United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.O., Appellant 

and 

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, 

Staten Island, NY, Employer 

__________________________________________ 

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Docket No. 15-1605 

Issued: August 17, 2016 

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 21, 2015 appellant, through counsel, filed a timely appeal from an April 22, 2015 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 

180 days has elapsed since the last merit decision dated December 19, 2014, to the filing of this 

appeal, pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case. 

On appeal counsel alleges that OWCP improperly denied merit review when it did not 

evaluate the medical evidence of record to determine whether additional conditions or disability 

                                                             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

should have been accepted as causally related to the accepted employment injury as of 

October 1, 2014. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s claim for 

reconsideration on the merits under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On July 31, 2013 appellant, a 59-year-old pipefitter, slipped on a wet floor and injured his 

right shoulder. He filed a claim for a traumatic injury (Form CA-1) on August 20, 2013, which 

OWCP accepted for right shoulder sprain. 

In a report dated August 12, 2013, Dr. James E. Henry, an osteopath and a specialist in 

orthopedic surgery, examined appellant and diagnosed right shoulder sprain. Appellant 

underwent radiographic testing, the results of which showed no fracture, dislocation, or tumor. 

In a follow-up report dated October 30, 2013, Dr. Henry advised that appellant underwent 

a magnetic resonance imaging (MRI) scan of his right shoulder which showed that he had a 

partial tear of the supraspinatus, degenerative in nature; a full-thickness tear of the subscapularis 

tendon with medial subluxation of the biceps tendon; and acromioclavicular joint arthritis with 

subacromial bursitis. He recommended that appellant undergo surgery in light of the fact that he 

had not responded well to physiotherapy. Dr. Henry advised that he was formally requesting 

authorization from OWCP for the proposed surgery. 

In a November 20, 2013 report, Dr. Henry advised that appellant was unable to return to 

work at that time because he was scheduled to undergo right shoulder surgery on 

December 5, 2013. He reported that, following the surgery, appellant was expected to miss work 

for an additional two to three months while he underwent a course of rehabilitation. 

On November 20, 2013 OWCP authorized appellant’s request for right shoulder surgery. 

On December 5, 2013 Dr. Henry performed right shoulder surgery on appellant. 

Appellant underwent an arthroscopic procedure, a debridement of biceps tendon and labral 

debridement, to repair tears of the supraspinatus and subscapularis right shoulder, biceps 

tenosynovitis, labral tear, and acromioclavicular impingement. 

On December 11, 2013 appellant filed a claim for a recurrence of disability (Form CA-2) 

alleging that his inability to work as of November 19, 2013 was caused or aggravated by his 

accepted July 31, 2013 employment injury. By decision dated January 10, 2014, OWCP accepted 

the claim for a recurrence of disability and formally authorized appellant’s right shoulder 

surgery. Appellant was placed on the periodic rolls on January 17, 2014. 

On June 24, 2014 Dr. Henry performed a second surgery on appellant to repair a 

recurrent tear of the right rotator cuff. 

On October 22, 2014 appellant filed a new claim for a recurrence of disability, alleging 

that his inability to work as of September 29, 2014 was caused or aggravated by his accepted 
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July 31, 2013 employment injury. He indicated on the claim form that the recurrence occurred 

on September 29, 2014 when he opened a sliding window and his right shoulder began to hurt 

again. The employing establishment controverted the claim. It noted on the form that the duties 

of appellant’s light-duty job did not include working at a station with a sliding window, nor did 

they require strenuous straining or physical activity. Rather, appellant’s duties only included 

directing people to facilities and serving as a visitor contact person. The employing 

establishment further asserted that, although he reported that he sustained a recurrence of 

disability while opening a window on September 29, 2014, appellant did not begin his light-duty 

assignment until October 1, 2014 and did not consult a physician until October 22, 2014. 

By letter dated November 5, 2014, OWCP advised appellant that its records indicated 

that, following his original injury/illness, he had returned to light-duty work on October 1, 2014 

and had subsequently stopped work completely. It noted that the exact date he stopped work was 

unclear. OWCP advised appellant that it had not received any supporting documentation with 

his claim form. It requested that he provide additional factual and medical evidence, including 

medical evidence establishing that his accepted work-related conditions subsequently worsened 

without intervening cause. Appellant was afforded 30 days to submit this additional evidence. 

In a November 14, 2014 report, Dr. Henry advised that appellant continued to have right 

shoulder pain after his second surgery of June 24, 2014. He noted that appellant was no longer 

working and that he had applied for social security disability. Dr. Henry reported that he was 

still recovering from the second surgery, but did not have recurrent rotator cuff tear. He 

diagnosed advanced arthritis of the right shoulder with severe tissue degeneration and did not 

recommend a third surgery or an additional MRI scan. Dr. Henry advised that he hoped to 

increase appellant’s ability to perform activities of daily living. 

On December 8, 2014 appellant submitted a Form CA-7 requesting wage-loss 

compensation from October 6 to December 12, 2014. 

In a December 9, 2014 report, Dr. James Kipnis, a specialist in orthopedic surgery, 

advised that appellant was experiencing pain due to a work-related right shoulder condition. He 

requested authorization for an additional MRI scan of the right shoulder as appellant had a 

possible recurrent tear with some degenerative findings and was not tolerating physical therapy 

because of the pain. 

By decision dated December 19, 2014, OWCP denied the claim for a recurrence of 

disability, commencing September 29, 2014. It noted that although appellant had indicated on 

his October 22, 2014 Form CA-2a that the date he sustained recurrence of disability was 

September 29, 2014, he was still on the periodic rolls on that date and was still receiving 

compensation for total disability at that time. OWCP also noted that he indicated on the form 

that the recurrence occurred on September 29, 2014 when he opened a sliding window and his 

right shoulder began to hurt again. It found that appellant did not return to work on light duty 

until October 1, 2014. The decision further related that the evidence of record from 

September 17, 2014 found that he could work with restrictions for four hours a day, and 

therefore he had returned to work for four hours a day on October 1, 2014. Medical evidence 

dated November 14, 2014 indicated that appellant did not have a recurrent rotator cuff tear, but 

rather had advanced arthritis of the shoulder, with severe degeneration. Therefore OWCP found 
4

that the medical evidence of record did not support disability due to the accepted condition of 

right shoulder strain. 

By letter dated February 11, 2015, appellant, through counsel, requested reconsideration 

of the December 19, 2014 decision. He asserted that OWCP’s December 19, 2014 decision 

warranted reconsideration on the additional basis that appellant sustained a recurrence of 

disability beginning October 6, 2014. Counsel argued that the medical evidence of record 

established that the recurrence of his total disability starting October 6, 2014 was sustained as a 

result of injuries and conditions causally related to the July 31, 2013 work injury. He further 

argued that OWCP failed to accept all of the medical conditions which were causally related to 

appellant’s July 31, 2013 employment injury. 

In a December 31, 2014 report, Dr. Kipnis noted that he was treating appellant for torn 

right rotator cuff. He advised that appellant was experiencing severe pain in his right shoulder 

and had undergone a right shoulder MRI scan which showed a tear of the long head of the biceps 

and a recurrent full-thickness tear of the rotator cuff involving the entire subscapularis tendon 

with retraction. 

In a report dated January 9, 2015, Dr. Henry noted that appellant had attempted to treat 

his right shoulder conservatively, but had ultimately underwent open rotator cuff repair, 

acromioplasty, arthroscopic labral debridement, and Mumford resection of the distal clavicle on 

December 5, 2013. He noted that appellant experienced a setback in his right shoulder and was 

experiencing increasing right shoulder pain as of March 7, 2014. Dr. Henry opined that the 

recurrence of appellant’s right rotator cuff tear was a direct result of the July 31, 2013 work 

incident. He advised that appellant had reached maximum medical improvement but that he 

might require additional treatment in the future such as additional surgery, palliative physical 

therapy, nonsteroidals, and possible cortisone injections. Dr. Henry also opined that appellant 

was permanently disabled with regard to his right shoulder and was not capable of returning to 

his usual job as a plumber due to the physical demands of that trade. 

In a January 19, 2015 report, Dr. Kipnis noted that appellant continued to experience pain 

and limited mobility in his right shoulder. He noted on examination that appellant had swelling 

as well as clicking and popping in the shoulder. Dr. Kipnis requested authorization for a right 

shoulder arthroscopy with debridement, subacromial decompression, and revision rotator cuff 

repair. 

In a March 4, 2015 report, Dr. Jonathan B. Ticker, a specialist in orthopedic surgery, 

concurred with Dr. Kipnis’ recommendation for an additional right rotator cuff procedure, 

although he noted that he needed to review the most recent MRI scan results. He advised that 

appellant rated the severity of his pain as an 8 on a scale of 1 to 10. 

In a March 31, 2015 report, Dr. Kipnis advised that appellant had a preoperative 

evaluation for arthroscopic right shoulder surgery and was advised regarding the possible limited 

benefits of arthroscopy with concurrent arthritis. 

In an April 10, 2015 report, Dr. Hormozan Aprin, Board-certified in orthopedic surgery, 

noted that appellant underwent a repeat MRI scan of the right shoulder and that Drs. Kipnis and 

Ticker had recommended a repeat surgery. He noted that appellant was currently experiencing 
5

disabling residuals related to his right shoulder, as his accepted condition had not resolved and he 

needed further treatment. Dr. Aprin advised that appellant was partially disabled due to the right 

shoulder condition and could return to part-time, sedentary work for four hours per day with 

restrictions. 

By decision dated April 22, 2015, OWCP denied appellant’s request for reconsideration 

as it neither raised substantive legal questions, nor included new and relevant evidence sufficient 

to require OWCP to review its prior decision. It noted that there was no basis for further review 

of the December 19, 2014 decision given that he had not clarified the factual circumstances of 

his alleged September 29, 2014 recurrence of disability.3

LEGAL PRECEDENT 

Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her 

claim by showing that OWCP erroneously applied or interpreted a specific point of law; by 

advancing a relevant legal argument not considered by OWCP; or by submitting relevant and 

pertinent evidence not previously considered by OWCP.4

 Evidence that repeats or duplicates 

evidence already in the case record has no evidentiary value and does not constitute a basis for 

reopening a case.5

ANALYSIS 

In the present case, appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law, nor has he advanced a relevant legal argument not previously 

considered by OWCP. Appellant submitted records he claimed were relevant and pertinent new 

evidence, including the December 31, 2014, January 19 and March 31, 2015 reports from 

Dr. Kipnis; the January 9, 2015 report from Dr. Henry; the March 4, 2015 report from 

Dr. Ticker; and the April 10, 2015 report from Dr. Aprin. The Board has held that the 

submission of evidence which does not address the particular issue involved in the case does not 

constitute a basis for reopening the claim.6 This evidence appellant submitted in connection with 

his February 11, 2015 reconsideration request is not relevant or pertinent to the issue on appeal; 

i.e., whether he sustained a recurrence of disability as of September 29, 2014 caused or 

aggravated by his accepted July 31, 2013 employment injury. The reports appellant submitted 

provided findings on examination and generally indicated that he was experiencing right 

shoulder pain attributable to the July 31, 2013 employment injury. However, they do not present 

                                                             3

 OWCP noted that appellant filed a Form CA-7 for the period October 6 through December 12, 2014, claiming 

intermittent wage loss, with attached CA-7a forms showing four hours of work and four hours of compensation 

claimed for October 6, 7, 8, and 9, 2014 and continuing. It noted that this claim and additional claims for 

intermittent wage loss had been processed for payment. OWCP further found that the assertion by appellant’s 

counsel that the December 19, 2014 decision warranted reconsideration on the additional basis that he sustained a 

recurrence of disability beginning October 6, 2014 was not correct; it noted that no decision with appeal rights 

regarding a recurrence of disability commencing October 6, 2014 had been issued, nor had a claim for recurrence of 

disability as of that date been filed on forms prescribed by OWCP. 

4

 20 C.F.R. § 10.606(b)(3); see generally 5 U.S.C. § 8128(a). 

5 Howard A. Williams, 45 ECAB 853 (1994). 

6 See David J. McDonald, 50 ECAB 185 (1998). 
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an opinion as to whether appellant sustained any disability as of September 29, 2014.7

 

Appellant’s reconsideration request failed to show that OWCP erroneously applied or interpreted 

a point of law, and failed to advance a point of law or fact not previously considered by OWCP,8

nor did he present relevant and pertinent new evidence. The Board therefore finds that OWCP 

did not abuse its discretion in refusing to reopen appellant’s claim for a review on the merits in 

its April 22, 2015 decision. 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s claim for 

reconsideration on the merits under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the April 22, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 17, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

                                                             7 See Patricia G. Aiken, 57 ECAB 441 (2006). 

8

 The Board notes that appellant’s attorney reiterated his argument below that appellant sustained a recurrence of 

disability beginning October 6, 2014, and that the medical evidence of record established that the recurrence of his 

total disability starting October 6, 2014 was sustained as a result of injuries and conditions causally related to the 

July 31, 2013 work injury. The Board finds that this argument has no merit as the record demonstrates that the 

claim for recurrence of disability was dated October 22, 2014 and it was for September 29, 2014.