United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.K., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

LOMA LINDA HEALTHCARE SYSTEM, 

Loma Linda, CA, Employer 

__________________________________________ 

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Docket No. 16-0297 

Issued: April 27, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

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 December 7, 2015 appellant, through counsel, filed a timely appeal from the 

August 11, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days elapsed between the last merit decision of OWCP dated November 24, 

2014 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1

 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this 

case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

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

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that on June 17, 2013 appellant, then a 64-year-old nurse, sustained a 

left elbow contusion when she slipped and fell on a slippery wet floor at work. 

On November 8, 2013 appellant filed a claim for compensation (Form CA-7) for leave 

without pay (LWOP) from November 5 to 16, 2013. An October 10, 2013 progress note from 

appellant’s physical therapist provided a history of the June 17, 2013 employment injury and 

addressed the treatment of appellant’s left shoulder pain. 

Also provided were medical reports dated June 20 to September 19, 2013, from 

Dr. Michael Oliverio, Jr., a Board-certified family practitioner, who provided a history of the 

June 17, 2013 employment injury and appellant’s medical, family, and social background. He 

reported findings and assessed, among other things, shoulder, hip, back, and thigh pain, and a 

bruising huge hematoma. Dr. Oliverio recommended diagnostic testing of the left shoulder, 

lumbar spine, and left lower extremity, and referred appellant to physical therapy. In an 

August 5, 2013 report, he extended appellant’s time off work until December 30, 2013. 

By letter dated November 22, 2013, OWCP requested that appellant submit 

contemporaneous medical evidence explaining the medical necessity for time off work. It noted 

that the last medical report received was Dr. Oliverio’s September 19, 2013 report.2

In a November 21, 2013 visit summary report, Dr. Oliverio noted that appellant presented 

for a follow-up evaluation of her left shoulder pain. He described a history that her pain started 

four months ago due to a fall. Dr. Oliverio noted appellant’s diagnoses which included shoulder, 

thigh, and back pain due to a slip and fall at work. He provided her plan of care which included 

referral to a neurologist for evaluation of her persistent left shoulder, back, left thigh, and left leg 

pain. 

In a July 16, 2013 report, Dr. Barney S. Grames, a Board-certified orthopedic surgeon, 

provided a history that on June 19, 2013 appellant fell at work. He noted her history and 

complaint of sharp aching pain in her left shoulder, elbow, hip, and leg. Appellant was not 

currently working. Dr. Grames reported findings on physical examination and diagnostic testing. 

He provided an impression of left shoulder adhesive capsulitis, and left shoulder, elbow, and hip 

contusions due to the June 19, 2013 work injury, mild degenerative arthritis of the left shoulder 

glenohumeral joint and acromioclavicular joint, left elbow contusion and epicondylitis, and left 

hip greater trochanteric bursitis and mild degenerative arthritis. Dr. Grames advised that 

appellant could perform modified duty with no lifting over 10 pounds and no overhead work. He 

opined that her left elbow, left shoulder, and left hip conditions were industrial in nature. 

 2

 The Board notes that it appears OWCP inadvertently stated that Dr. Oliverio’s report was dated September 9, 

2013 rather than September 19, 2013. The Integrated Federal Employees’ Compensation System (iFECS) indicates 

that Dr. Oliverio’s report was dated September 19, 2013 and was the last report received by OWCP prior to the 

issuance of its November 22, 2013 developmental letter. 
3

A December 23, 2013 certificate to return to work/school from Oliverio Medical Group 

contained an unknown signature and indicated that appellant had a left shoulder injury. Her time 

off work was extended to January 30, 2014. 

In a February 20, 2014 decision, OWCP denied appellant’s claim for compensation from 

November 5 to 16, 2013. It found that she had failed to submit rationalized medical evidence to 

establish her disability for work during the claimed period due to her accepted June 17, 2013 

employment injury. 

By letter dated March 14, 2014, appellant, through counsel, requested a telephone hearing 

with an OWCP hearing representative. 

In an undated letter and visit summary reports dated June 20, 2013 to February 20, 2014, 

Dr. Oliverio diagnosed left shoulder pain spasm, a fall at work, hip and thigh injury, undefined 

numbness of the left hip, and muscle spasms. He reiterated diagnoses of left hip, thigh, and back 

pain and hematoma of the hip. Physical therapy progress notes addressed the treatment of left 

shoulder joint pain and lumbar conditions from August 16, 2013 to April 3, 2014. 

In a left hip magnetic resonance imaging (MRI) scan report dated December 20, 2013, 

Dr. Greg Peters, a Board-certified radiologist, diagnosed very minimal spurring of the left 

femoral head and superolateral acetabulum consistent with very mild osteoarthritis. No 

paralabral cyst or subchondral cyst were seen. Dr. Peters advised that the MRI scan was 

otherwise negative. In a December 20, 2013 left shoulder MRI report, Dr. Peters found 

postsurgical changes from a prior rotator cuff repair. Suture anchors were in the region of the 

supraspinatus and its junction of the infraspinatus. There was a fluid cleft compatible with 

nonwatertight repair or low-grade partial-thickness tear. Dr. Peters suspected prior 

acromioplasty. He found a small acromioclavicular joint ossicle or tiny unfused os acromiale 

without edema. There was very minimal spurring of the glenohumeral joint space. 

A January 14, 2014 progress note from Dr. Wesley P. Phipatanakul, a Board-certified 

orthopedic surgeon, provided a history of the June 17, 2013 employment injury and examination 

findings. He assessed left shoulder pain from the June 17, 2013 injury and status post left 

shoulder arthroscopic rotator cuff repair performed by him in September 2007. Dr. Phipatanakul 

noted that, since her June 2013 work injury, appellant had been unable to return to work. 

In a January 23, 2014 report, Dr. Kenneth G. Jordan, a Board-certified internist, provided 

a history of the June 17, 2013 employment injury and examination findings. He diagnosed 

“7802”3

 and indicated that an MRI scan was needed to rule out radiculopathy. Dr. Jordan 

provided an impression of left upper and lower extremity radiating paresthesias following 

appellant’s June 17, 2013 fall at work. He recommended diagnostic testing to rule out 

radiculopathy. In a March 3, 2014 note, Dr. Jordan placed appellant off work through March 31, 

2014 due to a consultation with a spine surgeon. In a February 18, 2014 nerve conduction study 

report, he provided an impression of severe right carpal tunnel syndrome and mild left carpal 

tunnel syndrome. There was no evidence of radiculopathy or peripheral neuropathy. 

 3

 A diagnosis of 7802 is a syncope and collapse. 
4

Certificates to return to work/school dated August 5, 2013 to January 27, 2014 and a 

prescription dated June 20, 2014 from Oliverio Medical Group contained the same prior 

unknown signature and indicated that appellant had a traumatic left shoulder injury secondary to 

a fall, and pain and numbness in her left thigh and left shoulder. She was disabled intermittently 

for work from June 20, 2013 to February 7, 2014. 

An unsigned report dated February 26, 2014 from Jordan Neuroservices provided 

appellant’s history regarding her June 17, 2013 employment injury and examination findings. 

Appellant was diagnosed as having “7802.” A consultation with a spine surgeon was 

recommended as it was not clear whether surgery was required at that time. 

In a March 25, 2014 report, Dr. Baher Nashat Boctor, an employing establishment 

physician Board-certified in anesthesiology, referred appellant for physical therapy to treat her 

lumbar stenosis, lumbar radiculopathy, and lumbar degenerative disc disease. 

In letters dated March 31 to August 28, 2014, Dr. William Wel-Jan Jih, a Board-certified 

family practitioner, found that appellant was disabled intermittently for work from March 31 to 

December 1, 2014. In an October 27, 2014 progress note, he provided appellant’s history 

regarding her June 17, 2013 employment injury and examination findings. Dr. Jih assessed the 

need for prophylactic vaccination and inoculation against influenza, bilateral carpal tunnel 

syndrome, hypertension, and a preoperative examination. 

In an October 7, 2014 progress note, Dr. Subhas Chandra Gupta, a Board-certified 

anesthesiologist, provided a history of the June 17, 2013 employment injury, appellant’s medical 

background, and findings on physical examination. He provided an impression of bilateral 

carpal tunnel syndrome, lumbar radiculopathy, and lumbar spinal stenosis. Dr. Gupta 

recommended carpal tunnel release. 

In an October 27, 2014 progress note, Dr. Boctor noted appellant’s complaints of low 

back and neck pain, and headaches since her June 17, 2013 work-related fall. He provided a 

history of her medical background and findings on examination. Dr. Boctor reiterated his 

assessment of lumbar stenosis, lumbar radiculopathy, and lumbar degenerative disc disease. He 

also assessed lumbar spondylosis, lumbar facet arthropathy, and myofascial neck pain. 

 Progress notes dated March 18 to October 27, 2014 from Dr. Gupta, Dr. Boctor, 

Dr. Farbod Asgarzadie, a Board-certified neurosurgeon, and Dr. Jih provided appellant’s history 

and examination findings. The physicians diagnosed, among other things, bilateral carpal tunnel 

syndrome, lumbar radiculopathy, lumbar spinal stenosis, cervical spinal stenosis, lumbar 

spondylosis, lumbar degenerative disc disease with back pain, lumbar facet arthropathy, 

myofascial neck pain, lower extremity symptoms, and left shoulder pain, since the June 17, 2013 

employment injury. Physical therapy progress notes from April 3 to August 27, 2014 noted 

treatment of appellant’s low back pain. The treatment of her shoulder joint pain, lumbar 

stenosis, and lumbar radiculopathy were addressed. 

In a November 24, 2014 decision, an OWCP hearing representative affirmed the 

February 20, 2014 decision, finding that there was no rationalized medical opinion supporting 

appellant’s claimed disability commencing November 5, 2013 due to her accepted work injury. 
5

By letter dated May 8, 2015, appellant requested reconsideration of the November 24, 

2014 decision. She contended that medical records from her previous primary physician and 

specialist physicians, and notes from her rehabilitation physical therapists were not 

comprehensively reviewed, correlated, and considered in relation to her fall. Appellant 

maintained that all these notes revealed how she was examined and treated and how all of her 

symptoms and diagnoses of cervical and lumbar spine stenosis progressively developed and 

worsened after her fall. She asserted that both of these major medical problems were confirmed 

by MRI scan results. Appellant contended that based on a call from an employing establishment 

human resources specialist in January 2015, she realized that since her June 17, 2013 fall she was 

inadequately informed about what to do as an injured employee and that she should have seen 

workers’ compensation physicians and submitted appropriate documentation related to an 

incident report. Appellant noted that she had since submitted a picture that showed where she 

fell when she accidently stepped on a wet sign board that had fallen in front of her. The picture 

proved that the scratches on her elbow resulted from being thrown to an angular sharp part of the 

wall where her coworkers found her on her back with her right hand under her neck. Appellant 

claimed that her fall caused a hematoma and bruises on the left side of her body and extremities, 

and a right hand and wrist injury which required surgery. 

Appellant also claimed that a diagnosis and appropriate treatment were delayed. 

Dr. Oliverio wanted to rule out internal injury, but OWCP and appellant’s personal health 

insurance carrier refused to authorize an MRI scan. Instead, OWCP personnel advised 

Dr. Oliverio to initiate physiotherapy first. Appellant contended that she and Dr. Oliverio had 

relentlessly requested guidance in writing from claims examiners, but they did not receive any 

help until March 10, 2015 when Whitney Synder provided written documentation about the 

guidelines. She concluded that she was still in the same medical condition suffering and 

struggling day and night due to all of her worsened symptoms of severe back pain, pedal/leg, and 

sharp painful cramps from uncontrolled positions especially while asleep. 

In a March 25, 2014 progress note, Dr. Boctor provided a history of appellant’s medical 

and social background and noted that she complained about chronic low back pain for years. He 

reported findings and reviewed diagnostic test results. Dr. Boctor reiterated his assessment of 

lumbar stenosis, lumbar radiculopathy, lumbar spondylosis, lumbar degenerative disc disease, 

and lumbar facet arthropathy. In a November 3, 2014 addendum note, he clarified that when 

appellant presented to his clinic on March 25, 2014, she reported that her back pain had been 

aggravated for the last few months before her visit. 

An April 2, 2015 State of California Doctor’s First Report of Occupational Injury or 

Illness form signed by Dr. Michael D. Wade, Board-certified in emergency medicine, related that 

the June 18, 2013 work injury occurred when appellant accidentally slipped on a wet/waxed 

floor wet sign that had been leaning against a wall and fell. Appellant attempted to maintain her 

balance by holding onto a wall. Dr. Wade referred to an attached supplemental report regarding 

appellant’s subjective complaints and his objective findings and diagnoses. He checked a box 

marked “no” to the question of whether his findings and diagnosis were consistent with 

appellant’s account of injury or onset of illness. Dr. Wade also checked a box marked “no” to 

the question of whether there was any other current condition that would impede or delay 

appellant’s recovery. In the accompanying supplemental report, he noted that appellant had 

subjective complaints related to her neck, back, wrist, hand, ankle, and lower leg. Dr. Wade 
6

reported findings of his April 2, 2015 physical examination. He diagnosed cervicalgia, lumbago, 

pain in the joints of the shoulder region, forearm, hand, left ankle, left foot, and soft tissues of the 

left lower leg. Dr. Wade recommended a comprehensive evaluation by a different treating 

physician as he was an acute and subacute treating physician. 

In an August 11, 2015 decision, OWCP denied further merit review of appellant’s claim. 

It found that the evidence submitted was irrelevant or immaterial. 

LEGAL PRECEDENT 

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

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.4

 Section 10.608(a) of OWCP’s regulations provide that a timely 

request for reconsideration may be granted if OWCP determines that the claimant has presented 

evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).5

 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (i) shows that OWCP 

erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal 

argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new 

evidence not previously considered by OWCP.6 Section 10.608(b) provides that when a request 

for reconsideration is timely but fails to meet at least one of these three requirements, OWCP 

will deny the application for reconsideration without reopening the case for a review on the 

merits.7

ANALYSIS 

On May 8, 2015 appellant requested reconsideration of the November 24, 2014 hearing 

representative’s decision that she was not entitled to compensation for total disability from 

November 5 to 16, 2013 resulting from the June 17, 2013 employment injury. The underlying 

issue on reconsideration is medical in nature, whether appellant was totally disabled during the 

claimed period due to her accepted June 17, 2013 employment injury. 

The Board finds that appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. Moreover, appellant did not advance a relevant legal 

argument not previously considered. In her May 8, 2015 request for reconsideration, she 

contended that OWCP ignored the medical evidence from her physicians and physical therapists 

which established that her cervical and lumbar spinal stenosis, confirmed by MRI scan results, 

and continuing symptoms were related to her accepted employment injury. Appellant expressed 

her frustration with the workers’ compensation process, contending that the employing 

establishment did not adequately inform her about obtaining medical treatment and submitting 

 4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.608(a). 

6 Id. at § 10.606(b)(3). 

7 Id. at § 10.608(b). 
7

appropriate documentation related to an incident report. She maintained that a picture showing 

where she fell on June 17, 2013 proved that she sustained a hematoma and bruises on the left 

side of her body and extremities, and a right hand and wrist injury which required surgery. 

Appellant claimed that her diagnosis and appropriate treatment were delayed and described the 

difficulty she and Dr. Oliverio had in obtaining authorization for an MRI scan to rule out an 

internal injury as a result of her employment-related fall. The relevant issue, however, is 

whether she submitted sufficient medical evidence to establish total disability from November 5 

to 16, 2013 due to her accepted June 17, 2013 employment injury, which is a medical question 

that can only be resolved through the submission of probative medical evidence from a 

physician.8

 Appellant’s lay opinion is of no probative value as lay individuals are not competent 

to render a medical opinion,9 and her contentions are not relevant to the issue involved and thus 

are insufficient to warrant reopening her case for merit review.10

The Board further finds that appellant did not submit relevant or pertinent new evidence 

not previously considered. Dr. Boctor’s March 25, 2014 progress note assessed appellant as 

having lumbar stenosis, lumbar radiculopathy, lumbar spondylosis, lumbar degenerative disc 

disease, and lumbar facet arthropathy. He had previously assessed these same conditions in a 

March 25, 2014 report and an October 27, 2014 progress note. Moreover, Dr. Boctor did not 

provide an opinion addressing whether appellant was totally disabled from November 5 to 16, 

2013 due to the accepted June 17, 2013 work injury. Dr. Boctor’s November 3, 2014 progress 

notes and Dr. Wade’s April 2, 2015 State of California Doctor’s First Report of Occupational 

Injury or Illness form reports addressed appellant’s lumbar, cervical, shoulder, forearm, hand, 

left ankle, left foot, and left lower leg conditions, but did not provide an opinion addressing 

disability during the claimed period. 

Evidence or argument that repeats or duplicates evidence previously of record has no 

evidentiary value and does not constitute a basis for reopening a case.11 Likewise, the 

submission of evidence that does not address the particular issue involved does not constitute a 

basis for reopening a case.12

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. 

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the 

reasons stated above, the Board finds counsel’s arguments are not substantiated. 

 8 L.G., Docket No. 09-1517 (issued March 3, 2010); Gloria J. McPherson, 51 ECAB 441 (2000). 

9 See. R.B., Docket No. 15-1143 (issued January 27, 2016). 

10 See J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002) (evidence that does not address the 

particular issue involved does not warrant reopening a case for merit review). 

11 J.P., supra note 10. 

12 S.J., Docket No. 08-2048 (issued July 9, 2009); D’Wayne Avila, 57 ECAB 642 (2006). 
8

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for further merit review 

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

ORDER 

IT IS HEREBY ORDERED THAT the August 11, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 27, 2016 

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