United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Blue Springs, MO, Employer
__________________________________________

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Appearances:
Edward L. Daniel, for the appellant
Office of Solicitor, for the Director

Docket No. 14-458
Issued: May 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 23, 2013 appellant, through her representative, filed a timely appeal from
the July 17, 2013 Office of Workers’ Compensation Programs’ (OWCP) decision which denied
her claim. 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 appellant established that she sustained a recurrence of disability on
September 20, 2008 causally related to her January 10, 2007 injury.
FACTUAL HISTORY
This case has previously been before the Board.2 In a May 25, 2010 decision, the Board
found that the case was not in posture for decision regarding whether appellant established that
she sustained a concussion causally related to her accepted employment injuries. The Board
1

5 U.S.C. § 8101 et seq.

2

Docket No. 12-1099 (issued November 7, 2012) and Docket No. 09-1792 (issued May 25, 2010).

remanded the case for referral to an impartial medical specialist to resolve a conflict in medical
opinion. In a November 7, 2012 decision, the Board affirmed the March 13, 2012 OWCP
decision which found that appellant did not establish a recurrence of disability on September 20,
2008 causally related to her January 10, 2007 injury. The Board found that she did not submit
reasoned medical opinion evidence. The facts and history contained in the prior appeal are
incorporated by reference.3
The record includes a September 10, 2008 report from Dr. John W. Ellis, Board-certified
in family medicine, who noted appellant’s history pertaining to a January 15, 2008 motor vehicle
accident. Dr. Ellis stated that “[s]he was stopped. Appellant’s Ford Taurus was hit from the rear
by a pickup that had been hit by Cadillac, driving the pick up into the back of her car. She was
dazed, but not unconscious. Appellant was already undergoing physical therapy for her neck. At
the time, she had more pain in her neck. [Appellant] does not think it changed her memory,
thinking, dizziness or headaches.” The emergency room records from January 15, 2008 reveal
that appellant was in a three car motor vehicle collision and rear-ended. Appellant had upper
back and neck pain, rated 7 out of 10, and was currently in physical therapy for “whip lash.” The
police report drawings reveal appellant was in the first car of the three cars.
On April 29, 2013 appellant’s representative requested reconsideration and submitted a
new report from Dr. James A. Stuckmeyer, a Board-certified orthopedic surgeon, who explained
that the January 15, 2008 motor vehicle accident was minor and did not cause or contribute to
appellant’s “preexisting work[-]related conditions resulting in her disability for work nine
months later on September 20, 2008.” Appellant’s representative contended that Dr. Stuckmeyer
concluded that the accident did not have any impact or relevance to appellant’s ongoing
diagnoses or disability for work subsequent to September 20, 2008.
In a February 10, 2013 report, Dr. Stuckmeyer noted appellant’s history of injury and his
prior evaluations. He reiterated that on January 10, 2007, while performing her duties
delivering mail, she was struck from behind by a large vehicle. Dr. Stuckmeyer explained that,
at his initial examination, he found a “direct and proximate result of the accident, [appellant]
sustained an injury to her head, cervical spine, thoracolumbar spine, and right buttock region.”
He outlined her treatment in his initial report. Appellant had daily headaches, straggled with
memory issues, was “always dizzy” and had ongoing symptoms of neck pain. She had radiating
pain into the left upper extremity, symptoms of numbness and tingling, and persistent symptoms
of thoracolumbar pain with pain radiating into the right buttock region and difficulty with
activities of prolonged standing, walking, lifting and bending. At the initial examination on
August 8, 2011, Dr. Stuckmeyer noted that appellant had a complicated orthopedic evaluation
and that prior to the work accident, she was completely asymptomatic. He opined that as a
direct, proximate, and prevailing factor of the accident occurring on January 10, 2007, appellant
sustained multiple trauma. Dr. Stuckmeyer diagnosed occipital neuralgia, unresponsive to
occipital nerve blocks; chronic cervical strain with left upper extremity radiculopathy; chronic
thoracic strain with absence of radiculopathy; lumbosacral strain with radicular symptoms in the
right buttock; left shoulder impingement syndrome, partial rotator cuff tear, nonresponsive to
conservative modalities; and chronic bi-temporal headaches, vertigo and significant memory
issues. He advised that she was permanently and totally disabled as a result of the multiple
injuries she sustained as a direct result of the January 10, 2007 accident. Dr. Stuckmeyer
3

The record reflects that she retired on March 23, 2009. Appellant had a nonemployment-related motor vehicle
accident on January 15, 2008, a year after the January 10, 2007 employment injury.

2

reevaluated appellant on January 8, 2013. Appellant informed him that she was involved in a
second motor vehicle accident, which she described as a “fender bender” on January 15, 2008
and was evaluated at a hospital. Upon review of his initial summary, Dr. Stuckmeyer noted that
appellant had cervical spine x-rays and the films revealed evidence of spasms. Appellant
informed him that it was a minor motor vehicle accident and that the medical records preceding
the second collision revealed ongoing issues in multiple body parts, which he outlined on
August 8, 2011. Dr. Stuckmeyer stated that “the second motor vehicle accident occurring on
January 15, 2008, would not change my opinions.” He also advised that the medical records
related to that incident indicated that it was a “fender bender.” Dr. Stuckmeyer opined that
appellant had “no overall change in her condition” since his initial evaluation and related that her
ongoing conditions were a direct result of the January 10, 2007 injury at work. He repeated his
diagnoses and opined that the accident on January 15, 2008 “had no impact, relevance to the
patient’s ongoing diagnoses since the medical records clearly reflect that these conditions
preexisted the January 2008 “fender bender.”
In a letter dated May 13, 2013, appellant’s representative submitted reports dated
June 29, 2007 and November 19, 2008 from Dr. Terrie L. Price, a licensed clinical
neuropsychologist. She noted appellant’s history of injury and treatment and diagnosed
cognitive disorder NOS (not otherwise specified), depression disorder NOS, anxiety disorder
NOS, dysomnia, deferred, status postconcussion from motor vehicle crash, and reported history
of previous blows to the head and possible concussion. Dr. Price noted that appellant related that
she was in a motor vehicle accident on January 10, 2007, when she was struck from behind.
Appellant reported that her headaches worsened such that she found it difficult to cope with the
situation and that she last worked for the employer on September 5, 2008. Dr. Price noted that
appellant indicated “she missed work because of headache, not getting her period, and hurting.”
In relating appellant’s history, Dr. Price noted Dr. Ellis’ opinion and stated that appellant was
also seen by a Dr. French on October 6, 2008, for headache and memory loss as well as some
tremor and poor coordination of uncertain etiology.4 She noted that Dr. French stated that some
of appellant’s symptoms might be related to her accident but was not certain that all of her
symptoms were related. Dr. Price noted results of psychological testing and opined that it was
likely that psychological factors were impacting appellant’s test performance as well as her
functional presentation. Appellant’s psychological assessment and her self-report suggested that
she saw herself as experiencing significant and disabling pain and feeling increasingly less able
to manage stress that triggered and exacerbated her pain. Dr. Price noted that appellant also felt
“under pressure from her employer and feels increasingly unable to work. Appellant feels
increasingly taxed by pressure and demands.” Dr. Price recommended more aggressive
treatment of her pain through behavior pain management counseling and physiatric consultation
toward improving her functional abilities and strategies for decreasing pain. She provided an
axis one diagnosis of pain disorder, cognitive disorder and depressive disorder.
By decision dated July 17, 2013, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations provide that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
4

Dr. French’s report is not of record.

3

medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.5
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.6
Appellant has the burden of establishing that she sustained a recurrence of a medical
condition7 that is causally related to her accepted employment injury. To meet her burden,
appellant must furnish medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the condition is causally related to the
employment injury and supports that conclusion with sound medical rationale.8 Where no such
rationale is present, the medical evidence is of diminished probative value.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.10
ANALYSIS
OWCP accepted appellant’s claim for thoracic strain, lumbar strain, contusion of the
face, scalp and neck, left, left shoulder sprain, and postconcussion syndrome. Appellant returned
to regular duty on March 27, 2007. On January 15, 2008 she had a nonwork motor vehicle
accident.
Appellant subsequently claimed a recurrence of total disability beginning
September 20, 2008.11
However, there is no rationalized medical opinion which sufficiently explains why
appellant had a recurrence of disability on September 20, 2008 causally related to her
January 10, 2007 injury. In the most recent prior appeal, the Board noted that there were
no bridging medical records from February 5 until September 10, 2008 regarding appellant’s
inability to work. The Board explained that this was especially important in light of the fact that
appellant had a motor vehicle accident on January 15, 2008 and retired on March 23, 2009.

5

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

6

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.104.

7

20 C.F.R. § 10.5(y) (2002).

8

Ronald A. Eldridge, 53 ECAB 218 (2001).

9

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

10

Walter D. Morehead, 31 ECAB 188 (1986).

11

Appellant retired on March 23, 2009.

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On reconsideration, appellant submitted a February 10, 2013 report from
Dr. Stuckmeyer who initially reiterated his diagnoses and opinion on causal relationship from
his August 8, 2011 report, which was previously considered by the Board. Dr. Stuckmeyer
attempted to explain why the January 15, 2008 nonwork accident did not impact his opinion. He
indicated that, on January 8, 2013, he reevaluated appellant and she informed him that she was
involved in a second motor vehicle accident, which she described as a “fender bender” on
January 15, 2008 and was evaluated at a hospital. Dr. Stuckmeyer noted that in his initial
summary, he stated that appellant had cervical spine x-rays which revealed evidence of spasms
and repeated that appellant informed him that it was a minor accident. He noted that the medical
records preceding the second collision revealed ongoing issues in multiple body parts, which he
outlined in his August 8, 2011 report. Dr. Stuckmeyer opined that the January 15, 2008 motor
vehicle accident did not change his opinion and asserted that medical records related to that
incident indicated that it was a “fender bender.” However, the Board is unconvinced by this
opinion as he does not appear to have an accurate understanding of the incident.12 In his
September 10, 2008 report, Dr. Ellis noted the history of the January 15, 2008 motor vehicle
accident, indicating that “[s]he was stopped. Appellant’s Ford Taurus was hit from the rear by a
pickup that had been hit by Cadillac driving the pickup into the back of her car. She was dazed,
but not unconscious. Appellant was already undergoing physical therapy for her neck. At the
time, she had more pain in her neck. Appellant does not think it changed her memory, thinking,
dizziness or headaches.” Dr. Stuckmeyer did not provide sufficient reasoning to explain how an
incident that left appellant “dazed, but not unconscious” could be characterized as minor and
having no impact on appellant. This is especially important, as the initial emergency room
records also reveal that appellant had upper back pain and neck pain. Without further
explanation or rationale, this report is of limited probative value and does not support a
recurrence of disability on September 20, 2008 causally related to the January 10, 2007 injury.
In a November 19, 2008 report, Dr. Price noted that the history of injury included a motor
vehicle crash on January 10, 2007, when appellant was struck from behind. She related that
appellant reported that she started getting worse in the summer and her headaches worsened such
that she found it difficult to cope with the situation. Dr. Price indicated that appellant last
worked for the employing establishment on September 5, 2008 and indicated that appellant
indicated that “she missed work because of headache, not getting her period, and hurting.”
Furthermore, she left “because of the headache and she could not handle it anymore. Dr. Price
states that she was in unbearable pain when she would get home from work.” She also related
that appellant felt “under pressure from her employer and feels increasingly unable to work.
Dr. Price feels increasingly taxed by pressure and demands.” She also recommended treatment
options. While Dr. Price referenced opinions of other physicians regarding the possible causes
of appellant’s condition, she did not offer her own opinion regarding whether appellant had a
recurrence of disability beginning September 20, 2008 causally related to her accepted
employment injury. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.13
Dr. Price’s June 29, 2007 report is insufficient as it predated the alleged recurrence of disability.

12

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history or which are speculative or equivocal in character have little probative value).
13

See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).

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Accordingly, the Board finds that appellant has not met her burden of proof in this case
as she has not submitted sufficiently reasoned medical opinion explaining why her recurrence of
disability beginning September 20, 2008 was caused or aggravated by the January 10, 2007
employment injury and not the result of her subsequent motor vehicle accident.
On appeal, appellant’s representative argued that Dr. Stuckmeyer’s opinion was
sufficiently rationalized. However, as noted above, the Board found that he provided insufficient
medical reasoning, based on an accurate factual background, to explain his conclusion on causal
relationship. 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 appellant has not established that she sustained a recurrence of
disability on September 20, 2008 causally related to her January 10, 2007 injury.
ORDER
IT IS HEREBY ORDERED THAT the July 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 13, 2014
Washington, DC

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fayetteville, AR, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1734
Issued: January 27, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 30, 2016 appellant, through counsel, filed a timely appeal from an August 1,
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 over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury
causally related to a September 29, 2015 employment incident, as alleged.
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.

FACTUAL HISTORY
On September 29, 2015 appellant, then a 37-year-old mail handler, filed a traumatic
injury claim (Form CA-1) claiming that earlier that day, he reached into a wire container to grab
a flat bundle and sustained a low back strain. Appellant’s supervisor confirmed that appellant
was in the performance of duty. An employing establishment manager also completed an
incident report on September 30, 2015 confirming appellant’s account of the September 29, 2015
lifting incident.
In an October 2, 2015 letter, OWCP advised appellant of the type of additional evidence
needed to establish his claim, including factual corroboration of the September 29, 2015 incident,
and medical evidence diagnosing an injury resulting from that event. It afforded him 30 days to
submit such evidence.
In response, appellant submitted October 9 and 16, 2015 chart notes from Community
Physicians Group (CPG), diagnosing an acute low back strain and chronic sacroiliitis due to a
September 29, 2015 lifting and twisting injury. He also provided October 9 and 12, 2015 duty
status reports (Form CA-17) noting work restrictions. None of these forms bears a legible
signature. The duty status reports note a practitioner’s specialty as “FP.”
The employing establishment submitted an October 9, 2015 letter alleging that appellant
did not sustain a new injury on September 29, 2015, but rather had experienced symptoms from a
prior back injury accepted under File No. xxxxxx600.3 Appellant returned to work in a limitedduty capacity as of September 23, 2015. He underwent a “fusion surgery” related to the prior
back injury and was awaiting authorization for a second fusion.
By decision dated November 9, 2015, OWCP accepted that the September 29, 2015
lifting incident occurred at the time, place, and in the manner alleged, but denied the claim as
appellant did not submit probative medical evidence diagnosing an injury causally related to the
accepted incident.
On July 5, 2016 appellant, through counsel, requested reconsideration. He submitted
October 16 and 30, 2015 duty status reports, and an October 30, 2015 chart note from CPG
diagnosing a low back strain due to a September 29, 2015 incident. None of these forms bear a
legible signature.
By decision dated August 1, 2016, OWCP denied modification, finding that none of the
medical documents “had a legible signature denoting it was signed by a physician.” It noted that
although the October 9 and 12, 2015 duty status reports contained the specialty designation “FP,”
the signer did not describe him or herself as a medical doctor or doctor of osteopathy. Therefore,
there was no indication that the forms were signed by a qualified physician under FECA.

3

File No. xxxxxx600 is not before the Board on the present appeal.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that he actually
experienced the employment incident that is alleged to have occurred.6 An employee has not
met his or her burden of proof to establish the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.7 Second,
the employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medial certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
Generally, medical evidence must be provided by a qualified physician.10 Section
8101(2) of FECA provides that “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their
practice as defined by State law.11 If a document does not bear a legible signature identifying
4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001).

7

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

8

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

9

Solomon Polen, 51 ECAB 341 (2000).

10

Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can
only be given by a qualified physician).
11

5 U.S.C. § 8101(2).

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that it was authored or reviewed by a qualified physician, it does not constitute probative medical
evidence.12
ANALYSIS
Appellant alleges that he sustained a lumbar strain when reaching into a wire container to
grab a mail bundle on September 29, 2015. OWCP accepted incident of injury, but denied the
claim as he did not submit any probative medical evidence substantiating an injury as resulting
from the work incident.
In support of his claim, appellant submitted chart notes dated October 9, 16, and 30, 2015
from CPG. He also provided October 9 and 12, 2015 duty status reports, noting the
practitioner’s specialty as “FP.” However, none of these documents bear a legible signature.
Because it cannot be determined that the person signing the report is a physician as defined in
5 U.S.C. § 8101(2), the report lacks probative medical value.13 The Board has previously held
that medical documents must be signed or reviewed by a qualified physician to constitute
probative medical evidence.14 As the author or authors of the CPG and duty status reports
remain unknown, these reports are not medical evidence for the purposes of this case.
Consequently, appellant has provided insufficient medical evidence in support of his claim.
OWCP advised appellant by October 2, 2015 letter of the type of evidence needed to
establish his claim, including medical evidence from a qualified physician. As appellant did not
submit probative medical evidence diagnosing an injury related to the accepted incident, OWCP
properly denied the claim.15
On appeal, counsel contends that OWCP’s August 1, 2015 merit decision is “[c]ontrary
to law and fact.” However, irrespective of counsel’s general arguments, appellant did not submit
any probative medical evidence to support his claim.
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 appellant has not met his burden of proof to establish a traumatic
injury causally related to a September 29, 2015 employment incident, as alleged.

12

Merton J. Sills, 39 ECAB 572 (1983).

13

See id.; R.M., 59 ECAB 690, 693 (2008).

14

Charley V.B. Harley, supra note 10; Merton J. Sills, supra note 12.

15

Deborah L. Beatty, supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 1, 2016 is affirmed.
Issued: January 27, 2017
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board

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S.S., Appellant
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Miami, FL, Employer
___________________________________________ )
Appearances:
Anthony Arenas, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0781
Issued: August 1, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 24, 2017 appellant, through her representative, filed a timely appeal from a
September 28, 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 over the merits of this case.

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.

ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective December 2, 2015, as she had no residuals of her accepted August 14,
1997 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On August 20, 1997 appellant, then a 32-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 14, 1997 she sustained injuries from a motor vehicle
accident while in the performance of duty. OWCP assigned File No. xxxxxx965 and accepted the
claim for cervical, lumbar and thoracic sprains, and later expanded the acceptance of the claim to
include a temporary aggravation of depression and adjustment reaction. Appellant had previously
filed claims with OWCP which have been administratively combined with the present file.4
Appellant stopped work on November 3, 1998, and has not returned.
The record reflects that appellant received intermittent medical treatment, to include once
in 2005, twice in 2007, once in 2008, once in 2010, once in 2012, once in 2013, and twice in 2014.5
From 2005 to 2014, her treatment for her work injuries was with Dr. Antonio DeFilippo, a Boardcertified psychiatrist.
In a December 16, 2014 report, Dr. DeFilippo advised that appellant remained under his
care for the treatment of severe depression, recurrent with anxiety. He explained that she continued
experiencing difficulty with lack of focus and concentration. Dr. DeFilippo indicated that
appellant’s symptoms were still present, were permanent, and she was therefore unable to work at
this time. He noted that her current treatment included medication and routine monitoring.6
On June 3, 2015 OWCP received a June 1, 2015 report of investigation from the employing
establishment’s Office of the Inspector General (OIG). The OIG report revealed that, for the
3

Docket No. 02-2236 (issued March 26, 2003). In the prior appeal, the Board found that appellant’s April 22, 2002
request for reconsideration was untimely filed and failed to demonstrate clear evidence of error.
4
Under File No. xxxxxx618, appellant alleged that on November 21, 1991, she sustained injuries from a dog bite
while in the performance of her federal duties. OWCP accepted the claim for a dog bite of the lower left leg. Under
OWCP File No. xxxxxx739, appellant alleged that on May 17, 1995 she injured her neck while in the performance of
duty. OWCP accepted the claim for a neck sprain. Under OWCP File No. xxxxxx260, appellant filed an occupational
disease claim (Form CA-2) on September 7, 1996 alleging a right hand condition due to casing mail in the performance
of duty. OWCP accepted the claim for right carpal tunnel syndrome. It combined these three cases, with File No.
xxxxxx618 as the master file number for these claims. None of the other cases combined under master File No.
xxxxxx618, including the master case, are open for benefits or are a part of the present appeal.
5

Additionally, in 2008 appellant sought treatment for her nonwork-related fibromyalgia.

6
Appellant also had a second opinion examination on May 20, 2008 with Dr. Melvin Drucker, a Board-certified
orthopedic surgeon. The record reflects that she has not seen an orthopedist since 2008.

2

period January 21 to May 26, 2015, appellant was engaged in activities which appeared to be
inconsistent with her injuries and medical restrictions.7 It was also noted that she saw
approximately 31 physicians for her work injuries. Additionally, the OIG report noted that
Dr. Shelly Wolland, a family practitioner and an attending physician, had a restricted medical
license. It indicated that they had referred the case to prosecution. The OIG alleged that appellant
consistently participated in physical activities inconsistent with her stated medical condition and
restrictions and failed to notify the employing establishment or the Department of Labor of her
ability to return to work in a full-duty capacity.
By memorandum dated June 17, 2015, OWCP described the OIG’s video surveillance, as
well as still photographs taken from the video surveillance. The report detailed appellant talking
on the cellphone, shopping, driving, pumping gas, lifting, pushing, pulling, bending, conversing
7

The OIG report contained a description of the activities they observed appellant performing in detail. OWCP
accepted as factual that on January 21, 2015, she was observed walking, driving to a psychologist’s office,
McDonald’s, Antique store, and Starbucks or Tijuana Flats restaurant, opening/closing doors and talking on a
cellphone, all in the presence of her daughter. On January 22, 2015 appellant was observed walking, bending, having
full use of her upper extremities, driving her daughter to a Starbucks, an apartment, unloading luggage from her jeep,
walking with her daughter while pulling a suitcase on Washington Avenue, Miami (for approximately one-quarter
mile). On January 23, 2015 she was observed walking, bending, having full use of her upper extremities, talking on
her cellphone (while driving and walking), driving with her daughter to a psychotherapist’s office, Starbucks, AT&T
store, Antiques and More store, Chic Fila Restaurant, and Whole Food Market. On January 30, 2015 appellant was
observed driving, walking, bending, carrying a stack of storage containers and placing them into a vehicle, standing,
socializing, smiling and laughing with her daughter and another person, in front of an Antiques and More Store.
On May 13, 2015 appellant was observed walking, standing, driving, eating in a restaurant, smiling, and laughing.
Additionally, at Home Depot, she was picking up a large box, placing it in a shopping cart and pushing this shopping
cart. Furthermore, appellant was observed dropping her daughter off at a Dentist Office or Tutoring place then driving
to several stores and picking up her daughter.
On May 15, 2015 appellant was observed driving, walking, opening/closing doors, going to J&M Fitness (gym) for
one hour, talking on cellphone, going to and shopping at a thrift store, standing, having full use of upper extremities,
keeping left arm bent while holding a tablet under this arm and simultaneously and using right arm to look through
clothes hanging from a rack, bending her neck to the right, extending/raising right arm above head and to her right
side, socializing with clerk at cash register, holding clothing items with her left arm and bending forward, squatting
while holding clothing items with her left arm and using right arm to go through clothing items on a rack, going
through clothing items with her right hand while bent forward approx. Ninety degrees, extending left arm, bending
down and picking up a large storage container with both upper extremities and loading it into her jeep, driving to a
store, bending neck forward, driving to apartment, unload the storage container from her jeep and pulling it to an
apartment on the top floor, driving to another store and drive home.
On May 18, 2015 appellant was observed driving, closing/opening doors, carrying a purse with her right arm and
another object with her right hand above her right shoulder, standing, bending, talking on a cellphone with her right
hand, bending both arms, bending her neck back and sideways, shopping while talking on cellphone, pushing a
shopping cart while walking and talking on a cellphone, reaching above her left shoulder with her left hand, full use
of upper extremities, and reaching with both arms.
On May 19, 2015 appellant was observed carrying items into her house numerous times from a black colored
vehicle. She was observed bending her neck forward, having full use of her upper extremities, walking, laughing,
smiling, and socializing.
On May 20, 2015 appellant was observed driving to and shopping at various stores, having full use of her upper
extremities, talking on her cellphone, carrying a shopping bag, walking, standing, bending forward 90 degrees,
opening/closing doors, bending neck forward, turning neck to the right, and abducting both shoulders.

3

with several individuals socially, getting in and out of a jeep-type vehicle, lifting a large suitcase,
plastic bins, and a large box from a vehicle, picking up a very large outdoor storage-type container
from her vehicle and carrying it upstairs to her apartment, reaching and sorting through clothes
racks at various heights, interacting in public places, laughing, and entering and leaving from a
public gym while dressed in workout clothing.
By letter dated June 23, 2015, OWCP referred appellant for a second opinion, along with
a statement of accepted facts (SOAF), a set of questions, and the medical record to with James A.
Jordan, M.D., a Board-certified psychiatrist. It also provided a copy of the OIG’s video
surveillance to the physician.
On that same date, OWCP also provided a copy of the SOAF and a copy of the OIG’s video
surveillance to Dr. DeFilippo. It requested his opinion as to whether appellant continued to have
residuals attributable to her August 14, 1997 work injury and whether she was capable of working.
OWCP also provided her with a copy of their letter to Dr. DeFilippo.
On June 26, 2015 OWCP referred appellant for a second opinion, along with a SOAF, a
set of questions and the medical record to Dr. Peter J. Millheiser, a Board-certified orthopedic
surgeon. It also provided a copy of the OIG’s video surveillance.
On July 7, 2015 OWCP again provided Dr. DeFilippo with the SOAF and a copy of the
OIG’s video surveillance.
In a July 13, 2015 report, Dr. Millheiser noted appellant’s history of injury and treatment
and provided examination findings. He noted that she cried during various parts of his
examination, but he found that she was in no acute distress. Dr. Millheiser found no cervical
tenderness, no trigger points, no spasm, normal cervical lordosis, no scars, no ecchymosis or
abrasions, normal scapula, no motor loss of the extremities, equal and active reflexes, no atrophy
of the upper or lower extremities, normal gait and station, no tilt, and no list. He noted that
appellant had mild restriction of cervical spine motion, no motor loss or atrophy in the upper
extremities, and found that sensory examination revealed hypesthesia in all the fingertips.
Dr. Millheiser advised that she did not use an orthosis. Regarding the thoracic spine, he found
mild restriction of thoracic spine motion and no tenderness. Dr. Millheiser found no thoracic spine
dysrhythmia, surgical scars, scoliosis, list, tilt, spasm, or trigger points. For the lumbar spine, he
found a normal gait and station, moderate restricted range of motion of the lumbar spine, no lumbar
tenderness present, no spasm, trigger points, tilt, list, or sciatic scoliosis. Dr. Millheiser also found
a normal motor examination of the lower extremities, hypesthesia of all the toes, equal knee and
ankle reflexes, negative straight leg raising, and no atrophy. He diagnosed cervical and lumbar
sprains, diabetic neuropathy, and depression by history. Dr. Millheiser noted while appellant had
multiple complaints in her cervical, thoracic, and lumbar spine, she had no significant objective
findings. He concluded that her examination was unremarkable. Dr. Millheiser explained that
there were no objective findings referable to appellant’s accident. He noted that he did not evaluate
her psychological problems, but as far as her orthopedic problems were concerned, there were no
objective findings and she could do the same work she was doing at the time of the accident.
Dr. Millheiser opined that appellant needed no further medical testing or treatment for her cervical
or lumbar spine.

4

In an August 17, 2015 report, Dr. DeFilippo noted that he could only offer a status
restricted to his specialty as her psychiatrist. He explained that appellant came under his care on
January 7, 2008 for the treatment of post-traumatic stress disorder and major depressive disorder.
Dr. DeFilippo indicated that he had previously opined that the August 14, 1997 employment injury
caused a decline to her mental stability. He indicated that appellant continued under his care for
the treatment of her mental disorders. Dr. DeFilippo explained that the primary cause of her
disability continued to be the physical injuries she suffered from the accident. He advised that it
was inappropriate for him to “complete the requested SOAF,” because the observer’s report and
questionnaire referred to appellant’s current physical status and limitations. Dr. DeFilippo
suggested that OWCP obtain opinions regarding her current physical status from her other treating
medical specialists.
By report dated September 30, 2015, Dr. Jordan described appellant’s history of injury and
treatment and noted examination findings. He also indicated that he had reviewed the SOAF,
which revealed that she had a temporary aggravation of depression and adjustment disorder.
Dr. Jordan found that appellant had fibromyalgia and herniated discs, and claimed to be in constant
pain. Additionally, appellant was on Metformin, because she weighed 190 pounds and did not
want to be a diabetic. Dr. Jordan also noted that she had joined a gym, but did not go, as she spent
most of her time in bed and “had no desire to do anything.” He advised that appellant was
periodically tearful during the examination, but she presented with no signs or symptoms of
anxiety or psychosis. Dr. Jordan explained that there was no evidence of any continued distress
associated with the accident of 1997. He confirmed that he had viewed the video and described
the video surveillance activities. Dr. Jordan opined that appellant’s temporary aggravation of
depression and adjustment reaction ended six to nine months after the accident, and explained that
she no longer had residuals of that condition, which had resolved. He opined that she could return
to her work as a letter carrier.
On October 21, 2015 OWCP issued a notice of proposed termination of compensation. It
proposed to terminate appellant’s wage-loss compensation and medical benefits under File No.
xxxxxx965 because that the weight of the medical evidence, as represented by the reports of
Drs. Millheiser and Jordan, established that the residuals of the work injury had ceased.
In response to the notice of proposed termination of compensation appellant submitted new
evidence.
In a November 18, 2015 report, Dr. Mariana Martinasevic, a Board-certified psychiatrist,
noted that she saw appellant for a second opinion regarding appellant’s ability to work as a mail
carrier. She related that appellant had a history of depressed mood, a disturbing level of anxiety,
lack of energy and motivation, limited social exposure, insomnia, and debilitating neck and back
pain since the accident while on duty as a mail carrier. Dr. Martinasevic found that appellant
continued with problems such as flash backs soon after the accident; but it had ceased. However,
she noted that appellant would continue to be upset after noticing a driver using a cellphone while
driving, since that was the cause for her accident. Dr. Martinasevic advised that appellant did not
have any substantial improvement in her emotional or overall functioning despite treatment with
a number of psychotropic medications. She noted that appellant continued to be treated with
Wellbutrin XL for almost a year, but had no significant benefit. The mood was described as
depressed with frequent crying spells, a sense of hopelessness and guilt. Appellant was having
sleepless nights and had to “have a TV on all night long in order to get some sleep.”
5

Dr. Martinasevic conducted a mental status examination and found that appellant presented with
symptoms of dysthymia and anxiety disorder. She opined that these symptoms appeared to “be
still very disturbing.” Dr. Martinasevic explained that there were previous attempts to address
these problems using alternative strategies (acupuncture, “natural remedies”) as well as
psychotherapy (brief engagement); however, no significant improvement was gained. She opined
that appellant did “not appear to be able to provide and/or sustain functional level expected for
[appellant’s] previous job. At this point, it would be nearly impossible to determine the correlation
between her present pathology and trauma caused by the car accident.”
In a November 25, 2015 report, Dr. Paul W. Wu, Board-certified in physical medicine and
rehabilitation, noted that he recently evaluated appellant in regard to her motor vehicle collision in
1997. He opined that her prognosis at this time was indefinite as she was a “chronic injured
worker.” Dr. Wu noted that appellant treats with multiple physicians. He diagnosed: lumbar disc
herniation, lumbar radiculopathy, chronic pain syndrome, and chronic low back pain. Dr. Wu
explained that appellant’s future plan continued to be interventions with possible medication if
indicated. He requested that she return for facet joint nerve blocks. Dr. Wu advised that appellant
had one performed a year ago that helped her for one week. He explained that, due to the long
duration since that testing, this would be repeated with plans to move forward to ablation if
indicated. Dr. Wu also noted that a review of her magnetic resonance imaging (MRI) scan revealed
an L5 annular tear, which might require an epidural or intradiscal procedure in the future and that
would be reassessed. He explained that, prognosis wise, appellant would “require continuing
medical care. [Appellant’s] condition is likely to last indefinitely.”
By decision dated December 2, 2015, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective December 2, 2015. It found that the weight of
medical evidence rested with Drs. Millheiser and Jordan, which supported that she no longer had
residuals of the accepted work-related conditions. OWCP explained that, while appellant
submitted reports from Drs. Martinasevic and Wu, neither physician seemed aware of appellant’s
actual accepted work-related conditions, or her actual abilities to drive, shop, walk, bend, twist,
and interact and socialize with people, which was inconsistent with the disability her physicians
described. It found that there was no current medical evidence reflecting recent treatment, which
cast doubt on their opinions. OWCP also noted that appellant provided no evidence she had been
in current treatment, which casts doubt on the employing establishment of the history understood
by Drs. Martinasevic and Wu, as they both appeared to believe that appellant was in constant need
of medical care. It explained that neither physician explained how or why appellant’s accepted
work injuries of sprains, adjustment reaction, and aggravation of depressive disorder would
remain, or how appellant’s current condition could be due to her accepted work conditions.
On December 28, 2015 appellant requested a hearing, which was held before an OWCP
hearing representative on August 8, 2016.
During the hearing, appellant testified that the other four or five second opinion physicians
she was sent to indicated that she continued to have work-related depressive disorder and she
cannot return to work, until she saw Dr. Jordan. She also argued that the SOAF that Dr. Jordan
used was erroneous because it stated that her claim was accepted for a temporary depressive
disorder. Appellant argued that her claim was accepted for a full-time depressive disorder, not
temporary and as such, this gave Dr. Jordan the wrong impression. She denied seeing the video
that revealed her various daily activities.
6

Appellant’s representative repeated appellant’s argument regarding the accepted
conditions listed in the SOAF, and as such he claimed the report of the psychiatrist was inaccurate.
He also argued that she must be shown a copy of the surveillance video provided to the physician
and be provided with an opportunity to explain to the physician her side of the observed activities.
Appellant’s representative argued that appellant was not given this opportunity. Furthermore, he
argued that Dr. Jordan’s opinion that her temporary aggravation ended six to nine months after the
accident was subjective, as Dr. Jordan did not see her then. Appellant’s representative further
argued that Drs. Millheiser and Jordan’s opinions were not based upon a proper factual history and
that the termination must be reversed, as appellant was not given the opportunity to give her side
about the video information.
Appellant testified that she did see a physician multiple times for her work injury in 2015
and saw Dr. DeFilippo almost monthly, as well as Dr. Wu. She testified that her MRI scan report
supported that her condition was due to the accident. Appellant also explained that, in relation to
the video surveillance and her ability to work, she was a single mother, and had to work with pain
unfortunately. She also argued that no one saw her at night when her daughter had to carry her to
bed almost daily as she could not afford to hire to do things for her. Additionally, while appellant
was able to engage in the activities seen in the video, they were part of her daily life to survive.
She explained that “she pays for it big time at night when she has to take so many pain pills.”
Appellant explained that she attempted to go to the gym and she was diagnosed with
diabetes. However, she made several attempts to exercise, but she could not do it, because of her
limitations and that she got out of the contract due to pain.
The record was held open for 30 days to allow for the submission of additional evidence.
No additional evidence was received.
By decision dated September 28, 2016, OWCP’s hearing representative affirmed the
December 2, 2015 decision. She found that the record contained no medical opinion evidence
from a physician, based upon a complete and accurate history, which addressed how appellant
could continue to have residuals of her accepted work injury of August 14, 1997. The hearing
representative found that the weight of the medical opinion evidence continued to rest with
Drs. Jordan and Millheiser. She found that the reports were based upon a proper factual and
medical history and were well rationalized, and supported that appellant no longer had residuals
of her accepted work injury. The hearing representative explained that there was no medical
opinion evidence from a physician that disagreed with the opinions of Drs. Millheiser and Jordan.
She found that OWCP met its burden of proof to terminate appellant’s medical and wage-loss
compensation benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden of proof to justify
modification or termination of benefits.8 Having determined that an employee has a disability

8

Curtis Hall, 45 ECAB 316 (1994).

7

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.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.10 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.11
ANALYSIS
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective December 2, 2015, as she had no residuals of her accepted August 14,
1997 employment injury.
OWCP accepted that appellant sustained cervical, lumbar, and thoracic sprains, and later
expanded the acceptance of the claim to include a temporary aggravation of depression and
adjustment reaction due to her accepted August 14, 1997 employment injury. Following receipt
of an OIG Investigative Report and surveillance materials OWCP scheduled second opinion
evaluations with Drs. Millheiser and Jordan to evaluate the status of her accepted physical and
psychological conditions, and for recommendations for further medical treatment.
In a July 13, 2015 report, Dr. Millheiser noted appellant’s history of injury and treatment
and provided examination findings. He noted that, while she cried during various parts of his
examination, he found that she was in no acute distress. Dr. Millheiser found no cervical
tenderness, no trigger points, no spasm, normal cervical lordosis, no scars, no ecchymosis or
abrasions, normal scapula, no motor loss of the extremities, equal and active reflexes, no atrophy
of the upper or lower extremities, normal gait and station, no tilt, and no list. He found that
appellant had mild restriction of cervical spine motion, no motor loss or atrophy in the upper
extremities, and found that sensory examination revealed hypesthesia in all the fingertips.
Dr. Millheiser also advised that she did not use an orthosis. Regarding the thoracic spine, he found
mild restriction of thoracic spine motion and no tenderness. Dr. Millheiser found no thoracic spine
dysrhythmia, surgical scars, scoliosis, list, tilt, spasm, or trigger points. He examined the lumbar
spine and found a normal gait and station, moderate restricted range of motion of the lumbar spine,
no lumbar tenderness present, no spasm, trigger points, tilt, list, or sciatic scoliosis. Dr. Millheiser
also determined that appellant had a normal motor examination of the lower extremities,
hypesthesia of all the toes, equal knee and ankle reflexes, negative straight leg raising, and no
atrophy. He diagnosed cervical and lumbar sprains, diabetic neuropathy, and depression by
history. Dr. Millheiser noted while appellant had multiple complaints in her cervical, thoracic,
and lumbar spine, she had no significant objective findings. He noted that her examination was
unremarkable. Dr. Millheiser explained that there were no objective findings referable to
appellant’s accident. He explained that he did not evaluate her psychological problems, but as far
as her orthopedic problems are concerned, there were no objective findings and she could do the
9

Jason C. Armstrong, 40 ECAB 907 (1989).

10

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

11
L.H., Docket No. 17-1859 (issued May 10, 2018); Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB
660 (2003).

8

same work she was doing at the time of the accident. Dr. Millheiser opined that appellant needed
no further medical testing or treatment for her cervical or lumbar spine. The factors that comprise
the evaluation of medical opinion evidence include the opportunity for and thoroughness of
examination, the employing establishment or completeness of the physician’s knowledge of the
facts and medical history, the care of analysis manifested, and the medical rationale expressed in
support of the physician’s opinion.12 The Board finds that the report of Dr. Millheiser provided
appropriate objective findings and explained his opinion that appellant’s orthopedic conditions had
resolved without residuals and required no further medical testing or treatment. The Board finds
that he explained with rationale how her condition had resolved.
By report dated September 30, 2015, Dr. Jordan described appellant’s history of injury and
treatment and noted examination findings. He also indicated that he had reviewed the SOAF,
which revealed that she had a temporary aggravation of depression and adjustment disorder.
Dr. Jordan explained that appellant was periodically tearful during the examination, however, she
presented with no signs or symptoms of anxiety or psychosis. He determined that there was no
evidence of any continued distress associated with the accident of 1997. Dr. Jordan confirmed
that he had viewed the video and described the video surveillance activities. He opined that
appellant’s temporary aggravation of depression and adjustment reaction ended six to nine months
after the accident, and explained that she no longer had residuals of that condition, which had
resolved and could return to her work as a letter carrier. The Board notes that Dr. Jordan examined
her, provided findings and explained how he arrived at his conclusion that appellant no longer
suffered residuals from her accepted condition.
The Board finds that the reports from Drs. Millheiser and Jordan are sufficiently detailed
and based upon a proper history of injury such that they are entitled to the weight of medical
evidence. They provided sufficient medical rationale, based upon an accurate history, and
appellant’s examination findings, to support their opinions that she no longer has disability or
residuals related to her accepted work injury.
In support of her continuing mental disability appellant relied upon the records of
Dr. DeFilippo. The Board notes that Dr. DeFilippo, the treating physician was provided with the
same SOAF and the same OIG video. Dr. DeFilippo provided an August 17, 2015 report and
noted that he could only offer a status update restricted to appellant’s specialty as his psychiatrist.
He explained that appellant came under his care on January 7, 2008 for the treatment of posttraumatic stress disorder and major depressive disorder. Dr. DeFilippo indicated that he had
previously opined that the August 14, 1997 injury caused a decline to her mental stability. He
indicated that appellant continued under his care for the treatment of her mental disorders.
Dr. DeFilippo explained that the primary cause of her disability continued to be the physical
injuries she suffered from the accident. He advised that it was inappropriate for him to comment
because the observer’s report and questionnaire referred to appellant’s current physical status and
limitations. However, Dr. DeFilippo did not explain why she continued to suffer residuals from
her accepted employment injuries. Medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship.13
This is particularly important in light of the surveillance from the OIG which evinced appellant’s
12

See C.D., Docket No. 17-1623 (issued February 20, 2018); see also M.D., 59 ECAB 211 (2007).

13

S.E., Docket No. 08-2214 (issued May 6, 2009).

9

current mental state in the form of her activities of daily living. Additionally, Dr. DeFilippo never
indicated that he disagreed with the findings of Dr. Jordan. Therefore, for these reasons, his
opinion is insufficient to establish appellant continues to have residuals of her accepted work
injury.
Likewise, the Board notes that the November 18, 2015 report from Dr. Martinasevic does
not support continued residuals of the accepted orthopedic injury. While Dr. Martinasevic advised
that appellant’s symptoms appeared to be very disturbing and with no significant improvement
after treatment, she opined “at this point, it would be nearly impossible to determine the correlation
between [appellant’s] present pathology and the trauma caused by her car accident.” The Board
has held that speculative and equivocal medical opinions regarding causal relationship have no
probative value.14 Furthermore, Dr. Martinasevic did not address the surveillance video, nor did
she discuss Dr. Jordan’s opinion. Her opinion is insufficient to support that appellant continues to
have residuals of her accepted work injury.
Additionally, in a November 25, 2015 report, Dr. Wu noted that appellant was in a car
accident in 1997 and opined that her condition is likely to last indefinitely. However, he did not
explain how he arrived at this conclusion. Terms such as “probably” or “likely” need not constitute
a speculative opinion, depending upon the context of usage. Such words may mean that the
physician is expressing reasonable certainty, as opposed to absolute certainty.15 However, without
a rationalized opinion explaining how her condition was going to last indefinitely, the report from
Dr. Wu is of limited probative value. Rationalized medical opinion evidence is medical evidence
which includes a physician’s rationalized opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.16 Dr. Wu’s opinion is insufficient to support that
appellant continues to have residuals of her accepted work injury.
Because appellant no longer has residuals or disability related to her accepted employment
conditions, OWCP properly terminated her wage-loss compensation and medical benefits effective
December 2, 2015.
On appeal appellant’s representative argues that the report from the second opinion
physician was not valid because the superseding SOAF made mention of a surveillance video and
that appellant was not provided with a copy of the video surveillance for comment. He also argued
that she was not given the opportunity to explain her activities and how she was accomplishing
them with the aid of medication before or after. However, the record reflects that a copy of the
video was provided to appellant’s physician, by letter dated June 23, 2015 and he was afforded an
14

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
15

S.T., Docket No. 08-1675 (issued May 4, 2009).

16
J.M., 58 ECAB 478 (2007); D.E., 58 ECAB 448 (2007); G.G., 58 ECAB 389 (2007); L.D., 58 ECAB 344 (2007);
A.D., 58 ECAB 149(2006).

10

opportunity to provide his opinion regarding the contents. Furthermore, he argued that did not
indicate whether the physicians were given a full or unedited version of the video surveillance and
thus it was not a truthful picture of appellant’s abilities. The Board notes that there is no indication
that any of the physicians were provided with anything other than the video described. The Board
notes that his arguments regarding the SOAF and does not find any evidence of any misleading
material. The SOAF correctly identified the accepted mental conditions as temporary. The Board
notes that these arguments have been addressed and do not show that OWCP committed any error
when it met its burden to terminate her compensation and medical benefits effective
December 2, 2015.
CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s wage-loss
compensation and medical benefits effective December 2, 2015, as she had no residuals of her
accepted August 14, 1997 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

11