United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.M., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Chicago, IL, Employer

__________________________________________

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Docket No. 19-0251

Issued: May 16, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 October 31, 2018 appellant filed a timely appeal from an August 23, 2018 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.2

ISSUE

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

disability commencing February 4, 2016 causally related to his accepted left knee condition.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence following OWCP’s August 23, 2018 decision on 

appeal. 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

FACTUAL HISTORY

On February 4, 2016 appellant, then a 49-year-old federal air marshal, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, he struck his left knee on a plyometric box 

while exercising pursuant to the employing establishment’s physical fitness plan. He did not stop 

work. By decision dated May 25, 2016, OWCP accepted the claim for prepatellar bursitis of the 

left knee.

In a February 2, 2018 report, Dr. Anupam Basu, a Board-certified diagnostic radiologist, 

reported findings of a magnetic resonance imaging (MRI) scan of appellant’s right knee. He noted 

moderate tricompartmental osteoarthritis, intact cruciates and collaterals, questionable 

degenerative tear of the posterior horn of the lateral meniscus, and large joint effusion. 

In a February 9, 2018 report, Dr. Joshua M. Alpert, Board-certified in sports medicine, 

provided a follow-up to the MRI scan of appellant’s right knee. He assessed right knee lateral 

meniscus tear and mild-to-moderate arthritic changes in the right knee. Dr. Alpert noted the date 

of injury was January 20, 2016.

In a February 15, 2018 operative report, Dr. Alpert discussed surgical procedures he 

performed to treat appellant’s right knee lateral meniscus tear. He noted the operation was 

performed to treat right lateral knee pain that did not respond to conservative measures, although 

it would not improve any pain appellant experienced from arthritic changes.

On June 26, 2018 appellant filed a notice of recurrence (Form CA-2a) alleging that his left 

knee condition had worsened. He indicated that his condition had been a continuous problem since 

the February 4, 2016 injury and the symptoms he experienced included swelling of his left knee 

when he added continuous pressure. Appellant noted permanent limitations including no running, 

jogging, or jumping rope, which began following the original injury.

By development letter dated July 23, 2018, OWCP advised appellant of the deficiencies of 

his claim. It requested additional medical evidence from him and provided a questionnaire for his 

completion. OWCP afforded appellant 30 days to respond. No further evidence was received.

By decision dated August 23, 2018, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that he was totally disabled from work due to an 

objective worsening of his accepted work-related left knee condition.

3

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 

 

3

It noted the case had been accepted for a left knee injury, but the medical evidence referred to a right knee injury. 

OWCP further noted that appellant returned to work in a full-duty capacity on February 5, 2016 and was not losing 

did not lose any time from work due to this injury. 

4 20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008).
3

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. 

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.5

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.6 Where no such rationale is present, 

the medical evidence is of diminished probative value.7

ANALYSIS

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

total disability commencing February 4, 2016, causally related to his accepted left knee condition.

None of the physicians of record mentioned appellant’s accepted left knee condition. As

well, Dr. Alpert’s February 9, 2018 report indicated a date of injury of January 20, 2016, which 

predates the February 4, 2016 accepted injury.

Further, Drs. Basu and Alpert did not document a spontaneous worsening of appellant’s 

left knee condition resulting in total disability on or after February 4, 2016.8 Rather, they discussed 

examinations and surgery related to a right knee condition. As Drs. Basu and Alpert did not relate 

appellant’s disability to the accepted left knee injury, their reports fail to establish a work-related 

recurrence of disability.9

For these reasons, the Board finds that appellant has not met his burden of proof.

 

5 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); J.D., Docket 

No. 18-1533 (issued February 27, 2019); Kenneth R. Love, 50 ECAB 193, 199 (1998).

6

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).

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

8

J.D., supra note 6; J.H., Docket No. 12-1848 (issued May 15, 2013).

9

Id.
4

On appeal appellant argues that he suffered a recurrence of disability because his 

discomfort worsened since the original February 4, 2016 employment injury. However, the 

medical evidence of record does not include bridging evidence to show a spontaneous worsening 

of the accepted conditions, or that the newly diagnosed condition occurred over time as a result of 

the accepted prepatellar bursitis, left knee.

10

 The Board, therefore, finds that appellant has not met 

his burden of proof.11

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 has not met his burden of proof to establish a recurrence of 

total disability commencing February 4, 2016 causally related to his accepted left knee condition.

ORDER

IT IS HEREBY ORDERED THAT the August 23, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 16, 2019

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

 

10 L.C., Docket No. 17-1788 (issued September 19, 2018). See M.M., Docket No. 16-1851 (issued 

January 19, 2018).

11 Id.; H.T., Docket No. 17-0209 (issued February 8, 2018).