United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.R., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Tulsa, OK, Employer 

__________________________________________ 

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Docket No. 16-1876 

Issued: February 9, 2017 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 22, 2016 appellant filed a timely appeal from an April 13, 2016 merit 

decision and a May 17, 2016 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. 

ISSUES 

The issues are: (1) whether appellant has established a recurrence of disability 

commencing February 3, 2016, causally related to her accepted May 7, 2013 right shoulder 

injury; and (2) whether OWCP properly denied appellant’s request for further merit review of his 

claim pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that on May 7, 2013 appellant, then a 52-year-old lead transportation 

security officer, sustained an unspecified traumatic right shoulder injury while lifting heavy 

suitcases from a conveyor belt. Appellant was followed by Dr. James D. Cash, an attending 

Board-certified orthopedic surgeon. On August 2, 2013 Dr. Cash diagnosed a torn right rotator 

cuff due to lifting heavy bags at work. Imaging studies revealed supraspinatus and infraspinatus 

tendon tears in the right shoulder.2

As physical therapy and conservative measures failed to relieve appellant’s symptoms, 

Dr. Cash performed an arthroscopic subacromial decompression, labral debridement, and distal 

clavicle resection on October 2, 2013, authorized by OWCP. Appellant returned to work for four 

hours a day on October 15, 2013. Dr. Cash submitted periodic progress notes through 

January 3, 2014. He continued to restrict appellant to limited duty. Appellant received 

compensation to attend physical therapy visits from January 3 to February 7, 2014. Dr. Cash 

released appellant to full duty with no restrictions as of February 20, 2014. He opined that 

appellant had attained maximum medical improvement. Appellant continued to participate in 

physical therapy from August 2013 to January 2014. She returned to full duty on or about 

May 2014. 

On February 3, 2016 appellant filed a claim for a recurrence of disability (Form CA-2a) 

commencing that day. She asserted that she never fully recovered from the accepted May 7, 

2013 right shoulder injury. Appellant contended that her assigned duties on and after May 8, 

2013 caused a severe exacerbation of shoulder, neck, and back pain. She stopped work on 

February 3, 2016. Appellant claimed compensation through February 10, 2016. 

In a March 1, 2016 letter, OWCP advised appellant of the additional evidence needed to 

establish her claim for recurrence of disability, including a statement from her attending 

physician explaining how and why the accepted right shoulder injury had spontaneously 

worsened such that appellant was disabled for work as of February 3, 2016. It afforded her 30 

days to submit such evidence. 

In response, appellant submitted her March 9, 2016 statement, explaining that repetitive 

lifting at work caused repetitive strain injuries to her back, neck, shoulders, and arms. She 

asserted that she continued to work in extreme discomfort until an attending physician held her 

off work. Appellant provided a list of medications and a November 12, 2015 electrodiagnostic 

study report demonstrating right ulnar nerve entrapment at the elbow. 

By decision dated April 13, 2016, OWCP denied appellant’s claim for a recurrence of 

disability, finding that the medical evidence of record was insufficient to establish causal 

relationship between the accepted May 7, 2013 right shoulder injury and appellant’s condition on 

and after February 3, 2016. 

On May 9, 2016 appellant requested reconsideration by checking a box on an appeal 

request form. She did not submit additional evidence or argument. 

 2

 On September 30, 2013 appellant consulted Dr. David W. Griffiths, a family practitioner, who recommended 

surgery to address the right rotator cuff and supraspinatus issues. 
3

By nonmerit decision dated May 17, 2016, OWCP denied appellant’s request for 

reconsideration, finding that it did not raise substantive legal questions or include relevant and 

pertinent new evidence. 

LEGAL PRECEDENT -- ISSUE 1 

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 has resulted from a previous injury or illness without an intervening injury or 

new exposure to the work environment that caused the illness.”3 

When an appellant claims a recurrence of disability due to an accepted employmentrelated injury, he has the burden of establishing by the weight of the reliable, probative, and 

substantial evidence that the recurrence of disability is causally related to the original injury. 

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

basis of a complete and accurate factual and medical history, concludes that the condition is 

causally related to the employment injury and supports this conclusion with sound medical 

reasoning.4 

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained an unspecified right shoulder injury on May 7, 

2013, necessitating arthroscopic subacromial decompression, labral debridement, and distal 

clavicle resection on October 2, 2013. Appellant performed modified duty from October 15, 

2013 to approximately May 2014, when she returned to full duty after being released from care 

by Dr. Cash. 

Appellant continued to perform full duty until she stopped work on February 3, 2016 and 

claimed a recurrence of disability. She contended that her duties after she returned to work 

caused repetitive strain injuries to her neck, back, both shoulders, and both arms. Appellant thus 

has the burden of proof to establish causal relationship between her accepted right shoulder 

condition and her February 3, 2016 recurrence of disability.5

The only medical evidence appellant submitted in support of her recurrence claim was a 

November 12, 2015 electrodiagnostic study demonstrating right ulnar nerve entrapment. This 

report does not contain medical rationale supporting causal relationship between the accepted 

right shoulder injury and her recurrence of disability. It is therefore insufficient to meet 

appellant’s burden of proof.6

 The Board notes that as appellant contended that new work duties 

after May 7, 2013 caused additional injuries, this implicates a new injury or condition rather than 

 3

 20 C.F.R. § 10.5(y); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.a 

(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004). 

4 Ricky S. Storms, 52 ECAB 349 (2001); Helen Holt, 50 ECAB 279 (1999). 

5 Ricky S. Storms, id. 

6 Id. 
4

a recurrence of disability. Additionally, exposure to new work factors constitutes an intervening 

cause, breaking the chain of causation from the May 7, 2013 injury.7

OWCP advised appellant by March 1, 2016 letter to submit rationalized medical evidence 

regarding whether the accepted right shoulder condition worsened as of February 3, 2016 as 

claimed. Appellant did not submit such evidence. Therefore, the Board finds that she has not 

met her burden of proof. 

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 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8

section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant 

must: (1) show that OWCP erroneously applied or interpreted a specific point of law; 

(2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute 

relevant and pertinent new evidence not previously considered by OWCP.9

 Section 10.608(b) 

provides that when an application for review of the merits of a claim does not meet at least one 

of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the 

application for reconsideration without reopening the case for a review on the merits.10 

In support of a request for reconsideration, an appellant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof.11 Appellant need only 

submit relevant and pertinent evidence not previously considered by OWCP.12 When reviewing 

an OWCP decision denying a merit review, the function of the Board is to determine whether 

OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s 

application for reconsideration and any evidence submitted in support thereof.13 

ANALYSIS -- ISSUE 2 

Appellant claimed that she sustained a recurrence of disability commencing 

February 3, 2016. OWCP denied the claim by decision dated April 13, 2016, finding that 

appellant had not established causal relationship. 

 7 Kenneth R. Love, 50 ECAB 193 (1998). 

8

 5 U.S.C. § 8128(a). 

9

 20 C.F.R. § 10.606(b)(3). 

10 Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008). 

11 Helen E. Tschantz, 39 ECAB 1382 (1988). 

12 See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002). 

13 Annette Louise, 54 ECAB 783 (2003). 
5

Appellant requested reconsideration on May 9, 2016. On May 17, 2016 OWCP denied 

her reconsideration request finding that it did not raise substantive legal questions or include 

relevant and pertinent new evidence. 

The Board finds that OWCP properly denied reconsideration. The critical issue in the 

April 13, 2016 merit decision was that appellant had not established causal relationship between 

the accepted right shoulder injury and the claimed recurrence of disability. To be relevant, any 

evidence submitted on reconsideration must address that issue. Appellant’s May 5, 2016 

reconsideration request did not contain any evidence or argument. She therefore failed to present 

any relevant evidence on the underlying issue of causal relationship and has failed to provide a 

basis for reopening the case.14 

As appellant has not met any of the criteria under 20 C.F.R. § 10.606(b)(3), OWCP 

properly denied merit review. 

CONCLUSION 

The Board finds that appellant has not established that she sustained a recurrence of 

disability commencing February 3, 2016, causally related to her accepted May 7, 2013 right 

shoulder injury. The Board further finds that OWCP properly denied appellant’s request for 

further merit review of his claim pursuant to 5 U.S.C. § 8128(a). 

 14 Joseph A. Brown, Jr., 55 ECAB 542 (2004).
6

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated May 17 and April 13, 2016 are affirmed. 

Issued: February 9, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board