United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, UNITED STATES 

PENITENTIARY McCREARY, Pine Knot, KY,

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 23-0431

Issued: December 18, 2023

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 appellantfiled a timely appealfroman 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.
2

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.
3

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 FECA3 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).
4

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 April11, 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).
5

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).
6

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 abovenoted 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 (April14, 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).
7

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