D.M. and Department of Justice, Federal Bureau of Prisons, United States Penitentiary McCreary (Board decision, December 18, 2023)

ECAB final decision. The Board affirmed OWCP's denial of a recurrence claim and its refusal to reopen that denial on reconsideration. A party may petition the Board for reconsideration within 30 days of issuance 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

A federal correctional officer sought wage loss benefits years after he fell during a work training exercise. OWCP had accepted several sprains and a chest wall contusion from the 2017 fall. The Board found that a chiropractor's reports did not establish that his later disability arose from a spontaneous worsening of the accepted injuries, because the chiropractor had not diagnosed spinal subluxation using x-ray evidence and therefore could not provide qualifying medical evidence under FECA. The new orthopedic report on reconsideration described shoulder surgery but offered no causal opinion. The Board affirmed both the recurrence denial and OWCP's refusal to reopen the claim.

Decision snapshot

• Authority: 5 U.S.C. §§ 8101(2), 8128(a); 20 C.F.R. §§ 10.5(x), 10.606(b)(3).
• Outcome: Recurrence claim and reconsideration denial affirmed.
• Key point: A recurrence requires competent medical evidence connecting the later disability to an accepted injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.M., Appellant
)
)
and ) Docket No. 23-0431
)
Issued: December 18, 2023
DEPARTMENT OF JUSTICE, FEDERAL
)
BUREAU OF PRISONS, UNITED STATES )
PENITENTIARY McCREARY, Pine Knot, KY, )
Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 8, 2023 appellant filed a timely appeal from an October 4, 2022 merit decision and a December 7, 2022 nonmerit 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 this case.2

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the December 7, 2022 decision, OWCP received additional evidence. The Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.
ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish a recurrence of disability causally related to his accepted May 16, 2017 employment injury; and (2) whether OWCP properly denied his request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On May 21, 2017 appellant, then a 36-year-old supervisory correctional officer, filed a traumatic injury claim (Form CA-1) alleging that on May 16, 2017 he fell and sprained his right wrist, bruised multiple ribs, and experienced deep muscular bruising while in the performance of duty. He related that he was negotiating an obstacle course for an annual special response team certification and was traversing a horizontal rope suspended 12 to 15 feet above the ground when the rope snapped and he fell, landing on his back . OWCP accepted the claim for sprain of ligaments of the lumbar, cervical, and thoracic spine, sprain of right wrist, and contusion of the right front wall of the thorax. Appellant did not stop work.

On June 28, 2022 appellant filed a notice of recurrence (Form CA-2a) for time lost from work claiming that he sustained a recurrence of disability on an unspecified date due to the May 16, 2017 employment injury. He noted on the claim form that he had experienced sharp back and shoulder pain since the original injury, which sometimes interfered with his ability to perform physical activities, and that the recurrence likely occurred following his involvement in multiple inmate prison fights over the prior two months.

In a development letter dated July 15, 2022, OWCP informed appellant of the deficiencies of his recurrence claim. It advised him of the type of additional medical evidence needed, and provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond.

OWCP thereafter received an October 1, 2020 visit note in which Dr. Samuel Combs, a chiropractor, reviewed appellant’s complaints and history of a 2017 work-related accident that had occurred when a rope broke as he completed an obstacle course and he fell to the ground. Dr. Combs indicated that appellant reported that his condition had worsened since his last visit, and diagnosed cervicalgia, right shoulder pain, cervical radiculopathy, thoracolumbar radiculopathy, left knee effusion, lower left leg pain, and left ankle effusion.

In an August 8, 2022 statement, appellant related that the recurrence most likely occurred following multiple inmate fights that had happened within the last several months, and that his symptoms had been continuously present since the initial injury. He noted that continual wear and tear from the initial injury had led to torn tendons, and that he sprained his left ankle at work on March 18, 2020. Appellant indicated that he underwent surgery on July 15, 2022, and that his hobbies included practicing jiu-jitsu and working on a farm.

By decision dated October 4, 2022, OWCP found that appellant had not established a recurrence of disability. It determined that the medical evidence of record was insufficient to establish that he was disabled from work during the claimed period due to a worsening of his May 16, 2017 employment injury.

2
On November 23, 2022 appellant requested reconsideration of the October 4, 2022 decision and submitted additional evidence.

In a July 15, 2022 operative report, Dr. Daniel Hackett, Jr., a Board-certified orthopedic surgeon, noted pre and postoperative diagnoses of right rotator cuff tear and right biceps tendinitis, and described the right arthroscopic rotator cuff repair with open biceps tenodesis procedure that he performed on appellant. He related that appellant previously underwent a right open Bankart repair two decades prior for shoulder instability, and that over the past two years, he had developed new right anterior shoulder pain with occasional mechanical symptoms. Dr. Hackett indicated that a magnetic resonance imaging (MRI) scan of appellant’s right shoulder demonstrated a retear of his subscapularis tendon, subluxation of the long head of the biceps tendon, and a full-thickness tear of the supraspinatus tendon.

In a November 14, 2022 letter, Dr. Combs indicated that appellant’s injury occurred in 2017, and that he had been diagnosed with lumbar, cervical, and thoracic sprains, a wright wrist sprain, and a right thoracic contusion. He explained that appellant returned to normal duty after the initial injury, and that his duties included reaching, lifting, and pulling, and that appellant reported that his right thoracic and shoulder pain had gradually worsened since his 2017 accident. Dr. Combs noted that he had provided chiropractic treatments beginning in August 2020, and that appellant had reported no new injuries or trauma since the 2017 accident. He advised that, after an April 22, 2022 MRI scan, appellant underwent surgery on his supraspinatus tendon, bicep tendon, and labrum, and was off work for six weeks. Dr. Combs asserted that appellant’s original injury underwent a spontaneous change which resulted in loss of wages.

By decision dated December 7, 2022, OWCP denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA 3 has the burden of proof to establish the essential elements of his or her claim including that any disability or specific condition for which compensation is claimed is causally related to the employment injury. 4 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. 5 For each period of disability claimed, the employee has the burden of proof to establish that he or 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

3
Supra note 1.
4
D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 5 20 C.F.R. § 10.5(f); S.H., Docket No. 23-0024 (issued July 19, 2023); J.S., Docket No. 19-1035 (issued January 24, 2020); Bobbie F. Cowart, 55 ECAB 746 (2004).
6
J.R., Docket No. 23-0215 (issued July 28, 2023); T.W., Docket No. 19-1286 (issued January 13, 2020).

3 work, and the duration of that disability, are medical issues that must be proven by a preponderance of probative and reliable medical opinion evidence. 7

A 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 resulted from a previous compensable injury or illness and without an intervening injury or new exposure in the work environment. 8

OWCP’s procedures provide that a recurrence of disability includes a work stoppage caused by a spontaneous material change in the medical condition demonstrated by objective findings. That change must result from a previous injury or an occupational illness rather than an intervening injury or new exposure to factors causing the original illness. It does not include a condition that results from a new injury, even if it involves the same part of the body previously injured.9

An employee who claims a recurrence of disability due to an accepted employment-related injury has the burden of proof to establish by the weight of the substantial, reliable, and probative evidence that the disability for which he or she claims compensation is causally related to the accepted injury. This burden of proof requires that a claimant furnish medical evidence from a physician who, based on a complete and accurate factual and medical history, concludes that, for each period of disability claimed, the disabling condition is causally related to the employment injury, and supports that conclusion with medical reasoning.10 Where no such rationale is present, the medical evidence is of diminished probative value.11

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish a recurrence of disability causally related to his accepted May 16, 2017 employment injury.

In an October 1, 2020 visit note, Dr. Combs treated appellant for injuries arising from a 2017 work-related accident, and noted that he reported that his condition had worsened since his last visit. He diagnosed cervicalgia, right shoulder pain, cervical radiculopathy, thoracolumbar radiculopathy, left knee effusion, lower left leg pain, and left ankle effusion. Chiropractors, however, are only considered physicians for purposes of FECA if they diagnose spinal subluxation

7
A.S., Docket No. 21-1263 (issued July 24, 2023); S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001). 8 20 C.F.R. § 10.5(x); see W.H., Docket No. 21-0139 (issued October 26, 2021); A.E., Docket No. 20-0259 (issued April 28, 2021); J.D., Docket No. 18-1533 (issued February 27, 2019). 9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); T.P., Docket No. 22-1335 (issued June 23, 2023); L.B., Docket No. 18-0533 (issued August 27, 2018). 10 C.Y., Docket No. 22-0474 (issued November 14, 2022); L.O., Docket No. 19-0953 (issued October 7, 2019);
J.D., Docket No. 18-0616 (issued January 11, 2019).
11
L.C., Docket No. 20-1679 (issued October 20, 2022); M.G., Docket No. 19-0610 (issued September 23, 2019);
G.G., Docket No. 18-1788 (issued March 26, 2019).

4 based upon x-ray evidence. 12 Dr. Combs did not obtain or review x-rays in support of a diagnosis of spinal subluxation, thus, he is not considered a physician as defined under FECA. His report, therefore, does not constitute competent medical evidence and is insufficient to meet appellant’s burden of proof.13

As the medical evidence of record is insufficient to establish a recurrence of disability causally related to the May 16, 2017 employment injury, the Board finds that appellant has not met his burden of proof to establish his recurrence claim.

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

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a matter of right. 14 OWCP has discretionary authority in this regard and has imposed certain limitations in exercising its authority. 15 One such limitation is that the request for reconsideration must be received by OWCP within one year of the date of the decision for which review is sought. 16 A timely application for reconsideration, including all supporting documents, must set forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously considered by OWCP. 17 When a timely application for reconsideration does not meet at least one of the above-noted requirements, OWCP will deny the request for reconsideration without reopening the case for a review on the merits. 18

12
Section 8101(2) of FECA provides that the term “physician” includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist, and subject to regulations by the Secretary. 5 U.S.C. § 8101(2); K.W., Docket No. 20-0230 (issued May 21, 2021); J.D., Docket No. 19-1953 (issued January 11, 2021); George E. Williams, 44 ECAB 530 (1993). 13 M.O., Docket No. 21-1068 (issued March 1, 2022); S.L., Docket No. 21-0760 (issued January 6, 2022); P.C., Docket No. 18-0167 (issued May 7, 2019).
14
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a). 15 20 C.F.R. § 10.607.
16
Id. § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2020). Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal Employees Compensation System (iFECS). Id. at Chapter 2.1602.4b. 17 20 C.F.R. § 10.606(b)(3).
18
Id. § 10.608(a), (b).

5
ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

Appellant did not show that OWCP erroneously applied or interpreted a specific point of law, and did not advance a relevant legal argument not previously considered by OWCP. Consequently, he was not entitled to a review of the merits based on the first and second above- noted requirements under 20 C.F.R. § 10.606(b)(3).

In support of his reconsideration request, appellant submitted a July 15, 2022 operative report from Dr. Hackett noting diagnoses of right rotator cuff tear and right biceps tendinitis, and relating that appellant had developed new right anterior shoulder pain with occasional mechanical symptoms. Dr. Hackett indicated that an MRI scan of the right shoulder demonstrated a retear of the subscapularis tendon, subluxation of the long head of the biceps tendon, and a full-thickness tear of the supraspinatus tendon. However, as he did not provide an opinion regarding the cause of appellant’s conditions or disability, this report is of no probative value and is not relevant to the issue in the present case, i.e., whether appellant submitted medical evidence establishing a recurrence of disability causally related to his accepted May 16, 2017 employment injury.19 The Board has held that the submission of evidence which does not address the particular issue involved does not constitute a basis for reopening a case. 20 Similarly, appellant submitted a November 14, 2022 letter from Dr. Combs. Chiropractors, however, are only considered physicians for purposes of FECA if they diagnose spinal subluxation based upon x-ray evidence.21 As Dr. Combs has not diagnosed subluxation based upon x-ray evidence in this letter, he is not considered a physician as defined under FECA. 22 Thus, the above reports do not constitute relevant and pertinent new evidence not previously considered by OWCP. Appellant, therefore, was not entitled to a review of the merits of his claim based on the third above-noted requirements under 20 C.F.R. § 10.606(b)(3).

The Board, accordingly, finds that appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.23

19
See L.B., supra note 9; D.K., Docket No. 17-1549 (issued July 6, 2018).
20
R.L., Docket No. 20-1403 (issued July 21, 2021); R.P., Docket No. 20-0661 (April 14, 2021); D.P., Docket No.
13-1849 (issued December 19, 2013).
21
See supra note 12.
22
M.O., Docket No. 21-1068 (issued March 1, 2022); S.L., Docket No. 21-0760 (issued January 6, 2022); P.C., Docket No. 18-0167 (issued May 7, 2019).
23
See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020);
Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

6
CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a recurrence of disability causally related to the accepted May 16, 2017 employment injury. The Board further finds that OWCP properly denied his request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the October 4 and December 7, 2022 decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: December 18, 2023
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

7