United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.C., Appellant

and

U.S. POSTAL SERVICE, ALLAPATTAH 

BRANCH, Miami, FL, Employer

__________________________________________

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Docket No. 17-0379

Issued: November 9, 2017

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 9, 2016 appellant, through counsel, filed a timely appeal from 

September 26 and November 1, 2016 merit decisions 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.

ISSUES

The issues are: (1) whether appellant met her burden of proof to establish total disability 

for the period April 24 to July 10, 2015 causally related to the accepted October 11, 2008 work 

 

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

injury; (2) whether OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective November 3, 2015; and (3) whether appellant met 

her burden of proof to establish any continuing disability and residuals on or after November 3, 

2015 causally related to the accepted October 11, 2008 employment injury.

FACTUAL HISTORY

On October 11, 2008 appellant, then a 45-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she sustained left ankle and lower back injuries due 

to stepping into a pothole while delivering mail. OWCP accepted the claim for lumbar and 

sacrum back sprains. Appellant returned to work with restrictions on October 12, 2008, and 

intermittently stopped work thereafter.

By letter dated January 20, 2011, OWCP placed appellant on the periodic rolls for 

temporary total disability with the first payment covering the period January 1 to 15, 2011. 

In a duty status report (Form CA-17) dated April 2, 2014, Dr. Mark W. Bridges, a Boardcertified orthopedic surgeon, noted that appellant had been examined on October 13, 2013. He 

provided work restrictions and checked a box marked “no” to the question of whether the 

employee was advised to resume work.

On July 10, 2014 the Office of the Inspector General (OIG) for the employing 

establishment submitted a July 8, 2014 report regarding an investigation of appellant’s disability 

status for the period March 6 to April 7, 2014. Its agents interviewed Dr. Bridges at his office on 

July 2, 2014 regarding appellant’s injury and provided surveillance photographs and videos to 

review. Dr. Bridges told the OIG agents that, if appellant was able to climb stairs as seen in the 

photographs and surveillance videos, then appellant was capable of returning to work without 

restrictions. He commented that appellant had not informed him regarding her travel and that 

she had advised him that she was unable to perform the type of activities he saw her performing 

on the surveillance videos. 

In a duty status report (Form CA-17) dated July 2, 2014, Dr. Bridges noted an injury date 

of October 8, 2008 and that appellant had been advised that she could return to work that day. 

He checked a box marked “yes” to the question of whether appellant could resume her regular 

work. 

Appellant accepted a modified job offer and returned to work on July 26, 2014. 

On August 14, 2014 OWCP referred appellant to Dr. Clinton W. Bush, III, a Boardcertified orthopedic surgeon, for a second opinion evaluation regarding her disability status. In 

addition to providing the date and time of the appointment, it informed appellant that a 

surveillance video from the employing establishment was being sent for review. With the 

attached list of questions, OWCP requested that Dr. Bush review the attached surveillance video 

prior to responding. 

In an August 20, 2014 report, Dr. Bush noted having reviewed the statement of accepted 

facts (SOAF), medical record, and the surveillance video. He diagnosed resolved lumbosacral 

sprain, L5-S1, L4-5 disc herniations, L5-S1 degenerative disc disease, and obesity. Dr. Bush 
3

related that appellant’s physical examination revealed full range of motion, with subjective 

complaints of discomfort with lumbar side bending, flexion, and extension. A review of a 

magnetic resonance imaging (MRI) scan from October 25, 2008 showed early L5-S1 disc 

degeneration and L5-S1 disc herniation. A later MRI scan dated January 15, 2013 also showed 

impingement of the right S1 nerve root, L5-S1 disc degeneration, and L5-S1 disc herniation. 

Dr. Bush observed there were no objective physical examination findings, but only 

appellant’s subjective complaints of back discomfort and weakness. However, he concluded that 

the complaints of lower extremity weakness were negated by the surveillance video, which 

showed her walking exercise. While the disc herniations were objective findings, Dr. Bush 

opined that they were associated with appellant’s nonemployment-related degenerative disc 

disease. He explained that appellant’s accepted lumbosacral sprain had resolved without any 

residuals or disability due the lack of any supporting objective findings. Dr. Bush further opined 

that appellant no longer required any medical treatment and that her lower back complaints were 

due to her obesity and degenerative disc disease, which were unrelated to the accepted 

employment injuries.

In support of his conclusion that appellant’s subjective complaints outweighed her 

objective findings, Dr. Bush noted that the surveillance video strongly supported that appellant 

had little to no disability. He concluded that appellant was capable of working eight hours per 

day in any light-duty or sedentary position, but that appellant was unable to perform the duties of 

a letter carrier due to her lumbar spine degenerative disc disease, which was unrelated to her 

accepted October 11, 2008 employment injury.

On February 24, 2015 Dr. Bridges reviewed the position description and functional 

requirements for city carrier. He advised that appellant was capable of performing this position 

without restrictions.

In a March 25, 2015 letter, the employing establishment advised appellant that it was 

terminating her light-duty assignment based on Dr. Bridges’ opinion that she was capable of 

returning to her regular work duties.

By report dated April 14, 2015, Dr. Bridges wrote that appellant had been seen for 

complaints of increased back pain. He provided physical examination findings and diagnosed 

lumbago and lumbar intervertebral disc displacement without myelopathy. Dr. Bridges 

recommended that appellant be referred to a surgeon to discuss surgery options and determine 

permanent work restrictions. In an attached duty status report, he indicated that appellant was 

capable of working with restrictions. Dr. Bridges also completed forms dated April 14, 2015 

indicating that appellant was seen by him that day. On one form he wrote that appellant was 

released to return to sedentary work only on April 15, 2015. Dr. Bridges noted on a second form 

that appellant had lumbar disc herniation.

In an April 14, 2015 CA-17 form, Dr. Bridges diagnosed lower back pain and provided 

work restrictions. No name, occupation, or injury date was listed on the form. These restrictions 

included no more than two hours of lifting or carrying up to 20 pounds, up to four hours of 

walking, no climbing, kneeling, bending/stooping, twisting, and pushing/pulling, and up to four 

hours of driving a motor vehicle.
4

Appellant filed claims for wage-loss compensation (Form CA-7) for the period April 24

to July 10, 2015 based on the lack of available work within her restrictions. In attached time 

analysis forms, she noted the reason she was claiming wage-loss compensation was that the 

employing establishment had no work available within her restrictions. 

In a June 16, 2015 letter, OWCP informed appellant that the evidence submitted was 

insufficient to establish her claim for wage-loss compensation for the period claimed. It advised

her as to the medical and factual evidence required and afforded her 30 days to provide the 

requested information. 

In a July 3, 2015 letter, Dr. Bridges wrote that appellant had not sustained a new injury,

but required spinal surgery. He also noted that she had periodic flare-ups from her accepted 

injury.

By letter dated July 10, 2015, appellant’s then representative requested that an electronic 

copy of her claim be forwarded to her. 

On July 16, 2015 OWCP issued a notice proposing to terminate appellant’s wage-loss 

compensation and medical benefits based on the opinion of Dr. Bush, OWCP’s referral 

physician. It also noted that her treating physician, Dr. Bridges, concluded that she was capable 

of returning to full-duty work after reviewing a surveillance video. 

On July 16, 2015 OWCP received a July 3, 2015 request for authorization for a spinal 

consultation for lumbar decompression surgery. 

In a July 28, 2015 letter, Dr. Bridges attributed the lumbar disc herniation to the accepted 

October 11, 2008 employment injury. He reiterated his opinion that appellant required a spinal 

consultation, and lumbar decompression surgery. 

In a July 28, 2015 form, Dr. Bruce Epstein, an examining Board-certified physiatrist,

noted a diagnosis of lumbar herniated nucleus pulposus due to an October 11, 2008 injury, that 

appellant was disabled from performing her usual job, and had been able to work with 

restrictions since October 12, 2010 to the present. He noted that he last examined appellant on 

October 12, 2010 and saw her when needed. 

By letter dated August 7, 2015, OWCP forwarded a copy of the file on a CD-ROM to

appellant’s representative, as requested. 

In an August 14, 2015 letter, appellant’s representative disagreed with the proposed 

termination of appellant’s benefits and requested that she be returned to her limited-duty job. He 

also argued that appellant was unaware of surveillance video and that showing it to Dr. Bridges 

was an attempt to prejudice the physician.

On August 24, 2015 appellant was examined by Dr. Peter A. Tomasello, Jr., a Boardcertified orthopedic surgeon. Dr. Tomasello provided a history of injury. He reviewed x-ray 

interpretations taken at his office which showed L4-5 mild disc space narrowing, and fairly well 

maintained L5-S1 disc space. A January 15, 2013 lumbar MRI scan showed a broad-based 

bulging L4-5 annulus with superimposed right posterior disc herniation with annular tear, mild 
5

central canal and right foraminal stenosis, mildly narrowed right neural foramen, right S1 nerve 

root and thecal sac impingement, and L5-S1 posterior right lateral disc herniation with annular 

tear. Appellant’s physical examination revealed lumbosacral junction and bilateral sacroiliac 

joint into bilateral buttocks tenderness; negative flip test, and little back pain with complaints of 

tight hamstrings with straight leg testing. Diagnoses included obesity, chronic lower back pain, 

L4-5 and L5-S1 posterior right lateral herniations with annular tear, and chronic herniated discs. 

Dr. Tomasello indicated that appellant was capable of sedentary work or job retraining. 

By decision dated October 22, 2015, OWCP denied appellant’s claim for wage-loss 

compensation for the period April 24 to July 10, 2015. It found that she had failed to submit 

medical evidence sufficient to establish total disability during the claim period. OWCP also 

referenced Dr. Bridges July 2, 2014 report discussing the surveillance video. 

On November 3, 2015 OWCP finalized the termination of appellant’s wage-loss 

compensation and medical benefits effective that day.

OWCP subsequently received Dr. Tomasello’s reports dated November 2 and 23, 2015. 

Dr. Tomasello reported that appellant was seen for complaints of chronic lower back pain. He 

noted that she was going to physical therapy twice a week and twice a week to an Aquatic 

Center. Dr. Tomasello provided physical examination findings and diagnoses obesity, L4-5 and 

L5-S1 posterior right lateral herniation with annular tear, chronic herniated disc, and chronic 

lower back pain. Recommendations included continued physical therapy and weight loss. 

Counsel subsequently requested a telephonic hearing before an OWCP hearing 

representative regarding the October 22, 2015 decision denying wage-loss compensation and the 

November 3, 2015 decision terminating her benefits. The telephonic hearings were scheduled 

for July 15, 2016 for the October 22, 2015 decision and August 17, 2016 respectively.

In a letter dated November 20, 2015, appellant’s then representative requested a copy of 

the case file in PDF format on a CD-ROM for the period August 8, 2015 to the present. 

In a letter dated December 2, 2015, counsel requested a copy of the file including any 

investigative reports or photographs performed by the employing establishment, correspondence 

form or to the employing establishment, and information contained on a disc.

3

On December 7, 2015 OWCP forwarded the information requested in the November 20, 

2015 letter to her representative.

In a January 5, 2016 report, Dr. Tomasello provided an illness history and findings on 

examination. Diagnoses and recommendations were unchanged from his prior reports. 

In a letter dated February 4, 2016, appellant authorized a change in her representation to 

counsel. 

 

3 By letter dated January 21, 2016, OWCP advised appellant that it had received a request from counsel regarding 

her claim. However, no letter had been submitted requesting removal of her prior representative and appointment of 

counsel to represent her. Thus, OWCP informed appellant that it could not communicate directly with counsel. It 

also noted that the documents requested by counsel were attached and that she could forward them to him. 
6

By decision dated September 26, 2016, OWCP’s hearing representative affirmed the 

October 22, 2015 decision denying her claim for wage-loss compensation for the period April 24 

to July 10, 2015. 

On November 1, 2016 an OWCP hearing representative issued a decision affirming the 

November 3, 2015 decision which terminated appellant’s wage-loss compensation and medical 

benefits. 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.5 For each period of 

disability claimed, the employee has the burden of establishing that she was disabled from work 

as a result of the accepted employment injury.6 Whether a particular injury causes an employee 

to become disabled from work, and the duration of that disability, are medical issues that must be 

proved by a preponderance of probative and reliable medical opinion evidence.7 

Under FECA the term “disability” means incapacity, because of an employment injury, to 

earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not 

synonymous with physical impairment which may or may not result in an incapacity to earn 

wages.9 An employee who has a physical impairment causally related to his or her federal 

employment, but who nonetheless has the capacity to earn the wages he or she was receiving at 

the time of injury, has no disability and is not entitled to compensation for loss of wage-earning 

capacity.10 When, however, the medical evidence establishes that the residuals or sequelae of an 

employment injury are such that, from a medical standpoint, they prevent the employee from 

continuing in her employment, she is entitled to compensation for any loss of wages. 

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so, would essentially allow an employee to self-certify their disability and 

entitlement to compensation.11

 

4

5 U.S.C. §§ 8101-8193.

5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M. 

Whelan, 20 ECAB 55 (1968).

6

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

7

See Edward H. Horton, 41 ECAB 301 (1989).

8

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 

(2003); 20 C.F.R. § 10.5(f).

9 Roberta L. Kaaumoana, 54 ECAB 150 (2002).

10 Merle J. Marceau, 53 ECAB 197 (2001).

11 See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).
7

ANALYSIS -- ISSUE 1

OWCP accepted appellant’s claim for lumbar and sacrum sprains. It paid wage-loss 

compensation on the periodic rolls for temporary total disability beginning January 1, 2011. On 

July 26, 2014 appellant accepted a modified job offer and returned to work. By letter dated 

March 25, 2015, the employing establishment informed appellant that her light-duty assignment 

was terminated as her treating physician, Dr. Bridges, concluded that she was capable of 

performing regular work duties. Appellant filed a claim for wage-loss compensation for the 

period April 24 to July 10, 2015 due to the lack of any work available within her restrictions. By 

decision dated October 22, 2015, OWCP denied her claim, which was affirmed by a hearing 

representative in a September 26, 2016 decision.

The Board finds that appellant has not met her burden of proof to establish that she was 

totally disabled for the period April 24 to July 10, 2015 due to her accepted employment injuries. 

On July 2, 2014 Dr. Bridges viewed a videotaped surveillance, produced by the OIG, of 

appellant and noted that her activities in the video exceeded the physical limitations set for her. 

He opined that the activities depicted on the videotape and pictures and her failure to inform him 

of her travel plans revealed that appellant could work an eight-hour day with no restrictions. In 

his Form CA-17 dated July 2, 2014, Dr. Bridges indicated that appellant could perform her 

regular work duties. On February 25, 2015 he reviewed the city carrier position description and 

opined that appellant could perform this position with no restrictions.

In a Form CA-17 report dated April 14, 2015, Dr. Bridges diagnosed lower back pain and 

provided work restrictions. In a July 28, 2015 letter, he attributed a lumbar disc herniation to the

accepted October 11, 2008 employment injury. Although Dr. Bridges noted that appellant had 

lower back pain, periodic flare-ups from her accepted employment injury, and attributed a 

lumbar disc herniation to the accepted October 11, 2008 employment injury, he did not 

specifically address whether she had any employment-related disability beginning April 24, 2015

causally related to her accepted conditions.12 Dr. Bridges did not fully address why appellant 

required work restrictions or how these restrictions were attributable to the 2008 employment 

injury. Furthermore, his April 14, 2015 opinion that appellant could work with restrictions is at 

odds with his July 2, 2014 and February 24, 2015 reports, which found that she could work 

without restrictions. The Board has previously found that, if a physician has not explained his 

contradictory remarks, his report therefore has limited probative value.13 The Board has found 

that vague medical opinions which do not explain causal relationship are of diminished probative 

value.14 In addition, the Board has not accepted that appellant sustained a lumbar herniation due 

to the accepted October 11, 2008 employment injury.15 Therefore, these reports are insufficient 

to meet appellant’s burden of proof that she was disabled for the period April 24 to 

July 10, 2015. 

 

12 L.C., Docket No. 16-1717 (issued March 2, 2017). 

13 See Larry Orr, Docket No. 98-0861 (issued February 4, 2000). 

14 See A.D., 58 ECAB 149 (2006); Mary E. Marshall, 56 ECAB 420 (2005).

15 Supra note 11. 
8

The reports of Dr. Epstein and Dr. Tomasello addressed appellant’s lumbar conditions 

and appellant’s ability to work with restrictions, but failed to relate the diagnosed conditions, 

restrictions, or period of claimed disability to the accepted October 11, 2008 employment 

injuries. These reports are therefore of diminished probative value and insufficient to establish 

appellant’s claim.16 The Board thus finds that appellant failed to meet her burden of proof.

On appeal appellant also contends that she is entitled to wage-loss compensation due to 

the lack of work available within her restrictions. As noted above, she was released to regular 

work by her treating physician and was thereafter informed by the employing establishment on

March 25, 2015 that her light-duty assignment was terminated. In addition, as discussed above, 

the medical evidence appellant submitted was insufficient to establish that her disability for the 

period in question was due to her accepted employment conditions. 

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.

LEGAL PRECEDENT -- ISSUE 2

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

modification or termination of an employee’s benefits.17 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.18 OWCP’s burden of proof includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.19

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

entitlement for disability.20 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.21

ANALYSIS -- ISSUE 2

OWCP accepted that appellant sustained lumbar and sacrum back sprains due to the 

accepted October 11, 2008 employment injury. It paid wage-loss compensation on the periodic 

rolls for temporary total disability beginning January 1, 2011 due to the accepted October 11, 

 

16 J.H., Docket No. 12-1848 (issued May 15, 2013); C.S., Docket No. 08-2218 (issued August 7, 2009); 

Sandra D. Pruitt, 57 ECAB 126 (2005). 

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

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

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

20 T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

21 Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).
9

2008 work injury until she returned to working a modified job on July 26, 2014. Subsequent to 

appellant’s return to a modified job, OWCP referred appellant for a second opinion evaluation 

with Dr. Bush.

In an August 20, 2014 report, Dr. Bush, based upon a review of the medical evidence, 

surveillance video, and the SOAF, diagnosed resolved lumbosacral sprain and preexisting L5-S1, 

L4-5 disc herniations, nonemployment-related L5-S1 degenerative disc disease and obesity. He 

attributed appellant’s disc herniations to a nonemployment-related degenerative disc disease. 

Dr. Bush concluded that the lumbosacral sprains had resolved without any disability or residuals 

due to the lack of any objective findings. He noted that a review of the surveillance video of 

appellant’s physical activities reinforced his opinion that appellant had little to no disability. 

Dr. Bush advised that appellant was unable to perform the duties of a letter carrier, which he 

attributed to her degenerative lumbar disc disease, which was unrelated to the accepted 

October 11, 2008 work injury. 

Dr. Bridges based on review of a surveillance video and photographs, opined in a July 2, 

2014 report and CA-17 form and a February 25, 2015 review of a city carrier position 

description that appellant was capable of performing this position without restrictions. In 

subsequent reports, he provided work restrictions and diagnosed lumbago and lumbar 

intervertebral disc displacement without myelopathy and required lumbar decompression 

surgery. While he noted in his April 14, 2015 the need for lumbar surgical decompression on 

April 14 and July 3, 2015, Dr. Bridges failed to explain his medical reasoning supporting a 

causal relationship between the newly diagnosed conditions of lumbago and lumbar 

intervertebral disc displacement without myelopathy and the need for lumbar decompression 

surgery with the accepted employment injury. He did not provide a rationalized opinion 

regarding the causal relationship between appellant’s current medical condition and proposed 

treatment and the accepted employment injury.22 OWCP has not accepted the conditions of 

lumbago and lumbar intervertebral disc displacement without myelopathy. As such, the Board 

finds their opinion to be of diminished probative value.23 

Although Dr. Epstein and Dr. Tomasello diagnosed a lumbar herniated nucleus pulposus, 

chronic herniated discs, and L4-5 and L5-S1 posterior right lateral herniations with annular tear, 

and provided reports from 2015 indicating that appellant was disabled, these reports are of 

diminished probative value as the doctors attributed disability to conditions other than the 

accepted lumbar and sacral back sprains and there is no indication that they were aware of the 

surveillance video documenting appellant’s ability to perform various activities.24

The Board finds that Dr. Bush’s report represents the weight of the medical evidence and 

that OWCP properly relied on his report in terminating appellant’s wage-loss compensation and 

 

22 R.G., Docket No. 16-0271 (issued May 18, 2017).

23Deborah L. Beatty, 54 ECAB 340 (2003). 

24 See G.A., Docket No. 09-2153 (issued June 10, 2010) (for conditions not accepted by OWCP as being 

employment related, it is the employee’s burden to provide rationalized medical evidence sufficient to establish 

causal relation); Leonard J. O Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based 

upon an incomplete history have little probative value).
10

medical benefits effective November 3, 2015. The opinion of Dr. Bush is based on proper 

factual and medical histories as he reviewed a SOAF and appellant’s prior medical treatment and 

test results. He also related his comprehensive examination findings in support of his opinion 

that the accepted work-related condition had resolved. Dr. Bush indicated that appellant did not 

have residuals from the accepted lumbosacral sprains and that her current condition was due to a 

preexisting degenerative condition. There is no contemporaneous medical evidence of equal 

weight supporting appellant’s claim for continuing disability and medical residuals due to her 

accepted October 11, 2008 work injury. 

On appeal counsel contends that appellant’s due process rights were violated when her 

physician was shown the surveillance video without her presence or any notice to appellant. 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 that such footage has been given to a physician and, 

upon request, provide a copy of the recording and a reasonable opportunity to respond to its 

accuracy.

25

 Appellant was made aware of the surveillance video and the fact that Dr. Bridges 

would review this video in an August 14, 2014 letter when she was referred for the second 

opinion evaluation with Dr. Bush. Further, she certainly knew of the video by the time of the 

proposed notice of termination, which was issued on July 16, 2015. She failed to request a copy 

of the surveillance video prior to the November 3, 2015 decision terminating her benefits. By 

letter dated December 2, 2015, counsel requested a copy of any investigative reports, 

photographs, correspondence, and information contained on a disc. The Board notes that OWCP 

did not provide the information requested to counsel until January 21, 2016 when counsel was

authorized by appellant to represent her. There is no evidence of any wrongdoing on the part of 

OWCP with regard to the video.10

LEGAL PRECEDENT -- ISSUE 3

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

shifted to appellant to establish any continuing disability causally related to her accepted 

injuries.26 

ANALYSIS -- ISSUE 3

The Board finds that appellant has not established that she has any continuing residuals of 

her work-related lumbar and sacral back sprains on or after November 3, 2015. 

After the termination of benefits on November 3, 2015 appellant submitted reports dated 

November 2 and 23, 2015 and January 5, 2016 from Dr. Tomasello diagnosing obesity, L4-5 and 

L5-S1 posterior right lateral herniation with annular tear, chronic lower back pain, and chronic 

herniated discs. However, his reports are of limited probative value as they do not provide 

sufficient medical reasoning explaining how any continuing condition or disability was causally 

 

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

26 See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).
11

related to the October 11, 2008 work injury.27 As Dr. Tomasello failed to attribute appellant’s 

continued disability to her accepted conditions, his reports are insufficient to establish workrelated disability due to the accepted conditions.

28

 Appellant has not, therefore, submitted

medical evidence sufficient to demonstrate continuing disability causally related to her accepted 

conditions.

CONCLUSION

The Board finds that appellant has not established total disability for the period April 24 

to July 10, 2015 causally related to the accepted October 11, 2008 work injury. The Board also 

finds that OWCP properly terminated appellant’s wage-loss compensation effective 

November 3, 2015. The Board further finds that appellant has not met her burden of proof to 

establish continuing disability after November 3, 2015.

ORDER

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

Compensation Programs dated November 1 and September 26, 2016 are affirmed.

Issued: November 9, 2017

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

27 A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

28 See S.Y., Docket No. 16-1555 (issued April 21, 2017).