United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WEST LOS ANGELES MEDICAL CENTER, 

Los Angeles, CA, Employer

__________________________________________

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Docket No. 18-1533

Issued: February 27, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On August 8, 2018 appellant, through counsel, filed a timely appeal from a March 5, 2018 

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 counsel did not appeal from the August 2, 2018 decision which denied appellant’s claim for 

a schedule award. Therefore, the Board has not exercised jurisdiction over that decision. See 20 C.F.R. § 501.3(c)(4).
2

ISSUE

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

disability commencing May 30, 2017, causally related to her accepted August 24, 2015

employment injury.

FACTUAL HISTORY

On August 25, 2015 appellant, then a 68-year-old health technician, filed a traumatic injury 

claim (Form CA-1) alleging that on August 24, 2015 while in the performance of duty she 

sustained a left knee injury when a confused patient pushed her and caused her to lose her balance.

She stopped work on the date of injury.

In a report dated September 1, 2015, Dr. Ezequiel Suarez, an attending internist, restricted 

appellant to limited duty through September 10, 2015. In a report dated September 3, 2015, he 

diagnosed a left knee sprain with osteoarthritis. Dr. Suarez returned appellant to full-time, fullduty work on September 14, 2015. In his report of that date, he opined that her left knee condition 

had returned to baseline and released her from treatment. On October 9, 2015 OWCP accepted 

that appellant sustained a left knee sprain. 

On May 30, 2017 appellant filed a recurrence (Form CA-2a) alleging that she was still 

experiencing pain in her left knee and having a difficult time walking and standing. She further 

alleged that she previously received injections in her knee following her initial injury, but the pain 

worsened after she stopped receiving injections in her left knee beginning December 2016. 

In a report dated July 27, 2017, Dr. Kristine Enverga Cachola, an attending physician 

specializing in occupational medicine and physiatry, noted appellant’s symptoms of left knee pain, 

swelling, popping, and locking. On examination, she found hypertrophic changes to the medial 

and lateral joint lines, crepitus on palpation, and degenerative osteoarthritic changes. Dr. Cachola

diagnosed osteoarthritis of the left knee with joint pain. She opined that the occupational 2015 left 

knee injury had resolved. Dr. Cachola attributed appellant’s symptoms to a worsening of left knee 

osteoarthritis unrelated to her federal employment. She restricted appellant to permanent modified 

duty. 

By development letter dated August 9, 2017, OWCP notified appellant of the additional 

evidence needed to establish her recurrence claim, including a narrative report from her treating 

physician which explained how and why the accepted August 24, 2015 left knee sprain had 

spontaneously worsened such that she was no longer able to work. It afforded 30 days for 

submission of the necessary evidence. Appellant did not provide additional evidence in response 

to this request.

By decision dated September 14, 2017, OWCP denied appellant’s claim for recurrence of 

disability as the medical evidence of record was insufficient to establish that the resolved 

August 24, 2015 left knee sprain had spontaneously worsened. It noted that Dr. Cachola attributed 

appellant’s condition to idiopathic osteoarthritis unrelated to the accepted injury. 

On September 25, 2017 appellant, through counsel, requested a telephonic hearing before 

an OWCP hearing representative. During the hearing, held January 30, 2018, counsel asserted that 
3

appellant was off from work due to left knee pain for approximately two weeks in July 2017, but 

could not recall the exact dates. The hearing representative left the record open for 30 days to 

allow submission of additional evidence.

Following the hearing, appellant provided additional medical evidence. In a report dated

February 9, 2018, Dr. Cachola noted that a June 6, 2016 x-ray demonstrated mild worsening of 

degenerative osteoarthritis of the left knee. She attributed appellant’s left knee pain to 

osteoarthritis and age-related changes which were “not work related or a recurrence” of disability. 

By decision dated March 5, 2018, an OWCP hearing representative affirmed the prior 

decision, finding that the medical evidence of record was insufficient to establish a recurrence of 

disability commencing May 30, 2017 as a result of a material change/worsening of the accepted 

employment injury. He noted that Dr. Cachola had explained in detail that appellant’s left knee 

condition had been caused by osteoarthritis unrelated to the accepted August 24, 2015 left knee 

sprain.

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 

compensable injury or illness and without an intervening injury or new exposure in the work 

environment.4 This term also means an inability to work because a light-duty assignment made 

specifically to accommodate an employee’s physical limitations, and which is necessary because 

of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the 

employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for 

reasons of misconduct, nonperformance of job duties, or a reduction-in-force.5

OWCP’s procedures provide that a recurrence of disability includes a work stoppage 

caused by a spontaneous material change in the medical condition demonstrated by objective 

findings. That change must result from a previous injury or occupational illness rather than an 

intervening injury or new exposure to factors causing the original illness. It does not include a 

condition that results from a new injury, even if it involves the same part of the body previously 

injured.6

An employee who claims a recurrence of disability due to an accepted employment-related 

injury has the burden of proof to establish by the weight of the substantial, reliable, and probative 

evidence that the disability for which he or she claims compensation is causally related to the 

accepted injury. This burden of proof requires that a claimant furnish medical evidence from a 

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

for each period of disability claimed, the disabling condition is causally related to the employment 

 

4 20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). 

5

Id.

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket 

No. 18-0334 (issued December 4, 2018); Kenneth R. Love, 50 ECAB 193, 199 (1998).
4

injury, and supports that conclusion with medical reasoning.7 Where no such rationale is present, 

the medical evidence is of diminished probative value.8

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a recurrence of 

total disability commencing May 30, 2017, causally related to her accepted August 24, 2015

employment injury.9

Dr. Cachola provided two reports which discussed appellant’s left knee condition on and 

after May 30, 2017. She opined on July 27, 2017 that the occupational 2015 left knee sprain had 

resolved and that any subsequent symptoms were caused by worsening of idiopathic osteoarthritis 

unrelated to appellant’s federal employment. In a report dated February 9, 2018, Dr. Cachola

again attributed appellant’s left knee pain to osteoarthritis and age-related changes “not work 

related or a recurrence” of disability. 

Dr. Cachola did not document a spontaneous worsening of appellant’s left knee sprain 

resulting in total disability on or after May 30, 2017.

10

 Rather, she specifically attributed 

appellant’s condition to nonoccupational causes. As Dr. Cachola did not relate appellant’s 

disability to the accepted left knee sprain, her reports fail to establish a work-related recurrence of 

disability.11

The Board finds that the medical evidence submitted does not establish total disability 

commencing May 30, 2017 due to residuals of the accepted August 24, 2015 injury. Thus, the 

Board finds that appellant has not met her burden of proof to establish by the weight of the reliable, 

probative, and substantial evidence, a change in the nature and extent of the injury-related 

condition resulting in her inability to perform her employment duties.12

On appeal, counsel contends that OWCP’s hearing representative reviewed appellant’s 

case under an incorrect standard as he considered whether the decision was “correct and 

appropriate” rather than conduct a de novo review. As explained above, appellant had the burden 

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

disability for which she claimed compensation is causally related to the accepted injury. OWCP’s

hearing representative correctly applied this standard and the Board affirms his finding that the 

evidence of record was insufficient to establish a recurrence of disability commencing 

May 30, 2017. 

 

7

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018); 

see also Ronald A. Eldridge, 53 ECAB 218 (2001).

8 Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

9

J.D., supra note 7; Alfredo Rodriguez, 47 ECAB 437 (1996).

10 J.D., id.; J.H., Docket No. 12-1848 (issued May 15, 2013).

11 Id.

12 K.P., Docket No. 15-1711 (issued January 14, 2016).
5

Appellant may submit new evidence 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 has not met her burden of proof to establish a recurrence of 

total disability commencing May 30, 2017, causally related to her accepted August 24, 2015 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the March 5, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 27, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board