United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Staten Island, NY, Employer 

__________________________________________ 

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Docket No. 15-1561 

Issued: November 13, 2015 

Appearances: Case Submitted on the Record

Robert D. Campbell, 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 July 13, 2015 appellant, through counsel, filed a timely appeal from a February 6, 

2015 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 established a recurrence of total disability on 

November 6, 2013 causally related to a December 9, 2011 employment injury.2

 1

 5 U.S.C. § 8101 et seq. 

2

 On appeal counsel stated that a statement of factual and legal arguments challenging and disagreeing with 

OWCP’s decision would be forthcoming. These items have not been received by the Board. 
2

FACTUAL HISTORY 

On February 22, 2012 OWCP accepted that appellant, then a 50-year-old letter carrier, 

sustained lateral meniscus derangement of the right knee and contusion of the left knee on 

December 9, 2011 when she slipped and fell on wet grass while delivering mail. She stopped 

work that day. Appellant received continuation of pay and wage-loss compensation. 

Appellant returned to modified duty on July 29, 2013. The job description indicated that 

she cased mail while sitting for one to two hours daily, did office work such as answering the 

telephone for one to four hours daily, and delivered Express Mail within restrictions for up to 

two hours daily. The physical restrictions were that standing, walking, bending, stooping, and 

driving were limited to two hours intermittently, and lifting, pulling, and pushing were not to 

exceed 10 pounds, and were also limited to two hours intermittently. Appellant continued to 

receive wage-loss compensation for the hours she did not work. 

In an August 20, 2013 report, Dr. Charles DeMarco, Board-certified in orthopedic 

surgery, noted the history of injury and appellant’s complaints of persistent knee pain. He found 

tenderness on examination of both knees and diagnosed bilateral knee degenerative arthritis, 

ruled-out meniscus pathology. 

Bilateral knee x-rays on November 8, 2013 revealed mild joint space narrowing at the 

patellofemoral and lateral femorotibial compartments bilaterally, right greater than left with 

moderate bilateral knee joint effusion. No fracture or focal lytic lesion was seen. 

On November 13, 2013 appellant alleged a recurrence of total disability (Form CA-2a) on 

November 6, 2013. She related that she was working four hours a day, had a lot of knee pain 

that had increased, and she stopped work. The employing establishment confirmed that 

appellant had been working modified duty for four hours a day. 

A right knee magnetic resonance imaging (MRI) scan on November 8, 2013 

demonstrated an extensive tear of the entire lateral meniscus with diminished meniscal height, 

and a tear of the anterior cruciate ligament (ACL), with mild-to-moderate knee joint effusion, 

and no fracture or focal lytic lesion. A November 13, 2013 MRI scan of the right tibia and fibula 

revealed diffuse soft tissue swelling and no fracture or tendon tear. Left tibia and fibula MRI 

scans that day revealed no fracture or tendon tear and no focal lytic lesion. 

In November 19, 2013 reports, Dr. DeMarco reiterated his findings and conclusions and 

noted that he had not yet reviewed the MRI scan studies. He diagnosed arthritis of both knees 

and instability, and checked a form box “yes,” indicating that the conditions were employment 

related. Dr. DeMarco advised that appellant had been totally disabled since November 6, 2011 

and that it was undetermined when she could return to work. On January 7, 2014 he diagnosed 

meniscus pathology, ligamentous pathology, degenerative arthritis, and ACL injury to both 

knees. Dr. DeMarco advised that appellant continued to have tenderness over the medial and 

lateral facets and remained totally disabled. 

By letter dated January 28, 2014, OWCP noted the accepted conditions and informed 

appellant of the evidence needed to support her recurrence claim. 
3

In reports dated February 18, 2014, Dr. DeMarco provided physical examination findings 

and noted his review of the MRI scan studies. He advised that on November 4, 2013 appellant 

sustained a recurrence of a prior injury and noted that she did not want additional surgery. 

Dr. DeMarco continued to advise that appellant was totally disabled. 

On March 19, 2014 Dr. Anne Marie Stilwell, Board-certified in anesthesiology and pain 

medicine, noted the history of injury and appellant’s medical and surgical history, including test 

results. Physical examination demonstrated very swollen knees. Dr. Stilwell diagnosed knee 

pain and chronic pain not otherwise classified. She advised that appellant could not return to full 

duty and recommended physical therapy and knee injections. 

In an April 3, 2014 decision, OWCP denied appellant’s claim that she sustained a 

recurrence of total disability on November 6, 2013 because the medical evidence did not contain 

sufficient evidence explaining how the claimed disability was caused by the accepted conditions 

due to the December 9, 2011 employment injury. Appellant remained entitled to medical 

benefits. 

On November 26, 2014 appellant, through counsel, requested reconsideration and 

submitted additional medical evidence. In support of the request, she submitted an undated 

statement in which she indicated that, after she returned to work in July 2013, she delivered mail 

which required a lot of in and out, up and down, and this increased her knee pain and swelling. 

Appellant stated that when she woke up on November 6, 2013 she could not bend her knees, had 

extreme pain and swelling, and that the pain continued. 

In reports dated March 24 to April 29, 2014, Dr. DeMarco reiterated the history of injury, 

appellant’s medical and surgical history, his treatment, and her complaints of bilateral knee pain 

and dysfunction. He noted that after she returned to work her knee problems increased such that 

on November 4, 2013, when she was casing mail, her knees blew up. Dr. DeMarco diagnosed 

medial meniscus and ACL tears. He recommended physical therapy, injections, and surgical 

treatment, including possible total knee replacements. Dr. DeMarco advised that, with a 

reasonable degree of medical certainty, appellant’s knee injuries were due to the December 9, 

2011 employment injury with an acute exacerbation on November 4, 2013. He continued to 

advise that she was totally disabled. On May 1, 2014 Dr. DeMarco noted that appellant could 

work six hours a day casing mail and preparing a route for delivery, and that she could deliver 

Express Mail, not to exceed 15 pounds. Squatting, kneeling, and climbing were prohibited, and 

she was to be allowed a 15-minute break every 2 hours. On June 9, 2014 Dr. DeMarco reiterated 

his findings and opinions. At that time he advised that appellant was unable to work. 

In a merit decision dated February 6, 2015, OWCP denied modification of the prior 

decision. It found that appellant had not met her burden of proof because the medical evidence 

did not sufficiently explain how the claimed November 6, 2013 recurrence of total disability was 

related to the December 9, 2011 employment injury. 

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 had resulted from a 
4

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

that caused the illness.3

 This term also means an inability to work when a light-duty assignment 

made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of 

misconduct, nonperformance of job duties or a reduction-in-force), or when the physical 

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

limitations.4

When an employee, who is disabled from the job he or she held when injured on account 

of employment-related residuals, returns to a light-duty position or the medical evidence 

establishes that light duty can be performed, the employee has the burden to establish by the 

weight of reliable, probative, and substantial evidence a recurrence of total disability. As part of 

this burden of proof, the employee must show either a change in the nature and extent of the 

injury-related condition, or a change in the nature and extent of the light-duty requirements.5

An individual who claims a recurrence of disability resulting from an accepted 

employment injury has the burden of establishing that the disability is related to the accepted 

injury. This burden requires furnishing medical evidence from a physician who, on the basis of a 

complete and accurate factual and medical history, concludes that the disabling condition is 

causally related to the employment injury and who supports that conclusion with sound medical 

reasoning.6 

ANALYSIS 

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

November 6, 2013 causally related to the accepted lateral meniscus derangement of the right 

knee and contusion of the left knee. Appellant has failed to establish that the nature and extent 

of her injury-related conditions changed so as to prevent her from continuing to perform her 

modified part-time assignment. 

Following the December 9, 2011 employment injury, appellant returned to four hours of 

modified duty on July 29, 2013. The job duties of the part-time position were that she cased mail 

while sitting for one to two hours daily, did office work such as answering the telephone for one 

to four hours daily, and delivered Express Mail within restrictions for up to two hours daily. The 

physical restrictions were that standing, walking, bending, stooping, and driving were limited to 

two hours intermittently, and lifting, pulling, and pushing were not to exceed 10 pounds, and 

were also limited to two-hour intermittently. 

 3

 20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004). 

4 Id. 

5 Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB 

222 (1986). 

6 S.S., 59 ECAB 315 (2008). 
5

When appellant filed the recurrence claim on November 13, 2013, she reported that she 

sustained a recurrence of total disability on November 6, 2013. She stated that she was working 

four hours a day and had a lot of knee pain that increased, and she stopped work. The employing 

establishment indicated that appellant had been working modified duty for four hours a day. In 

November 2014, appellant related that, when she woke up on November 6, 2013, she could not 

bend her knees and had extreme pain and swelling. She stated that the pain continued. 

Dr. Stilwell advised on March 19, 2014 that physical examination demonstrated very 

swollen knees. She diagnosed knee pain and chronic pain not otherwise classified, advised that 

appellant could not return to full duty, and performed five knee injections from May 14 to 

June 11, 2014. Dr. Stilwell, however, did not provide any specific physical restrictions, and 

merely indicated that appellant could not return to full duty. Moreover, she exhibited no 

knowledge of appellant’s part-time modified job duties. 

Likewise, Dr. DeMarco’s reports are insufficient to establish that appellant sustained a 

recurrence of total disability on November 6, 2013. He submitted reports beginning in 

August 2013. At that time Dr. DeMarco reported appellant’s complaints of persistent knee pain 

and tenderness on examination of both knees and diagnosed degenerative arthritis of both knees, 

ruled-out meniscus pathology. On November 19, 2013 he diagnosed arthritis of both knees and 

instability. Dr. DeMarco checked a form box “yes,” indicating that the conditions were 

employment related and advised that appellant had been totally disabled since 

November 6, 2011. He reported that it was undetermined when appellant could return to work. 

On January 7, 2014 Dr. DeMarco diagnosed meniscus pathology, ligamentous pathology, 

degenerative arthritis, and ACL injury to both knees. He advised that appellant continued to 

have tenderness over the medial and lateral facets and remained totally disabled. On 

February 18, 2014 Dr. DeMarco noted his review of the MRI scan studies. He advised that on 

November 4, 2013 appellant sustained a recurrence of a prior injury and indicated that she did 

not want additional surgery. Dr. DeMarco continued to advise that she was totally disabled. In 

reports dated March 24 to April 29, 2014, he reiterated the history of injury, appellant’s medical 

and surgical history, his treatment, and her complaints of bilateral knee pain and dysfunction and 

noted that after she returned to work her knee problems increased such that on November 4, 

2013, when she was casing mail, her knees blew up. Dr. DeMarco diagnosed medial meniscus 

and ACL tears. He advised that, with a reasonable degree of medical certainty, appellant’s knee 

injuries were due to the December 9, 2011 injury with an acute exacerbation on 

November 4, 2013. Dr. DeMarco continued to advise that she was totally disabled. On May 1, 

2014 he indicated that appellant could work six hours a day casing mail and preparing a route for 

delivery, and that she could deliver Express Mail, not to exceed 15 pounds. Squatting, kneeling, 

and climbing were prohibited, and she was to be allowed a 15-minute break every 2 hours. On 

June 9, 2014 Dr. DeMarco reiterated his findings and opinions. At that time he advised that 

appellant was unable to work. 

Dr. DeMarco’s opinion is insufficient to meet appellant’s burden to establish a recurrence 

of total disability on November 6, 2013 for two reasons. Initially, the history of the recurrence 

provided by him does not comport with appellant’s description. Appellant indicated that when 

she woke up on November 6, 2013 she could not bend her knees and had extreme knee pain and 

swelling. Dr. DeMarco described an injury that occurred on November 4, 2013 when she was at 

work, stating that when she was casing mail that day her knees blew up. Secondly, he exhibited 
6

no knowledge of the part-time modified duties appellant was performing when she stopped work 

on November 6, 2013. Appellant’s job duties at that time indicated that she would sit while 

casing mail. He did not explain why appellant could no longer perform the modified part-time 

duties. 

Medical opinion evidence submitted by appellant to support her claim for compensation 

benefits should reflect a correct history and should offer a medically sound explanation by the 

physician of how the modified duties she was performing on November 6, 2013 physiologically 

caused or aggravated the accepted bilateral knee conditions.7

 Appellant submitted no such 

evidence in this case. 

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(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant failed to establish that she sustained a recurrence of total 

disability on or after November 6, 2013, causally related to a December 9, 2011 employment 

injury. 

 7 Id. 
7

ORDER 

IT IS HEREBY ORDERED THAT the February 6, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 13, 2015 

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