United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Loma Linda, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0941 

Issued: August 25, 2017 

Appearances: Case Submitted on the Record

William H. Brawner, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 27, 2017 appellant, through counsel, filed a timely appeal from a February 28, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

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

Board has jurisdiction over the merits of this case. 

 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

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant sustained a recurrence of disability beginning April 14, 

2014 causally related to his December 21, 2013 employment injury. 

FACTUAL HISTORY 

On December 23, 2013 appellant, then a 52-year-old vocational nurse, filed a traumatic 

injury claim (Form CA-1) alleging that on December 21, 2013 he sprained his left knee after an 

altercation with a patient. He did not stop work. OWCP accepted the claim, currently on appeal, 

assigned File No. xxxxxx153, for a left knee contusion that had resolved as of January 8, 2014. 

On April 16, 2014 appellant filed a second traumatic injury claim (Form CA-1) alleging 

that he sustained an injury to his left knee on April 14, 2014 when a patient tried to escape. 

OWCP assigned the case File No. xxxxxx561 and, on October 3, 2016, accepted the claim for a 

temporary aggravation of unilateral primary osteoarthritis of the left knee. 

In an April 15, 2014 report, submitted to OWCP under File No. xxxxxx561, Dr. Juan 

Antonio Cortes, an osteopath, obtained a history of appellant sustaining a left knee injury from 

dealing with a combative patient. He indicated that it was a “reinjury from December 21, 2013.” 

Dr. Cortes noted that the pain began gradually and that a review of records indicated that he had 

“severe left knee findings with total knee arthroplasty already recommended.” He diagnosed left 

knee traumatic arthritis due to an industrial accident. 

In a report dated April 17, 2014 (Form CA-16), Dr. Gerald I. West, who specializes in 

occupational medicine, indicated that appellant reinjured his left knee on April 14, 2014 “due to 

a combative patient.” He diagnosed traumatic arthritis of the left knee. Dr. West noted that 

appellant related that his “primary injury occurred on December 21, 2013” and that he was “very 

clear that on both dates he was involved with the containment of combative patients.” He opined 

that appellant had a preexisting left knee condition accelerated by “the above-mentioned 

incidents.” 

Appellant related, in an undated statement received April 25, 2014, that on April 14, 2014 

he again injured his left knee while helping to restrain a combative patient. 

On May 22, 2014 OWCP notified appellant that it had closed his December 21, 2013 

accepted injury for medical care and recommended that he obtain treatment under the File No. 

assigned with the April 14, 2014 claimed injury, xxxxxx561. It informed him that he could file 

an occupational disease claim if he believed that he sustained arthritis due to continuing work 

factors. 

In a May 28, 2014 response, appellant advised that his physicians found that he required 

a total knee replacement, scheduled for August 11, 2014. He attributed his condition to the 

combined trauma to his knee as a result of his December 21, 2013 and April 14, 2014 injuries. 

By letter dated June 19, 2014, OWCP informed appellant that, if he believed that he had 

sustained a recurrence of disability with no intervening injury, he could file a recurrence of 
3

disability under the current File No. It further advised that he could also proceed with his claim 

for a traumatic injury under File No. xxxxxx561. 

Appellant, on June 26, 2014, filed a recurrence (Form CA-2a) alleging that on April 14, 

2014 he sustained a recurrence of disability causally related to his December 21, 2013 work 

injury. He stopped work on April 15 and returned to work on June 9, 2014. In a statement 

accompanying his claim, appellant described his December 21, 2013 work injury and noted that 

he also had arthritis due to a service-connected injury to his left knee. He related that he 

experienced another work injury on April 14, 2014 due to an altercation with a patient. 

OWCP, by letter dated September 19, 2014, advised appellant of the definition of a 

recurrence of disability, noting that he had described an intervening injury on April 14, 2014. It 

requested that he submit medical evidence showing that his condition spontaneously worsened 

without any intervening cause. 

An August 9, 2014 magnetic resonance imaging (MRI) scan study of the left knee, 

received by OWCP on October 18, 2014, revealed a lateral cyst and loss of cartilage in the 

medial femoral condyle and patella. 

Appellant, on October 18, 2014, related that the results from the MRI scan study showed 

a spontaneous worsening of his condition. He maintained that his initial physician did not 

sufficiently diagnose his condition. 

In an October 20, 2014 report, Dr. West diagnosed traumatic arthritis and found that 

appellant could perform light-duty work beginning October 17, 2014. He again noted that 

appellant advised that he sustained an injury to his knee on April 21, 2014, but that the main 

injury was on December 21, 2013, both incidents occurring when he attempted to subdue 

combative patients. Dr. West diagnosed a loss of cartilage of the anterior portion of the medial 

femoral condyle and patella. 

By decision dated October 21, 2014, OWCP found that appellant had not established an 

April 14, 2014 recurrence of disability. It determined that the evidence revealed that he 

experienced an intervening injury on April 14, 2014 rather than a spontaneous worsening of his 

December 21, 2013 employment condition. 

Appellant, on November 10, 2014, requested an oral hearing before an OWCP hearing 

representative. At the telephone hearing, held on June 2, 2015, he discussed his knee injury in 

the military and subsequent left knee injuries due to altercations with patients on December 21, 

2013 and April 14, 2014. 

In a decision dated August 13, 2015, OWCP’s hearing representative affirmed the 

October 21, 2014 decision. He noted that OWCP was currently developing the issue of whether 

appellant sustained a left knee injury on April 14, 2014 in the performance of duty under a 

separate File No. The hearing representative determined that the medical evidence was 

insufficient to establish a recurrence of disability on April 14, 2014 due to his accepted 

December 21, 2013 work injury. 
4

Dr. G.B. Ha’Eri, a Board-certified orthopedic surgeon, examined appellant on October 7, 

2015 and January 27, 2016. In a report dated January 27, 2016, he reviewed his history of a left 

knee fracture in 1987 while in the military and work injuries on December 21, 2013 and 

April 14, 2014 due to altercations with patients. Dr. Ha’Eri diagnosed an aggravation of 

osteoarthritis of the left knee due to work injuries on December 21, 2013, April 14, 2014, and 

June 22, 2015 and a torn left lateral meniscus likely caused by injuries on December 21, 2013 

and January 14, 2014. 

Appellant, on August 12, 2016, requested reconsideration. He contended that the 

April 14, 2014 employment injury was causally related to the December 21, 2013 employment 

injury. Appellant asserted that he had established that work injuries aggravated a preexisting 

condition and maintained that OWCP failed to construe the evidence in his favor. 

By decision dated February 28, 2017, OWCP denied modification of its August 13, 2015 

decision.3

 It noted that it had accepted that he sustained a temporary aggravation of left knee 

arthritis due to an April 14, 2014 work injury under File No. xxxxxx561; OWCP found, 

however, that the medical evidence failed to establish recurrence of disability on April 14, 2014 

causally related to the December 21, 2013 employment injury. It determined that appellant 

experienced an intervening injury on April 14, 2014 rather than a recurrence of disability on that 

date. 

On appeal counsel contends that OWCP erred in adjudicating the claim as a recurrence of 

disability instead of a traumatic injury causing an aggravation of a preexisting injury. He asserts 

that the medical evidence supports a causal relationship between the April 14, 2014 and 

December 21, 2013 employment injuries. 

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.4

Appellant has the burden of proof to establish by the weight of the substantial, reliable 

and probative evidence a causal relationship between his recurrence of disability and his 

employment injury.5

 This burden includes the necessity of furnishing medical evidence from a 

 3

 OWCP, on February 29, 2016, referred appellant to Dr. Michael J. Einbund, a Board-certified orthopedic 

surgeon, for a second opinion examination in File No. xxxxxx561. It requested that he evaluate whether appellant 

had any current condition causally related to work incidents occurring on December 21, 2013 and April 14, 2014. In 

a report dated April 21, 2016, Dr. Einbund reviewed the December 21, 2013 and April 14, 2014 work injuries, 

accepted for a resolved left knee contusion, and noted that appellant had a history of multiple left knee surgeries due 

to a 1987 injury while in the military. He diagnosed a temporary aggravation of left knee osteoarthritis as a result of 

the April 14, 2014 work incident. Dr. Einbund opined that the December 21, 2013 left knee contusion “resolved in 

that appellant was able to resume full unrestricted duty within a few days.” 

4

 20 C.F.R. § 10.5(x). 

5 Carmen Gould, 50 ECAB 504 (1999). 
5

physician who, on the basis of a complete and accurate factual and medical history, concludes 

that the disabling condition is causally related to employment factors and supports that 

conclusion with sound medical reasoning.6

ANALYSIS 

OWCP accepted that appellant sustained a left knee contusion due to an altercation with a 

patient on December 21, 2013 which had resolved by January 8, 2014. Appellant filed a notice 

of recurrence of disability on April 14, 2014 asserting that he reinjured his left knee on that date 

in another altercation with a patient. 

The Board finds that appellant failed to establish that he also sustained a recurrence of 

disability on April 14, 2014 causally related to his December 21, 2013 employment injury. 

Appellant attributed his April 14, 2014 recurrence of disability to an altercation with a patient, 

which would constitute an intervening injury rather than a recurrence of disability. A recurrence 

of disability is a work stoppage caused by “a spontaneous change in a medical condition which 

has resulted from a previous injury or illness without an intervening injury or new exposure to 

the work environment that caused the illness.”7

The medical evidence further supports the occurrence of an intervening injury on 

April 14, 2014 rather than a recurrence of disability. Dr. West, on April 17, 2014, found that 

appellant reinjured his knee on April 14, 2014 in an altercation with a combative patient. He 

diagnosed an aggravation of a preexisting knee condition due to events on December 21, 2013 

and April 14, 2014. In a January 27, 2016 report, Dr. Ha’Eri discussed his history of knee 

injuries on December 21, 2013 and April 14, 2014 handling patients. There is no reasoned 

medical opinion supporting that appellant experienced a spontaneous change in his medical 

condition on April 14, 2014 due to his December 21, 2013 employment injury, consequently, he 

has not met his burden of proof to establish a recurrence of disability.8 Appellant’s claim does 

not constitute a recurrence of disability as defined by OWCP regulations.9

 

On appeal counsel contends that OWCP erred in adjudicating the claim as a recurrence of 

disability instead of a traumatic injury causing an aggravation of a preexisting injury. It, 

however, had handled the claim as a traumatic injury claim and OWCP accepted an aggravation 

of a preexisting knee condition on April 14, 2014 under File No. xxxxxx561. It was appellant 

who continually argued to handle the claim as a recurrence of disability due to the December 21, 

2013 injury. As discussed, a recurrence of disability does not include disability resulting from 

exposure to new work factors, even if it involves the same part of the body previously injured.10

 6 Mary A. Ceglia, 55 ECAB 626 (2004). 

7 See supra note 4; see R.P., Docket No. 15-1335 (issued October 6, 2016). 

8 See S.K., Docket No. 14-1279 (issued September 25, 2014). 

9 See supra note 4; see also S.K., Docket No. 14-1279 (issued September 24, 2014). 

10 20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(c)(5) 

(June 2013). 
6

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 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not established a recurrence of disability beginning 

April 14, 2014 causally related to his December 21, 2013 employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the February 28, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 25, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board