United States Department of Labor

Employees’ Compensation Appeals Board

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J.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Canton, OH, Employer

__________________________________________

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Docket No. 19-1035

Issued: January 24, 2020

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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On April 10, 2019 appellant, through counsel, filed a timely appeal from a March 18, 2019 

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.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, following the March 18, 2019 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

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

disability commencing August 10, 2018, causally related to his accepted November 17, 2014 

employment injury.

FACTUAL HISTORY

On November 17, 2014 appellant, then a 40-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on that date, he sustained a right knee injury when he slipped on 

black ice in a parking lot while in the performance of duty. On the reverse side of the claim form, 

the employing establishment indicated that appellant stopped work on the date of injury. OWCP 

accepted the claim for contusions of the right knee and right hip, aggravation of enthesopathy of 

the right hip region, back sprain, articular cartilage disorder of the right knee, and aggravation of 

chondromalacia patellae of the right knee. It authorized arthroscopic right knee surgery, performed 

on August 20, 2015 by Dr. Joseph R. Hellmann, an attending Board-certified orthopedic surgeon. 

Appellant returned to full-time, limited-duty work on October 28, 2015 and subsequently 

returned to regular, full-duty work on February 22, 2016.

By decision dated June 19, 2017, OWCP granted appellant a schedule award for six percent 

permanent impairment of the right lower extremity due to a diagnosis of primary right knee 

osteoarthritis.

On August 10, 2018 appellant filed a notice of recurrence (Form CA-2a) alleging that he 

sustained a recurrence of total disability on that date. He explained that, following his original 

injury, he had knee surgery which limited the hours he could walk and lift. Appellant further 

explained that he continued to experience knee pain.

OWCP received medical evidence, including progress notes dated August 2 and 16, 2018 

from David Stearns, a certified nurse practitioner. Mr. Stearns diagnosed unilateral primary 

osteoarthritis, right knee, and noted that appellant received a series of supartz injections in his right 

knee to treat his condition.

In an August 20, 2018 development letter, OWCP informed appellant that the evidence 

submitted was insufficient to establish his recurrence claim. It included a questionnaire for his 

completion and requested that he provide a comprehensive medical evaluation. OWCP afforded 

appellant 30 days to submit the necessary evidence.

In an additional progress note dated August 23, 2018, Mr. Stearns again diagnosed right 

knee unilateral primary osteoarthritis and indicated that appellant was undergoing supartz injection 

treatments. 

In an August 17, 2018 physician’s report of work ability, Dr. Hellmann advised that 

appellant was temporarily disabled from work from August 10 through September 21, 2018.

On August 27, 2018 appellant responded to OWCP’s development questionnaire. He 

claimed that a recurrence of disability occurred while delivering mail to a house. Appellant noted 

that as he was walking, his right knee cracked really hard and he was unable to bear any weight on 

it. He indicated that he had performed full-duty work since his surgery and that he had been unable 
3

to work since his current injury. Appellant noted that he had started his second round of supartz 

injections for pain. He maintained that he sustained the same type of injury as his original injury. 

Appellant indicated that Dr. Hellmann had determined that his anterior cruciate ligament was not 

torn based on an x-ray and that they were waiting for the results of a magnetic resonance imaging 

(MRI) scan.

In progress notes dated August 9 and 30, 2019, Mr. Stearns continued to diagnose right 

knee unilateral primary osteoarthritis and note appellant’s supartz injection treatments.

By decision dated September 24, 2018, OWCP denied appellant’s claim for a recurrence 

of disability commencing August 10, 2018. It found that the medical evidence of record was 

insufficient to establish that he was disabled due to a material change or worsening of his accepted 

employment-related conditions.

On October 1, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

OWCP continued to receive medical evidence, including an August 17, 2018 note from

Dr. Hellmann who diagnosed other articular cartilage disorders, unspecified site. Dr. Hellmann

noted that appellant experienced right knee exacerbation with a pop during straight ambulation 

while performing a simple activity of daily living (ADL) that was consistent with likely articular 

flap progression of the patella femoral joint. He advised that “[t]his is a causal relationship 

statement indicating recurrence.” Dr. Hellmann noted that no new injury was defined, and that 

“walking was not an injury.”

In reports dated September 21, October 19, and December 19, 2018, and February 25, 

2019, Dr. Hellmann noted that appellant had been temporarily totally disabled from work as of 

August 10, 2018. He discussed examination findings and provided assessments of 

chondromalacia, plica syndrome, and effusion of the right knee. 

Dr. Hellmann, in a December 19, 2018 physician’s report of ability to work, released 

appellant to return to work without restrictions as of December 24, 2018.

A report and daily notes dated September 26 through October 19, 2018 were received from 

appellant’s physical therapists who diagnosed chondromalacia, plica syndrome, and effusion of 

the right knee, and generalized muscle weakness, and addressed appellant’s work capacity.

By decision dated March 18, 2019, an OWCP hearing representative affirmed the 

September 24, 2018 decision, as modified. She found that the medical evidence of record 

established that appellant had a right knee arthritis condition. The hearing representative remanded 

the case for further development on the issue of whether the claim should be expanded to include 

a right knee arthritis condition and for further development of the medical evidence to be followed 

by a formal decision addressing whether appellant’s claim should be expanded to include

consequential right knee arthritis. Appellant’s recurrence of disability claim remained denied as

the medical evidence of record was insufficient to establish that he was disabled from work 

commencing August 10, 2018 due to a material change or worsening of his accepted November 17, 

2014 employment-related conditions.
4

LEGAL PRECEDENT

Under FECA the term “disability” means the incapacity, because of an employment injury, 

to earn the wages that the employee was receiving at the time of injury.4 Disability is thus not 

synonymous with physical impairment, which may or may not result in an incapacity to earn 

wages.5 An employee who has a physical impairment causally related to a federal employment 

injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time 

of injury, has no disability as that term is used in FECA.6 When, however, the medical evidence 

establishes that the residuals or sequelae of an employment injury are such that, from a medical 

standpoint, they prevent the employee from continuing in his or her employment, he or she is 

entitled to compensation for loss of wages.7

OWCP’s implementing regulations define 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.8

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 

injury, and supports that conclusion with medical reasoning.9 Where no such rationale is present, 

the medical evidence is of diminished probative value.10

ANALYSIS

The Board finds that this case is not in posture for decision.

On August 10, 2018 appellant filed a Form CA-2a alleging a recurrence of total disability 

commencing August 10, 2018 due to his accepted November 17, 2014 employment injury. By

decision dated September 24, 2018, OWCP denied his recurrence of disability claim. The 

September 24, 2018 decision was affirmed, as modified, by an OWCP hearing representative on 

March 18, 2019. The hearing representative remanded the case to OWCP for further development 

of the medical evidence to determine whether acceptance of appellant’s claim should be expanded 

to include right knee arthritis, a diagnosis she found established by the medical evidence of record 

 

4 20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

5

J.R., Docket No. 19-0120 (issued September 11, 2019); see L.W., Docket No. 17-1685 (issued October 9, 2018).

6 A.P., Docket No. 19-0446 (issued July 10, 2019); see D.G., Docket No. 18-0597 (issued October 3, 2018).

7 A.P., id.; see also D.R., Docket No. 18-0232 (issued October 2, 2018).

8 Supra note 4 at § 10.5(x).

9

J.D., Docket No. 18-0616 (issued January 11, 2019).

10 G.G., Docket No. 18-1788 (issued March 26, 2019).
5

and which served as the basis of appellant’s schedule award. She affirmed the denial of appellant’s 

recurrence of disability claim, however, finding that the medical evidence of record was 

insufficient to establish that he was disabled from work commencing August 10, 2018 due to a 

material change or worsening of his accepted November 17, 2014 employment-related conditions. 

The Board finds that the hearing representative failed to adequately consider whether 

appellant’s claimed recurrence of disability commencing August 10, 2018 was due to the right 

knee osteoarthritic condition. To consider appellant’s disability status commencing August 10, 

2018 at this state would involve a piecemeal adjudication of the issues involved and raise the 

possibility of inconsistent results. It is the Board’s policy to avoid such an outcome.11

On remand OWCP shall refer appellant, along with a statement of accepted of facts and 

the case record, to a second opinion specialist to provide an opinion as to whether his claimed 

recurrence of disability commencing August 10, 2018 was causally related to his accepted 

conditions. After this and such further development deemed necessary, OWCP shall issue a 

de novo decision.

CONCLUSION

The Board finds that this case is not posture for decision.

 

11 C.M., Docket No. 18-1724 (issued June 14, 2019); see William T. McCracken, 33 ECAB 1197 (1982).
6

ORDER

IT IS HEREBY ORDERED THAT the March 18, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: January 24, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board