United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

Reston, VA, Employer 

__________________________________________ 

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Docket No. 14-1783 

Issued: February 27, 2015 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On July 9, 2014 appellant, through counsel, timely appealed the February 7, 2014 merit 

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. 

ISSUE 

The issue is whether appellant sustained a recurrence of disability on May 4, 2013 

causally related to his December 16, 2002 employment injury. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

Appellant, a 59-year-old former supervisory civil aviation security specialist, injured his 

right knee in the performance of duty on December 16, 2002.2

 OWCP initially accepted the 

claim for right knee avulsion fracture. On March 21, 2003 appellant underwent its authorized 

right knee arthroscopic debridement.3

 He subsequently returned to work. 

In October 2008, appellant filed a claim for recurrence of disability beginning 

October 3, 2008. He was exercising on a recumbent bicycle when he felt a burning sensation in 

his knee. The next morning, appellant experienced extreme pain and was unable to bend his leg. 

He explained that, after returning to work following his original injury, he was unable to 

participate in physical training for approximately three months. This included defensive 

measures, quarterly fitness assessments (QFA), and firearm-related duties. Appellant further 

indicated that since the original injury he experienced gout pain primarily after performing 

gym-related training in preparation for the QFA or when shooting from the kneeling position 

during the required practical pistol course. He also noted that sitting was painful. Appellant 

claimed a total of 41 hours of intermittent wage loss between October 6 and November 14, 2008. 

In support of his recurrence claim, appellant submitted an October 6, 2008 employing 

establishment form, “practical exercise performance requirements” (PEPR) which identified 

various physical activities related to law enforcement tasks. The examining physician was asked 

to evaluate whether the employee was capable of performing certain activities, including 

defensive tactics, aircraft tactical training, firearm training, and overall physical conditioning. 

Appellant’s physician, whose signature is illegible, indicated that appellant was unable to satisfy 

any of the performance requirements with respect to physical conditioning, defensive tactics, and 

aircraft tactical training. As to firearm training, appellant was able to satisfy most of the 

requirements except those involving kneeling on one or both knees. 

OWCP did not formally adjudicate appellant’s October 2008 recurrence claim. 

The record includes a September 11, 2009 limited-duty job offer that was retroactive to 

January 21, 2009. The position title was assistant supervisory air marshal in charge (ASAC). It 

was a full-time position performing office work “to include using a telephone and a computer, 

and attending meetings.” Also, there was no prolonged standing and no physical training 

required. 

On November 24, 2010 appellant filed a claim (Form CA-7) for a schedule award. In 

July 2011, OWCP granted an award for 20 percent impairment of the right lower extremity due 

 2

 Appellant caught his right foot on a chair/table leg and twisted and hyperextended his knee. 

3

 Dr. Vaughn A. Frigon, a Board-certified orthopedic surgeon, performed the March 21, 2003 arthroscopy. The 

postoperative diagnosis was chondromalacia of the right patella. 
3

to medial knee joint arthritis.4

 Appellant’s schedule award covered a period 57.6 weeks from 

March 18, 2011 through April 24, 2012. 

Dr. Elizabeth H. Gannon, a Board-certified family practitioner with a subspecialty in 

sports medicine, examined appellant on November 28, 2011, and submitted an attending 

physician’s report (Form CA-20). She identified December 16, 2002 as the date of injury and 

diagnosed chondromalacia, osteoarthritis, and knee pain/arthralgia. Dr. Gannon indicated that 

appellant was partially disabled as of November 28, 2011. She stated that “[t]he only extent of 

physical limitations involves the right knee -- unable to kneel on right knee, running.” 

On March 7, 2012 OWCP received an undated report from Dr. Allen, who previously 

rated appellant’s right lower extremity impairment. Dr. Allen indicated that appellant had been 

unable to perform the essential elements of his job as an ASAC since March 2011. He explained 

that appellant suffered from “bilateral knee arthritis” (sic), which manifested itself as severe and 

debilitating pain, instability, diffuse tightness, and lack of normal flexion of the “knees.”5

 

Dr. Allen further explained that, although appellant’s current job was primarily sedentary, 

holding a law enforcement position required him to requalify with his issued firearm utilizing 

specific stances and positions that appellant could no longer tolerate due to arthritis-related pain. 

He identified other physically demanding aspects of a law enforcement position, including 

subduing, apprehending and arresting individuals, employing defensive measures, and 

maintaining control of a firearm, all of which appellant was unable to do because of his knee 

arthritis, pain and loss of motion. Dr. Allen further noted that appellant was unable to participate 

in QFA’s due to his arthritic knees. Appellant’s condition was expected to worsen and require 

total knee replacement in the near future. In conclusion, Dr. Allen reiterated that appellant was 

no longer able to perform all the essential elements of his job as an ASAC. 

In a March 7, 2012 report (Form CA-20), Dr. Gannon diagnosed osteoarthritis of the 

knee. She noted that appellant sustained a work-related right knee injury on December 16, 2002, 

which required surgery. Dr. Gannon indicated that he had been totally disabled since 

March 2011, but could currently return to work with modifications. She noted that appellant 

needed frequent breaks to walk. Dr. Gannon also indicated that he was unable to stand, sit and 

kneel for prolonged periods of time. 

In addition to the Form CA-20, Dr. Gannon submitted a March 7, 2013 PEPR report and 

a March 8, 2013 work capacity evaluation (OWCP-5c). With respect to PEPR training, appellant 

was unable to satisfy any of the performance requirements with respect to physical condition and 

defensive tactics, and could meet only one of seven requirements for aircraft tactical training. 

Regarding firearm training, Dr. Gannon indicated that he was unable to stand for a period of one 

 4

 OWCP did not issue a formal decision with respect to appellant’s entitlement to a schedule award. The 20 

percent right lower extremity award appears to have been based on the March 18, 2011 examination findings of 

Dr. Harold H. Allen Jr., which the district medical advisor reviewed on April 19, 2011. 

5

 Dr. Allen indicated that he operated on appellant’s knee on three occasions over a three-year period. However, 

he did not specify which knee or when the surgeries were performed. 
4

hour. Also, appellant was unable to participate in handgun maneuvers that involved kneeling on 

one or both knees.6 

The March 8, 2012 OWCP-5c indicated that appellant was unable to perform his usual 

job, but could work an eight-hour day with restrictions. Dr. Gannon noted that he reached 

maximum medical improvement and she characterized the identified restrictions as permanent. 

Appellant was limited to 30 minutes sitting, and 15 minutes each for walking and standing. 

There was to be no squatting, kneeling, climbing, or twisting, and he was limited with respect to 

bending/stooping. Appellant was also limited to 30 minutes of operating a motor vehicle at work 

and to/from work. Additionally, Dr. Gannon imposed a 5- to 10-pound lifting restriction. 

Lastly, appellant required periodic breaks after every 30 minutes of sitting and standing/walking. 

On April 26, 2013 appellant filed a claim (Form CA-7) for wage-loss compensation 

beginning May 4, 2013. In the remarks section (No. 14), the employing establishment indicated 

that he was being removed from duty due to inability to perform work responsibilities. 

Appellant submitted a copy of his résumé, which indicated he currently worked as a 

supervisory federal air marshal in charge (SAC); a position he held since 2010.7

 The résumé 

also identified various other positions he held subsequent to his December 2002 employment 

injury. 

On May 2, 2013 the employing establishment submitted a report of work (OWCP 3) 

indicating appellant would be removed from service effective May 4, 2013 due to permanent 

disability. 

More than a year prior, the employing establishment informed appellant that the 

then-current medical evidence showed he was unable to perform the essential duties of his 

position as SAC. The April 13, 2012 memorandum further explained that appellant did not meet 

medical standards for his position based on restrictions imposed by his treating physician arising 

from “bilateral knee arthritis.”8

 The memorandum also noted that he reached maximum medical 

improvement and his restrictions were deemed permanent. The employing establishment 

indicated that based on appellant’s diagnosis and treatment, he was no longer medically qualified 

to perform the essential functions of his SAC position. Although appellant already filed an 

application for disability retirement, it advised him of the option of requesting reasonable 

accommodation(s).9

 The April 13, 2012 memorandum included instructions on how to apply for 

reasonable accommodation(s), and the time frame (15 days) within which to submit the request. 

The employing establishment further advised that if an accommodation request was not received 

 6

 Appellant was able to perform at least five of the nine firearm training requirements without modification. 

7

 OWCP also received a February 8, 2013 notification of personnel action Standard Form 50 (SF-50) indicating 

appellant successfully completed his probationary period as SAC. 

8

 The subject line on the memorandum read: “Inability to Perform Essential Duties of Your Position/Inability to 

Meet Federal Air Marshal Service Medical Standards.” 

9

 An undated letter from the Office of Personnel Management (OPM) advised that appellant was found disabled 

due to arthritis and nonunion of patella fracture. OPM determined that the condition disabled him from his position 

as SAC. 
5

in the allotted time, appropriate nondisciplinary administrative action may be initiated in the 

form of a notice of proposed removal.10

On May 2, 2013 OWCP wrote to both appellant and his employing establishment 

regarding the upcoming removal action and anticipated wage-loss beginning May 4, 2013. It 

asked the employing establishment to provide additional information regarding the 

circumstances of appellant’s prospective removal, and specifically requested a copy of any 

limited-duty assignment appellant performed on or about May 4, 2013. OWCP also inquired 

about the basis for withdrawing a limited- or light-duty assignment. 

On May 6, 2013 appellant filed a notice of recurrence (Form CA-2a) for wage-loss 

beginning May 4, 2013. He noted he was working restricted duty until his doctor indicated it 

was permanent. Since returning to work following his original injury, appellant reported 

experiencing knee instability and debilitating pain. He stated that the recurrence was a result of 

employing establishment removing him from service. Appellant explained that the employing 

establishment notified him that he was no longer qualified to perform his duties as a result of 

work-related injury. The employing establishment noted that he had been working restricted 

duty until “March 2011” when his doctor indicated that his restrictions were permanent. 

In a separate statement also dated May 6, 2013, appellant indicated that following receipt 

of the April 13, 2012 memorandum, the employing establishment allowed him to work in a 

limited-duty capacity in accordance with Dr. Gannon’s March 2012 OWCP-5c. This included 

teleworking from his residence for three hours a day. However, appellant was still unable to 

perform the required elements of his position, such as QFA’s, firearm qualification, and 

defensive tactics as previously identified by Dr. Allen. Consequently, the employing 

establishment notified him that he would be removed effective May 4, 2013. 

In its May 14, 2013 response to OWCP, the employing establishment noted that appellant 

was declared disabled as of May 4, 2013, and was removed due to his inability to perform the 

duties of his job. It further explained that medical documentation indicated his restrictions were 

permanent, and the employing establishment was unable to accommodate his permanent 

restrictions. Additionally, the employing establishment noted that the April 26, 2013 Form CA-7 

was submitted in advance of appellant’s May 4th removal to ensure that he would be set up 

properly in OWCP’s system by the end of his first official pay cycle out of work. 

In a July 18, 2013 decision, OWCP denied appellant’s claimed recurrence of disability 

beginning May 4, 2013. It noted that Dr. Allen found appellant disabled due to bilateral knee 

arthritis. However, appellant’s claim was accepted for “‘avulsion fracture of right knee,’” not a 

bilateral knee condition. OWCP found the medical evidence did not establish a spontaneous 

change or worsening of his accepted right knee condition. Dr. Allen did not explain how the 

disability was related to appellant’s December 16, 2002 work injury. 

Appellant requested a hearing, which was held on December 9, 2013. He testified 

regarding his current right knee problems and the various positions he held since his 

December 2002 injury. Appellant also testified that he previously tore his left meniscus, anterior 

 10 Appellant signed the above-noted memorandum acknowledging receipt of the document on April 13, 2012. 
6

cruciate ligament, and quadriceps muscle. Dr. Allen operated on his left knee on three occasions 

between 1994 and 1996, and since then appellant’s knee was “perfectly fine.” He stated that 

currently there were “no issues with [appellant’s] left knee, none.” 

In a December 2, 2013 attending physician’s report (Form CA-20), Dr. Gannon 

diagnosed right knee osteoarthritis. She noted that appellant originally injured his knee in 2002. 

This condition was subsequently aggravated by his employment due to frequent kneeling. 

Dr. Gannon indicated that appellant was currently totally disabled, which dated back to 

May 4, 2013. 

In a December 20, 2013 narrative report, Dr. Gannon indicated that she had been 

appellant’s primary care physician since February 2009, and he had been a patient in her office 

practice since 2006. She referenced her December 2, 2013 Form CA-20, and noted that his right 

knee osteoarthritis was related to his December 16, 2002 injury. Dr. Gannon further noted that 

appellant tried several prescription medications and physical therapy, but continued to have pain 

in his right knee, which required further treatment. She also noted having submitted a March 8, 

2012 OWCP-5c describing his medical condition and limitations, which she consider to be 

permanent. With respect to purported left knee arthritis, Dr. Gannon indicated that she had 

thoroughly reviewed appellant’s previous medical records, and based on past and present 

examinations, he did not currently suffer from left knee osteoarthritis. In fact, appellant had not 

even complained about his left knee. It was only his right knee that had been documented as 

having arthritis due to the December 2002 injury. Dr. Gannon explained that the right knee 

diagnosis was based on multiple orthopedic examinations and x-rays, including her own 

examination. She reiterated that appellant had no clinical indications of left knee arthritis and he 

had not complained of any restrictions or pain relating to his left knee. Dr. Gannon stated that 

his right knee osteoarthritis was directly related to the December 16, 2002 incident and his 

restrictions were permanent. She further stated that appellant had no known restrictions relating 

to his left knee. 

By decision dated February 7, 2014, the Branch of Hearings and Review affirmed the 

denial of appellant’s recurrence claim. However, the hearing representative recommended that 

OWCP expand the claim to include right knee osteoarthritis as an accepted condition. 

On June 17, 2014 OWCP expanded appellant’s claim to include right knee osteoarthritis. 

LEGAL PRECEDENT 

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 

injury or illness without an intervening injury or new exposure to the work environment that 

caused the illness.11 Recurrence of disability also means an inability to work that takes place 

when a light-duty assignment made specifically to accommodate an employee’s physical 

limitations due to his or her work-related injury or illness is withdrawn or when the physical 

requirements of such an assignment are altered so that they exceed his or her established physical 

 11 20 C.F.R. § 10.5(x). 
7

limitations.12 Generally, a withdrawal of a light-duty assignment would constitute a recurrence 

of disability where the evidence established continuing injury-related disability for regular 

duty.13 A recurrence of disability does not apply when a light-duty assignment is withdrawn for 

reasons of misconduct, nonperformance of job duties or other downsizing or where a loss of 

wage-earning capacity determination is in place.14 

Absent a change or withdrawal of a light-duty assignment, a recurrence of disability 

following a return to light-duty may be established by showing a change in the nature and extent 

of the injury-related condition such that the employee could no longer perform the light-duty 

assignment.15

Where an employee claims a recurrence of disability due to an accepted 

employment-related injury, he has the burden of establishing that the recurrence is causally 

related to the original injury.16 This burden includes the necessity of furnishing evidence from a 

qualified physician who concludes that the condition is causally related to the employment 

injury.17 The physician’s opinion must be based on a complete and accurate factual and medical 

history and supported by sound medical reasoning.18

ANALYSIS 

Appellant claimed he was removed from his latest position as SAC because of his injuryrelated right knee condition. The employing establishment submitted a May 2, 2013 report of 

work status (OWCP 3) indicating that he would be removed from service effective May 4, 2013 

due to permanent disability. On appellant’s May 6, 2013 Form CA-2a, it indicated that appellant 

had been working restricted duty until “March 2011” when his doctor indicated his restrictions 

were permanent. Also, in a May 14, 2013 letter to OWCP, the employing establishment 

indicated that he was removed effective May 4, 2013 due to an inability to perform the duties of 

his job. It further indicated it was unable to accommodate appellant’s permanent restrictions. 

OWCP expanded the claim to include right knee osteoarthritis as an accepted condition. 

Both Dr. Allen and Dr. Gannon indicated that appellant’s arthritis limited his ability to satisfy 

certain requirements of his law enforcement position. Although there was some initial confusion 

regarding whether appellant had arthritis in the left knee, Dr. Gannon clarified that there were no 

 12 Id.

13 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013). 

14 Id. at §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, 

Chapter 2.1500.2b (June 2013). 

15 Theresa L. Andrews, 55 ECAB 719, 722 (2004). 

16 20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 

and 2.1500.6. (June 2013). 

17 See S.S., 59 ECAB 315, 318-19 (2008). 

18 Id. at 319. 
8

clinical indications of left knee arthritis and appellant had not complained of any restrictions or 

pain relating to his left knee.19 At the December 9, 2013 hearing, appellant represented that 

Dr. Allen last operated on his left knee in 1996, and currently there were no issues with that 

particular knee. Dr. Allen described his left knee as perfectly fine. 

On his May 6, 2013 Form CA-2a, appellant claimed to have been working restricted duty 

until his doctor indicated that his restrictions were permanent. Based on the April 13, 2012 

memorandum, he appears to have been removed as SAC based on the March 2012 report(s) of 

Dr. Allen and/or Dr. Gannon. Generally, a withdrawal of a light-duty assignment would 

constitute a recurrence of disability where the evidence established continuing injury-related 

disability for regular duty.20 However, the Board finds that the case is not in posture for 

decision. 

The current record includes scant information regarding the position appellant held 

immediately prior to his May 4, 2013 removal. Also, it is not entirely clear what transpired over 

the year-long period between the April 13, 2012 memorandum and his removal on 

May 4, 2013.21 A February 8, 2013 SF-50 identified appellant’s position as supervisory federal 

air marshal, but the specific job duties are not apparent from the record. Also, it is unclear what, 

if any, accommodations were in place at the time. The only limited-duty assignment of record 

was from 2009, which predated appellant’s latest assignment as SAC. 

The employing establishment’s May 14, 2013 correspondence was not entirely 

responsive to OWCP’s May 2, 2013 development letter. It neglected to provide a copy of 

appellant’s latest job assignment, including physical requirements and any recognized 

limitations. Also, the employing establishment failed to provide copies of all documentation 

regarding the removal action, including a current SF-50. As noted, the April 13, 2012 

memorandum was merely a precursor to the removal action, which occurred more than a year 

later. Appellant represented that, after receiving the April 13, 2012 memorandum, the 

employing establishment allowed him to work in a limited-duty capacity in accordance with 

Dr. Gannon’s March 2012 OWCP-5c. The accommodation reportedly included teleworking 

from his residence for three hours a day. Again, this information has not been confirmed by the 

employing establishment or otherwise substantiated in the record. 

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. The claimant has the burden to establish entitlement to compensation; however, OWCP 

shares responsibility in the development of the evidence to see that justice is done.22 Accurate 

information regarding appellant’s employment duties is essential to determine whether he 

 19 Dr. Allen’s March 18, 2011 report did not include any findings with respect to appellant’s left lower extremity. 

His undated report received on March 7, 2012 similarly fails to reference any recent examination findings with 

respect to either the left or right lower extremity. 

20 S.S., 59 ECAB at 319; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) 

(June 2013). 

21 The hearing representative incorrectly identified the date of the memorandum as “April 13, 2013.” 

22 William J. Cantrell, 34 ECAB 1223 (1983). 
9

suffered a recurrence of disability beginning May 4, 2013. The Board acknowledges OWCP’s 

previous attempt to develop the record regarding appellant’s specific employment duties prior to 

his May 4, 2013 removal. The employing establishment was not entirely responsive, and 

OWCP’s efforts to obtain information from the employing establishment should not have ceased 

at that point. It is responsible for submitting to OWCP all relevant and probative factual and 

medical evidence in its possession, or which it may acquire through investigation or other 

means.23 The employing establishment cannot withhold information to its employee’s 

detriment.24

Because the record lacks sufficient evidence for the Board to render an informed 

decision, the case shall be remanded to OWCP for further development. On remand, OWCP 

shall apprise the employing establishment of its responsibility for submitting all relevant and 

probative factual and medical evidence in its possession. After OWCP has developed the record 

consistent with the above-noted directive, it shall issue a de novo decision regarding appellant’s 

claimed recurrence of disability beginning May 4, 2013. 

CONCLUSION 

The Board finds that this case is not in posture for decision. 

 23 20 C.F.R. § 10.118. 

24 As evidence appearing in the employing establishment’s files is not generally available to claimants, the 

employing establishment must assemble and submit such evidence. Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Initial Development of Claims, Chapter 2.800.4(b) (June 2011). 
10

ORDER 

IT IS HEREBY ORDERED THAT the February 7, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision. 

Issued: February 27, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board