United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Harrisburg, PA, Employer 

__________________________________________ 

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Docket No. 15-1895 

Issued: February 24, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 14, 2015 appellant filed a timely appeal from a March 16, 2015 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 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 recurrence of 

disability for the period May 31 to July 25, 2014 causally related to his January 21, 2014 

employment injury. 

 1

 20 C.F.R. § 501.3(e) provides that an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. As the 180th day following March 16, 2015 fell on Saturday, September 12, 2015, appellant’s 

appeal received on the next business day, Monday, September 14, 2015 was timely filed. See 20 C.F.R. 

§ 501.3(f)(2). 

2

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

OWCP accepted that on January 21, 2014 appellant, then a 48-year-old letter carrier, 

sustained a low back injury when he was hit in the back by a heavy door in the performance of 

duty. Appellant did not stop work. His claim was accepted for aggravation of herniated lumbar 

disc. 

In a February 11, 2014 duty status report, Dr. Carleen T. Warner, a Board-certified 

family practitioner, noted that on January 21, 2014 appellant sustained a back injury when he 

was hit in the back with a heavy door at work. She indicated that appellant could work full time 

with restrictions of kneeling, bending, and stooping for one hour, pushing and pulling for two 

hours, twisting for four hours, and driving a vehicle and walking for six hours. 

On February 19, 2014 appellant accepted a limited-duty assignment as a modified city 

carrier. His duties involved sitting for second notices, customer service, and unendorsed bulk 

business mail (UBBM) for eight hours. The physical requirements of the modified assignment 

were sitting and writing for eight hours and standing to direct customers for one hour. 

Appellant received medical treatment from Dr. Deborah Bernal, Board-certified in 

physical medicine and rehabilitation, who related in a May 7, 2014 report that appellant had a 

history of two prior job-related injuries that required surgery. Dr. Bernal noted that recently 

appellant sustained another back injury at work on January 21, 2014. She reported that he did 

not stop work but began a limited-duty assignment on February 1, 2014. Dr. Bernal indicated 

that appellant worked in the office, no longer carrying mail, but that he still complained of 

constant aching and intermittent pain in the lower back going down the right lower extremity. 

She reported that he underwent a magnetic resonance imaging (MRI) scan, which showed no 

evidence of any recurrent surgical condition or disc disease. Upon examination of the lumbar 

spine, Dr. Bernal observed increased lumbar lordosis and tenderness. She also provided range of 

motion findings. Straight leg raise testing was negative. Dr. Bernal opined that appellant needed 

a comprehensive rehabilitation program for his pain process and then functional restoration to 

return to full duty. She recommended that appellant return to work with restrictions. Dr. Bernal 

also referred appellant for physical therapy. 

In a May 7, 2014 duty status report, Dr. Bernal indicated that appellant could return to 

work with restrictions of intermittent grasping and fine manipulation for five hours, intermittent 

walking and driving for four hours, intermittent standing for three hours, intermittent lifting and 

carrying up to 20 pounds for two hours, intermittent twisting and reaching above the shoulder for 

two hours, and intermittent climbing, kneeling, pushing, pulling, bending, and stooping for one 

hour. 

On May 22, 2014 OWCP offered appellant a limited-duty assignment as a city carrier. 

The duties involved casing for one to one and a half hours and delivery for two hours. The 

requirements were driving for four to five hours, twisting for two hours, walking for one to two 

hours, and lifting for one and a half hours. On May 22, 2014 appellant refused the modified job 

offer. He contended that the doctor ordered only two hours of twisting. 
3

Appellant filed several Form CA-7 claims for disability compensation for the period 

May 31 to July 25, 2014.3 More specifically, OWCP received a Form CA-7 signed by appellant 

on June 1, 2014 claiming a recurrence of disability claiming wage loss due to a withdrawal of the 

light-duty assignment. Appellant noted on the time analysis form that there was no job offer 

available within his restrictions. In a June 17, 2014 CA-7 form, the employing establishment 

indicated that on May 22, 2014 appellant refused a job offer. 

Appellant continued to undergo physical therapy. In progress reports dated May 15 to 

July 23, 2014, Jessica Haag, a physical therapist, noted a work-related injury of January 21, 2014 

and diagnoses of displacement of lumbar intervertebral disc without myelopathy, thoracic or 

lumbosacral neuritis or radiculitis, lumbar sprain, SI ligament sprain, and muscle weakness. She 

related appellant’s complaints of continued pain across the lower back, right buttock, and right 

posterior calf. Ms. Haag provided examination findings and noted that appellant had reduced 

flexibility, decreased core strength, and issues with radiculitis. She reported that he would 

benefit from skilled physical therapy to address his symptoms resulting from his work-related 

injury. 

Dr. Bernal also continued to treat appellant. In a June 13, 2014 report, she reported that 

he had not worked for two and a half weeks because he refused a job that exceeded his work 

restrictions. Dr. Bernal related that the employing establishment did not allow appellant to return 

to his previous light-duty position. She noted that topical analgesics helped with appellant’s pain 

management and physical therapy had increased his functional level. Dr. Bernal related that 

appellant was to begin new job duties on June 28, 2014 and requested the parameters of the new 

job in order to determine whether the job fit within appellant’s restrictions. Until then, she 

advised that appellant undergo a functional capacity evaluation and continue physical therapy. 

In a June 11, 2014 duty status report, Dr. Bernal advised that appellant could return to work with 

restrictions of simple grasping and fine manipulation for five hours, intermittent walking for four 

hours, intermittent standing for three hours, intermittent sitting and twisting for two hours, and 

intermittent climbing, kneeling, bending, stooping, pushing, and pulling up to one hour. 

On June 18, 2014 appellant underwent a functional capacity evaluation by Kathryn FryFogle, a physical therapist. Ms. Fry-Fogle noted that he was diagnosed with disc bulging at L2-

3, L3-4, and L4-5 as a result of a January 21, 2014 work-related injury. She related that although 

appellant was able to work, he went to see his doctor when the pain did not improve for two 

weeks and was placed on light duty with restrictions of no lifting more than 20 pounds. 

Ms. Fry-Fogle noted that he was still on light duty, but his employer was not able to 

accommodate his restrictions at this time. She provided examination findings. Ms. Fry-Fogle 

reported that musculoskeletal evaluation revealed decreased lumbar spine range of motion, 

decreased lower extremity strength and flexibility, and decreased core muscle strength. She 

opined that appellant did not meet the physical requirements to perform his job as a letter carrier 

for the employing establishment as described by the work-related functional questionnaire. 

Ms. Fry-Fogle recommended that appellant participate in a work conditioning program four 

hours a day and five days a week for eight weeks. 

 3

 Appellant also filed for intermittent disability for the period May 3 to 30, 2014. He requested 2 hours on 

May 12, 1.75 hours on May 15, and 1.99 hours on May 19, 2014, 7.16 hours on May 22, and 8 hours each on 

May 27, 28, and 30, 2014 for a total of 36.90 hours. OWCP paid disability compensation. 
4

By letter dated July 1, 2014, OWCP advised appellant that the medical evidence failed to 

demonstrate that he was disabled from work beginning May 27, 2014 as a result of his 

employment injury. It requested that he submit additional evidence to establish his disability 

claim. 

In another letter dated July 1, 2014, OWCP noted that appellant had refused a May 20, 

2014 job offer as a modified letter carrier. It explained that it had reviewed the job offer and 

found it suitable and in accordance with his medical limitations provided by Dr. Bernal. 

Appellant was given 30 days to review and accept the job offer or provide a valid reason to 

refuse the position. 

In a July 1, 2014 e-mail, Holly Dash, a human resource specialist for the employing 

establishment, indicated that appellant’s modified job position was still available. She explained 

that appellant declined the offer because he believed it exceeded his twisting limitations. 

On July 2, 2014 appellant inquired from the employing establishment via telephone about 

his Form CA-7 claims. He stated that he had worked until May 22, 2014 when he received 

another job offer. Appellant explained that he refused the job because it exceeded his restrictions 

and was sent home. He contended that the job required twisting of more than four hours per day. 

The employing establishment noted that the job offer they provided was for only two hours. 

Appellant alleged that the job offer had been tampered with. The employing establishment 

advised him that his work stoppage was being treated as a recurrence and he would not receive 

disability compensation until the recurrence claim was resolved. 

In a July 14, 2014 report, Dr. Bernal related that appellant had been under her care since 

May 7, 2014 for a work-related injury. She noted that appellant was not cleared to twist more 

than two hours occasionally and intermittently during the workday. Dr. Bernal opined that 

appellant would be at risk for further injury if he did not comply with the recommendations. She 

recommended that appellant could work with restrictions of lifting up to 30 pounds occasionally, 

lifting up to 20 pounds frequently, and occasionally sitting, standing, walking, climbing, 

kneeling, bending and stooping, twisting, pulling and pushing, reaching, and fine manipulation. 

On July 18, 2014 OWCP received a statement from appellant. Appellant explained that 

his doctor placed him on restrictions for two hours of intermittent twisting, but the employing 

establishment’s job offer was over that limit. He noted that the employing establishment 

required one to one and half hours of casing and two hours of delivery. Appellant explained that 

both of these duties required intermittent twisting for a total of at least three and a half hours of 

twisting. He also asserted that even though the job offer stated that the physical requirements 

involved two hours of twisting it did not specify intermittent twisting. Appellant noted that he 

was including his physical therapy scripts and medical correspondence. He related that he began 

physical therapy on May 12, 2014 and had approximately nine sessions lasting two hours each. 

On June 19, 2014 appellant started work conditioning therapy which occurred every day for four 

hours a day. He provided various physical therapy notes. 

In a July 25, 2014 report, Dr. Bernal noted diagnoses of lumbar strain, hip contracture, 

and muscle weakness. She related that appellant had finished physical therapy and was able to 

increase his strength, range of motion, and flexibility. Dr. Bernal provided examination findings 
5

and reported that appellant’s pain had resolved. She opined that appellant was at maximum 

medical improvement and could return to full duty without restrictions. 

On July 26, 2014 appellant returned to full duty. 

By decision dated August 11, 2014, OWCP denied appellant’s claim for a recurrence of 

disability beginning May 22, 2014.4

 It explained that the medical evidence did not demonstrate 

that there had been a return of or increase in disability related to the accepted back condition or 

due to a change or withdrawal of the limited-duty assignment. 

Appellant requested an oral hearing. In an undated statement, he related that he sustained 

a work-related injury on January 21, 2014 and was placed on limited duty. Appellant stated that 

the employing establishment was able to accommodate his restrictions but in his doctors’ 

appointment on May 7, 2014 his restrictions were changed slightly. He noted that on May 22, 

2014 he was provided with a new job offer. Appellant explained that when he reviewed the new 

job offer he found some requirements that were over the restrictions and he expressed his 

concerns to Brion Durgin, his union representative, and Kate Crerand, his supervisor. He related 

that they agreed that his concerns were justified. They contacted Holly Dash to work on a 

solution about his concerns. Appellant stated that while they were working on the situation Mike 

Becker, the postmaster, came into the office and instructed them to send appellant home if he 

refused the job offer. He noted that he did not refuse the job offer but was sent home by the 

employing establishment. Appellant noted that he did not realize there was a problem until 

approximately 40 days later when he called OWCP about his disability payments. He stated that 

he was not given the opportunity to have his doctor review the job offer, and when his doctor 

finally got an opportunity to examine the job offer he wrote a letter, which was in his file. 

Appellant provided copies of his calendar for May to June 2016 with notations for 

doctor’s appointments and therapy. He also resubmitted physical therapy treatment notes and 

Dr. Bernal’s June 11, 2014 duty status report. 

Appellant also resubmitted the May 22, 2014 job offer with an added notation that the job 

duties required intermittent twisting. 

In a December 29, 2014 statement, Mr. Durgin, the senior union steward, noted that he 

was present on May 22, 2014 when appellant was given a new job offer. He related that 

appellant expressed concerns about aspects of the job to himself, Ms. Crerand, and Virginia 

Fulton, a senior supervisor. They believed his concerns were justified. Mr. Durgin noted that as 

they were working on a suitable job offer, Mr. Becker came into the meeting and ordered 

appellant to go home if he did not accept the pending job offer. He explained that appellant did 

not refuse work, but instead he was sent home. 

On December 30, 2014 a telephone hearing was held. Appellant reiterated that he was on 

light duty when the employing establishment offered him a new job that was over his 

restrictions. He contended that he did not refuse the job offer but was sent home as he was trying 

 4

 The Board notes that although OWCP addressed appellant’s disability claim as beginning May 22, 2014 the 

record reflects that appellant received compensation until May 30, 2014. 
6

to discuss the job offer with the employing establishment. Appellant stated that after his 

January 21, 2014 injury he was working light duty sitting at a desk for two to three hours writing 

certified or second notices, standing in the lobby to direct customers for the automated postal 

system, and sitting down again. He noted that there was no twisting involved. Appellant 

explained that on May 22, 2014 he was in a meeting with Ms. Crerand, Ms. Fulton, and his union 

steward regarding a new job offer. He expressed his concerns that the job offer was over his 

restrictions and he believed they agreed. They called Ms. Dash over the telecom to discuss other 

light-duty job assignments. Appellant stated that Mr. Becker barged into the meeting room and 

stated that if appellant did not accept the job offer he should go home. He believed that 

Mr. Becker was acting in retaliation to an Equal Employment Opportunity (EEO) claim appellant 

had filed. 

Appellant further alleged that the job duties in the new job offer required more than two 

hours of twisting. He explained that the job offer required casing for one to one and a half hours 

a day and delivering mail for two hours a day. Appellant noted that these duties required 

constantly twisting his back, which meant that he would be twisting his back for roughly three to 

four hours a day even though his restrictions were for two hours of intermittent twisting. He 

stated that he went home and did not think much about the situation until he did not receive his 

monthly disability check at the end of June. Appellant stated that he continued to seek medical 

treatment from Dr. Bernal and underwent physical therapy. 

On February 2, 2015 Ms. Dash responded to appellant’s hearing testimony. She 

contended that no twisting is required when casing mail and noted that the employing 

establishment instructed him to move his feet a few steps to move from one section of the case to 

the other in order to avoid twisting while casing mail. Ms. Dash also noted that delivering mail 

did not involve constant twisting. She stated that no twisting was required when behind the 

wheel, driving from the post office, and driving from one roadside mail box to the next. 

Ms. Dash further explained that the tray inside the postal vehicle upon which the mail sat was 

adjustable to reduce twisting and reaching, and that the driver’s seat swiveled to further reduce 

twisting. She stated that periodic twisting was required, but not constant twisting while casing 

and driving mail. Ms. Dash further noted that OWCP ruled on July 1, 2014 that the May 22, 

2014 job offer was a valid offer. She explained that once a job offer is crafted they contact the 

employee and the job offer presented must be accepted or declined. If the job offer is declined, 

Ms. Dash stated that the employee is sent home. She recommended that OWCP’s denial 

decision be upheld. 

By decision dated March 16, 2015, the OWCP hearing representative affirmed the 

August 11, 2014 decision denying appellant’s recurrence claim. 

LEGAL PRECEDENT 

OWCP’s implementing regulations define a recurrence of disability as an inability to 

work after an employee has returned to work, caused by a spontaneous change in a medical 

condition, which resulted from a previous injury or illness without an intervening injury or new 

exposure to the work environment that caused the illness. This term also means an inability to 

work when a light-duty assignment made specifically to accommodate an employee’s physical 

limitations due to his work-related injury or illness is withdrawn (except when such withdrawal 
7

occurs for reasons of misconduct, nonperformance of job duties, or a reduction-in-force) or when 

the physical requirements of such an assignment are altered such that they exceed the employee’s 

physical limitations.5 Appellant has the burden to establish that there was no medically 

appropriate light duty available for the claimed period.6

 

When an employee who is disabled from the job he or she held when injured on account 

of employment-related residuals returns to a limited-duty position or the medical evidence of 

record establishes that he or she can perform the limited-duty position, the employee has the 

burden to establish a recurrence of total disability and to show that he cannot perform the 

limited-duty position. As part of this burden, the employee must show either a change in the 

nature and extent of the injury-related condition or a change in the nature and extent of the 

limited-duty requirements.7

 To establish a change in the nature and extent of the injury-related 

condition, there must be probative medical evidence of record. The evidence must include a 

rationalized medical opinion, based on a complete and accurate factual and medical history and 

supported by sound medical reasoning, that the disabling condition is causally related to 

employment factors.8

This burden includes the necessity of furnishing evidence from a qualified physician who 

concludes, on the basis of a complete and accurate factual and medical history, that the disabling 

condition is causally related to employment factors and supports that conclusion with sound 

medical reasoning.9

ANALYSIS 

The Board finds that appellant did not establish a recurrence of disability for the period 

May 3110 to July 25, 2014 causally related to the January 21, 2014 employment injury. 

As previously noted a recurrence of disability is defined as an inability to work after an 

employee has returned to work, caused by a spontaneous change in a medical condition, which 

resulted from a previous injury or illness and an inability to work when a light-duty assignment 

made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn, or when the physical requirements of such an assignment 

 5

 20 C.F.R. § 10.5(x). See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986). 

6 J.F., 58 ECAB 124 (2006). 

7 Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994). 

8 Vanessa Young, 55 ECAB 575 (2004). 

9 Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138 (1982). Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3 (January 2013). 

10 The Board notes that even though appellant stopped work on May 22, 2014 alleging that the modified duty 

exceeded his restrictions, he did not request leave without pay compensation until May 27, 2014. As the record 

reveals that appellant received disability compensation for May 27, 28, and 30, 2014, the issue on appeal is whether 

appellant is entitled to disability compensation for the remaining May 31 to July 25, 2014 period. 
8

are altered such that they exceed the employee’s physical limitations.11 In this case, appellant 

has alleged that the employing establishment withdrew his light-duty work and offered a new job 

position which exceeded his medical restrictions, specifically the twisting limitations. In a 

May 7, 2014 duty status report, Dr. Bernal restricted appellant to intermittent twisting and 

reaching above the shoulder for two hours. A review of the May 22, 2014 job offer, however, 

has revealed that the physical requirements of the job required driving for four to five hours, 

twisting for two hours, walking for one to two hours, and lifting for one and half hours. Because 

the May 22, 2014 job offer required twisting for two hours, the Board finds that it did not 

withdraw or alter appellant’s light-duty job so as to require him to exceed his physical 

restrictions as outlined in Dr. Bernal’s May 7, 2014 duty status report. 

Although appellant contended in a July 18, 2014 statement and in his telephone hearing 

that the job duties of casing mail for one to one and a half hours and delivering mail for two 

hours actually required twisting for at least three and a half hours, he did not provide any 

evidence to support his contention that performance of the May 22, 2014 job duties would 

exceed his medical restriction of twisting for two hours. Furthermore, the employing 

establishment disputed appellant’s argument and explained in detail that appellant’s duties casing 

and delivering mail would not require constant twisting. In a February 2, 2015 report, Ms. Dash 

described that appellant was instructed to move his feet instead of twisting his body while casing 

mail and that the trays and seat within appellant’s postal vehicle were adjustable so that twisting 

was not required. Accordingly, the Board finds that appellant has failed to establish that he was 

unable to perform the duties of the May 22, 2014 job offer as a result of his employment injury. 

The Board further notes that the record does not contain any medical evidence to 

demonstrate that appellant was unable to perform the duties of the May 22, 2014 job offer due to 

his January 21, 2014 employment injury. All of the duties and physical requirements listed were 

within the limitations provided by Dr. Bernal. In a June 13, 2014 report, she noted that appellant 

had not worked for two and a half weeks because he refused a job that exceeded his work 

restrictions. Dr. Bernal further indicated in a July 14, 2014 report that appellant could not twist 

more than two hours during the workday. She explained that appellant would be at risk for 

further injury if he did not comply with the recommendations. The Board notes that while 

Dr. Bernal addressed appellant’s twisting limitation of two hours, she did not specifically opine 

or address whether appellant’s May 22, 2014 job offer exceeded appellant’s medical restrictions. 

Instead, Dr. Bernal attributed appellant’s need for medical restrictions as a way to prevent future 

injury. The Board has held that prophylactic work restrictions do not establish a basis for wageloss compensation.12 A fear of future injury is not compensable under FECA.13 Thus, 

Dr. Bernal’s reports failed to establish appellant’s disability compensation claim. 

The additional physical therapy reports dated May 15 to July 23, 2014 and June 18, 2014 

functional capacity evaluation are likewise insufficient to establish appellant’s disability 

 11 Supra note 7. 

12 S.O., Docket No. 14-1303 (issued April 29, 2015). 

13 Manuel Gill, 52 ECAB 282 (2001). 
9

compensation claim as these reports were provided by physical therapists.14 Physical therapists 

are not physicians as defined by FECA. Therefore an opinion expressed regarding the medical 

issue of disability is of limited probative value. Thus, there is no evidence to establish that 

appellant was unable to perform the duties of the modified-duty assignment as a result of his 

January 21, 2014 employment injury.15 Accordingly, the Board finds that appellant has failed to 

establish his claim. 

On appeal, appellant alleges that he was justified in questioning the May 22, 2014 job 

offer. He reiterates that he did not refuse the job offer but was sent home by the employing 

establishment. The May 22, 2014 job offer on the record, however, clearly demonstrated that 

appellant refused the modified assignment because he believed the position exceeded his 

restrictions. As previously stated, appellant has failed to establish that his light-duty assignment 

was withdrawn or altered to the extent that his job duties exceeded his medical limitations. He 

did not otherwise submit medical evidence showing that he sustained a recurrence of disability 

from May 31 to July 25, 2014 causally related to his January 21, 2014 employment injury. 

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 a recurrence of disability for the period 

May 31 to July 25, 2014 causally related to his January 21, 2014 employment injury. 

 14 Section 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. As physical therapists are not “physicians” as defined by FECA, their medical opinions regarding 

diagnosis and causal relationship are of no probative medical value. See 5 U.S.C. § 8101(2); see also David P. 

Sawchuk, 57 ECAB 316 (2006) lay individuals such as physician assistants, nurses, and physical therapists are not 

competent to render a medical opinion. 

15 See H.H., Docket No. 15-304 (issued July 28, 2015). 
10

ORDER 

IT IS HEREBY ORDERED THAT the March 16, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 24, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board