United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Mobile, AL, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1875 

Issued: August 23, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 6, 2016 appellant filed a timely appeal from a March 14, 2016 merit decision 

and a May 20, 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 met his burden of proof to establish a recurrence of 

disability on or after September 1, 2015 due to his accepted work injury; and (2) whether OWCP 

properly denied appellant’s request for reconsideration of the merits of his claim pursuant to 

5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 19, 2015 appellant, then a 52-year-old city carrier, filed an occupational 

disease claim (Form CA-2) for a low back condition that he attributed to performing repetitive 

work duties over time, including opening and closing the door to his postal vehicle, getting in 

and out of the vehicle, and pulling the handbrake on the vehicle. He indicated that he first 

became aware of his claimed condition on December 1, 2014 and first realized on January 15, 

2015 that it was caused or aggravated by his federal employment. 

In a report dated February 10, 2015, Dr. John Hamilton, an attending Board-certified 

occupational medicine physician, noted that appellant reported experiencing pain and swelling in 

his low back.2

 He indicated that, upon physical examination of the back, appellant’s reported 

pain on motion of the back was “almost gone.” There was no swelling or pain on palpation of 

the back, and range of back motion had improved. Dr. Hamilton diagnosed lumbar 

sprains/strains and restricted appellant from lifting more than 20 pounds, performing overhead 

work, and bending, twisting, or stooping for more than 20 minutes. 

On February 23, 2015 Dr. Hamilton indicated that his examination on that date revealed 

normal lumbar/back range of motion and no back pain upon palpation or motion. He advised 

that appellant could return to regular duty. 

On March 31, 2015 OWCP accepted appellant’s claim for lumbar sprain. 

On September 23, 2015 appellant filed a notice of recurrence (Form CA-2a) claiming a 

recurrence of disability on September 1, 2015 due to the accepted work injury. He indicated that 

beginning approximately September 1, 2015 he experienced a worsening of his low back 

symptoms, including pain, tightness, and swelling, which made it more difficult to perform his 

work duties.3

 

Appellant submitted a September 21, 2015 report from Dr. Hamilton who listed the date 

of injury as January 17, 2015 and noted continuing complaints of back pain and swelling. 

Dr. Hamilton diagnosed lumbar sprains/strains and indicated that appellant could not lift over 

20 pounds and could only occasionally engage in bending, twisting, and stooping. In a duty 

status report (Form CA-17) dated September 21, 2015, he indicated that appellant could not 

perform his regular work, but that he could work with restrictions. Dr. Hamilton diagnosed 

lumbar spine strain and provided work restrictions of no lifting over 20 pounds and only 

occasional bending, twisting, and stooping. He limited appellant’s “route work” to six hours per 

day. 

OWCP interpreted appellant’s September 23, 2015 Form CA-2a as a claim for a 

recurrence of disability on September 1, 2015 due to the accepted lumbar sprain and, in an 

 2

 Dr. Hamilton listed the date of injury as January 17, 2015, but he did not provide any explanation for listing 

such a date of injury. The evidence of record does not contain a claim for a January 17, 2015 work injury. 

3

 Appellant placed a question mark next to the portion of the Form CA-2a asking him to indicate whether he was 

claiming a recurrence due to time loss from work or a recurrence due to medical treatment only. He did not stop 

work around the time he filed the Form CA-2a. 
3

October 9, 2015 letter, it requested that he submit additional factual and medical evidence in 

support of his claim. It requested that he submit a physician’s opinion supported by a medical 

explanation as to the relationship between his disability/condition and the accepted work 

condition within 30 days. 

In an October 12, 2015 report, Dr. Hamilton listed the date of injury as January 17, 2015 

and noted that appellant reported “the problem began on January 17, 2015.”4

 He indicated that 

his October 12, 2015 examination revealed normal back range of motion and no pain upon 

palpation of the back, but also showed pain over the back upon motion. Dr. Hamilton diagnosed 

sprain of lumbar spine ligaments and recommended restricted work status from October 12 to 19, 

2015, including no lifting over 20 pounds and only occasional bending, twisting, and stooping 

(20 minutes per hour). 

In an October 19, 2015 report, Dr. Hamilton indicated that examination on that date 

revealed normal range of back motion and no back pain upon palpation or motion. He advised 

that appellant could return to regular duty effective October 19, 2015. 

On October 26, 2015 Dr. Hamilton diagnosed sprain of lumbar spine ligaments and 

recommended that appellant work restricted duty from October 26 to November 11, 2015. The 

only work restriction he mentioned was no working over eight hours per day.5

 

In a decision dated November 20, 2015, OWCP denied appellant’s claim for a recurrence 

of disability on or after September 1, 2015 because he failed to submit medical evidence 

establishing a worsening of his accepted work-related condition which caused work stoppage. 

On January 12, 2016 appellant requested reconsideration of OWCP’s November 20, 2015 

decision. He indicated that he was submitting a handwritten statement from Dr. Hamilton, but 

appellant did not submit any such statement. 

In a September 28, 2015 report, Dr. Hamilton indicated that his examination on that date 

revealed normal range of back motion and no pain upon palpation of the back, but also showed 

pain over the back upon motion and the presence of back spasms. He diagnosed lumbar 

sprains/strains and indicated that appellant should be on restricted duty from September 28 to 

October 4, 2015, including no lifting over 20 pounds and only occasional bending, twisting, and 

stooping. 

In a November 11, 2015 report, Dr. Hamilton indicated that appellant could perform 

regular duty from November 11 to December 2, 2015. On December 2, 2015 he noted that 

appellant could perform regular duty from December 2, 2015 to January 4, 2016. 

 4

 In all of his subsequent reports in the evidence of record, Dr. Hamilton listed the date of injury as January 17, 

2015 without any further explanation. 

5

 Appellant also submitted reports from his attending physical therapists describing physical therapy sessions 

beginning on September 25, 2015. 
4

In a March 14, 2016 decision, OWCP denied appellant’s claim for a work-related 

recurrence of disability on or after September 1, 2015. It noted that the new evidence submitted 

by appellant was insufficient to meet his burden of proof to establish his claim. 

On May 10, 2016 appellant requested reconsideration of OWCP’s March 14, 2016 

decision denying his recurrence claim. He asserted that his continuing back condition was work 

related. Appellant indicated that he had enclosed a “detail[ed] statement of my work-related 

injury and aggravations,” but no such statement was enclosed. 

Appellant resubmitted Dr. Hamilton’s February 10, 2015 report. He also submitted an 

April 28, 2016 report of Dr. Donald Ellis, an attending chiropractor. Dr. Ellis indicated that 

appellant’s bilateral knee and plantar fasciitis problems affected the spinal problems in his 

cervical, thoracic, and lumbar spines. He described his treatment of appellant’s medical 

condition through manual spinal manipulation and electric muscle stimulation, and indicated that 

appellant should not be pressed into work he could not physically withstand. 

By decision dated May 20, 2016, OWCP denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence and argument 

he had submitted in support of his reconsideration request was either repetitive or irrelevant. 

LEGAL PRECEDENT -- ISSUE 1 

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 

injury or illness without an intervening injury or new exposure to the work environment that 

caused the illness.6

 Where an employee claims a recurrence of disability due to an accepted 

employment-related injury, he or she has the burden of proof to establish that the recurrence is 

causally related to the original injury.7 This burden includes the necessity of furnishing evidence 

from a qualified physician who concludes that the condition is causally related to the 

employment injury.8 The physician’s opinion must be based on a complete and accurate factual 

and medical history and supported by sound medical reasoning.9

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s occupational disease claim for lumbar sprain. As of 

February 23, 2015, appellant’s treating physician, Dr. Hamilton, discharged appellant from 

treatment and advised that he was able to resume his regular duties. On September 23, 2015 

appellant filed a notice of recurrence and he identified September 1, 2015 as the date of 

 6

 20 C.F.R. § 10.5(x). 

7 Id. at § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 and 

2.1500.6 (June 2013). 

8 See S.S., 59 ECAB 315, 318-19 (2008). 

9 Id. at 319. 
5

recurrence. Although he continued to work, he claimed that his work-related condition had 

worsened such that he had difficulty performing his employment duties. 

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

recurrence on or after September 1, 2015 due to his accepted work injury. 

Appellant submitted a September 21, 2015 report from Dr. Hamilton, an attending 

physician, who listed the date of injury as January 17, 2015 and noted continuing complaints of 

back pain and swelling. Dr. Hamilton diagnosed lumbar sprains/strains and indicated that 

appellant could not lift over 20 pounds and could only occasionally engage in bending, twisting, 

and stooping. In a September 21, 2015 Form CA-17, he indicated that appellant could not 

perform his regular work, but that he could work with restrictions. Dr. Hamilton diagnosed 

lumbar spine strain and provided work restrictions of no lifting over 20 pounds, no more than six 

hours of route work per day, and only occasional bending, twisting, and stooping. 

The Board finds that the submission of these reports do not establish appellant’s claim for 

a work-related recurrence on or after September 1, 2015 because they are of limited probative 

value on the relevant issue of this case. Dr. Hamilton did not provide a clear opinion that the 

recommended work restrictions were necessitated by the accepted lumbar sprain.10 He did not 

describe the accepted work condition in any detail or present objective findings showing that 

appellant’s lumbar condition worsened such that the delineated work restrictions were required. 

The Board has held that medical evidence that does not offer a clear opinion regarding the cause of 

an employee’s condition is of limited probative value on the issue of causal relationship.11

In a September 28, 2015 report, Dr. Hamilton diagnosed lumbar sprains/strains and 

indicated that appellant should be on restricted duty from September 28 to October 4, 2015, 

including no lifting over 20 pounds and only occasional bending, twisting, and stooping. In an 

October 12, 2015 report, he recommended restricted work status from October 12 to 19, 2015 

and provided work restrictions similar to those contained in his September 28, 2015 report. 

In an October 19, 2015 report, Dr. Hamilton discharged appellant to return to regular 

duty, but just a week later on October 26, 2015, he diagnosed sprain of lumbar spine ligaments 

and recommended that appellant work restricted duty from October 26 to November 11, 2015, 

with “[n]o work over eight hours per day.” The Board finds that the October 26, 2015 report is 

also of limited probative value regarding appellant’s claim for a work-related recurrence on or 

after September 1, 2015. Again, Dr. Hamilton did not provide a clear opinion that the 

recommended work restrictions were necessitated by the accepted work injury.12 He did not 

provide a rationalized medical opinion relating the need for work restrictions to appellant’s 

accepted work condition, and his report did not otherwise establish that appellant’s work-related 

condition worsened such that he could not perform his regular city carrier duties on or after 

 10 In this report and all subsequent reports, Dr. Hamilton listed the date of injury as January 17, 2015. He did not 

provide any clarification of why he listed this date of injury, other than noting in a later report that appellant reported 

that “the problem began on January 17, 2015.” 

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

12 See id. 
6

September 1, 2015. The Board has held that the medical evidence required to establish causal 

relationship generally is rationalized medical opinion evidence, and appellant failed to submit 

such medical evidence in support of his recurrence of disability claim.13

For these reasons, the Board finds that appellant failed to establish a work-related 

recurrence on or after September 1, 2015 and has thus failed to meet his 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,14

OWCP’s regulations provide that the evidence or argument submitted by 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.15 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must 

be received within one year of the date of that decision.16 When a claimant fails to meet one of 

the above standards, OWCP will deny the application for reconsideration without reopening the 

case for review on the merits.17 The Board has held that the submission of evidence or argument 

which repeats or duplicates evidence or argument already in the case record18 and the submission 

of evidence or argument which does not address the particular issue involved does not constitute a 

basis for reopening a case.19 

 13 F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003). On appeal, appellant 

argues that he continues to have back symptoms, but the Board has explained that the medical evidence does not 

establish disability on or after September 1, 2015 due to a worsening of the accepted work-related injury. The Board 

further notes that, in several reports produced after September 1, 2015, Dr. Hamilton indicated that appellant could 

work regular duty. As noted, in an October 19, 2015 report, he advised that appellant could return to regular duty 

effective October 19, 2016. On November 11, 2015 Dr. Hamilton indicated that appellant could perform regular 

duty from November 11 to December 2, 2015 and, on December 2, 2015, he noted that appellant could perform 

regular duty from December 2, 2015 to January 4, 2016. 

14 Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a). 

15 20 C.F.R. § 10.606(b)(3). 

16 Id. at § 10.607(a). 

17 Id. at § 10.608(b). 

18 Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980). 

19 Edward Matthew Diekemper, 31 ECAB 224-25 (1979). 
7

ANALYSIS -- ISSUE 2 

OWCP issued a decision on March 14, 2016. Appellant requested reconsideration of this 

decision in a letter received by OWCP on May 10, 2016. 

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. In his 

application for reconsideration, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. He did not identify a specific point of law or show that it was 

erroneously applied or interpreted, nor did he advance a new and relevant legal argument not 

previously considered by OWCP. In his letter requesting reconsideration, appellant argued that 

he continued to have work-related back problems causing disability beginning 

September 1, 2015. The underlying issue in this case was whether appellant submitted probative 

medical evidence establishing a recurrence of disability on or after September 1, 2015 due to his 

accepted work injury, a lumbar sprain. That is a medical issue that must be addressed by 

relevant medical evidence.20 A claimant may be entitled to a merit review by submitting relevant 

and pertinent new evidence, but appellant did not submit any such evidence in this case. 

In connection with his reconsideration request, appellant resubmitted Dr. Hamilton’s 

February 10, 2015 report, which did not pertain to the claimed recurrence on or about 

September 1, 2015. It is not only irrelevant, but the submission of this evidence would not 

require reopening appellant’s claim for merit review because the Board has held that evidence 

which repeats or duplicates evidence already in the case record does not constitute a basis for 

reopening a case.21 Moreover, the submission of evidence or argument which does not address the 

particular issue included does not constitute a basis for reopening a case.22 

Appellant also submitted an April 28, 2016 report of Dr. Ellis, an attending chiropractor. 

The submission of this evidence would not require reopening appellant’s claim for merit review 

because it is not relevant to his recurrence of disability claim and the Board has held that the 

submission of evidence or argument which does not address the particular issue involved does not 

constitute a basis for reopening a case.23 The April 28, 2016 report of Dr. Ellis is not relevant to 

the main issue of this case because he is not a physician within the meaning of FECA and his 

report does not constitute probative medical evidence. Under section 8101(2) of FECA, 

chiropractors are only considered physicians, and their reports considered medical evidence, to the 

extent that they treat spinal subluxations as demonstrated by x-ray to exist.24 In this instance, 

 20 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

21 See John F. Critz, 44 ECAB 788, 794 (1993). 

22 See supra note 19. 

23 Id. 

24 5 U.S.C. § 8101(2). See Jack B. Wood, 40 ECAB 95, 109 (1988). OWCP’s regulations define subluxation as 

an incomplete dislocation, off-centering, misalignment, fixation or abnormal spacing of the vertebrae which must be 

demonstrable on any x-ray film to an individual trained in the reading of x-rays. 20 C.F.R. § 10.5(bb); see also 

Bruce Chameroy, 42 ECAB 121, 126 (1990). 
8

Dr. Ellis did not indicate that appellant had a spinal subluxation as demonstrated by x-rays to 

exist. 

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied 

merit review. 

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish a recurrence of 

disability on or after September 1, 2015 due to his accepted work 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 May 20 and March 14, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: August 23, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board