United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.M., Appellant 

and 

U.S. POSTAL SERVICE, NORTHGATE 

STATION, El Paso, TX, Employer 

__________________________________________ 

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Docket No. 16-1321 

Issued: January 10, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On June 13, 2016 appellant, through counsel, filed a timely appeal from an April 29, 

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. 

ISSUE 

The issues are: (1) whether OWCP properly terminated appellant’s wage-loss 

compensation, effective July 29, 2015, as she was no longer disabled from her usual 

 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. 
2

employment; and (2) whether appellant met her burden of proof to establish continuing disability 

after July 29, 2015. 

On appeal counsel argues that OWCP’s decision is contrary to facts and law. 

FACTUAL HISTORY 

On January 3, 2011 appellant, then a 44-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 31, 2010 she tripped on a wooden reindeer and 

landed on her right elbow and then left knee while delivering mail. On February 15, 2011 

OWCP accepted her claim for sprain of unspecified sites, left knee and leg. Appellant stopped 

work on March 26, 2011. She received compensation benefits on the supplemental rolls as of 

April 10, 2011. Appellant’s claim was later accepted for left knee derangement of meniscus. 

Appellant underwent multiple authorized surgeries on her left knee. On March 23, 2011 

Dr. David Mansfield, a Board-certified orthopedic surgeon, performed a left knee arthroscopic 

partial medial meniscectomy and on November 28, 2012, he performed a repeat left knee 

arthroscopic partial medial meniscectomy. On January 24, 2014 Dr. Eric Sides, a Boardcertified orthopedic surgeon, completed another left knee arthroscopic partial medial 

meniscectomy surgery and on December 2, 2014 he completed a left knee arthroscopy with 

debridement of the medial meniscal tear. 

Appellant was referred for evaluation by OWCP to a second opinion physician, 

Dr. Joshua Herzog, a Board-certified orthopedic surgeon, to determine her current disability 

status. In a report dated April 15, 2014, Dr. Herzog related appellant’s history of injury and 

reviewed various diagnostic studies. He noted that she continued to have pain in her left knee 

over the medial joint line, with positive McMurray’s test, good left knee range of motion, and no 

joint effusion or instability of the left knee. Dr. Herzog explained that appellant was status post 

two left knee partial medial menisectomies, and had now developed osteoarthritis confirmed by 

the most recent magnetic resonance imaging (MRI) scan dated November 15, 2013. He 

completed a work capacity evaluation form (OWCP-5c) indicating that appellant could not 

perform her usual work, but could return to work full time, with restrictions including no 

squatting, kneeling, or climbing. 

OWCP received a March 10, 2015 report from the employing establishment’s Office of 

Inspector General. This report related that surveillance of appellant revealed extensive activity 

on the part of appellant. The investigator provided a synopsis of the video, and noted that 

appellant was observed on several occasions as she drove to and from local restaurants, stores, 

office buildings, and other businesses, and that during these activities she was observed walking 

to and from her car, walking across parking lots, stepping up and off curbs, and carrying 

groceries and pet food items without a shopping cart. He noted that at no time did it appear that 

appellant was utilizing the assistance of braces or other assistive devices to aid in her ability to 

walk. The investigator noted that on the day of appellant’s second opinion examination, she left 

her residence with a pronounced limp and was driven by an acquaintance, but that during 

surveillance activities conducted later that same afternoon, appellant’s limp was no longer 

noticeable and that she appeared to walk with very little difficulty. 
3

A June 8, 2015 handwritten note without letterhead, allegedly written by Dr. Sides, but 

containing an illegible signature, indicated that he was turning over the function of attending 

physician to Dr. Richard Westbrook, a Board-certified orthopedic surgeon. By letter dated 

June 17, 2015, OWCP informed appellant that it had received the June 8, 2015 note. It observed 

that the note was not on Dr. Sides’ letterhead, it contained no explanation for discontinuing 

treatment, and that the signature was illegible. OWCP concluded that the note was written by 

appellant. It denied appellant’s request to treat with Dr. Westbrook, and that she remained under 

the care of Dr. Sides. 

In a June 9, 2015 report, Dr. Westbrook indicated that appellant presented with pain and 

swelling on the left side and stated that her symptoms had been chronic. He noted appellant’s 

complaints that her symptoms were moderately severe and occurred continuously. 

Dr. Westbrook diagnosed pain in lower leg, joint, traumatic arthritis of left knee, derangement of 

meniscus, and sprain and strain of unspecified site of knee and leg. He listed his impressions and 

noted that appellant continued to have significant left knee pain which had not been helped by 

injections, medication, physical therapy, or anti-inflammatory drugs. Dr. Westbrook noted that 

appellant was awaiting approval for a total knee replacement on the left side. In an 

accompanying duty status report, he indicated that appellant was unable to perform any 

employment duties due to her left knee injury. 

In a June 17, 2015 report, Dr. Sides noted that appellant was post left knee arthroscopic 

medial meniscal debridement. He listed his impression as derangement of meniscus, not 

otherwise classified, osteoarthrosis, unspecified lower leg, and tear medial meniscus of the knee. 

Dr. Sides opined that, after reviewing the surveillance video of appellant, it was clear that she 

was more than capable of completing the tasks required for her regular duty. Therefore, he 

released her to regular duty and indicated that she should be placed at maximum medical 

improvement. 

On June 25, 2015 OWCP proposed to terminate appellant’s wage-loss compensation as 

she no longer had any disability from work stemming from her work injury or illness. 

On July 6, 2015 OWCP officially denied appellant’s request to change physicians. It 

noted that Dr. Sides was a qualified, Board-certified orthopedic surgeon who specialized in knee 

osteoarthritis, knee surgery, and knee replacement arthroplasty. OWCP found that the record 

supported that appellant received appropriate treatment from Dr. Sides. Accordingly, it 

concluded that the evidence of record demonstrated that she was under the care of a qualified 

specialist and her treatment had been appropriate. 

In a July 7, 2015 report, Dr. Westbrook diagnosed traumatic arthritis of left knee, 

derangement of meniscus, not otherwise classified, and sprain and strain of unspecified site of 

knee and leg. He noted that appellant continued to have increasing left knee pain and was 

waiting for approval to proceed with surgical intervention for knee replacement. Dr. Westwood 

reiterated in a work capacity evaluation that she could not work. 

On July 13, 2015 appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative regarding the July 6, 2015 denial of appellant’s request to change treating 

physicians. 
4

In a July 20, 2015 narrative statement, appellant indicated that she disagreed with the 

proposed termination of her benefits. She contended that she had not refused any job offers, that 

she had been in compliance with instructions, that Dr. Sides’ January 24, 2014 operative report 

stated that the tear was inoperable, and that Dr. Sides demonstrated unethical behavior by 

negligently shredding her operative pictures from the December 2, 2014 surgery. Appellant 

argued that she was entitled to a second opinion from Dr. Westbrook. 

By decision dated July 28, 2015, OWCP terminated appellant’s wage-loss compensation 

benefits effective July 29, 2015 as it determined that she was no longer disabled as a result of her 

accepted injury or illness pursuant to the opinion of Dr. Sides. It did not terminate appellant’s 

medical benefits. 

On August 4, 2015 appellant, by counsel, requested a telephonic hearing before an 

OWCP hearing representative regarding the July 28, 2015 decision terminating her wage-loss 

compensation benefits. 

By letter dated August 5, 2015, counsel contended that OWCP never provided a copy of 

the surveillance video to appellant or himself, and that the referral of the video to Dr. Sides was 

improper. Accordingly, he contended that the termination of benefits was improper. Counsel 

also requested a copy of the video. 

In an August 18, 2015 report, Dr. Westbrook diagnosed traumatic arthritis of the left knee 

and effusion of the lower leg joint. He referred appellant to physical therapy. Dr. Westbrook 

noted that appellant was still awaiting approval for her left knee replacement. 

On August 28, 2015 OWCP issued a schedule award for two percent permanent 

impairment of the left lower extremity. 

By letter dated September 14, 2015, OWCP forwarded a copy of the surveillance video to 

counsel. 

At the hearing held on February 29, 2016, appellant indicated that she wanted 

Dr. Westbrook to be her treating physician. She noted complaints regarding Dr. Sides’ physical 

examinations. Appellant contended that Dr. Westbrook provided more thorough examinations. 

Counsel argued that OWCP should not force a claimant to see a doctor whom she does not feel 

provided proper level of care. He also noted that there was an outstanding request to add 

traumatic arthritis to the claim. 

By decision dated April 4, 2016, OWCP formally denied appellant’s request to transfer 

medical care. It noted that its prior letters with regard to the transfer of medical care did not 

contain appeal rights. OWCP determined that the record did not support transfer of care to 

Dr. Westbrook.3

 3

 Counsel did not appeal this decision. 
5

By decision dated April 29, 2016, OWCP affirmed the July 28, 2015 termination 

decision, finding that the evidence of record documented appellant’s ability to return to her fulltime regular duty effective July 29, 2015. 

LEGAL PRECEDENT -- ISSUE 1 

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

modification or termination of benefits.4

 Having determined that an employee has a disability 

causally related to his or her federal employment, OWCP may not terminate compensation 

without establishing either that the disability has ceased or that it is no longer related to the 

employment.5

 

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s claim for sprain of left knee and leg, and later accepted her 

claim for left knee derangement of meniscus. The Board finds that OWCP met its burden of 

proof to justify termination of appellant’s wage-loss benefits effective July 29, 2015. 

OWCP based its termination decision on the opinion of appellant’s treating physician, 

Dr. Sides. Dr. Sides performed two surgeries on appellant, i.e., a January 24, 2014 left knee 

arthroscopic partial medial meniscectomy and a December 2, 2014 left knee arthroscopy with 

debridement of the medial meniscal tear surgery. In a June 17, 2015 report, Dr. Sides listed his 

impression as derangement of meniscus, not otherwise classified, osteoarthrosis of left lower leg, 

and tear medial meniscus of knee. He opined that, after reviewing the surveillance video of 

appellant, it was clear that appellant was more than capable of completing the tasks required for 

her regular duty. The Board has reviewed the opinion of Dr. Sides and finds that it has 

reliability, probative value, and convincing quality with respect to its conclusions regarding the 

relevant issue in the present case.6 The opinion of Dr. Sides is based on a proper factual and 

medical history, his treatment of appellant, and a review of the surveillance video.7

 He provided 

medical rationale for his opinion that appellant no longer had a disability from her accepted work 

condition. Dr. Sides noted that, based on the symptoms and activities appellant performed in the 

surveillance video, it was clear that she was more than capable of completing the tasks required 

for her regular duty. Therefore, he released appellant to regular-duty work. The Board finds that 

the opinion of Dr. Sides constitutes the weight of the medical evidence and is sufficient to justify 

OWCP’s termination of benefits for the accepted conditions. 

In his June 9, 2015 report, Dr. Westbrook assessed appellant with pain in lower leg, joint; 

traumatic arthritis of the left knee; derangement of the meniscus; and sprain and strain of the left 

knee and leg. He noted that appellant had continuing residuals and noted in duty status reports 

that appellant was unable to do any work. However, Dr. Westbrook did not provide a well-

 4 M.B., Docket No. 15-1125 (issued September 14, 2016). 

5 Id.; Jason C. Armstrong, 40 ECAB 907 (1989). 

6 See D.D., Docket No. 15-1075 (issued March 15, 2016). 

7 See Melvina Jackson, 38 ECAB 443 (1987). 
6

rationalized opinion explaining this conclusion. He did not explain how appellant’s diagnosed 

conditions, including her left knee arthritis, were causally related to the accepted employment 

incident. Furthermore, Dr. Westbrook did not explain why any of appellant’s diagnosed 

conditions would cause continuing disability from her usual employment. Accordingly, the 

report of Dr. Westbrook is of diminished value.8

Counsel contended that OWCP improperly used the surveillance video. 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.9 

Appellant was made aware of the surveillance video and the fact that Dr. Sides had reviewed this 

video at least by the time of the notice of proposed termination, issued on June 25, 2015. He did 

not request a copy of the surveillance video prior to the July 28, 2015 decision terminating her 

benefits. By letter dated August 5, 2015, counsel requested a copy of the surveillance tape and 

this was timely sent to him on September 14, 2015. The Board notes that counsel was provided a 

copy of the video prior to the decision of the hearing representative affirming the termination of 

compensation benefits. There is no evidence of any wrongdoing on the part of OWCP with 

regard to the video.10 

LEGAL PRECEDENT -- ISSUE 2 

After termination or modification of compensation benefits, clearly warranted on the 

basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. In 

order to prevail, appellant must establish by the weight of the reliable, probative, and substantial 

evidence that he or she had an employment-related disability which continued after termination 

of compensation benefits.11

ANALYSIS -- ISSUE 2 

Following termination of appellant’s compensation benefits, counsel submitted an 

August 8, 2015 report by Dr. Westbrook wherein he reiterated his diagnoses of traumatic arthritis 

of the left knee and effusion of the lower leg joint, and noted that appellant was awaiting 

approval for her left knee replacement. The August 8, 2015 opinion of Dr. Westbrook is 

deficient to establish continuing disability after July 29, 2015 for the same reason as his prior 

reports, i.e., he did not provide a rationalized opinion explaining why appellant had continuing 

disability causally related to her accepted condition. Accordingly, the Board finds that appellant 

 8 See V.A., Docket No. 15-1073 (issued November 25, 2015). 

9 A.P., Docket No. 13-30 (issued March 18, 2013); see also Y.S., Docket No. 15-1949 (issued April 11, 2016). 

10 See N.M., Docket No. 15-1553 (issued March 2, 2016). 

11 M.B., Docket No. 15-1125 (issued September 14, 2016). 
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has failed to meet her burden of proof to establish continuing disability after the termination of 

benefits.12

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 appellant’s wage-loss compensation 

effective July 29, 2015. The Board further finds that appellant did not meet her burden of proof 

to establish continuing disability after July 29, 2015. 

ORDER 

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

Compensation Programs dated April 29, 2016 is affirmed. 

Issued: January 10, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 12 See G.G., Docket No. 15-0985 (issued August 21, 2015).