United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.G., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

NEW YORK HARBOR HEALTHCARE 

SYSTEM, Brooklyn, NY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1196 

Issued: March 6, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 18, 2016 appellant, through counsel, filed a timely appeal from a February 19, 

2016 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 to consider the merits of this case.3

 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. 

3

 The Board notes that OWCP received additional evidence following the February 19, 2016 decision. The 

Board, however, may only review evidence that was in the record at the time OWCP issued its final decision. Thus, 

the Board is precluded from reviewing the additional evidence on appeal. See 20 C.F.R. §§ 501.2(c)(1); M.B., 

Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. 

Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

ISSUE 

The issue is whether appellant met her burden of proof to establish a recurrence of 

disability commencing March 26, 2014 causally related to the accepted January 8, 2012 

employment injury. 

FACTUAL HISTORY 

On January 9, 2012 appellant, then a 53-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on January 8, 2012 she sustained injuries to right hip, left wrist, right 

shoulder, and both knees when she slipped and fell in a hallway. She stopped work on 

January 9, 2012. OWCP accepted the claim for bilateral knee contusion and right hip contusion. 

Appellant returned to work on January 17, 2012 and accepted a modified full-time limited-duty 

job offer on January 23, 2012. 

Appellant continued medical treatment for her accepted conditions throughout 2012 and 

2013 with Dr. Michael F. Busch, a Board-certified orthopedic surgeon. In a report dated 

October 11, 2013, Dr. Busch related her examination findings and concluded that appellant was 

able to perform sedentary work, with standing limited to one hour per day. 

In a March 26, 2014 employing establishment health unit note, Dr. Gloria I. Ihenacho, a 

Board-certified internist, related that appellant was seen on that date for bilateral knee pain due 

to her accepted 2012 slip and fall injury. 

By report dated April 4, 2014, Laura Bielecki, a certified physician’s assistant, diagnosed 

knee osteoarthritis and patellofemoral syndrome. She noted that appellant had indicated that her 

knee conditions were employment related. Ms. Bielecki released appellant to four days per week 

sedentary work, with no standing more than one hour per day. 

On April 4 and August 8, 2014 appellant was seen by Dr. Busch. Dr. Busch noted that 

the date of injury was January 8, 2012 and that her knee pain had worsened. A physical 

examination revealed bilateral knee medial joint line tenderness, right knee trace effusion, left 

knee swelling, and mild left knee effusion. Dr. Busch observed full right knee range of motion, 

0 degrees left knee extension, and 125 degrees flexion. In the April 4, 2014 report, he reviewed 

an x-ray interpretation, which showed narrow medial and lateral joint space and bone-on-bone 

femoral space. 

Dr. Busch diagnosed patellofemoral syndrome and knee osteoarthritis in his April 4, and 

August 8, 2014 reports. He opined that appellant’s preexisting conditions had been aggravated 

by the January 8, 2012 work injury and that she could work eight hours per day, four days per 

week in a sedentary position, with a maximum of one hour of standing per day. 

In a September 5, 2014 report, Dr. Busch noted that he had been treating appellant since 

January 8, 2012 for her employment-related bilateral knee injury. 

On March 30, 2015 appellant filed a claim for a recurrence of partial disability (Form 

CA-2a) for wage loss beginning March 26, 2014. She stated that she had been placed on limitedduty work and had been on leave without pay since April 4, 2014. Appellant related that while 

getting up from a sitting position on March 26, 2014 she felt her knees giving out, felt a lot of 
3

pain, and heard a crunching sound. She noted that the accepted injury caused patella femur 

syndrome, which had worsened. 

The record contains duty status reports (Form CA-17) from Dr. Busch dated April 4, 

2014 and February 27, 2015 limiting appellant to eight hours of work per day, four days per 

week with restrictions. 

On March 27, 2015 appellant was seen by Dr. Busch for bilateral knee pain complaints 

and was diagnosed with knee joint pain and knee osteoarthritis. A physical examination of both 

knees revealed no visible abnormalities and pain with extension and flexion. Dr. Busch released 

appellant to return to modified sedentary work. 

On April 24, 2015 appellant was seen for bilateral knee pain and increased left hip pain 

complaints by Dr. Busch. Dr. Busch reported no visible bilateral knee abnormalities, bilateral 

knee pain with extension and flexion, and full left hip range of motion. Diagnoses included knee 

osteoarthritis and left hip trochanteric bursitis. Dr. Busch indicated that appellant was capable 

performing sedentary work. 

Dr. Busch, in an April 28, 2015 report, released appellant to sedentary work. 

By letter dated May 27, 2015, OWCP informed appellant that the evidence of record was 

insufficient to establish her claim for a recurrence of disability beginning March 26, 2014. It 

advised her as to the definition of a recurrence and the evidence required. Appellant was 

afforded 30 days to provide the requested information. 

In a June 19, 2015 report, Dr. Busch reiterated diagnoses and findings from his prior 

reports. 

By decision dated June 30, 2015, OWCP denied appellant’s recurrence claim, finding 

that the medical evidence of record was insufficient to establish that her accepted conditions had 

worsened. 

In a letter dated July 9, 2105, counsel requested an oral hearing before an OWCP hearing 

representative, which was held on September 16, 2015. 

In a July 31, 2015 report, Dr. Busch diagnosed knee joint pain and knee osteoarthritis. 

Appellant stated that her condition was due to her January 8, 2012 employment injury. A 

physical examination of both knees revealed no visible abnormalities and pain with extension 

and flexion. Dr. Busch noted that, prior to the January 8, 2012 fall, appellant had no knee issues. 

He opined that her current symptoms were due to an exacerbation of her preexisting bilateral 

knee osteoarthritis from the employment injury. Dr. Busch indicated that appellant was capable 

of working in a sedentary position. 

On August 28 and September 25, 2015 appellant was seen by Dr. Busch for bilateral knee 

pain. Dr. Busch observed no visible abnormalities, but noted that appellant had pain with 

extension. He diagnosed knee joint pain and knee osteoarthritis. Dr. Busch indicated that 

appellant was capable of sedentary work. 
4

On September 15, 2015 OWCP received reports from Dr. Busch covering the period 

January 13, 2012 to September 11, 2015, noting that appellant was capable of working a 

sedentary position. Diagnoses included knee joint pain, knee osteoarthritis, and patellofemoral 

syndrome, and left hip trochanteric bursitis. 

By decision dated November 4, 2015, OWCP’s hearing representative affirmed the denial 

of appellant’s recurrence claim. She found the medical evidence insufficient to establish that 

appellant’s accepted conditions had worsened on March 26, 2014. The hearing representative 

further found that appellant’s work hours had been altered based on her own request and not due 

to worsening of her accepted conditions. 

In a December 18, 2015 report, Dr. Busch reported that appellant was seen for bilateral 

knee pain. He diagnosed knee osteoarthritis and an antalgic gait. Dr. Busch indicated that 

appellant was capable of working a sedentary job. 

On February 12, 2016, appellant, through counsel, requested reconsideration and 

submitted a September 11, 2015 letter from Dr. Busch. 

In the September 11, 2015 letter, Dr. Busch noted that appellant has been in his care since 

January 2012, for patellofemoral syndrome and bilateral knee osteoarthritis, which became 

symptomatic following the January 2012 work injury. He further noted that appellant had 

worked as a nurse for the employing establishment for 26 years at the time of her accepted 2012 

fall at work. Dr. Busch explained that clinical examination, along with x-rays, and magnetic 

resonance imaging (MRI) scan evaluation, demonstrated severe osteoarthritis of the left knee, 

osteoarthritis of the right knee, and patellofemoral syndrome of both knees. He related that 

appellant had been treated conservatively with physical therapy, knee brackets, steroid injections, 

synvisc injections, pain medication, tramadol, and ice application. As these treatments had 

failed, Dr. Busch now recommended total knee replacement. 

Dr. Busch further related that he had examined appellant on April 4, 2014. Based on his 

examination, on that date, he had determined that appellant could only work eight hours per day 

four days a week instead of five days per week. Due to the worsening of her condition, 

Dr. Busch opined that appellant sustained a recurrence of disability on March 26, 2014. He also 

explained that appellant currently used a cane to walk as her instability and crepitus had 

increased when she moved from a sitting to standing position. Appellant had increased bilateral 

knee swelling and pain. Dr. Busch restricted her to sedentary work on January 23, 2015 with a 

maximum of one hour standing, a maximum of one hour walking, and seven to eight hours of 

sitting. He opined that the January 8, 2012 employment injury caused a permanent aggravation 

of the underlying bilateral knee osteoarthritis. 

By decision dated February 19, 2016, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT 

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 of 

record establishes that he or she can perform the light-duty position, the employee has the burden 

of proof to establish, by the weight of the reliable, probative, and substantial evidence, a 
5

recurrence of disability and to show that he or she cannot perform such light duty.4

 As part of 

this burden, the employee must show 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

A recurrence of disability is defined as the inability to work after an employee has 

returned to work, caused by a spontaneous change in a medical condition which had resulted 

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

environment that caused the illness.6 The Board has held that whether a particular injury causes 

an employee to be disabled for work is a medical question that must be resolved by competent 

and probative medical evidence.7 The weight of medical opinion is determined on the report of a 

physician, who provides a complete and accurate factual and medical history, explains how the 

claimed disability is related to the employee’s work and supports that conclusion with sound 

medical reasoning.8

ANALYSIS 

OWCP accepted that appellant sustained bilateral knee contusion and right hip contusion 

on January 8, 2012. Appellant returned to full-time limited-duty work following the injury. She 

subsequently filed a claim for a recurrence of disability for wage loss commencing 

March 26, 2014. The Board finds that appellant has not met her burden of proof to establish that 

she sustained a recurrence of partial disability commencing March 26, 2014. 

Appellant returned to modified work on January 17, 2012 working eight hours per day, 

five days per week. On March 26, 2014 she claimed that her knees gave out while she was rising 

from a chair. Appellant alleged that her knee condition had worsened such that she was no 

longer able to work eight hours per day five days a week. She did not allege a change in her 

light-duty job requirements. Therefore, appellant has the burden of proof to establish that she 

cannot perform such light duty. As part of this burden, she must show a change in the nature and 

extent of the injury-related condition.9

Appellant submitted numerous reports from Dr. Busch in support of her recurrence claim. 

As Dr. Busch explained that he had treated appellant for her knee conditions since her January 8, 

2012 accepted injury. In multiple reports, he indicated that appellant was capable of performing 

sedentary work, but as of March 26, 2014 for only four days a week. In reports dated April 4 

and August 8, 2014, Dr. Busch noted bilateral knee medial joint line tenderness, right knee trace 

effusion, left knee swelling, and mild left knee effusion full right knee range of motion, 0 

degrees left knee extension, and 125 degrees flexion. He concluded that appellant was only 

 4 K.C., Docket No. 08-2222 (issued July 23, 2009); Richard A. Neidert, 57 ECAB 474 (March 10, 2006). 

5 C.S., Docket No. 08-2218 (issued August 7, 2009); Joseph D. Duncan, 54 ECAB 471 (2003); Roberta L. 

Kaaumoana, 54 ECAB 150 (2002); Terry R. Hedman, 38 ECAB 222 (1986). 

6

 20 C.F.R. §10.5(x). See S.F., 59 ECAB 525 (2008); Albert C. Brown, 52 ECAB 152 (2000); Terry R. Hedman, 

id. 

7 See R.C., 59 ECAB 546 (2008); Carol A. Lyles, 57 ECAB 265 (2005); Donald E. Ewals, 51 ECAB 428 (2000). 

8 See C.S., supra note 5; Sandra D. Pruitt, 57 ECAB 126 (2005). 

9 Supra note 6. 
6

capable of working eight hours per day, four days per week in a sedentary position due to a 

permanent aggravation of her preexisting conditions. Dr. Busch, in a September 11, 2015 report, 

explained that her instability and crepitus had increased when changed from a sitting to standing 

position and she used a cane to ambulate, and diagnosed osteoarthritis and patellofemoral 

syndrome of the knees and left hip trochanteric bursitis. He also observed an increased bilateral 

knee swelling. Dr. Busch noted that he provided appellant work restrictions monthly. He 

reiterated that, based on his April 4, 2014 examination, appellant was only capable of working 

eight hours per day, four days a week. Dr. Busch concluded that the reduction in work hours 

was caused by a worsening of her condition and, thus, she had sustained a recurrence of 

disability on March 26, 2014. 

Although Dr. Busch related that appellant should only work four days a week, rather than 

five, he failed to provide medical rationale explaining why appellant’s accepted bilateral knee 

and right hip contusions, caused her disability after March 26, 2014. Rather, Dr. Busch related 

that appellant was disabled due to degenerative conditions which were not accepted as caused by 

the employment injury. He did not sufficiently explain how the slip and fall at work on 

January 8, 2012 would cause the additional conditions he diagnosed of patellofemoral syndrome 

and bilateral knee osteoarthritis. 

Dr. Busch’s opinion does not support a spontaneous recurrence of appellant’s accepted 

knee and hip contusions. Rather, the opinion suggests that appellant’s employment injury caused 

additional conditions.10 He correlated in general terms that appellant’s conditions were caused 

by the work injury. However, generalized statements do not establish causal relationship 

because they are unsupported by adequate medical rationale explaining how the accepted injury 

actually caused the additional conditions.11 For conditions not accepted by OWCP as being 

employment related, it is the employee’s burden to provide rationalized medical evidence 

sufficient to establish causal relation, not OWCP’s burden of proof to disprove such a 

relationship.12 Accordingly, the Board finds that Dr. Busch failed to provide a sufficiently 

rationalized medical opinion explaining why appellant was totally disabled commencing 

March 26, 2014 due to a worsening of her accepted conditions or to any additional conditions 

which were causally related to the accepted injury.13 

The Board has held that the fact that a condition manifests itself or worsens during a 

period of employment14 or that work activities produce symptoms revelatory of an underlying 

condition does not raise an inference of causal relationship between a claimed condition and 

employment factors.15 Dr. Busch did not address causal relationship between the claimed partial 

 10 20 C.F.R. § 10.5(x). OWCP’s implementing regulation defines a recurrence of disability as 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. 

11 L.M., Docket No. 16-0188 (issued March 24, 2016); K.W., Docket No. 10-98 (issued September 10, 2010). 

12 G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,

51 ECAB 638 (2000). 

13 P.P., Docket No. 16-1232 (issued December 23 2016). 

14 Robert G. Morris, 48 ECAB 238-39 (1996); William Nimitz, Jr., 30 ECAB 567 (1979). 

15 B.B., Docket No. 13-256 (issued August 13, 2013); Richard B. Cissel, 32 ECAB 1910, 1917 (1981). 
7

disability commencing March 26, 2014 and the accepted employment injuries.16 For the above 

stated reasons, the Board finds that his reports are insufficient to establish appellant’s claim. 

On appeal counsel argues that the medical and factual evidence submitted by appellant 

establishes that her partial disability beginning March 26, 2014 was causally related to her 

accepted January 8, 2012 employment injury. As discussed above, the Board found Dr. Busch’s 

reports insufficient to establish that appellant’s recurrence of partial disability was casually 

related to her accepted bilateral knee and right hip conditions. 

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 appellant has not established that she sustained a recurrence of disability 

on March 26, 2014 causally related to her January 8, 2012 employment injury. 

ORDER 

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

Compensation Programs dated February 19, 2016 is affirmed. 

Issued: March 6, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 See D.B., Docket No. 13-717 (issued July 24, 2013); Sandra D. Pruitt, 57 ECAB 126 (2005).