decompression and discectomies at L2-3, L3-4, L4-5, and L5-

S1, spinal fusion at L2-3, L3-4, L3-4, L4-5, and L5-S1, and posterior L2-S1 instrumentation. 

Physical examination findings included difficulty standing, significant bilateral lumbar stiffness, 

tenderness and spasm. Dr. Close also noted negative Hoffmann’s test, negative bilateral Tinel’s 

and Phalen’s signs at elbows and wrist, no hypothenar or thenar atrophy, and no lower extremity 

interosseous atrophy. He related that OWCP had provided a DVD for his review, but that it was 

not reviewable. Dr. Close concluded that appellant appeared to be totally disabled based on her 

significant back pain, which he noted would preclude any meaningful employment. 

 7

 The record contains numerous reports from Dr. Patel’s initial referral from July 9, 2012 to April 13, 2016 

describing treatment, recommendations, objective evidence reviewed, and examination findings. 
4

In a December 13, 2013 letter, OWCP noted Dr. Close’s problems with the video 

provided and informed appellant that it was in the process of sending the doctor the surveillance 

video for review and comment. It advised that a copy of the surveillance video would be sent to 

appellant following receipt of Dr. Close’s supplemental report. 

On December 27, 2013 OWCP received a supplemental report dated December 8, 2013 

from Dr. Close. Dr. Close reported reviewing the postal investigation DVDs provided by 

OWCP, beginning with the January 28, 2013 DVD. He described appellant’s actions as seen on 

the postal investigation DVDs. Dr. Close reported the video showed appellant on several 

occasions walking normally and without a cane. Appellant was also videotaped driving a pickup 

truck, appellant working with her arm outstretched, shopping in a store, and going to the post 

office with no problem. Next, Dr. Close reported appellant was videotaped using an electric 

wheel chair, standing up from the wheel chair with the assistance of a cane, and getting into the 

front seat of an SUV. Based on his review of the postal investigation DVD, Dr. Close reported a 

significant discrepancy between appellant’s demeanor during his examination and her standing 

and walking without any obvious difficulty on the DVD. He observed that appellant only used 

the motorized wheelchair in attending her appointment with him and used a cane only when 

visiting her doctors. Dr. Close observed there was no correlation between appellant’s 

symptomatology and complaints and her movements on the postal investigation DVD. Based on 

her movements in the postal investigation DVD, he opined that appellant was malingering, 

which had probably been going on for a long period. Dr. Close concluded that appellant was not 

as impaired as she claimed and that it was difficult for him to determine whether she was capable 

of performing duties at the employing establishment. 

In a January 3, 2014 report, Dr. Peppers reported appellant was seen that day for a 

fracture and twisted ankle sustained on December 25, 2013. He provided examination findings 

and diagnosed cauda equine syndrome, post-laminectomy lumbar spine syndrome, lumbar 

radiculopathy, and low back pain. Dr. Peppers opined that appellant was limited to 15 minutes 

of driving time due to increased pain with sitting. 

On January 9, 2014 OWCP requested clarification from Dr. Close as to whether appellant 

could return to work. 

In a January 28, 2014 supplemental report, Dr. Close opined that appellant was capable 

of performing the duties of a modified window clerk, her date-of-injury position. He further 

observed that the physical requirement of the position “appeared to be within her physical 

capability.” 

On September 5, 2014 OWCP issued a notice proposing to terminate appellant’s wageloss benefits. It found the weight of the evidence rested with the well-rationalized opinion of 

Dr. Close. OWCP found Dr. Peppers’ January 3, 2014 opinion was insufficient to create a 

conflict as he had not addressed whether appellant was capable of performing the duties of her 

date-of-injury modified position. 

In a letter dated September 18, 2014, appellant disagreed with OWCP’s proposal to 

terminate her wage-loss compensation. She contended that Dr. Close was not a qualified 

specialist to evaluate her accepted medical conditions and work capacity. 
5

On November 13, 2014 OWCP received medical evidence covering the period January 3 

to October 28, 2014. 

In a report dated April 15, 2014, Dr. Peppers related that appellant was seen for 

complaints of increased back and leg pain. He noted that she was seen in her motorized 

wheelchair. Diagnoses included: status post cauda equine syndrome, low back pain, lumbar 

post-laminectomy syndrome. Dr. Peppers related confronting both appellant and her husband 

over the surveillance video and discussed the inconsistencies with appellant’s presentation and 

what he observed on the surveillance video. 

In an October, 3, 2014 report, Dr. Peppers noted that appellant was seen for increased 

complaints of back pain. Appellant related being unable to climb stairs due to the pain and that 

her thigh, calve, and feet pain worsened following surgery. Dr. Peppers stated that the 

surveillance video was discussed with appellant. Appellant informed Dr. Peppers that the 

surveillance video was taken prior to the worsening of her symptoms and increased limitations. 

Dr. Peppers, in an October 28, 2014 report, observed that appellant had always used a 

wheelchair when coming to his office. Based upon his viewing of the surveillance video, he 

opined that he found no violations of her restrictions by the activities seen on the surveillance 

video, nor would those activities be detrimental to her recovery. Dr. Peppers stated that 

appellant informed him that she was unable to perform the activities seen on the surveillance 

video. He opined that she was capable of returning to work part time and with restrictions based 

on his review of activities performed by appellant on the surveillance video. Dr. Peppers 

reviewed the job description for a passport window clerk and opined that appellant was capable 

of performing that position. He concluded that, based on review of the surveillance video and 

medical records, she had misrepresented her medical condition. Dr. Peppers further opined that 

appellant did sustain a significant injury and had permanent neurological impairment. However, 

he concluded that her objective findings outweighed her subjective symptoms and there was 

symptom magnification on the part of appellant. 

In a letter dated October 17, 2014 and received by OWCP on November 17, 2014, 

appellant contended that OWCP erred in terminating her wage-loss compensation benefits based 

on the Board’s case law concerning surveillance video. She argued that the surveillance video 

should not have been provided to either the second opinion or her treating physician without first 

notifying and providing an opportunity to review and comment on it. Appellant also contended 

that the employing establishment inspectors should not have provided the second opinion 

physician with a copy of the surveillance video for review as this was contrary to Board law and 

OWCP regulations. She further argued that Dr. Close was not an appropriate physician to 

evaluate her condition as he was not a neurological specialist. Appellant related that she was 

permanently and totally disabled due to her accepted cauda equina syndrome and spinal cord 

injury. 

In a letter dated October 21, 2014, OWCP responded to appellant’s request for a copy of 

her record. It provided her with an electronic copy of her imaged case record along with a copy 

of the surveillance video. 
6

On December 24, 2014 OWCP received a November 4, 2014 report from Dr. Peppers. 

Dr. Peppers related that appellant stated that she had been informed by counsel that the 

surveillance video was illegal. He and appellant discussed what was seen on the surveillance 

video. Appellant related that she never claimed she could not walk. Dr. Peppers reported that 

appellant had increased complaints of back and left leg pain. He also related having “somewhat 

heated discussion” concerning the legality of the surveillance video and her capabilities. 

Appellant informed Dr. Peppers that since the surveillance video had been taken her condition 

had significantly worsened. Dr. Peppers reported that she complained of increased or worsening 

weakness and pain both prior and during the time frame of the surveillance video, but that the 

video clearly showed appellant’s functional ability exceeded what she related her abilities were. 

He opined that appellant had restrictions due to her accepted employment injuries which 

included no climbing, repetitive bending, lifting more than 15 to 20 pounds, or working with 

heights. Dr. Peppers noted that she informed him that her cauda equina syndrome rendered her 

totally disabled from any work and that she was unable to perform the duties of lifting and 

bending that her modified date-of-injury job required. He advised appellant that she was capable 

of performing the duties of passport desk clerk part time. 

By decision dated March 4, 2015, OWCP terminated appellant’s entitlement to wage-loss 

compensation effective March 8, 2015. It found that she was capable of performing the duties of 

a modified window clerk based on the opinion of Dr. Close. OWCP also found that she had been 

made aware of the surveillance video by letter dated October 3, 2013 and a copy of the 

surveillance video had been given to her upon her request. 

In a report dated August 31, 2015, Dr. Jack D. Schim, a treating Board-certified 

neurologist, diagnosed paraplegia and extremities edema. Appellant was seen for a follow-up on 

her accepted March 21, 2003 employment injuries of weakness and cauda equine syndrome. She 

complained of worsening leg and back pain since her last visit in February 2015. Appellant 

related that she currently wore adult diapers due to worsened bladder/bowel control. She also 

informed Dr. Peppers that her walking and balance had worsened to the extent that she spent 

most of her time in bed, she did not run errands or drive, required 24/7 use of a wheelchair, and 

had not worked in 12 years. Dr. Schim reviewed appellant’s medication and provided 

examination findings. 

In a form dated February 16, 2016, and received by OWCP on February 22, 2016, 

appellant requested reconsideration. 

By letter dated February 19, 2016, which accompanied appellant’s reconsideration 

request, counsel argued that OWCP erred in terminating appellant’s wage-loss compensation 

benefits. Counsel argued that OWCP had failed to refer appellant to an appropriate specialist as 

it should have referred appellant to a Board-certified neurologist and not a Board-certified 

orthopedic surgeon. She further argued that Dr. Close’s report and supplemental report were 

insufficiently rationalized and failed to meet OWCP’s burden. 

In an undated report and fax date of January 28, 2016, Dr. Schim noted appellant’s 

employment injury history and medical treatment. He diagnosed bilateral lower extremity 

neurological deficits, bilateral lower extremity paraplegia due to cauda equina syndrome, bladder 

and bowel dysfunction, and saddle anesthesia with numbness. Dr. Schim observed that appellant 
7

had difficulty with walking, and had experienced multiple falls. He noted that chronic foot drop 

had caused difficulties with ambulating without any assistance. Appellant’s physical 

examination revealed bilateral L5-S1 sensory loss, bilateral lower extremity foot drop, and 

diminished ankle jerks. Review of objective data revealed abnormal findings. Dr. Schim noted 

that appellant required a wheelchair 24/7, and that she used a cane when walking short distances 

at home, had numerous falls due to her lower extremity weakness. He opined that appellant’s 

cauda equina syndrome was permanent and that she was totally disabled due to this condition. 

In a work capacity evaluation form (Form OWCP-5c) dated January 28, 2016, Dr. Schim 

determined that appellant had permanent work restrictions and was totally disabled from work. 

In a March 22, 2016 report, Dr. Schim reported that appellant was seen for a follow-up 

visit for her cauda equina syndrome. Appellant related that her last appointment with 

Dr. Peppers had been in September 2014 and that her balance, walking, and bladder and bowel 

control issues had worsened. She stated that due to pain and weakness she now used her cane at 

home to walk short distances and used her wheelchair constantly. Appellant informed Dr. Schim 

that Dr. Peppers had released her to return to work, a decision with which she disagreed. 

In a decision dated May 26, 2016, OWCP denied modification. It found the reports of 

Dr. Close, who had found that appellant was capable of working with restrictions, constituted the 

weight of the medical opinion evidence as it was based on a review of the record and 

surveillance video. OWCP considered appellant’s argument regarding the physician’s specialty 

and concluded that Dr. Close’s specialty was appropriate to determine her work capacity. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits.8 After it has determined that an 

employee has disability causally related to 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.9 OWCP’s burden of proof includes the necessity of furnishing rationalized 

medical opinion evidence based on a proper factual and medical background.10

ANALYSIS -- ISSUE 1 

OWCP accepted the conditions of low back strain, L5-S1 herniated disc, cauda equine 

with neurogenic bladder, aggravation of thoracic/lumbosacral radiculitis/neuritis, aggravation 

L5-S1 intervertebral disc displacement without myelopathy, closed left tibia fracture with fibula, 

acute cystitis, urinary incontinence, right open trimalleolar ankle fracture, right ankle medial 

malleolus fracture, closed ankle bimalleolar fracture, bilateral carpal tunnel syndrome, paralytic 

ileus, and pain disorder related to psychological disorders. It terminated appellant’s wage-loss 

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

9 I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003). 

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

compensation effective March 8, 2015 as it found she was capable of performing the duties of a 

modified window clerk, her date-of-injury position. The issue on appeal is whether OWCP met 

its burden of proof to terminate wage-loss compensation. 

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation benefits effective March 8, 2015 

In an October 24, 2013 report, Dr. Close reviewed appellant’s medical history, including 

the statement of accepted facts, and diagnosed bilateral carpal tunnel releases, status post lumbar 

laminectomies decompression and discectomies at L2-3, L3-4, L4-5, and L5-S1, spinal fusion at 

L2-3, L3-4, L3-4, L4-5, and L5-S1, and posterior L2-S1 instrumentation. He conducted a 

physical examination, provided examination findings, and noted he had been unable to review 

the DVD OWCP had given for his review. Dr. Close concluded that appellant appeared to be 

totally disabled based on her significant back pain, which would preclude any meaningful 

employment. In a December 8, 2013 supplemental report, he stated that his review of the 

surveillance videos revealed a significant discrepancy between appellant’s demeanor during his 

examination and her standing and walking without any obvious difficulty on the surveillance 

video. Next, Dr. Close pointed out that appellant only used the motorized wheelchair coming to 

her appointment with him and used a cane only when visiting her other doctors. He concluded, 

that based on her movements in the surveillance video, that appellant was malingering, which 

had probably been going on for a long period and was not as impaired as she claimed. On 

January 28, 2014 Dr. Close determined appellant was capable of performing the duties of a 

modified window clerk, her date-of-injury position. 

OWCP procedures provide that if a surveillance video of a claimant has been submitted 

by the employing establishment or an investigative agency, and OWCP’s claims examiner has 

determined that this evidence should be incorporated as part of the case record and is germane to 

issues being addressed by the second opinion specialist, the claims examiner should direct the 

specialist to review the video evidence and reference it in his or her report.11 As noted above, 

OWCP provided a copy of the video evidence to Dr. Close, the second opinion physician, and 

Dr. Peppers, appellant’s treating physician. The Board has previously held 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.12 Appellant was made aware of the 

surveillance video and of the fact that Dr. Close had reviewed this video prior to the notice of 

proposed termination, which was issued on March 5, 2014. On October 21, 2014 OWCP in 

response to appellant’s only request for a copy of the record, a copy of the surveillance video 

was provided.13 The Board finds that OWCP properly handled the video evidence. 

 11 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, 

Chapter 2.810.9 (September 2010); K.M., Docket No.15-1929 (issued September 26, 2016). 

12 A.P., Docket No. 13-30 (issued March 18, 2013); see also J.J., Docket No. 15-0475 (issued September 28, 

2016); Y.S., Docket No. 15-1949 (issued April 11, 2016).

13 See P.M., Docket No. 16-1321 (issued January 10, 2017); J.J., id.; N.M., Docket No. 15-1553 (issued 

March 2, 2016). 
9

The Board has held that the weight of the medical opinion evidence is determined by the 

opportunity for and thoroughness of examination, the accuracy and completeness of the 

physician’s knowledge of the facts of the case, the medical history, the care of analysis 

performed, and the medical rationale expressed in support of the stated conclusions.14 In this 

case, Dr. Close discussed the history of injury and explained that there was no objective evidence 

supporting total disability causally related to the accepted employment injuries. The Board finds 

that his opinion is detailed, well rationalized and based upon a complete and accurate history and 

thorough examination. 

Accordingly, the Board finds that OWCP properly accorded the weight of the medical 

evidence to Dr. Close, who based his opinion on the complete medical record, the video, a 

statement of accepted facts, and a thorough examination. 

The Board further finds that the additional reports from Dr. Peppers dated October 28 and 

December 24, 2014 support Dr. Close’s opinion that appellant was no longer totally disabled due 

to the March 21, 2003 employment injuries. Dr. Peppers, based upon a review of the 

surveillance video and examination findings, also concluded that appellant was capable of 

working with restrictions. He also concluded that her objective findings outweighed her 

subjective symptoms, there was misrepresentation of her condition, and symptom magnification. 

Dr. Peppers reviewed the job description for modified passport desk clerk and determined that 

she was capable of performing that position. 

The record also contains reports from Dr. Patel providing examination findings and 

treatment. None of Dr. Patel’s reports offer any opinion regarding disability.15 The Board has 

held that opinions not addressing the relevant issue of the case are of diminished probative 

value.16

For the above reasons, the Board finds that OWCP properly terminated appellant’s wageloss compensation effective March 8, 2015 as the weight of the medical opinion evidence 

established that she had no disability due to her accepted conditions. 

On appeal counsel argues that Dr. Close’s specialty as an orthopedic surgeon was not 

appropriate as OWCP should have referred appellant to a neurologist. Contrary to counsel’s 

argument, Dr. Close was an appropriate specialist. The Board notes that he is a Board-certified 

orthopedic surgeon, and had the appropriate specialty qualifications to render an opinion in this 

case.17 Dr. Close made a determination that appellant was capable of working which is within 

his orthopedic specialty. Counsel failed to support her argument for a neurology specialist. 

Counsel also argues that OWCP erred in terminating appellant’s wage-loss compensation 

as the medical evidence establishes that she is totally disabled due to her accepted cauda equina 

 14 See K.W., 59 ECAB 271 (2007); Ann C. Leanza, 48 ECAB 115 (1996). 

15 A.F., 59 ECAB 714 (2008); Virginia Davis-Banks, 44 ECAB 389 (1993). 

16 Id. 

17 See D.F., Docket No. 14-00030 (issued August 26, 2014). 
10

syndrome. As discussed above, the medical evidence, including reports from Dr. Peppers, her 

treating physician, opined that she was no longer totally disabled and capable of working. Thus, 

OWCP met its burden to terminate appellant’s wage-loss compensation. 

LEGAL PRECEDENT -- ISSUE 2 

As OWCP met its burden of proof to terminate appellant’s wage-loss benefits, the burden 

shifted to her to establish that she had any disability causally related to her accepted injuries.18 

ANALYSIS -- ISSUE 2 

The Board finds that appellant has not established any continuing disability causally 

related to her accepted employment injuries on and after March 8, 2015. 

Following OWCP’s termination of appellant’s wage-loss compensation effective 

March 8, 2015, the burden of proof shifted to appellant to demonstrate that she continued to be 

disabled from work on and after that date due to her accepted employment injuries.19

Subsequent to the March 4, 2015 decision terminating her wage-loss compensation, 

OWCP received reports from Dr. Schim. In an undated report with a fax date of January 28, 

2016, Dr. Schim opined that appellant was totally disabled due to cauda equina syndrome, which 

was permanent with no recovery. In a January 28, 2016 work capacity evaluation form, 

Dr. Schim indicated that appellant was permanently disabled from work. Dr. Schim, in a 

March 22, 2016 report, noted that appellant informed him of her increased use of her cane at 

home and constant use of her wheelchair due to her pain and weakness. The Board has long held 

that medical conclusions unsupported by rationale are of diminished probative value and 

insufficient to establish disability.20 None of Dr. Schim’s reports explain with sufficient 

rationale how her accepted conditions caused her to be totally disabled.21 Thus, the Board finds 

Dr. Schim’s reports are insufficient to support disability or to create a conflict with the opinion 

of Dr. Close. Appellant has not met her burden of proof to establish disability on and after 

March 8, 2015. 

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. 

 18 See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001). 

19 Virginia Davis-Banks, supra note 15. 

20 Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006). 

21 See S.B., Docket No. 13-1162 (issued December 12, 2013). 
11

CONCLUSION 

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation effective March 8, 2015. The Board further finds that appellant failed to meet her 

burden of proof to establish any continuing disability on and after March 8, 2015 causally related 

to her accepted employment injuries. 

ORDER 

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

Compensation Programs dated May 26, 2016 is affirmed. 

Issued: June 6, 2017 

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