United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.C., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

Albuquerque, NM, Employer

__________________________________________

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Docket No. 21-0900

Issued: April 6, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 25, 2021 appellant, through counsel, filed a timely appeal from a May 3, 2021

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 

days has elapsed from OWCP’s last merit decision, dated January 15, 2020, to the filing of this 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

appeal, pursuant to the Federal Employees’Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks jurisdiction over the merits of this case. 3

ISSUE

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

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

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.

On May 18, 1994 appellant, then a 28-year-old contact representative, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, she slipped on the restroom floor, hit her left

arm and landed on her tail bone, while in the performance of duty. OWCP accepted the claim for 

lumbar sprain, right knee and leg sprain, left wrist sprain, recurrent dislocation of the left forearm, 

lumbosacral spondylosis, and right knee medial meniscus tear. Appellant stopped work on 

May 18, 1994 was referred to vocational rehabilitation on August 31, 1995 and eventually secured 

employment on her own. The record reflects that OWCP paid appellant wage-loss compensation 

on the periodic rolls based upon her wage-earning capacity as of June 16, 2002. Appellant stopped 

work on August 24, 2005 and did not return. 

In a December 15, 2014 report, Dr. Andrew Paterson, an orthopedic surgeon, noted that 

appellant was seen for follow up of chronic low back pain from her work-related injury in 1994. 

He related that she indicated that 90 percent of her pain was related to her back and 10 pe rcent to 

her legs. Dr. Paterson examined appellant and provided physical examination findings. He 

reviewed x-rays, which demonstrated a presence of L5 on S1 spondylolisthesis with some 

associated degenerative changes, largely unchanged from prior images. Dr. Paterson related that 

appellant was planning to see a pain management specialist to wean her from narcotic medication 

and opined that thereafter she might be a surgical candidate, and noted that she could continue 

with activities as tolerated and had no restrictions. 

Appellant’s treating physician, Dr. Kira A. Paisley, a Board-certified family practitioner,

treated appellant and submitted medical reports to OWCP. In a report dated September 24, 2019, 

she related that appellant was seen for lumbosacral spondylosis, without myelopathy, which 

caused pain and limited appellant’s ability to sit, stand for long periods of time, or walk for more 

than a few blocks. Dr. Paisley also diagnosed sprain and strain of the lumbosacral joint/ligament,

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the May3, 2021 decision, appellant submitted additional evidence to OWCP. 

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.

4 Order Remanding Case, Docket No. 20-1323 (issued March 2, 2021). 
3

tear of the medial meniscus of the knee which was chronic and likely to deteriorate , chronic left 

wrist sprain which was not likely to improve, and recurrent joint dislocation of the forearm. 

On October 8, 2019 OWCP referred appellant, along with a statement of accepted facts, a 

copy of the case record, and a series of questions to Dr. Adam J. Farber, a Board-certified 

orthopedic surgeon,for a second opinion examination to assess her work-related conditions. In a 

report dated November 8, 2019, Dr. Farber related that her accepted employment-related 

conditions included lumbar, right knee, and left wrist sprains, as well as lumbosacral spondylosis 

and status post right knee partial medial and lateral meniscectomy and chondroplasty. He 

concluded that appellant’s lumbar, right knee and left wrist sprains had resolved. Dr. Farber also 

noted that she appeared to be suffering residual symptoms related to the accepted diagnosis of 

lumbar spondylosis, based upon her pain complaints as well as x-ray and magnetic resonance 

imaging scan findings. He further noted that appellant’s lumbar spine pathology did not require 

work restrictions and that her treating orthopedic surgeon had not provided work restrictions when 

he last saw her on December 15, 2014. In a supplemental report dated November 22, 2019,

Dr. Farber repeated his previous conclusions.

In a November 8, 2019 report, Dr. Paisley noted that appellant had persistent ongoing pain 

in her lumbar back radiating to the right leg. She referred appellant for a functional capacity 

evaluation (FCE). 

In a December 16, 2019 report, Dr. Paisley noted that appellant continued to have workrelated symptoms and required physical therapy for appellant’s pain, but that physical therapy was

not improving her function or ability to return to work. 

In a January 7, 2020 report, Dr. Paisley diagnosed lumbosacral spondylosis without 

myelopathy, tear of the medial meniscus of the right knee, and left wrist sprain and lumbar sprain. 

She noted that she had reviewed Dr. Farber’s report and that appellant had experienced ongoing 

right buttock and radiating leg pain since her injury in 1994. 

By decision dated January 15, 2020, OWCP terminated appellant’s wage-loss 

compensation, effective that date. It relied upon the report of the second opinion physician,

Dr. Farber, a Board-certified orthopedic surgeon. OWCP found that the reports from the treating 

physician, Dr. Paisley, a Board-certified family practitioner, failed to provide a clear and wellreasoned explanation, supported by objective findings, as to how the accepted conditions hindered 

appellant from preforming her date-of-injury position. It explained that the reports from

Dr. Paisley did not explain how the lumbar sprain, right knee sprain, and left wrist sprain had not 

resolved within six months.

OWCP continued to receive evidence, including a copy of Dr. Farber’s November 8, 2019 

report, February 14 and March 10, 2020 reports from Dr. Paisley documenting appellant’s 

evaluations for prescription renewals, and a February 17, 2020 request from Dr. Paterson for 

medical equipment for pain management related to appellant’s LS-S1 spondylosis. 

On April 20, 2020 appellant, through counsel, requested reconsideration. Counsel argued 

that Dr. Farber was under the impression that the claim was only approved for lumbar sprain, right 

wrist sprain, and left wrist sprain. He argued that Dr. Farber failed to address the approved 

condition of lumbosacral spondylosis and his report therefore was of limited probative value. 
4

Counsel argued that the January 15, 2020 decision should be vacated and appellant’s benefits 

restored. 

By decision dated April 28, 2020, OWCP denied appellant’s request for reconsideration of 

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

On June 23, 2020 appellant, through counsel, filed a timely appeal from the April 28, 2020 

nonmerit decision. By decision dated March 2, 2021, the Board issued an order remanding case.5 

The Board found that the case was not in posture for decision, as OWCP did not reference or 

discuss the evidence and argument submitted after the January 15, 2020 merit decision. The Board 

remanded the case to OWCP for an appropriate decision on appellant’s reconsideration request 

that described the evidence submitted on reconsideration and provided the reasons for accepting 

or rejecting the reconsideration request. 

Following OWCP’s April 28, 2020 decision, it continued to receive medical evidence. A

February 17, 2020 report from a nurse noted that appellant was seen for chronic low back pain 

with radicular symptoms in her right lower extremity. A June 12, 2020 FCE from a physical 

therapist, indicated that appellant was capable of working a sedentary position. 

In a February 14, 2020 report, Dr. Paisley noted that appellant lost her OWCP wage-loss 

benefits recently and was seeking a second opinion. She noted that appellant had chronic lumbar 

back pain, lumbar radiculopathy, left wrist pain, and was feeling “very depressed and sad” about 

the FCE. Dr. Paisley noted that appellant tried to volunteer as an usher to see if she could work, 

but appellant was only able to stand for one hour and then had to sit. She diagnosed lumbosacral 

spondylosis without myelopathy, prescribed a refill of appellant’s opioid prescription, and referred 

her for aquatic therapy. 

In a report dated March 10, 2020, Dr. Paisley discussed appellant’s ongoing need for opioid 

medication. In an April 13, 2020 report, she conducted a telephone appointment with appellant 

and discussed appellant’s chronic lumbar back pain and lumbar radiculopathy and left wrist pain. 

In a July 22, 2020 report, Dr. Paisley noted that appellant was seen for left shoulder and 

upper back complaints. She noted that appellant had a motor vehicle accident three years prior

and reported ongoing pain in her axillary area where she had a lymph node dissection. Dr. Paisley 

also noted that appellant reported aching/tightness in her neck on the left side, radiating to the 

shoulder and up the scalp. She assessed muscle spasm and myofascial pain. 

In a September 18, 2020 report, Dr. Paisley noted that appellant was seen for follow up 

involving a car accident in 2018. She related that appellant had chronic lumbar back pain, left 

wrist pain, right toe pain, left lateral foot pain, and left shoulder anterior chest pain. Dr. Paisley 

diagnosed chronic pain and lumbosacral spondylosis without myelopathy. 

In reports dated January 15 and February 15, 2021, Dr. Paisley noted ongoing left shoulder 

pain and prescribed physical therapy. She also noted ongoing back pain and bilateral foot pain 

and neuropathy. Dr. Paisley indicated that appellant had multiple conditions including chronic 

lumbosacral spondylosis without myelopathy, right medial meniscus tear, left shoulder pain, 

5

Id. 
5

bilateral neuropathic foot pain, anxiety, depression, and fibromyalgia. She indicated that appellant 

was applying for Social Security disability benefits due to her lumbar condition. 

OWCP also received surgical notes from Dr. Kathryn Helmig, an orthopedic surgeon, 

dated July 20, 2020, who noted that appellant returned for chronic low back pain that appellant

had experienced since a 1994 work-related incident when she slipped on cement and fell. 

Dr. Helmig advised that appellant had received nonsurgical treatment and despite being a surgical 

candidate, appellant preferred to continue with nonsurgical treatment. 

By decision dated May 3, 2021, OWCP denied appellant’s request for reconsideration of 

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

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.6 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.7 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.

8

 

A timely request 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. 9 

When a timely request 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.10

ANALYSIS

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

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

On reconsideration, counsel argued that the report from Dr. Farber, the second opinion 

physician, failed to address the approved condition of lumbosacral spondylosis. He argued that

Dr. Farber’s report was of limited probative value and the January 15, 2020 decision should be 

vacated and her benefits restored. However, the Board notes that Dr. Farber did address 

6 This section provides in pertinent part: “The Secretary of Labor may review an award for or against payment of 

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

7

Id.

8

Id. at § 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 (September 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.

9

Id. at § 10.606(b)(3).

10 Id. at § 10.608(a), (b).
6

appellant’s lumbosacral spondylosis, did not recommend restrictions from work, and also noted 

that her treating orthopedic physician did not require work restrictions. The Board finds that the 

arguments regarding his report do not show that OWCP erroneously applied or interpreted a 

specific point of law, nor do they advance a relevant legal argument not previously considered by 

OWCP. Consequently, appellant is not entitled to further review of the merits of her claim based 

on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).11

On reconsideration, appellant also did not submit any relevant and pertinent new medical 

evidence regarding her ability to return to work. The underlying issue is medical in nature and she

has not submitted pertinent new and relevant medical evidence in connection with her 

reconsideration request.12 OWCP received additional reports from Dr. Paisley which repeated her 

prior findings regarding appellant’s accepted conditions; however, Dr. Paisley did not offer an 

opinion regarding appellant’s ability to work and did not provide work restrictions. While

Dr. Paisley noted in her February 14, 2020 report that appellant attempted to work as an usher and 

was only able to stand for an hour, she did not provide any work restrictions. She also noted that 

appellant had a motor vehicle accident in 2018, but did not explain how the accident related to her 

conditions. Likewise, in her March 10, 2020 report, Dr. Paisley merely addressed appellant’s 

opioid medication and did not address appellant’s ability to work. The Board finds that these 

reports do not address the issue of appellant’s inability to work. 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.13 The Board also notes that these reports are similar and 

cumulative to prior reports from Dr. Paisley. Evidence which repeats or duplicates evidence 

already of record has no evidentiary value and does not constitute a basis for reopening a case. 14

With regard to the other medical evidence, the February 17, 2020 request for medical 

equipment, and the July 20, 2020 surgical notes did not discuss appellant’s work capacity. 

Therefore, this evidence is not relevant and is insufficient to require a merit review. 15 

11 Id. at § 10.606(b)(3); see T.B., Docket No. 21-0045 (issued June 2, 2021); J.V., Docket No. 19-0990 (issued 

August 26, 2020); C.N., Docket No. 08-1569 (issued December 9, 2008).

12 See R.M., Docket No. 21-0265 (issued June23, 2021). 

13 See R.G., Docket No. 19-1889(issued April14, 2021); Y.L., Docket No. 20-1025 (issued November 25, 2020); 

E.W., Docket No. 19-1393 (issued January 29, 2020); R.R., Docket No. 18-1562 (issued February 22, 2019); K.B., 

Docket No. 18-1392 (issued January 15, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

14 See R.B., Docket No. 21-0035 (issued May 13, 2021); V.L., Docket No. 19-0069 (issued February 10, 2020); 

A.K., Docket No. 19-1210 (issued November 20, 2019); R.S., Docket No. 19-0312 (issued June 18, 2019); Richard 

Yadron, 57 ECAB 207 (2005); Eugene F. Butler, 36 ECAB 393, 398 (1984).

15 Supra note 13.
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OWCP also received a February 17, 2020 report from a nurse. This report, however, is 

irrelevant as does not constitute competent medical evidence. The Board has held that nurses are

not considered a physician as defined under FECA.16

OWCP also received a June 12, 2020 FCE from a physical therapist. While this report 

addressed appellant’s to work, this report also do not constitute competent medical evidence 

because physical therapists are not considered physicians as defined under FECA. 17

As appellant did not provide relevant and pertinent new evidence, she is not entitled to a 

merit review based on the third requirement under 20 C.F.R. § 10.606(b)(3).18

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3).19 Pursuant to 20 C.F.R. § 10.608, OWCP properly denied the request for 

reconsideration without reopening the case for review on the merits.20

CONCLUSION

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

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

16 Section 8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 8 at Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 

57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not 

competent to render a medical opinion under FECA). See also D.C., Docket No. 19-0354 (issued May 27, 2020) 

(physician assistants are not physicians under FECA); D.S., Docket No. 19-1657 (July 20, 2020) (registered nurses 

are not considered physicians under FECA); D.S., Docket No. 18-0353 (issued February 18, 2020) (physical therapists 

are not considered physicians under FECA); DavidP. Sachiko, 57 ECAB 316, 320 n.11 (2006) (lay individuals such

as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).

17 Id. 

18 See 20 C.F.R. § 10.606(b)(3)(iii).

19 Supra note 10. 

20 See G.M., Docket No. 20-1485 (issued March 22, 2021); D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., 

Docket No. 09-2032 (issued August3, 2010); M.E., 58 ECAB 694 (2007); SusanA. Firkins, 57 ECAB 630 (2006).
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ORDER

IT IS HEREBY ORDERED THAT the May 3, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 6, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board