United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Blaire, WA, Employer 

__________________________________________ 

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Docket No. 17-0727 

Issued: August 4, 2017 

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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 13, 2017 appellant, through counsel, filed a timely appeal from a 

December 22, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

 

Pursuant to the Federal Employees’ Compensation Act3

 (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

 The record also contains a November 22, 2016 OWCP decision with respect to permanent impairment. Counsel 

did not request review of this decision, and the record indicates that counsel is pursuing appeal rights with OWCP. 

3

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant has established a recurrence of medical condition 

commencing June 10, 2010, causally related to his accepted March 9, 2003 employment injury. 

FACTUAL HISTORY 

This case has previously been before the Board.4

 The facts of the case as presented in the 

Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows. 

On July 15, 2003 appellant, then a 36-year-old customs inspector, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained an injury on March 9, 2003. He indicated that he 

was participating in a physical techniques drill, when a student tried to pick him up from the 

floor. The claim was accepted for a medial meniscus tear of the left knee. On August 8, 2003 

appellant underwent a left knee meniscectomy performed by Dr. Michael Gannon, a Boardcertified orthopedic surgeon. He received compensation for total disability from December 19, 

2003 through June 11, 2005, when he returned to work in the private sector.5

In a report dated May 2, 2006, Dr. Ralph Belle, a Board-certified orthopedic surgeon, 

indicated that an April 6, 2006 magnetic resonance imaging (MRI) scan showed a horizontal tear 

of the medial meniscus posterior horn, as well as moderate degenerative changes in the medial 

compartment. He diagnosed left knee osteoarthritis, and wrote that appellant had returned to 

work after the knee surgery and as a result has knee “flared again” and had never really 

recovered. 

On June 21, 2010 appellant filed a claim for a recurrence of disability (Form CA-2a) and 

indicated that he was claiming medical treatment only. He identified the date of recurrence as 

June 10, 2010. Appellant wrote that repetitive work activities had exacerbated his original 

injury. 

In a June 15, 2010 report, Dr. Gidon Frame, a family practitioner, wrote that appellant 

had worsening disability and pain from the left knee injury. 

By decision dated August 9, 2010, OWCP denied appellant’s recurrence claim. It found 

that the medical evidence of record was insufficient to show that appellant’s current medical 

condition was due to the accepted work injury. 

On August 25, 2010 appellant requested review of the written record by an OWCP 

hearing representative. In a report dated August 5, 2010, Dr. Frame opined that appellant’s 

March 9, 2003 workplace injury was the direct cause of the left knee medial meniscus tear and 

the degenerative damage. He wrote that there was no evidence of any other cause, and the left 

knee condition would persist indefinitely. 

 4

 Docket No. 11-0666 (issued November 4, 2011); Docket No. 06-1565 (issued February 20, 2007). 

5

 Docket No. 06-1565 (issued February 20, 2007). The Board set aside a December 5, 2005 OWCP decision 

finding that appellant’s prerecoupment hearing request was untimely. 
3

By decision dated December 7, 2010, an OWCP hearing representative affirmed the 

August 5, 2010 decision. He found the evidence submitted failed to establish that appellant’s left 

knee condition after June 10, 2010 was causally related to the accepted March 2003 work injury. 

On January 25, 2011 appellant filed a timely appeal with the Board. The Board affirmed 

the August 9 and December 7, 2010 OWCP decisions,6 finding that the evidence of record was 

insufficient to establish that appellant’s current condition was causally related to the employment 

injury. 

On May 1, 2012 appellant, through counsel, submitted an April 26, 2012 letter requesting 

a “reopening” of the claim. The medical evidence submitted included a report dated March 14, 

2012 from Dr. Eric Smith, Board-certified in occupational medicine. Dr. Smith opined that 

appellant’s tear and subsequent repair of the torn meniscus was the reason for the findings on a 

March 28, 2011 MRI scan, which showed the meniscus was dysmorphic in shape and diminutive 

in size. He noted that the five-year follow-up study showed that, despite good functional 

outcomes, the meniscectomies resulted in cartilage wear and degenerative changes. Dr. Smith 

wrote that the middle portion of the medial meniscus was often a weight bearing portion of the 

cartilage and surgery can cause faster degenerative changes. He opined that the 2003 complex 

meniscal tear was a significant precipitating event that left appellant with severe left knee 

arthritis. 

OWCP did not respond to the April 26, 2012 letter requesting to reopen the case. On 

April 24, 2015 appellant submitted an April 19, 2015 letter noting that a request to reopen the 

claim had been submitted. By letter dated May 4, 2015, OWCP acknowledged receiving the 

April 26, 2012 letter. It requested that appellant submit evidence that counsel at that time was 

authorized to represent appellant. On May 27, 2015 OWCP received appellant’s authorization 

for counsel. 

By decision dated June 9, 2015, OWCP reviewed the merits and denied modification. It 

found the medical evidence submitted was insufficient to establish a recurrence of an 

employment-related medical condition. 

On October 6, 2015 appellant submitted a claim for compensation (Form CA-7) and 

indicated he was claiming a schedule award. 

On May 16, 2016 appellant, through counsel requested reconsideration of the June 9, 

2015 OWCP decision. He submitted a May 9, 2016 report from Dr. Smith, who diagnosed left 

knee arthritis. Dr. Smith opined that it was medically logical that the initial injury could 

ultimately show increasing arthritis, and to say that the arthritis arose otherwise would be 

illogical. He further opined that the osteoarthritis was traumatic in nature and can directly be 

attributed to his March 9, 2003 employment injury. Dr. Smith wrote that, while the left knee 

condition may have been preexisting, it was clearly and substantially aggravated by the 

employment injury. 

 6

 Docket No. 11-0666 (issued November 4, 2011). 
4

With respect to claim for a schedule award, by decision dated June 8, 2016, an OWCP 

hearing representative remanded the case to OWCP for further development of the medical 

evidence. As part of the development of the evidence, OWCP referred the case to an OWCP 

district medical adviser (DMA). The DMA was asked to review the reports from Dr. Smith 

dated March 14, 2012 and May 9, 2016. 

In a report dated August 4, 2016, the DMA, Dr. Michael Katz, a Board-certified 

orthopedic surgeon, wrote that there was no permanent impairment report. He further opined: 

“Dr. Smith presents a well-reasoned narrative in favor of upgrading this claim to include the 

diagnosis of osteoarthritis, knee, permanent aggravation. Based on the findings documented in 

the operative report of [August 7, 2003], I would agree with him that the osteoarthritis may have 

predated the injury; however, the necessity for the microfracture and the performance of the 

partial meniscectomy are clearly linked with the progression of arthritis in a knee, and for that 

reason it is my opinion that there is sufficient evidence to support upgrading this claim to include 

osteoarthritis, left knee, permanent aggravation.” 

By decision dated December 22, 2016, OWCP reviewed the merits of the claim, but 

denied modification. It found that the medical evidence from Dr. Smith dated May 9, 2016 was 

insufficient to establish an employment-related osteoarthritis. OWCP did not mention the 

August 4, 2016 report from Dr. Katz. 

LEGAL PRECEDENT 

When a claim for a recurrence of medical condition is made more than 90 days after 

release from medical care, a claimant is responsible for submitting a medical report that contains 

a description of objective findings and supports causal relationship between the claimant’s 

current condition and the previous work injury.7 

ANALYSIS 

In the present case, the accepted injury was a left knee medial meniscus tear resulting 

from a March 9, 2003 employment injury. Appellant filed a claim for a recurrence of a medical 

condition on or after June 10, 2010. In the prior appeal, the Board found the medical evidence at 

that time failed to establish left knee arthritis or any other condition as causally related to the 

March 9, 2003 employment injury. 

The December 22, 2016 OWCP decision finds that appellant failed to establish a 

recurrence of a medical condition, but it fails to address the relevant evidence of record. In an 

August 4, 2016 report, Dr. Katz reviewed the reports of Dr. Smith dated March 14, 2012 and 

May 9, 2016. He opined that a permanent aggravation left knee osteoarthritis was established by 

the medical evidence. OWCP gave no indication in the December 22, 2016 decision that it 

reviewed the evidence of record from Dr. Katz. 

The August 4, 2016 report was clearly relevant to the issue presented, as the medical 

condition claimed as a recurrence was osteoarthritis. It is well established that OWCP must 

 7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013). 
5

properly consider all relevant evidence of record before issuing a decision.8 As the Board’s 

decisions are final as to the subject matter appealed, it is crucial that all evidence relevant to that 

subject matter which was properly submitted to OWCP prior to the time of issuance of its final 

decision be addressed by OWCP.9

 

This case will be remanded for a proper decision on the issue of a recurrence of a medical 

condition on or after June 10, 2010. OWCP should review all of the relevant evidence with 

respect to the issue presented and issue a de novo decision on the merits following any necessary 

further development. 

CONCLUSION 

The Board finds the case is not in posture for decision and is remanded to OWCP. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated December 22, 2016 is set aside and the case is remanded to 

OWCP for further action consistent with this decision of the Board. 

Issued: August 4, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 See N.L., Docket No. 17-0454 (issued April 6, 2017); S.D., Docket No. 16-1866 (issued January 17, 2017); 

William A. Couch, 41 ECAB 548, 553 (1990). 

9 Id.