United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.M., Appellant

and

DEPARTMENT OF THE NAVY, MARINE 

CORPS LOGISTICS BASE, Albany, GA, 

Employer

__________________________________________

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Docket No. 21-1310

Issued: March 7, 2022

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 24, 2021 appellant filed a timely appeal from an April 29, 2021 merit decision 

and an August 5, 2021 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

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish a recurrence 

of disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the August 5, 2021 decision, OWCP received additional evidence. However, 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.
2

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).

FACTUAL HISTORY

This case has previously been before the Board on separate issues. 3 The facts and 

circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The 

relevant facts are as follows.

On July 18, 2000 appellant, then a 46-year-old heavy mobile equipment mechanic, filed a 

traumatic injury claim (Form CA-1) alleging that on June 28, 2000 he injured his left shoulder and 

neck when installing a starter on an earthmover while in the performance of duty. He stopped 

work on June 28, 2000 and returned to work on July 10, 2000. OWCP accepted the claim, assigned 

OWCP File No. xxxxxx970 for right lateral epicondylitis and displacement of a cervical 

intervertebral disc without myelopathy.

OWCP accepted that appellant sustained a right-hand contusion, a crush injury of the right 

fingers, right carpal tunnel syndrome, a right Boutonniere deformity, and traumatic righ t hand 

arthropathy due to a May 8, 2001 employment injury under OWCP File No. xxxxxx500 and right 

carpal tunnel syndrome due to a June 5, 2003 employment injury under OWCP File No. 

xxxxxx576. It administratively combined these claims with OWCP File No. xxxxxx970, with the 

latter serving as the master file.

On December 9, 2004 the employing establishment notified appellant of its decision to 

remove him for cause. 

On July 23, 2019 OWCP expanded its acceptance of the claim to include impingement 

syndrome of the left shoulder. 

In a report dated March 10, 2020, Dr. John D. Marshall, who specializes in family 

medicine, diagnosed displacement of a cervical intervertebral disc without myelopathy, 

hypertension, and a shoulder injury. 

In an April 22, 2020 report, Dr. Robert V. Glover, Jr., a cardiologist, discussed appellant’s 

history of paroxysmal supraventricular tachycardia due to chemical exposure at work. 

In a progress report dated May 6, 2020, Dr. Jeffrey A. Fried, a Board-certified orthopedic 

surgeon, evaluated appellant for left arm weakness and noted that appellant was disabled and had 

not worked in two years. He diagnosed cervical disc displacement, right carpal tunnel syndrome, 

contracture at the proximal interphalangeal (PIP) joint of the right little finger, rotator cuff 

syndrome, left elbow bursitis, right shoulder pain, impingement syndrome of the left shoulder, a 

thyroid cyst, spondylolisthesis, grade 1, spondylolisthesis of the lumbar spine, and 

supraventricular tachycardia.

3 Docket No. 15-1477 (issued October 22, 2015); Docket Nos. 09-1090 and 09-0226 (issued March 8, 2010).
3

On June 25, 2020 appellant filed a claim for compensation (Form CA-7) for disability from 

work for the period March 5 to June 25, 2020. The employing establishment indicated on the form 

that he had been removed for cause on December 13, 2004.

In a development letter dated July 2, 2020, OWCP indicated that appellant was alleging a 

recurrence of disability on or around March 5, 2020. It noted that he had received schedule award 

compensation through March 5, 2020 and had not been in receipt of wage-loss compensation prior 

to the period of his schedule award. OWCP indicated that the employing establishment had 

terminated appellant for cause effective December 13, 2004. It notified him of the definition of a 

recurrence of disability and requested that he provide additional factual and medical information 

supporting that his accepted condition worsened such that he was disabled from employment. 

OWCP afforded appellant 30 days to respond to the request. 

In an undated response received July 28, 2020, appellant asserted that he had not worked

since June 2008. He noted that the Social Security Administration (SSA) had found that he was 

disabled in 2008. Appellant related that Dr. Fried had found that he was disabled under the current 

file number. He submitted a decision from SSA finding that he was disabled as of 

December 4, 2007. 

In a progress report dated August 5, 2020, Dr. Fried evaluated appellant for left shoulder 

pain and indicated that appellant was unable to work or perform overhead reaching. He diagnosed 

other cervical disc displacement, right carpal tunnel syndrome, contracture at the PIP joint of the 

right little finger, rotator cuff syndrome, left elbow bursitis, right shoulder pain, impingement 

syndrome of the left shoulder, a thyroid cyst, spondylolisthesis of the lumbar spine, and 

supraventricular tachycardia. Dr. Fried opined that appellant remained disabled.

By decision dated August 28, 2020, OWCP found that appellant had not established a 

recurrence of disability beginning March 5, 2020 causally related to his accepted June 28, 2000 

employment injury. 

On September 12, 2020 appellant requested a review of the written record by a 

representative of OWCP’s Branch of Hearings and Review. 

In a report dated October 6, 2020, Dr. Fried evaluated appellant for left shoulder pain. He 

noted that appellant had not worked in two years. Dr. Fried repeated the diagnoses in his prior 

report. He again opined that appellant remained disabled.

By decision dated December 9, 2020, OWCP’s hearing representative affirmed the 

August 28, 2020 decision. 

On January 12, 2021 Dr. Fried advised that appellant “remains unemployable. [Appellant]

has multiple orthopedic problems including cervical disc displacement, right carpal tunnel 

syndrome, contracture of right little finger, bursitis of left elbow, impingement and joint pain in 

right shoulder and left shoulder, and spondylolisthesis of the lumbar spine. In addition, [appellant]

has a history of supraventricular tachycardia with his heart.” He concluded that appellant was 

“disabled from participating in the economy.” In a January 12, 2021 progress report, Dr. Fried 

provided his previous diagnoses and noted that appellant remained disabled. 
4

On February 18, 2021 appellant requested reconsideration. He submitted an April 14, 2021 

progress report from Dr. Fried, who provided the same diagnoses and found that appellant

remained disabled. 

By decision dated April 29, 2021, OWCP denied modification of its December 9, 2020 

decision. 

Thereafter, appellant resubmitted the January 12 and April 14, 2021 reports from Dr. Fried

and a January 22, 2010 SSA decision, finding that appellant was disabled beginning 

December 4, 2007. He further submitted a March 2013 consultation report regarding his treatment 

for tachycardia and an October 9, 2014 cardiology report. 

In a rating decision dated June 1, 2021, the Department of Veterans Affairs (DVA) 

continued its finding that appellant was 50 percent disabled due to sleep apnea and 30 percent 

disabled due to supraventricular tachycardia. 

On July 20, 2021 appellant requested reconsideration. 

By decision dated August 5, 2021, OWCP denied appellant’s request for reconsideration 

as he had not submitted evidence or raised an argument sufficient to warrant reopening his claim 

for merit review under 5 U.S.C. § 8128(a). 

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 

compensable injury or illness and without an intervening injury or new exposure in the work 

environment.4 This term also means an inability to work because a light-duty assignment made 

specifically to accommodate an employee’s physical limitations and which is necessary because 

of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the 

employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for 

reasons of misconduct, nonperformance of job duties, or a reduction-in-force.5

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 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.6

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 

4

20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

5

Id.

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket 

No. 18-0334 (issued December 4, 2018).
5

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, on the basis of 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.7 Where no such rationale is present, 

the medical evidence is of diminished probative value.8 

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish a recurrence of 

disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment 

injury.

Appellant returned to work following his June 28, 2000 employment injury on 

July 10, 2000. In December 2004, the employing establishment removed him from employment 

for cause. 

On January 12, 2021 Dr. Fried opined that appellant remained disabled from employment. 

He diagnosed cervical disc displacement, right carpal tunnel syndrome, contracture of right little 

finger, bursitis of left elbow, impingement, joint pain in right shoulder and left shoulder, 

spondylolisthesis of the lumbar spine, and supraventricular tachycardia. Dr. Fried, however,failed 

to address the cause of appellant’s disability or its relationship to his accepted employment injury. 

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

employee’s condition or disability is of no probative value on the issue of causal relationship.9

In progress reports dated May 6, August 5, and October 6, 2020, Dr. Fried discussed 

appellant’s complaints of left shoulder pain and diagnosed other cervical disc displacement, right 

carpal tunnel syndrome, contracture at the PIP joint of the right little finger, rotator cuff syndrome, 

left elbow bursitis, right shoulder pain, impingement syndrome of the left shoulder, a thyroid cyst, 

and spondylolisthesis of the lumbar spine. On May 6, 2020 he noted that appellant had not worked 

in two years and was disabled. In his August 5 and October 6, 2020 reports, Dr. Fried indicated 

that appellant remained disabled. He, while finding that appellant was disabled, did not address 

whether the disability was causally related to the accepted employment injury. As noted, medical 

evidence that does not offer an opinion regarding the cause of an employee’s condition is of no 

probative value on the issue of causal relationship or disability.

10

 Without a specific opinion 

regarding how the accepted employment injury caused a recurrence of disability, Dr. Fried’s 

reports are insufficient to meet appellant’s burden of proof.11

7 L.O., Docket No. 19-0953 (issued October 7, 2019); J.D., Docket No. 18-0616 (issued January 11, 2019).

8 M.G., Docket No. 19-0610 (issued September 23, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019).

9 K.F., Docket No. 19-1846 (issued November 3, 2020); L.O., supra note 7; L.B., Docket No. 18-0533 (issued 

August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

10 See id.

11 See D.B., Docket No. 21-0503 (issued August 24, 2021).
6

In a March 10, 2020 report, Dr. Marshall diagnosed displacement of a cervical 

intervertebral disc without myelopathy, hypertension, and a shoulder injury. On April 22, 2020

Dr. Glover advised that appellant had a history of paroxysmal supraventricular tachycardia due to 

chemical exposure at work. As these reports, however, fail to address the issue of whether 

appellant was disabled from employment beginning March 2020, they are of no probative value.12 

As noted, appellant must submit rationalized medical evidence supporting causal 

relationship between the disabling conditions and the accepted injuries. Furthermore, the medical 

evidence must directly address the dates of disability for work for which compensation is 

claimed.13 None of the medical evidence of record provided a discussion of how appellant’s 

accepted conditions caused disability during the period in question. 14 Appellant, therefore, has not 

met 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 and 20 C.F.R. 

§§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application. 15

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.16

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.17 If it chooses to grant reconsideration, it reopens 

12 See R.J.,Docket No. 19-0179 (issued May 26, 2020); see also supra note 11.

13 L.V., Docket No. 19-1725 (issued April5, 2021); SandraD. Pruitt, 57 ECAB 126(2005).

14 Id.

15 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 

(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

16 20 C.F.R. § 10.606(b)(3);see L.D., id.;see also L.G.,Docket No. 09-1517 (issued March 3, 2010); C.N., Docket 

No. 08-1569 (issued December 9, 2008).

17 Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.

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. Supranote 6 at 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.
7

and reviews the case on its merits.18 If the request is timely, but fails to meet at least one of the 

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.19

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 has not established that OWCP erroneously applied or interpreted a specific 

point of law, or advanced a relevant legal argument not previously considered by OWCP. 

Consequently, he is not entitled to a review of the merits of his claim based on the first and second 

above-noted requirements under section 10.606(b)(3).20

The Board further finds that appellant has not provided any relevant and pertinent new 

evidence not previously considered. Appellant submitted a March 2013 report diagnosing 

tachycardia and an October 9, 2014 cardiology report. He also submitted a DVA rating decision 

finding that he was 50 percent disabled due to sleep apnea and 30 percent disabled due to 

supraventricular tachycardia. This evidence, however, is not relevant to the underlying issue of 

whether appellant has established a recurrence of disability beginning March 5, 2020 causally 

related to his accepted June 28, 2000 employment injury. The Board has held the submission of 

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

basis for reopening a case.21

Appellant resubmitted a January 22, 2010 SSA decision, finding that he was disabled 

beginning December 4, 2007 and reports from Dr. Fried dated January 12 and April 14, 2021. The 

Board has held, however, that evidence which repeats or duplicates evidence already in the case 

record does not constitute a basis for reopening a case for merit review. 22 Appellant has not 

provided relevant and pertinent new evidence and, thus, is not entitled to a merit review based on 

the third requirement under section 10.606(b)(3).23

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.24

18 Id. at § 10.608(a); see alsoF.V.,Docket No. 18-0239 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

19 Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April2, 2020); E.R.,Docket No. 09-1655 (issued 

March 18, 2010).

20 Id. at § 10.606(b)(3)(i) and (ii); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

21 See P.G., Docket No. 20-1419 (issued September 16, 2021); C.C., Docket No. 20-0950 (issued October 29, 

2020); Edward Matthew Diekemper, 31 ECAB 224 (1979).

22 See T.T., Docket No. 19-0559 (issued July 19, 2019); D.K., 59 ECAB 141 (2007); Eugene F. Butler, 36 ECAB 

393 (1984).

23 20 C.F.R. § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

24 T.G., Docket No. 20-0329 (issued October 19, 2020); C.C., Docket No. 17-0043 (issued June 15, 2018).
8

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a recurrence of 

disability beginning March 5, 2020 causally related to his accepted June 28, 2000 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 August 5 and April 29, 2021 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: March 7, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board