P.S. and U.S. Postal Service, Post Office, Lansing, MI (Board decision, June 19, 2014)

ECAB final decision and order. The Board affirmed OWCP’s termination of P.S.’s wage-loss compensation after finding that she no longer had employment-related disability. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

P.S., a postal letter carrier with accepted spine and emotional conditions, had worked modified duty before stopping work. OWCP terminated her wage-loss benefits in July 2012 based on an impartial orthopedic examiner’s opinion that she could return to work with preventive restrictions. The Board found that the examiner considered her history and examination as well as surveillance evidence, and gave a reasoned opinion entitled to special weight. It also found no medical evidence that her accepted emotional condition prevented work. The Board affirmed the wage-loss termination; OWCP had left medical benefits in place.

Decision snapshot

• Authority: Impartial medical examination, 5 U.S.C. § 8123(a).
• Outcome: February 25, 2013 decision affirming termination of wage-loss benefits effective July 1, 2012 affirmed.
• Key point: The impartial examiner’s supported opinion outweighed other evidence on work capacity.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.S., Appellant
)
)
and ) Docket No. 13-1018
) Issued: June 19, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Lansing, MI, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas Rasmusson, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On March 26, 2013 appellant, through her attorney, filed a timely appeal from a February 25, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.

ISSUE

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss compensation effective July 1, 2012 as she had no employment-related disability.

FACTUAL HISTORY

On March 10, 2003 appellant, then a 44-year-old letter carrier, injured her left knee and low back in a fall on ice. OWCP adjudicated the claim under file number xxxxxx506 and accepted it for sciatica and left knee strain. On September 24, 2003 appellant had an authorized

1
5 U.S.C. §§ 8101-8193. lumbar rhizotomy at L3 through S1. The claim was accepted for an aggravation of spinal stenosis. Appellant had lumbar laminectomies at L4-5 on July 15, 2004 and August 25, 2005. In April 2006, the claim was accepted for a herniated disc with reherniation at L4-5, lumbar radiculopathy at L4-5 and aggravation of mild degenerative disc disease at L4-5.

Appellant returned to limited duty after each surgery. On March 27, 2006 she accepted a modified position with duties of two hours each of casing a route, assisting answering telephones, issuing notices for parcels and accountables, delivering express mail as needed and working the Dutch door and delivering late priorities. The physical requirements were that appellant could drive up to eight hours; sit and stand for one hour continuous, 15 minutes intermittent; no pushing, pulling, repetitive bending or twisting; and one hour of continuous simple grasping, fine manipulation and reaching above the shoulder, with a five-pound weight restriction.

On September 9, 2006 appellant injured her neck when her postal vehicle was rear-ended.
She did not stop work. OWCP adjudicated the claim under file number xxxxxx053 and accepted appellant’s claim for whiplash/sprain of neck, degeneration of cervical intervertebral disc, C6 radiculopathy and thoracic or lumbosacral neuritis or radiculitis.2

At a March 22, 2007 hearing, appellant testified that she had worked modified duty for years. At the present time, her duties included driving a route where she did not exit the vehicle.3 In July 2007, the employing establishment offered appellant a permanent modified assignment. The restrictions were based on a February 13, 2006 functional capacity evaluation (FCE) and included clearing accountable mail, sorting undeliverable and Postal Automated Redirection System mail and assisting with period mailings and general office duties.4

On June 17, 2008 Dr. Charles H. Bill, a Board-certified neurosurgeon, performed a discectomy and arthrodesis at C3-4 and C4-5. Appellant did not return to work after that date. On March 17, 2009 Dr. Bill performed a surgical procedure on the lumbar spine. In September 2009, appellant came under the care of Dr. Edmond J. Ducommun, a Board-certified physiatrist. He diagnosed chronic pain and continued submitting status reports.

In a November 19, 2009 report, Dr. Michael J. Geoghegan, an OWCP referral physician and Board-certified orthopedic surgeon, advised that appellant continued to have evidence of sciatica involving the left lower extremity, degenerative disc disease of the lumbar spine, cervical strain superimposed on degenerative disc disease and C6 radiculopathy. He noted that she could not return to her letter carrier duties but could work modified duty with no twisting, bending, stooping, pushing, pulling or lifting and one hour of sitting, walking and standing daily.

2
Claim file numbers xxxxxx053 and xxxxxx506 were later doubled.
3
The hearing was held regarding an April 12, 2006 decision denying wage-loss compensation for intermittent periods between July 18 and August 22, 2003. In a July 26, 2007 decision, an OWCP hearing representative reversed the denial of wage-loss compensation. 4 The FCE demonstrated that appellant could perform sedentary to light work.

2
 In reports dated March 9 and September 7, 2010, Michael Ezzo, Ph.D, a licensed clinical psychologist, noted that since August 26, 2008 he had treated appellant on a weekly basis for chronic pain and depression. He diagnosed major depressive disorder, adjustment disorder with depressed mood and cervical injury related to her work injuries.

In a September 18, 2010 report, Dr. Ducommun advised that, based on a review of video surveillance, appellant’s abilities were much greater than she indicated to him, stating that he believed she exaggerated her symptoms and limitations. He found that appellant could work full time with no restrictions.

On October 27, 2010 the employer’s Office of Inspector General (OIG) provided an investigation report with supporting documentation5 including two digital versatile discs (DVD).6 The report advised that the OIG investigation began in November 2009 and concluded in October 2010. It found that appellant engaged in physical activities that exceeded her disability restrictions between November 2009 and July 2010, based on her activities as a volunteer concessions coordinator with the Holt High School Athletic Boosters. The surveillance recordings showed her loading and unloading large volumes of food items which required bending over at the waist, squatting, twisting, turning and placing supplies on a shelf above her head. A copy of an edited DVD was shown to Dr. Ducommun and appellant. In an interview memorandum, signed by Dr. Ducommun on September 20, 2010,7 the physician, whose attorney was present for the interview, advised that he had been appellant’s treating physician since September 29, 2009. He reviewed his notes from appellant’s appointment and stated that she had appeared to be restless and stated that he agreed with the restrictions set forth by Dr. Geoghegan. The agents informed Dr. Ducommun that appellant had been video recorded performing numerous activities as a concessions coordinator and he was provided an edited DVD to review. Dr. Ducommun commented that he did not see any pain behavior or guarding, that he would not advise appellant to engage in activities that were beyond what he knew her level of ability, that he would not have expected her to do the type of activity demonstrated and that it was grossly inconsistent with the way she presented herself to him.

5
The documentation included a June 23, 2013 medical assessment completed by appellant in which she indicated that she had not recovered from the work injuries and could only do little things and could no longer garden due to severe back, neck, left leg, arm and hand pain. Appellant indicated that she could only lift zero to five pounds and could only sit and stand for one hour, and had significant difficulty running errands, shopping, driving, getting in and out of a vehicle, walking, going out to eat and drink, getting in and out of bed, attending social functions, bending over to pick up items, standing from a sitting position and that she could not exercise, climb stairs or a ladder or perform household chores or yard work. Also submitted were OWCP 1032 forms signed by her on July 12, 2009 and June 23, 2010 in which she attested that she performed no volunteer work, documentation regarding her involvement with Holt High School Boosters Club, a summary of purchases made by her at Sam’s Club and United Wholesale Grocery and an August 19, 2008 letter from OWCP to appellant that she signed on August 28, 2008, outlining her entitlement to monetary compensation and responsibilities as a compensationer. 6 The first DVD was a 14-minute 29-second edited video of appellant’s activities. The second was a 28-minute 38-second edited video with an overlay of a June 23, 2010 interview with appellant and her physical activities displayed in the background. 7 Agents from both the employer’s OIG and the Department of Labor OIG were present.

3
 The OIG agents interviewed appellant on October 10, 2010. A union representative was present. Appellant was questioned about her injuries, condition and treatment. She stated that her only volunteer work was that she gave communion at church a few times a year, but when questioned further she admitted that she volunteered as a booster coordinator at schools but performed no physical activity; she just placed telephone orders for items that were delivered. Appellant then admitted that she purchased supplies for the boosters and sometimes delivered the supplies to the school without help. She was informed that she was under investigation and had been videotaped and that Dr. Ducommun saw the video surveillance highlights. Appellant was shown the 14-minute 29-second edited DVD. When questioned, she stated that she could only drive short distances but was shown taped evidence of her driving on trips of approximately 57 and 101 miles.

By report dated November 22, 2010, Dr. Ducommun advised that appellant should seek the care of another physician.

In December 2010, OWCP referred appellant to Dr. Dan Guyer, a Board-certified psychiatrist, for a second opinion. In a January 5, 2011 report, Dr. Guyer noted the history of injury, reviewed the statement of accepted facts, the medical record and videotapes. He diagnosed adjustment disorder with mixed emotional features, possible depression and chronic pain with neck and back issues. Dr. Guyer stated that the apparent injury and impairments, if accepted as reality, had a causal relationship to appellant’s current mood disturbance and there appeared to be no history of depression or psychiatric difficulties before the work injury. He did not believe that her depressive symptomatology interfered with her ability to return to work and she was of the opinion that it did not prevent her from returning to work. The chronic pain, however, interfered with appellant’s ability to work on a consistent basis and impairments might also be caused by her use of pain medication. Dr. Guyer recommended therapy to address acceptance of her current limitations and the continuation of medications to address depressive symptomatology. He concluded that, if it was accepted that the residual pain and impairments from appellant’s injuries were permanent, then the need to deal with these acceptance issues was going to be a long-standing issue.

By report dated February 18, 2011, Dr. Benjamin J. Bruinsma, an attending Board- certified physiatrist, noted the history of injury and appellant’s complaints of neck and low back discomfort. On examination, he noted decreased low back and neck motion with discomfort of the midline low back and cervical paraspinals. Dr. Bruinsma diagnosed status post fusion C3-5 with cervical spondylosis/facet and myofascial pain and lumbar fusion at L4-5 with discogenic pain and facet-mediated pain. He recommended an FCE. On March 15, 2011 OWCP informed appellant that she could change her treating physician to Dr. Bruinsma. The record indicates that OIG showed a surveillance video to Dr. Bruinsma on March 30, 2011.

OWCP also referred appellant to Dr. Jeffrey Lawley, a Board-certified osteopath practicing orthopedic surgery. In a February 24, 2011 report, Dr. Lawley described the work injury, reviewed the medical record and noted appellant’s complaint of intermittent low back and neck pain. He provided examination findings and diagnosed status post lumbar decompressive laminectomy with fusion and instrumentation, without neurological deficit and status post fusion at C3-5, with instrumentation, without neurological deficit. Dr. Lawley’s examination revealed that appellant had had an excellent postoperative recovery from the lumbar spine surgeries and

4 neck fusion, noting that neck examination revealed full active and painless range of motion and an intact neurological status in both upper limbs, with a negative Spurling’s maneuver. Appellant’s lower back examination revealed that she had full range of motion, negative straight leg raising and a normal neurological examination.

Dr. Lawley advised that, given that appellant had multiple surgeries on her lower back and a neck fusion, she should be allowed to work with prophylactic permanent restrictions of avoiding repetitive bending and twisting, with lifting limited to no more than 25 pounds and avoiding frequent head and neck movements and prolonged overhead work. He noted that she seemed to have preexisting degenerative changes to both her neck and lower back which were at least aggravated by work. Dr. Lawley found that appellant could not return to regular letter carrier duties, based on her physical restrictions and that while she did not currently have symptoms of either cervical or lumbar radiculopathy, if she returned to regular letter carrier duties, she would likely develop increased symptoms. In a March 14, 2011 supplemental report, he advised that he had watched a video surveillance tape which showed appellant from December 11, 2009 to June 23, 2010. On the tape, appellant was observed bending, lifting, pushing, pulling a heavy steel door, handling heavy boxes, and walking without difficulty. Based on the videotape results, she did not require any treatment or need any physical limitations for her neck or back and could return to her former letter carrier job without restrictions.

Dr. Guyer provided a March 29, 2011 supplemental report in which he reiterated that there was a clear connection between appellant’s psychiatric diagnosis of adjustment disorder with mixed emotional features and the March 10, 2003 and September 9, 2006 employment injuries, due to the chronic pain that she suffered after the injuries.

In an April 11, 2011 treatment note, Dr. Bruinsma noted reviewing a videotape that showed appellant lifting cases of water. He reiterated that she had discomfort with all low back motion and with cervical palpation. Dr. Bruinsma again recommended an FCE. An occupational therapist performed an FCE on May 6, 2011. Dr. Bruinsma noted that appellant provided a job description for letter carrier duties. The FCE demonstrated that appellant could not squat and could occasionally bend, crouch, kneel, climb stairs and reach overhead, could frequently reach forward and side-to-side, could occasionally push and pull 24 to 25 pounds, occasionally lift 18 pounds to the waist and 13 pounds to the head, could frequently push and pull 10 pounds and could not frequently lift or constantly push, pull or lift. On May 13, 2011 Dr. Bruinsma reviewed the FCE and opined that appellant could not perform letter carrier duties. On September 6, 2011 he dismissed her from his care due to dishonesty about whether she received narcotic medication from other medical providers.

OWCP determined that a conflict in medical opinion arose between Dr. Bruinsma and Dr. Lawley regarding appellant’s work capacity. It referred appellant to Dr. Zachary J. Endress, Jr., a Board-certified orthopedic surgeon, for an impartial evaluation. In an October 27, 2011 report, Dr. Endress noted the history of work injuries, appellant’s medical and surgical history and his review of the medical records and surveillance DVDs. Examination demonstrated full neck range of motion with intact motor, sensory and deep tendon reflexes of the upper extremities. No spasm was noted over the lumbar spine but there was tenderness to palpation at the lumbosacral junction. Straight leg raising, when tested directly, was positive at about 45 degrees on the left and about 60 degrees on the right, but with appellant seated on the edge of the

5 examining table, Dr. Endress was able to fully extend both knee joints with the hips flexed at 90 degrees. There was no complaint of pain and there was no attempt to withdraw from that position. Dr. Endress’ impression was of a large psychological overlay and symptom magnification, noting that it did not seem reasonable that appellant had received no benefit from any of the surgical procedures. He found no apparent reasons or objective findings to explain her continued subjective complaints of pain. Dr. Endress advised that appellant could return to work as a letter carrier with a 20-pound lifting limit and no repetitive bending at the waist because of the prior lumbar spine fusion. On an attached work capacity evaluation he indicated that she could work eight hours a day with a lifting limit of 20 pounds due to a past history of neck and low back surgery and that she should have 15-minute breaks twice daily.

In a November 14, 2011 emergency department report, Dr. John Dery, Board-certified in emergency medicine, noted seeing appellant for acute neck pain. He diagnosed myofascial strain, cervical strain and acute somatic dysfunction.

Dr. Endress, in a February 20, 2012 supplemental report, indicated that the restrictions he recommended were based on an attempt to prevent further disc herniations in the cervical and lumbar spines and were not based on any observed functional deficits.

A March 7, 2012 cervical spine study demonstrated postoperative and degenerative changes. On March 20, 2012 Dr. Marcy Schlinger, a Board-certified physiatrist, advised that appellant had severe neck and back pain. She diagnosed history of traumatic work-related injuries of March 10, 2003 and September 9, 2006, history of cervical radiculopathy with increased left hand weakness, chronic musculoskeletal pain, depression, poor restorative sleep, vocational restrictions and weight loss with ongoing gastrointestinal evaluation.

On April 12, 2012 OWCP accepted an adjustment disorder with depressed mood.

On May 17, 2012 OWCP proposed to terminate appellant’s compensation for wage loss on the grounds that the medical evidence of record demonstrated that she was no longer disabled from work.

Appellant, through her attorney, disagreed with the proposed termination and submitted a March 26, 2012 electrodiagnostic study of the upper extremities that was interpreted as abnormal with evidence of a mild, sensory, demyelinating median neuropathy at the left wrist and no evidence of left radial or ulnar neuropathy, left cervical radiculopathy, brachial plexopathy or generalized peripheral polyneuropathy. She also submitted unsigned pain management notes dated October 27, 2011 to June 14, 2012.8

In a June 25, 2012 decision, OWCP terminated appellant’s wage-loss compensation, effective July 1, 2012. It found that the weight of the evidence rested with the opinion of Dr. Endress who performed an impartial evaluation. OWCP did not terminate her medical benefits.

8
These were from the office of Dr. Richard S. Ferro, a Board-certified osteopath practicing anesthesiology, and from Dr. Ezzo.

6
 Counsel timely requested a hearing and submitted reports dated May 29 and August 14, 2012 from Dr. Schlinger, who noted appellant’s complaints of chronic neck and back pain. Dr. Schlinger stated that appellant had retired and should be able to work part time in a sedentary or light-duty position. On July 1, 2012 Dr. Ferro performed a lumbar epidural injection. Dr. Ezzo conducted psychological testing on August 29, 2012. He diagnosed pain disorder with psychological factors and adjustment disorder. An October 29, 2012 cervical spine computerized tomography (CT) scan showed surgical changes and posterior spurring. A lumbar CT of that day showed surgical changes at L4-5 and moderate bulging at L5-S1. On December 6, 2012 Dr. Ferro noted seeing appellant. He diagnosed postcervical and lumbar laminectomy syndrome with intractable radiculopathies. Appellant also submitted unsigned pain management notes dated June 25 to October 29, 2012.9 On December 10, 2012 counsel F.S.,10 for consideration.

At the December 11, 2012 hearing, counsel argued that F.S. applies to her case.
Appellant testified that she was interviewed by the OIG at the employing establishment in September 2010, and that she did not get to see the video that Dr. Ducommun reviewed and had never seen an unedited video. She indicated that the OIG had contacted other doctors including Dr. Ezzo. Appellant discussed the May 2011 FCE, stated that she continued to have pain and that Dr. Ezzo and Dr. Schlinger were her current doctors. After the hearing, she submitted additional evidence including a March 15, 2012 procedure note from Dr. Ferro for an epidural injection and unsigned pain management treatment notes dated December 17, 2012 to February 6, 2013.11

In correspondence dated January 7, 2013, Lee Ann J. Poupard, an employing establishment manager, indicated that on November 8, 2010 appellant, along with several union representatives, was given an opportunity to view the unedited surveillance video. She submitted evidence previously of record and a November 8, 2010 memorandum of activity documenting that OIG special agents and two union representatives reviewed unedited surveillance video of appellant’s activities, at the request of the union representatives. The videos totaled 20 to 22 hours and, at the request of union personnel, some of the video was fast- forwarded. OIG indicated that the unedited video was available upon request.

By decision dated February 25, 2013, an OWCP hearing representative affirmed the June 25, 2012 decision. She found that F.S. was not dispositive because the factual circumstances differed from appellant’s claim. The hearing representative found that the weight of the medical evidence rested with the opinion of Dr. Endress, the impartial examiner.

LEGAL PRECEDENT

Once OWCP accepts a claim and pays compensation, it has the burden of justifying modification or termination of an employee’s benefits. It may not terminate compensation

9
Id.
10
Docket No. 11-863 (issued September 26, 2013).
11
Supra note 8.

7 without establishing that the disability ceased or that it was no longer related to the employment.12 OWCP’s burden of proof in terminating compensation includes the necessity of furnishing rationalized medical opinion evidence based on a proper factual and medical background.13

Section 8123(a) of FECA provides that, if there is disagreement between the physician making the examination for the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make an examination.14 When the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper factual background, must be given special weight.15

ANALYSIS

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss benefits effective July 1, 2012. On appeal, appellant asserted that the employing establishment OIG coerced her attending physician to change his diagnosis and restrictions, which impermissibly intermingled administrative and investigative processes, contrary to Board precedent in F.S.16 The Board finds that F.S. is not applicable in this case. In F.S., OWCP solely relied on an attending physician’s report, rendered after he was shown a surveillance video. In the case at hand, it did not solely rely on the opinion of Dr. Ducommun, the attending physician, in terminating wage-loss compensation. Rather, OWCP found a conflict in medical opinion between Dr. Bruinsma, an attending physician and Dr. Lawley, an OWCP referral physician, regarding appellant’s residuals work capacity. It properly referred appellant to Dr. Endress for an impartial evaluation.

Counsel also asserts that appellant did not have notice that Dr. Ducummon was reviewing video surveillance until his review and cites the case of J.M.17 In J.M., the Board affirmed a termination of benefits based on the opinion of an impartial specialist who reviewed a surveillance video. It noted that, while OWCP had a responsibility to make the claimant aware that it was providing video evidence to a medical expert, any delay in providing the materials to appellant was not prejudicial as opinion of the impartial specialist was clearly based on more than a review of the video and appellant did not challenge that she was the person being taped performing activities.18 In this case, appellant submitted no evidence to contradict the activities shown on the video surveillance. She was shown a copy of the edited video shortly after it was

12
Jaja K. Asaramo, 55 ECAB 200 (2004).
13
Id.
14
5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).
15
Manuel Gill, 52 ECAB 282 (2001).
16
Supra note 10.
17
58 ECAB 478 (2007).
18
Id.

8 shown to Dr. Ducummon and well before her wage-loss benefits were terminated. While the record is unclear as to whether appellant viewed an unedited version, her union representatives had the opportunity to view the unedited surveillance tape. As noted in F.S., investigative practices on an employer’s OIG are not within the jurisdiction of the Board, and while there may be room for improvement with regards to the handling of physician contacts, that responsibility does not lie with the Board.19 Furthermore, OWCP informed appellant that it was providing the surveillance DVDs to OWCP referral physicians.

The record indicates that, at the time appellant stopped work, she was performing modified duties and not regular letter carrier duties. Appellant testified at a March 22, 2007 hearing that she had been working modified duty since 2003 and that, when injured in 2006, she was making deliveries in which she did not have to leave the postal vehicle. A modified assignment, accepted by appellant on March 27, 2006 indicates that her duties included casing a route, assisting answering telephones, issuing notices, delivering express mail as needed, working the Dutch door and delivering late priorities. Physical requirements were that appellant could drive up to eight hours; sit and stand for one hour continuous, 15 minutes intermittent; no pushing, pulling, repetitive bending or twisting; and one hour of continuous simple grasping, fine manipulation and reaching above the shoulder, with a five-pound weight restriction.

As noted, OWCP properly referred appellant to Dr. Endress, Board-certified in orthopedic surgery, for an impartial evaluation regarding her ability to work. In an October 27, 2011 report, Dr. Endress noted the history of employment injuries, appellant’s medical and surgical history and his review of medical records and surveillance DVDs. He described examination findings and opined that there was a large psychological overlay and symptom magnification, noting that it did not seem reasonable that she had received no benefit from any of the surgical procedures that she had. Dr. Endress indicated that there were no apparent reasons or objective findings to explain appellant’s continued subjective complaints of pain. He advised that she could return to work as a letter carrier with restriction with a 20-pound lifting limit and no repetitive bending at the waist due to a past history of neck and low back surgery and that she should have 15-minute breaks twice daily. In a February 20, 2012 supplemental report, Dr. Endress indicated that the restrictions he recommended were based on an attempt to prevent further disc herniations in the cervical and lumbar spines and were not based on any observed functional deficits.

The Board finds that Dr. Endress provided a comprehensive, well-rationalized opinion in which he clearly advised that appellant could perform letter carrier duties with a prophylactic restriction of a 20-pound lifting limit and no repetitive bending at the waist because of the prior cervical and lumbar surgery. The Board has held that fear of future injury is not compensable.20 While Dr. Endress viewed the surveillance video, his opinion was clearly based on more than his review of this. His opinion is therefore entitled to the special weight accorded an impartial

19
Supra note 10.
20
See I.J., 59 ECAB 408 (2008).

9 examiner and constitutes the weight of the medical evidence regarding appellant’s orthopedic conditions.21

The additional medical evidence appellant submitted is insufficient to overcome the weight accorded Dr. Endress as an impartial specialist regarding whether appellant had employment-related disability. Neither the diagnostic studies, the November 14, 2011 emergency department report, nor the reports from Dr. Ferro, discuss appellant’s work abilities. The Board has long held that a medical report that does not address appellant’s degree of disability due to his accepted employment injury is of diminished probative value and insufficient to overcome the weight accorded to the report of the impartial medical examiner or to create a new conflict.22 As to the March 26, 2012 electrodiagnostic study, this demonstrated median neuropathy at the left wrist and no evidence of left radial or ulnar neuropathy, left cervical radiculopathy or brachial plexopathy or generalized peripheral polyneuropathy. Median neuropathy has not been accepted as employment related. This study is therefore not probative regarding the accepted conditions in this case. Moreover, it too has no opinion regarding the degree of appellant’s disability.23 While Dr. Schlinger advised that appellant should be able to work part time in a sedentary or light-duty position, she did not provide any explanation other than appellant complained of chronic neck and back pain. Medical conclusions unsupported by rationale are of diminished probative value and are insufficient to establish causal relation.24 Lastly, the FCE done on May 6, 2011 showed that appellant could perform the duties of the modified position she was performing when she stopped work in 2008.

The Board therefore concludes that Dr. Endress’ opinion that appellant could return to letter carrier duties is entitled to the special weight and the additional medical evidence submitted is insufficient to overcome the weight accorded his opinion or to create a new conflict regarding appellant’s orthopedic conditions.

As noted, on April 12, 2012 OWCP accepted adjustment disorder with depressed mood.
In his second opinion evaluation dated January 5, 2011, Dr. Guyer diagnosed adjustment disorder with mixed emotional features, possible depression and chronic pain with neck and back issues. He advised that he did not believe that appellant’s emotional condition was interfering with her return to work and that she agreed with this conclusion. Dr. Ezzo conducted psychological testing on August 29, 2012 and diagnosed pain disorder with psychological factors and adjustment disorder but did not discuss appellant’s work abilities. There is, therefore, no medical evidence indicating that appellant is disabled from work due to the accepted emotional condition.

OWCP, therefore, properly terminated appellant’s compensation benefits effective July 1, 2012.

21
See Sharyn D. Bannick, 54 ECAB 537 (2003).
22
See supra note 12.
23
Id.
24
Albert C. Brown, 52 ECAB 152 (2000).

10
 Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that OWCP met its burden of proof to terminate appellant’s monetary compensation benefits effective July 1, 2012 on the grounds that she had no employment-related disability after that date.

ORDER

IT IS HEREBY ORDERED THAT the February 25, 2013 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: June 19, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge Employees’ Compensation Appeals Board

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

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

11