K.C. and U.S. Postal Service, Allapattah Branch, Miami, FL (Board decision, November 9, 2017)

ECAB final decision. The Board affirmed OWCP’s decision. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision 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

K.C., a postal employee with accepted lumbar and sacral sprains, sought wage-loss benefits for April through July 2015 and challenged termination of existing benefits in November 2015. The Board found that her physicians did not adequately tie the claimed absences to the accepted injuries. It credited a second-opinion physician who concluded the accepted sprains had resolved and found no sufficient proof of continuing work-related disability after termination. The Board affirmed the wage-loss denial and benefit termination.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.; 5 U.S.C. § 8128(a); 20 C.F.R. § 10.5(f).
• Outcome: September 26 and November 1, 2016 decisions affirmed.
• Key point: The record did not prove disability during the claimed period or residuals after the accepted sprains resolved.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.C., Appellant
)
)
and ) Docket No. 17-0379
) Issued: November 9, 2017
U.S. POSTAL SERVICE, ALLAPATTAH
)
BRANCH, Miami, FL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 9, 2016 appellant, through counsel, filed a timely appeal from September 26 and November 1, 2016 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of this case.

ISSUES

The issues are: (1) whether appellant met her burden of proof to establish total disability for the period April 24 to July 10, 2015 causally related to the accepted October 11, 2008 work

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 5 U.S.C. § 8101 et seq. injury; (2) whether OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits, effective November 3, 2015; and (3) whether appellant met her burden of proof to establish any continuing disability and residuals on or after November 3, 2015 causally related to the accepted October 11, 2008 employment injury.

FACTUAL HISTORY

On October 11, 2008 appellant, then a 45-year-old letter carrier, filed a traumatic injury claim (Form CA-1) alleging that on that date she sustained left ankle and lower back injuries due to stepping into a pothole while delivering mail. OWCP accepted the claim for lumbar and sacrum back sprains. Appellant returned to work with restrictions on October 12, 2008, and intermittently stopped work thereafter.

By letter dated January 20, 2011, OWCP placed appellant on the periodic rolls for temporary total disability with the first payment covering the period January 1 to 15, 2011.

In a duty status report (Form CA-17) dated April 2, 2014, Dr. Mark W. Bridges, a Board- certified orthopedic surgeon, noted that appellant had been examined on October 13, 2013. He provided work restrictions and checked a box marked “no” to the question of whether the employee was advised to resume work.

On July 10, 2014 the Office of the Inspector General (OIG) for the employing establishment submitted a July 8, 2014 report regarding an investigation of appellant’s disability status for the period March 6 to April 7, 2014. Its agents interviewed Dr. Bridges at his office on July 2, 2014 regarding appellant’s injury and provided surveillance photographs and videos to review. Dr. Bridges told the OIG agents that, if appellant was able to climb stairs as seen in the photographs and surveillance videos, then appellant was capable of returning to work without restrictions. He commented that appellant had not informed him regarding her travel and that she had advised him that she was unable to perform the type of activities he saw her performing on the surveillance videos.

In a duty status report (Form CA-17) dated July 2, 2014, Dr. Bridges noted an injury date of October 8, 2008 and that appellant had been advised that she could return to work that day. He checked a box marked “yes” to the question of whether appellant could resume her regular work.

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

On August 14, 2014 OWCP referred appellant to Dr. Clinton W. Bush, III, a Board- certified orthopedic surgeon, for a second opinion evaluation regarding her disability status. In addition to providing the date and time of the appointment, it informed appellant that a surveillance video from the employing establishment was being sent for review. With the attached list of questions, OWCP requested that Dr. Bush review the attached surveillance video prior to responding.

In an August 20, 2014 report, Dr. Bush noted having reviewed the statement of accepted facts (SOAF), medical record, and the surveillance video. He diagnosed resolved lumbosacral sprain, L5-S1, L4-5 disc herniations, L5-S1 degenerative disc disease, and obesity. Dr. Bush

2 related that appellant’s physical examination revealed full range of motion, with subjective complaints of discomfort with lumbar side bending, flexion, and extension. A review of a magnetic resonance imaging (MRI) scan from October 25, 2008 showed early L5-S1 disc degeneration and L5-S1 disc herniation. A later MRI scan dated January 15, 2013 also showed impingement of the right S1 nerve root, L5-S1 disc degeneration, and L5-S1 disc herniation.

Dr. Bush observed there were no objective physical examination findings, but only appellant’s subjective complaints of back discomfort and weakness. However, he concluded that the complaints of lower extremity weakness were negated by the surveillance video, which showed her walking exercise. While the disc herniations were objective findings, Dr. Bush opined that they were associated with appellant’s nonemployment-related degenerative disc disease. He explained that appellant’s accepted lumbosacral sprain had resolved without any residuals or disability due the lack of any supporting objective findings. Dr. Bush further opined that appellant no longer required any medical treatment and that her lower back complaints were due to her obesity and degenerative disc disease, which were unrelated to the accepted employment injuries.

In support of his conclusion that appellant’s subjective complaints outweighed her objective findings, Dr. Bush noted that the surveillance video strongly supported that appellant had little to no disability. He concluded that appellant was capable of working eight hours per day in any light-duty or sedentary position, but that appellant was unable to perform the duties of a letter carrier due to her lumbar spine degenerative disc disease, which was unrelated to her accepted October 11, 2008 employment injury.

On February 24, 2015 Dr. Bridges reviewed the position description and functional requirements for city carrier. He advised that appellant was capable of performing this position without restrictions.

In a March 25, 2015 letter, the employing establishment advised appellant that it was terminating her light-duty assignment based on Dr. Bridges’ opinion that she was capable of returning to her regular work duties.

By report dated April 14, 2015, Dr. Bridges wrote that appellant had been seen for complaints of increased back pain. He provided physical examination findings and diagnosed lumbago and lumbar intervertebral disc displacement without myelopathy. Dr. Bridges recommended that appellant be referred to a surgeon to discuss surgery options and determine permanent work restrictions. In an attached duty status report, he indicated that appellant was capable of working with restrictions. Dr. Bridges also completed forms dated April 14, 2015 indicating that appellant was seen by him that day. On one form he wrote that appellant was released to return to sedentary work only on April 15, 2015. Dr. Bridges noted on a second form that appellant had lumbar disc herniation.

In an April 14, 2015 CA-17 form, Dr. Bridges diagnosed lower back pain and provided work restrictions. No name, occupation, or injury date was listed on the form. These restrictions included no more than two hours of lifting or carrying up to 20 pounds, up to four hours of walking, no climbing, kneeling, bending/stooping, twisting, and pushing/pulling, and up to four hours of driving a motor vehicle.

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 Appellant filed claims for wage-loss compensation (Form CA-7) for the period April 24 to July 10, 2015 based on the lack of available work within her restrictions. In attached time analysis forms, she noted the reason she was claiming wage-loss compensation was that the employing establishment had no work available within her restrictions.

In a June 16, 2015 letter, OWCP informed appellant that the evidence submitted was insufficient to establish her claim for wage-loss compensation for the period claimed. It advised her as to the medical and factual evidence required and afforded her 30 days to provide the requested information.

In a July 3, 2015 letter, Dr. Bridges wrote that appellant had not sustained a new injury, but required spinal surgery. He also noted that she had periodic flare-ups from her accepted injury.

By letter dated July 10, 2015, appellant’s then representative requested that an electronic copy of her claim be forwarded to her.

On July 16, 2015 OWCP issued a notice proposing to terminate appellant’s wage-loss compensation and medical benefits based on the opinion of Dr. Bush, OWCP’s referral physician. It also noted that her treating physician, Dr. Bridges, concluded that she was capable of returning to full-duty work after reviewing a surveillance video.

On July 16, 2015 OWCP received a July 3, 2015 request for authorization for a spinal consultation for lumbar decompression surgery.

In a July 28, 2015 letter, Dr. Bridges attributed the lumbar disc herniation to the accepted October 11, 2008 employment injury. He reiterated his opinion that appellant required a spinal consultation, and lumbar decompression surgery.

In a July 28, 2015 form, Dr. Bruce Epstein, an examining Board-certified physiatrist, noted a diagnosis of lumbar herniated nucleus pulposus due to an October 11, 2008 injury, that appellant was disabled from performing her usual job, and had been able to work with restrictions since October 12, 2010 to the present. He noted that he last examined appellant on October 12, 2010 and saw her when needed.

By letter dated August 7, 2015, OWCP forwarded a copy of the file on a CD-ROM to appellant’s representative, as requested.

In an August 14, 2015 letter, appellant’s representative disagreed with the proposed termination of appellant’s benefits and requested that she be returned to her limited-duty job. He also argued that appellant was unaware of surveillance video and that showing it to Dr. Bridges was an attempt to prejudice the physician.

On August 24, 2015 appellant was examined by Dr. Peter A. Tomasello, Jr., a Board- certified orthopedic surgeon. Dr. Tomasello provided a history of injury. He reviewed x-ray interpretations taken at his office which showed L4-5 mild disc space narrowing, and fairly well maintained L5-S1 disc space. A January 15, 2013 lumbar MRI scan showed a broad-based bulging L4-5 annulus with superimposed right posterior disc herniation with annular tear, mild

4 central canal and right foraminal stenosis, mildly narrowed right neural foramen, right S1 nerve root and thecal sac impingement, and L5-S1 posterior right lateral disc herniation with annular tear. Appellant’s physical examination revealed lumbosacral junction and bilateral sacroiliac joint into bilateral buttocks tenderness; negative flip test, and little back pain with complaints of tight hamstrings with straight leg testing. Diagnoses included obesity, chronic lower back pain, L4-5 and L5-S1 posterior right lateral herniations with annular tear, and chronic herniated discs. Dr. Tomasello indicated that appellant was capable of sedentary work or job retraining.

By decision dated October 22, 2015, OWCP denied appellant’s claim for wage-loss compensation for the period April 24 to July 10, 2015. It found that she had failed to submit medical evidence sufficient to establish total disability during the claim period. OWCP also referenced Dr. Bridges July 2, 2014 report discussing the surveillance video.

On November 3, 2015 OWCP finalized the termination of appellant’s wage-loss compensation and medical benefits effective that day.

OWCP subsequently received Dr. Tomasello’s reports dated November 2 and 23, 2015.
Dr. Tomasello reported that appellant was seen for complaints of chronic lower back pain. He noted that she was going to physical therapy twice a week and twice a week to an Aquatic Center. Dr. Tomasello provided physical examination findings and diagnoses obesity, L4-5 and L5-S1 posterior right lateral herniation with annular tear, chronic herniated disc, and chronic lower back pain. Recommendations included continued physical therapy and weight loss.

Counsel subsequently requested a telephonic hearing before an OWCP hearing representative regarding the October 22, 2015 decision denying wage-loss compensation and the November 3, 2015 decision terminating her benefits. The telephonic hearings were scheduled for July 15, 2016 for the October 22, 2015 decision and August 17, 2016 respectively.

In a letter dated November 20, 2015, appellant’s then representative requested a copy of the case file in PDF format on a CD-ROM for the period August 8, 2015 to the present.

In a letter dated December 2, 2015, counsel requested a copy of the file including any investigative reports or photographs performed by the employing establishment, correspondence form or to the employing establishment, and information contained on a disc.3

On December 7, 2015 OWCP forwarded the information requested in the November 20, 2015 letter to her representative.

In a January 5, 2016 report, Dr. Tomasello provided an illness history and findings on examination. Diagnoses and recommendations were unchanged from his prior reports.

In a letter dated February 4, 2016, appellant authorized a change in her representation to counsel.
3
By letter dated January 21, 2016, OWCP advised appellant that it had received a request from counsel regarding her claim. However, no letter had been submitted requesting removal of her prior representative and appointment of counsel to represent her. Thus, OWCP informed appellant that it could not communicate directly with counsel. It also noted that the documents requested by counsel were attached and that she could forward them to him.

5
 By decision dated September 26, 2016, OWCP’s hearing representative affirmed the October 22, 2015 decision denying her claim for wage-loss compensation for the period April 24 to July 10, 2015.

On November 1, 2016 an OWCP hearing representative issued a decision affirming the November 3, 2015 decision which terminated appellant’s wage-loss compensation and medical benefits.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4 has the burden of proof to establish the essential elements of his or her claim by the weight of the evidence.5 For each period of disability claimed, the employee has the burden of establishing that she was disabled from work as a result of the accepted employment injury.6 Whether a particular injury causes an employee to become disabled from work, and the duration of that disability, are medical issues that must be proved by a preponderance of probative and reliable medical opinion evidence.7

Under FECA the term “disability” means incapacity, because of an employment injury, to earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not synonymous with physical impairment which may or may not result in an incapacity to earn wages.9 An employee who has a physical impairment causally related to his or her federal employment, but who nonetheless has the capacity to earn the wages he or she was receiving at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning capacity.10 When, however, the medical evidence establishes that the residuals or sequelae of an employment injury are such that, from a medical standpoint, they prevent the employee from continuing in her employment, she is entitled to compensation for any loss of wages.

The Board will not require OWCP to pay compensation for disability in the absence of medical evidence directly addressing the specific dates of disability for which compensation is claimed. To do so, would essentially allow an employee to self-certify their disability and entitlement to compensation.11

4
5 U.S.C. §§ 8101-8193.
5
See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968). 6 See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).
7
See Edward H. Horton, 41 ECAB 301 (1989).
8
S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 (2003); 20 C.F.R. § 10.5(f).
9
Roberta L. Kaaumoana, 54 ECAB 150 (2002).
10
Merle J. Marceau, 53 ECAB 197 (2001).
11
See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

6
 ANALYSIS -- ISSUE 1

OWCP accepted appellant’s claim for lumbar and sacrum sprains. It paid wage-loss compensation on the periodic rolls for temporary total disability beginning January 1, 2011. On July 26, 2014 appellant accepted a modified job offer and returned to work. By letter dated March 25, 2015, the employing establishment informed appellant that her light-duty assignment was terminated as her treating physician, Dr. Bridges, concluded that she was capable of performing regular work duties. Appellant filed a claim for wage-loss compensation for the period April 24 to July 10, 2015 due to the lack of any work available within her restrictions. By decision dated October 22, 2015, OWCP denied her claim, which was affirmed by a hearing representative in a September 26, 2016 decision.

The Board finds that appellant has not met her burden of proof to establish that she was totally disabled for the period April 24 to July 10, 2015 due to her accepted employment injuries.

On July 2, 2014 Dr. Bridges viewed a videotaped surveillance, produced by the OIG, of appellant and noted that her activities in the video exceeded the physical limitations set for her. He opined that the activities depicted on the videotape and pictures and her failure to inform him of her travel plans revealed that appellant could work an eight-hour day with no restrictions. In his Form CA-17 dated July 2, 2014, Dr. Bridges indicated that appellant could perform her regular work duties. On February 25, 2015 he reviewed the city carrier position description and opined that appellant could perform this position with no restrictions.

In a Form CA-17 report dated April 14, 2015, Dr. Bridges diagnosed lower back pain and provided work restrictions. In a July 28, 2015 letter, he attributed a lumbar disc herniation to the accepted October 11, 2008 employment injury. Although Dr. Bridges noted that appellant had lower back pain, periodic flare-ups from her accepted employment injury, and attributed a lumbar disc herniation to the accepted October 11, 2008 employment injury, he did not specifically address whether she had any employment-related disability beginning April 24, 2015 causally related to her accepted conditions.12 Dr. Bridges did not fully address why appellant required work restrictions or how these restrictions were attributable to the 2008 employment injury. Furthermore, his April 14, 2015 opinion that appellant could work with restrictions is at odds with his July 2, 2014 and February 24, 2015 reports, which found that she could work without restrictions. The Board has previously found that, if a physician has not explained his contradictory remarks, his report therefore has limited probative value.13 The Board has found that vague medical opinions which do not explain causal relationship are of diminished probative value.14 In addition, the Board has not accepted that appellant sustained a lumbar herniation due to the accepted October 11, 2008 employment injury.15 Therefore, these reports are insufficient to meet appellant’s burden of proof that she was disabled for the period April 24 to July 10, 2015. 12 L.C., Docket No. 16-1717 (issued March 2, 2017).
13
See Larry Orr, Docket No. 98-0861 (issued February 4, 2000).
14
See A.D., 58 ECAB 149 (2006); Mary E. Marshall, 56 ECAB 420 (2005).
15
Supra note 11.

7
 The reports of Dr. Epstein and Dr. Tomasello addressed appellant’s lumbar conditions and appellant’s ability to work with restrictions, but failed to relate the diagnosed conditions, restrictions, or period of claimed disability to the accepted October 11, 2008 employment injuries. These reports are therefore of diminished probative value and insufficient to establish appellant’s claim.16 The Board thus finds that appellant failed to meet her burden of proof.

On appeal appellant also contends that she is entitled to wage-loss compensation due to the lack of work available within her restrictions. As noted above, she was released to regular work by her treating physician and was thereafter informed by the employing establishment on March 25, 2015 that her light-duty assignment was terminated. In addition, as discussed above, the medical evidence appellant submitted was insufficient to establish that her disability for the period in question was due to her accepted employment conditions.

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

LEGAL PRECEDENT -- ISSUE 2

Once OWCP accepts a claim and pays compensation, it has the burden of justifying modification or termination of an employee’s benefits.17 After it has determined that an employee has disability causally related to his or her federal employment, OWCP may not terminate compensation without establishing that the disability has ceased or that it is no longer related to the employment.18 OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion evidence based on a proper factual and medical background.19

The right to medical benefits for an accepted condition is not limited to the period of entitlement for disability.20 To terminate authorization for medical treatment, OWCP must establish that appellant no longer has residuals of an employment-related condition, which would require further medical treatment.21

ANALYSIS -- ISSUE 2

OWCP accepted that appellant sustained lumbar and sacrum back sprains due to the accepted October 11, 2008 employment injury. It paid wage-loss compensation on the periodic rolls for temporary total disability beginning January 1, 2011 due to the accepted October 11,

16
J.H., Docket No. 12-1848 (issued May 15, 2013); C.S., Docket No. 08-2218 (issued August 7, 2009);
Sandra D. Pruitt, 57 ECAB 126 (2005).
17
S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
18
I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).
19
See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).
20
T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).
21
Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

8
2008 work injury until she returned to working a modified job on July 26, 2014. Subsequent to appellant’s return to a modified job, OWCP referred appellant for a second opinion evaluation with Dr. Bush.

In an August 20, 2014 report, Dr. Bush, based upon a review of the medical evidence, surveillance video, and the SOAF, diagnosed resolved lumbosacral sprain and preexisting L5-S1, L4-5 disc herniations, nonemployment-related L5-S1 degenerative disc disease and obesity. He attributed appellant’s disc herniations to a nonemployment-related degenerative disc disease. Dr. Bush concluded that the lumbosacral sprains had resolved without any disability or residuals due to the lack of any objective findings. He noted that a review of the surveillance video of appellant’s physical activities reinforced his opinion that appellant had little to no disability. Dr. Bush advised that appellant was unable to perform the duties of a letter carrier, which he attributed to her degenerative lumbar disc disease, which was unrelated to the accepted October 11, 2008 work injury.

Dr. Bridges based on review of a surveillance video and photographs, opined in a July 2, 2014 report and CA-17 form and a February 25, 2015 review of a city carrier position description that appellant was capable of performing this position without restrictions. In subsequent reports, he provided work restrictions and diagnosed lumbago and lumbar intervertebral disc displacement without myelopathy and required lumbar decompression surgery. While he noted in his April 14, 2015 the need for lumbar surgical decompression on April 14 and July 3, 2015, Dr. Bridges failed to explain his medical reasoning supporting a causal relationship between the newly diagnosed conditions of lumbago and lumbar intervertebral disc displacement without myelopathy and the need for lumbar decompression surgery with the accepted employment injury. He did not provide a rationalized opinion regarding the causal relationship between appellant’s current medical condition and proposed treatment and the accepted employment injury.22 OWCP has not accepted the conditions of lumbago and lumbar intervertebral disc displacement without myelopathy. As such, the Board finds their opinion to be of diminished probative value.23

Although Dr. Epstein and Dr. Tomasello diagnosed a lumbar herniated nucleus pulposus, chronic herniated discs, and L4-5 and L5-S1 posterior right lateral herniations with annular tear, and provided reports from 2015 indicating that appellant was disabled, these reports are of diminished probative value as the doctors attributed disability to conditions other than the accepted lumbar and sacral back sprains and there is no indication that they were aware of the surveillance video documenting appellant’s ability to perform various activities.24

The Board finds that Dr. Bush’s report represents the weight of the medical evidence and that OWCP properly relied on his report in terminating appellant’s wage-loss compensation and

22
R.G., Docket No. 16-0271 (issued May 18, 2017).
23
Deborah L. Beatty, 54 ECAB 340 (2003).
24
See G.A., Docket No. 09-2153 (issued June 10, 2010) (for conditions not accepted by OWCP as being employment related, it is the employee’s burden to provide rationalized medical evidence sufficient to establish causal relation); Leonard J. O Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an incomplete history have little probative value).

9 medical benefits effective November 3, 2015. The opinion of Dr. Bush is based on proper factual and medical histories as he reviewed a SOAF and appellant’s prior medical treatment and test results. He also related his comprehensive examination findings in support of his opinion that the accepted work-related condition had resolved. Dr. Bush indicated that appellant did not have residuals from the accepted lumbosacral sprains and that her current condition was due to a preexisting degenerative condition. There is no contemporaneous medical evidence of equal weight supporting appellant’s claim for continuing disability and medical residuals due to her accepted October 11, 2008 work injury.

On appeal counsel contends that appellant’s due process rights were violated when her physician was shown the surveillance video without her presence or any notice to appellant. The Board has previously held that although video footage may be of some value to a physician asked to render a medical opinion, it may also be misleading if material facts are omitted. Thus, OWCP is obliged to notify the claimant that such footage has been given to a physician and, upon request, provide a copy of the recording and a reasonable opportunity to respond to its accuracy.25 Appellant was made aware of the surveillance video and the fact that Dr. Bridges would review this video in an August 14, 2014 letter when she was referred for the second opinion evaluation with Dr. Bush. Further, she certainly knew of the video by the time of the proposed notice of termination, which was issued on July 16, 2015. She failed to request a copy of the surveillance video prior to the November 3, 2015 decision terminating her benefits. By letter dated December 2, 2015, counsel requested a copy of any investigative reports, photographs, correspondence, and information contained on a disc. The Board notes that OWCP did not provide the information requested to counsel until January 21, 2016 when counsel was authorized by appellant to represent her. There is no evidence of any wrongdoing on the part of OWCP with regard to the video.10

LEGAL PRECEDENT -- ISSUE 3

As OWCP met its burden of proof to terminate appellant’s wage-loss benefits, the burden shifted to appellant to establish any continuing disability causally related to her accepted injuries.26

ANALYSIS -- ISSUE 3

The Board finds that appellant has not established that she has any continuing residuals of her work-related lumbar and sacral back sprains on or after November 3, 2015.

After the termination of benefits on November 3, 2015 appellant submitted reports dated November 2 and 23, 2015 and January 5, 2016 from Dr. Tomasello diagnosing obesity, L4-5 and L5-S1 posterior right lateral herniation with annular tear, chronic lower back pain, and chronic herniated discs. However, his reports are of limited probative value as they do not provide sufficient medical reasoning explaining how any continuing condition or disability was causally

25
A.P., Docket No. 13-30 (issued March 18, 2013); see also Y.S., Docket No. 15-1949 (issued April 11, 2016).
26
See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

10 related to the October 11, 2008 work injury.27 As Dr. Tomasello failed to attribute appellant’s continued disability to her accepted conditions, his reports are insufficient to establish work- related disability due to the accepted conditions.28 Appellant has not, therefore, submitted medical evidence sufficient to demonstrate continuing disability causally related to her accepted conditions.

CONCLUSION

The Board finds that appellant has not established total disability for the period April 24 to July 10, 2015 causally related to the accepted October 11, 2008 work injury. The Board also finds that OWCP properly terminated appellant’s wage-loss compensation effective November 3, 2015. The Board further finds that appellant has not met her burden of proof to establish continuing disability after November 3, 2015.

ORDER

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation Programs dated November 1 and September 26, 2016 are affirmed.

Issued: November 9, 2017
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

27
A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).
28
See S.Y., Docket No. 16-1555 (issued April 21, 2017).

11