United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Loma Linda, CA, Employer 

__________________________________________ 

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Docket No. 14-465 

Issued: October 16, 2014 

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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 23, 2013 appellant filed a timely appeal of the July 10, 2013 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) which denied his request 

for reconsideration without conducting a merit review. Because more than 180 days elapsed 

since the most recent merit decision dated April 12, 2012 and the filing of this appeal on 

December 23, 2013, the Board lacks jurisdiction to review the merits of the claim pursuant to the 

Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration 

pursuant to § 8128(a). 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On August 18, 2009 appellant then a 48-year-old materials handler, injured his back 

while pulling a tire iron from his van at work. OWCP accepted his claim for sprain of the back, 

thoracic region. Appellant did not immediately stop work. 

Appellant was treated at an employing establishment medical center. On August 19, 

2009 he was treated by Dr. Bobby S. Chan, a Board-certified internist, for low back pain which 

developed after pulling a tire iron from his van. Appellant reported increasing back pain with 

numbness in the right hand and left leg. Dr. Chan diagnosed acute muscle spasm and strain and 

recommended light duty. 

On October 7, 2009 appellant was treated by Dr. Roland K. Baranov, a Board-certified 

internist, for persistent back pain. Dr. Chan diagnosed back pain and prescribed medication. An 

October 16, 2009 magnetic resonance imaging (MRI) scan of the thoracic spine revealed mild 

degenerative disc disease at T8-9. In treatment notes dated November 18 to 20, 2009 from the 

employing establishment, appellant was noted to have drug seeking behavior and it was 

recommended that he be considered for referral to the addictions clinic. An employing 

establishment employee health record for March 30, 2010 noted his treatment for chronic 

thoracic back pain that was exacerbated a week prior due to a lifting incident. Appellant was 

diagnosed with thoracic back strain, underlying degenerative disc disease and disc bulge. He 

submitted physical therapy notes from April 23 and 30, 2010. 

Appellant was treated by Dr. Sadia S. Khan, a resident physician, on May 5, 2010, for 

follow up of persistent middle and low back pain due to a work-related back sprain. Dr. Khan 

diagnosed chronic lumbar and thoracic pain and work-related back sprain injuries in 2008 and 

2009. Appellant continued working within restrictions. 

In a decision dated June 18, 2010, the employing establishment removed appellant from 

the position of materials handler effective June 18, 2010. In a June 18, 2010 notification of 

personnel action, it noted that he was removed from employment effective that date for failure to 

report to duty as scheduled and failure to follow proper leave request procedures. 

On July 20, 2010 OWCP referred appellant for a second opinion to Dr. Bunsri T. Sophon, 

a Board-certified orthopedist. It provided Dr. Sophon with appellant’s medical records, a 

statement of accepted facts dated July 20, 2010 as well as a detailed description of his 

employment duties. In an August 6, 2010 report, Dr. Sophon diagnosed thoracolumbar strain. 

He noted that appellant stopped work on June 16, 2010 and total disability ceased on 

August 6, 2010. Dr. Sophon noted that appellant continued to have residuals of the injury based 

on subjective complaints and objective findings. 

On July 27, 2011 appellant filed a Form CA-7, claim for compensation, for the period 

beginning June 21, 2010. He submitted a report from Dr. Williard L. Gilbert, Board-certified in 

emergency medicine, who treated him for chronic thoracic back pain and diagnosed exacerbation 

of chronic thoracic back pain. On June 10, 2009 appellant was seen by Dr. Anita Lee, a Boardcertified anesthesiologist, for multiple trigger point injections for an exacerbation of pain after a 

physical therapy appointment. On August 19, 2010 he was treated by Dr. Adewale B. Ajumobi, 
3

a Board-certified internist, for anxiety and back pain. Dr. Ajumobi noted that appellant had 

osteoarthrosis involving the spine. He diagnosed chronic back pain secondary to a work injury 

and anxiety. On March 11, 2011 Dr. Shawn Koh, a Board-certified internist, treated appellant 

for knee arthralgia and low back pain. He diagnosed hypertension, anxiety and degenerative 

spinal disease with back pain. 

In a decision dated December 14, 2011, OWCP denied appellant’s claim for 

compensation beginning June 21, 2010. It noted that the medical evidence was insufficient to 

support that he was temporarily totally disabled from June 21, 2010. Rather the evidence 

supported that appellant could have worked but for his removal for cause on June 18, 2010. 

On January 10, 2012 appellant requested a review of the written record. He submitted a 

July 31, 2008 x-ray of the lumbar spine which revealed a small posterior disc protrusion at 

L5-S1, no central canal stenosis and no neural foramina stenosis. 

In a decision dated April 12, 2012, an OWCP hearing representative affirmed the 

December 14, 2011 decision denying appellant’s claim for compensation. The hearing 

representative noted that the evidence supported that appellant had stopped working not because 

of his work injury but because his employment was terminated. 

On April 8, 2013 appellant requested reconsideration. He asserted that he was entitled to 

disability compensation because he had a permanent back injury and developed depression. 

Appellant referenced medical reports dated August 19, 2010 from Dr. Ajumobi and 

March 11, 2011 from Dr. Koh and indicated that these reports supported that he was totally 

disabled due to his work injury. He noted that he was permanently disabled due to his back 

injury and unable to perform his limited-duty materials handler job. Appellant asserted that he 

was denied medical care, that there was a medical conflict and the employing establishment 

poorly managed his case. He submitted a July 31, 2008 x-ray report of the lumbar spine, reports 

from the employing establishments medical center dated August 18, 2009 to August 19, 2010, a 

Form CA-1 dated October 15, 2009, an MRI scan of the thoracic spine dated October 16, 2009, a 

physical therapy note dated June 24, 2010 and a second opinion report from Dr. Sophon dated 

August 6, 2010, all previously of record. 

Appellant submitted new reports from the employing establishment providers dated 

June 20 to September 3, 2008, who treated him for low back pain and advised that he was totally 

disabled from July 21 to 31, 2008. He submitted occupational health reports and progress notes 

dated July 9, 2008 and March 30, 2010 from Dr. Andrew Guo, a Board-certified physiatrist, who 

treated him for a work-related thoracic spine injury and opined that he was disabled from 

July 9 to 13, 2008. Occupational health reports dated July 31, 2008 to September 24, 2009 from 

a nurse practitioner who noted that appellant was treated for a work-related thoracic spine injury 

and could work with restrictions. Appellant submitted light-duty job offers dated July 31 and 

September 24, 2008. He submitted a physical therapy report dated April 22, 2010. 

In an authorization to release information, Dr. Ajumobi noted appellant’s condition began 

in August 2009 and was chronic and limited his ability to perform certain tasks. He noted that 

appellant was able to work eight hours a day. In an August 12, 2010 physical capacities form, 

Dr. Ajumobi noted that appellant could work eight hours a day with restrictions. He further 
4

noted appellant’s medication caused him to be drowsy. Dr. Koh noted appellant’s condition 

began in August 2009, was chronic and limited his ability to perform certain tasks, but found 

appellant was able to work eight hours a day. In a March 11, 2011 physical capacities form, he 

also noted that appellant could work eight hours a day with restrictions. May 25, 2012 to 

June 21, 2013 reports from Dr. Koh diagnosed hypertension, anxiety disorder, mild depression, 

degenerative spinal disease with back pain and nicotine dependence. An April 4, 2012 report 

from Dr. Lee noted performing multiple trigger point injections into the thoracic spine. In 

reports dated July 5, 2012 and January 4, 2013, Dr. Anne T. Cipta, a Board-certified 

anesthesiologist, diagnosed bilateral S1 joint dysfunction and lumbalgia and performed bilateral 

joint injections. In reports dated October 3, 2012 and March 19, 2013 from Dr. David Kim, a 

Board-certified anesthesiologist, diagnosed bilateral S1 joint dysfunction and lumbalgia and 

performed trigger point injections. Appellant was treated by Dr. Ciprian R. Spenser, a 

psychiatrist, from November 26, 2012 to June 19, 2013, who diagnosed major depressive 

disorder, hypertension and chronic back pain. On February 15, 2013 he was treated by Dr. Mark 

Patuszynski, a Board-certified internist, for low back pain from a 2009 work injury. 

Dr. Patuszynski diagnosed chronic back pain. On February 19, 2013 appellant was treated by 

Dr. Daniel Saint-Elie, a Board-certified physiatrist, who diagnosed chronic low back pain, 

lumbar radiculopathy and history of lumbar myofascial pain syndrome and S1 joint arthropathy. 

On May 14, 2013 appellant was treated by Dr. Menandro Cunanan, a Board-certified physiatrist, 

for chronic low back pain and lumbar radiculopathy. He reported trigger point injections 

provided some relief but he still had pain. 

In a July 10, 2013 decision, OWCP denied appellant’s request for reconsideration on the 

grounds that the evidence submitted was insufficient to warrant a merit review. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for review 

on the merits. It must exercise this discretion in accordance with the guidelines set forth in 

section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may 

obtain review of the merits of his or her written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence that: 

“(1) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

(2) Advances a relevant legal argument not previously considered by OWCP; or 

(3) Constitutes relevant and pertinent new evidence not previously considered by 

OWCP.”3

 2 Id. at § 8128(a). 

3

 20 C.F.R. § 10.606(b)(2). 
5

Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.4

ANALYSIS 

OWCP denied appellant’s claim for compensation for the period beginning June 21, 2010 

on the grounds that the medical evidence was not sufficient to establish that his total disability 

was due to his accepted work injury but, rather, that he was removed from his job. Thereafter, it 

denied his reconsideration request, without a merit review. 

The issue presented on appeal is whether appellant met any of the requirements of 20 

C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. 

In his April 8, 2013 statement, appellant asserted that he was entitled to disability compensation 

as he had a permanent work injury and depression. He noted that he was permanently disabled 

due to his back injury and unable to perform his limited-duty materials handler job. Appellant 

asserted that he was denied medical care, that there was a conflict of medical opinion in his case 

and the employing establishment poorly managed his case. These general assertions do not show 

that OWCP erroneously applied or interpreted a specific point of law or advanced a relevant 

legal argument not previously considered by OWCP. The underlying issue in this case is 

whether the claimed period of disability was due to the accepted work injury. That is a medical 

issue which must be addressed by relevant new medical evidence.5

 

A claimant may be entitled to a merit review by submitting new and relevant evidence, 

however, no such evidence was forthcoming. While appellant submitted a July 31, 2008 x-ray 

report of the lumbar spine, reports from various health care providers at the employing 

establishment dated August 18, 2009 to August 19, 2010, a Form CA-1 dated October 15, 2009, 

an MRI scan of the thoracic spine dated October 16, 2009, a physical therapy note dated June 24, 

2010 and second opinion report from Dr. Sophon dated August 6, 2010. These reports are 

duplicative of evidence previously submitted and were considered and found insufficient by 

OWCP in its decision dated April 12, 2012. 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.6

 

Appellant submitted a statement from Dr. Ajumobi who noted appellant’s condition 

began in August 2009 and was chronic and limited his ability to perform certain tasks. 

Dr. Ajumobi noted that appellant was able to work eight hours a day. In a physical capacities 

form dated August 12, 2010, he noted that appellant could work eight hours a day with 

restrictions. Dr. Ajumobi noted appellant’s medication caused him to be drowsy. Similarly, 

Dr. Koh noted appellant’s condition began in August 2009, was chronic and limited his ability to 

perform certain tasks. In a physical capacities form dated March 11, 2011, however, he noted 

 4

 20 C.F.R. § 10.608(b). 

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

6 See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35 

ECAB 1090, 1093-94 (1984). 
6

that appellant could work eight hours a day with restrictions. In other reports dated 

May 25, 2012 to June 21, 2013, Dr. Koh diagnosed hypertension, anxiety disorder and mild 

depression, degenerative spinal disease with back pain and nicotine dependence. However, these 

reports do not support appellant’s claim for compensation beginning June 21, 2010. Rather 

Drs. Ajumobi and Koh opined that appellant could work full time subject to restrictions. The 

record indicates that appellant, in this case, stopped working in his light-duty position for reasons 

unrelated to his employment injuries.7

 

Appellant submitted an April 4, 2012 report from Dr. Lee, reports dated July 5, 2012 and 

January 4, 2013 from Dr. Cipta and reports dated October 3, 2012 and March 19, 2013 from 

Dr. Kim. Although these reports are new, they are not relevant because they do not address the 

particular issue involved, namely whether appellant was totally disabled beginning June 21, 2010 

causally related to his employment injury. Therefore, this new evidence is not relevant and is 

insufficient to warrant reopening the case for a merit review. Likewise, the February 15, 2013 

report from Dr. Patuszynski, the February 19, 2013 report from Dr. Saint-Elie, the May 14, 2013, 

report from Dr. Cunanan and the November 26, 2012 to June 19, 2013 reports from Dr. Spenser 

are not relevant because they do not specifically address the issue of whether appellant was 

totally disabled beginning June 21, 2010 causally related to his employment injury. Other newly 

submitted medical evidence is not relevant because it significantly predates the time in which 

appellant claimed compensation. 

Other evidence submitted included occupational health reports and progress notes dated 

July 31, 2008 to September 24, 2009 from a nurse and a physical therapy report dated 

April 22, 2010. The Board has held that treatment notes signed by a nurse or physical therapist 

are not considered medical evidence as these providers are not a physician under FECA.8 

Appellant submitted reports from a nonspecific health care provider dated June 20 to 

September 3, 2008, but there is no evidence that these documents are from a physician. Medical 

documents not signed by a physician are not probative medical evidence and do not establish 

appellant’s claim.9

 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP or 

submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

 7

 When a claimant stops working at the employing establishment for reasons unrelated to his or her employmentrelated physical condition, he has no disability within the meaning of FECA. See John W. Normand, 39 ECAB 

1378 (1988). 

8 See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical 

therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a 

‘‘physician’’ as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic 

practitioners within the scope of their practice as defined by State law). 

9 See R.M., 59 ECAB 690 (2008); Bradford L. Sullivan, 33 ECAB 1568 (1982) (where the Board held that a 

medical report may not be considered as probative medical evidence if there is no indication that the person 

completing the report qualifies as a “physician” as defined in FECA). 
7

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration. 

ORDER 

IT IS HEREBY ORDERED THAT the July 10, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 16, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board