United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Columbia, SC, Employer 

__________________________________________ 

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Docket No. 16-1505 

Issued: April 21, 2017 

Appearances: Case Submitted on the Record

Cory H. Fleming, 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 July 15, 2016 appellant, through counsel, filed a timely appeal from a June 1, 2016 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant met her burden of proof to establish a recurrence of total 

disability on or after June 27, 2015 due to her March 4, 2015 employment injury. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On March 20, 2015 appellant, then a 60-year-old part-time flexible city carrier, filed a 

traumatic injury claim (Form CA-1) alleging that on March 4, 2015 she sustained cracked ribs, 

leg pain, and back pain when her postal vehicle was rear-ended by another vehicle.3 She stopped 

work on March 4, 2015 and received continuation of pay from March 4 to April 18, 2015. 

In a duty status report (Form CA-17) dated March 30, 2015, Dr. Neal L. Shealy, an 

attending Board-certified family practitioner, listed the date of injury as March 4, 2015 and 

diagnosed rib fracture due to the March 4, 2015 injury. He opined that appellant was totally 

disabled from work.4

On April 28, 2015 OWCP accepted that appellant sustained a “closed fracture of rib(s), 

unspecified, left.” Appellant received disability compensation on the daily rolls for the period 

April 19 to May 29, 2015. 

On April 29, 2015 appellant was assigned a field nurse in order to help facilitate her 

return to work. 

On May 29, 2015 Dr. Shealy opined that appellant could not perform her regular work, 

but could work for eight hours per day with restrictions including standing for up to one hour per 

day and lifting, pushing, and pulling up to five pounds. Appellant could not engage in twisting 

or reaching above her shoulders, and her bending, stopping, squatting, kneeling, and climbing 

activities were limited due to pain. 

Appellant began working in a light-duty position as a modified part-time flexible city 

carrier for the employing establishment on June 11, 2015. The physical requirements of the 

position were within the work restrictions recommended by Dr. Shealy.5

On June 25, 2015 Dr. Shealy provided handwritten responses to several questions posed 

by the field nurse assigned to appellant’s case. In response to the question of whether appellant’s 

condition continued to improve, he reported that her condition seemed to have leveled off 

without much improvement over the last few visits. Dr. Shealy indicated that he recommended a 

functional capacity evaluation and, regarding the projected length of time until appellant could 

return to regular duty, he noted, “Pending capacity.” In response to the question of whether there 

were “other conditions related to or aggravated by this injury that needed to be considered,” he 

indicated that appellant’s “knee and back were apparently aggravated.” 

In a work restrictions form report completed on June 25, 2015, Dr. Shealy checked a box 

marked “No” indicating that appellant was incapable of performing her usual job without 

restrictions and noted, “[Right] knee pain, low back pain, and thoracic pain.” He also checked a 

 3

 In the year prior to her March 4, 2015 accident, appellant worked as a part-time flexible city carrier for an 

average of 31 hours per week. 

4

 A report of March 4, 2015 x-ray testing showed “nondisplaced rib fractures.” 

5

 The position primarily involved answering telephones. 
3

box marked “No” indicating that appellant was unable to work eight hours per workday without 

physical restrictions and noted, “[Patient] attempted but [was] unable to tolerate due to increased 

pain.” In response to a question regarding how long the work restrictions would apply, 

Dr. Shealy noted, “Will have functional capacity evaluated.” He also checked a box marked 

“Yes” indicating that appellant was capable of working within the strength level of “Sedentary.” 

Appellant stopped work on June 27, 2015. 

Dr. Shealy arranged for appellant to undergo a functional capacity evaluation on 

July 20, 2015. The findings of the evaluation reflected that appellant demonstrated the ability to 

function in the medium physical category with the capacity to lift up to 30 pounds, carry up to 20 

pounds, push up to 30.67 pounds of force, and pull up to 28.67 pounds of force. 

In a report dated July 28, 2015, Dr. Shealy noted that according to the recent functional 

capacity evaluation appellant had demonstrated the capacity to meet the physical demand 

requirements of a city carrier based on the job description provided. 

On August 7, 2015 appellant filed a claim for compensation (Form CA-7) claiming that 

she was totally disabled from work for the period June 27 to August 7, 2015 due to her March 4, 

2015 employment injury. In connection with this claim, she submitted an August 3, 2015 note in 

which a person with an illegible signature indicated that she could return to work on 

September 3, 2015. 

In an August 20, 2015 letter, OWCP requested that appellant submit additional factual 

and medical evidence in support of her claim for total disability compensation beginning 

June 27, 2015. It provided appellant 30 days from the date of the letter to submit such evidence.6

By decision dated September 22, 2015, OWCP denied appellant’s claim for 

compensation for total disability on or after June 27, 2015 due to her March 4, 2015 employment 

injury. It found that appellant had not submitted a report with a rationalized medical opinion 

showing that she had such disability due to her March 4, 2015 employment injury. 

On March 7, 2016 appellant, through counsel, requested reconsideration of OWCP’s 

September 22, 2015 decision. Counsel asserted that appellant’s recurrence of total disability 

claim had been established by the reports of Dr. Charles Nivens, an attending Board-certified 

physical medicine and rehabilitation physician. 

Appellant submitted the findings of diagnostic testing from mid-to-late 2016, including 

August 3, 2015 x-rays of her chest and right ankle which showed no acute pathology. She also 

submitted several reports of diagnostic tests from March 4, 2015 as well as physician assistant 

progress reports, physical therapy notes, laboratory testing reports, and hospital admission and 

discharge slips dated between early-2015 and mid-2016. In reports dated from July to 

September 2015, a person with an illegible signature diagnosed back pain, right radicular pain, 

right ankle pain, and right knee pain. 

 6

 Appellant did not submit any additional evidence within the time allotted by the letter. 
4

In a work restrictions form report completed on July 27, 2015, Dr. Shealy checked a box 

marked “No” indicating that appellant was incapable of performing her usual job without 

restrictions and added the explanatory notation, “Back pain, right knee pain -- pain radiates down 

[right] buttock].” He also checked a box marked “No” indicating that appellant was unable to 

work eight hours per workday with physical restrictions and added the notation, “Requires a cane 

for ambulation.” In response to a question regarding how long the work restrictions would 

apply, Dr. Shealy noted, “Unknown.” He also checked a box marked “Yes” indicating that 

appellant was capable of working within the strength level of “Sedentary.” 

In several reports dated September 2015 to February 2016, Dr. Nivens discussed his 

treatment of appellant’s low back condition with steroid injections. He diagnosed several low 

back conditions including degenerative disc disease and spondylosis. 

In a June 1, 2016 decision, OWCP denied modification of its September 22, 2015 

decision denying appellant’s claim for a recurrence of total disability on or after June 27, 2015 

due to her March 4, 2015 employment injury. It noted that none of the new medical reports 

submitted by appellant contained a rationalized medical opinion establishing that she had such 

disability due to her March 4, 2015 employment injury. 

LEGAL PRECEDENT 

When an employee, who is disabled from the job he or she held when injured due to 

employment-related residuals, returns to a light-duty position or the medical evidence of record 

establishes that he or she can perform the light-duty position, the employee has the burden to 

establish by the weight of the reliable, probative, and substantial evidence a recurrence of total 

disability and show that he or she cannot perform such light duty. As part of this burden the 

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

in the nature and extent of the light-duty job requirements.7

The medical evidence required to establish a causal relationship between a claimed 

period of disability and an employment injury is rationalized medical opinion evidence. The 

opinion of the physician must be based on a complete factual and medical background of the 

claimant, must be one of reasonable medical certainty, and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant.8

 7 S.F., 59 ECAB 525 (2008); Terry R. Hedman, 38 ECAB 222 (1986). 20 C.F.R. § 10.5(x) provides, “Recurrence 

of disability means an inability to work after an employee has returned to work, caused by a spontaneous change in a 

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

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

when a light-duty assignment made specifically to accommodate an employee’s physical limitations due to his or 

her work-related injury or illness is withdrawn (except when such withdrawal 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 so that they exceed his or her established physical limitations.” 

8 See E.J., Docket No. 09-1481 (issued February 19, 2010). 
5

ANALYSIS 

OWCP accepted that on March 4, 2015 appellant sustained a “closed fracture of rib(s), 

unspecified, left” due to a vehicular accident at work. She stopped work on March 4, 2015. 

Appellant received continuation of pay from March 4 to April 18, 2015 and disability 

compensation on the daily rolls from April 19 to May 29, 2015. Appellant returned to light-duty 

work as a modified part-time flexible city carrier on June 11, 2015. The physical requirements 

of the position were within the work restrictions recommended by Dr. Shealy, the attending 

physician.9

 Appellant stopped working in her light-duty position on June 27, 2015 and filed a 

Form CA-7 claiming a recurrence of total disability beginning that day due to her March 4, 2015 

employment injury. 

The Board finds that appellant did not submit sufficient medical evidence to establish a 

recurrence of total disability on or after June 27, 2015 due to her March 4, 2015 employment 

injury. 

Appellant submitted a June 25, 2015 work restrictions form report in which Dr. Shealy 

checked a box marked “No” indicating that she was incapable of performing her usual job 

without restrictions and noted, “[Right] knee pain, low back pain, and thoracic pain.” Dr. Shealy 

also checked a box marked “No” indicating that appellant was unable to work eight hours per 

workday with physical restrictions and added the notation, “[Patient] attempted but [was] unable 

to tolerate due to increased pain.”10 He checked a third box marked “Yes” indicating that 

appellant was capable of working within the strength level of “Sedentary.” 

In a July 27, 2015 work restrictions form report, Dr. Shealy checked a box marked “No” 

indicating that appellant was incapable of performing her usual job without restrictions and 

noted, “Back pain, right knee pain -- pain radiates down [right] buttock].” He checked a box 

marked “No” indicating that appellant was unable to work eight hours per workday with physical 

restrictions and added the notation, “Requires a cane for ambulation.”11 Dr. Shealy also checked 

a box marked “Yes” indicating that appellant was capable of working within the strength level of 

“Sedentary.” 

The Board notes that the submission of these reports of Dr. Shealy do not establish 

appellant’s claim for a recurrence of total disability on or after June 27, 2015 due to her March 4, 

2015 employment injury because these reports do not contain a clear opinion that appellant had 

total disability on or after June 27, 2015, causally related to her March 4, 2015 employment 

injury. The Board has held that medical evidence which does not offer a clear opinion relating an 

employee’s condition to employment factors is of limited probative value on the issue of causal 

 9

 On May 29, 2015 Dr. Shealy opined that appellant could not perform her regular work, but he indicated that she 

could work for eight hours per day with restrictions including standing for up to one hour per day and lifting, 

pushing, and pulling up to five pounds. Appellant could not engage in twisting or reaching above her shoulders, and 

her bending, stopping, squatting, kneeling, and climbing activities were limited due to pain. 

10 In response to a question regarding how long the work restrictions would apply, Dr. Shealy noted, “Will have 

functional capacity evaluated.” 

11 In response to a question regarding how long the work restrictions would apply, Dr. Shealy noted, “Unknown.” 
6

relationship.12 Although Dr. Shealy indicated that appellant was disabled from all work, he 

appeared to relate this disability to several conditions that have not been accepted as related to the 

March 4, 2015 work accident, including low back pain, thoracic pain, right knee pain, and pain 

radiating from the back to the right buttock. Dr. Shealy did not provide any notable discussion of 

appellant’s accepted condition, “closed fracture of rib(s), unspecified, left,” or of the findings on 

physical examination and diagnostic testing, and his unrationalized opinion on disability appears to 

be primarily based on appellant’s reported intolerance to work rather than on any objective 

findings. Medical rationale relating appellant’s claimed disability on or after June 27, 2015 to the 

March 4, 2015 employment injury is especially necessary in the present case as Dr. Shealy 

provided work restrictions on May 29, 2015 which were consistent with the light-duty work she 

returned to on June 11, 2015. He also indicated in another June 25, 2015 report that appellant’s 

medical condition seemed to have leveled off over the past few visits. Moreover, Dr. Shealy’s 

opinion on appellant’s disability, as expressed in his June 25 and July 27, 2015 reports, is 

equivocal in that he checked a box marked “Yes” indicating that appellant was capable of 

working within the strength level of “Sedentary.”13 The Board has held that an opinion which is 

equivocal in nature is of limited probative value regarding the issue of causal relationship.14

In several reports dated between September 2015 and February 2016, Dr. Nivens, an 

attending physician, diagnosed several low back conditions including degenerative disc disease 

and spondylosis. These reports do not establish appellant’s claim for a recurrence of total 

disability on or after June 27, 2015 due to her March 4, 2015 employment injury because 

appellant’s case has not been accepted for a back condition. Dr. Nivens did not provide a 

rationalized medical opinion establishing such a connection between a work-related back 

condition and the claimed recurrence of total disability. 

Appellant submitted several physician assistant progress reports and physical therapy 

notes discussing her medical condition which were dated between early-2015 and mid-2016. 

However, under FECA, the report of nonphysicians, including physician assistants or physical 

therapists, do not constitute probative medical evidence.15 Appellant also submitted an August 3, 

2015 note in which a person with an illegible signature indicated that she could return to work on 

September 3, 2015, but there is no indication that this note was produced by a physician such 

that it would constitute medical evidence. In addition, the note does not provide a cause for 

appellant’s disability. 

On appeal appellant contends that she continues to suffer back and right knee pain. The 

Board notes that her claim has not been accepted for a back or right knee condition and the 

medical evidence does not otherwise show that she had such a work-related condition that caused 

disability on or after June 27, 2015 due to her March 4, 2015 employment injury. 

 12 See Charles H. Tomaszewski, 39 ECAB 461 (1988). 

13 The Board further notes that, shortly after he produced these reports, Dr. Shealy produced a July 28, 2015 

report in which he noted, “According to the recent functional capacity evaluation [appellant] has demonstrated the 

capacity to meet the physical demand requirements of a city carrier based on the job description provided.” 

14 See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956). 

15 C.E., Docket No. 14-710 (issued August 11, 2014); L.L., Docket No. 13-829 (issued August 20, 2013). 
7

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 did not meet her burden of proof to establish a recurrence 

of total disability on or after June 27, 2015 due to her March 4, 2015 employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the June 1, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: April 21, 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