United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Kings Park, NY, Employer

__________________________________________

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Docket No. 19-0446

Issued: July 10, 2019

Appearances: Case Submitted on the Record

Paul Kalker, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 20, 2018 appellant, through counsel, filed a timely appeal from a 

November 16, 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 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 5 U.S.C. § 8101 et seq.
2

ISSUE

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

disability commencing February 12, 2018 causally related to his accepted February 19, 2014 

employment injury.

FACTUAL HISTORY

On February 19, 2014 appellant, then a 48-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging on that date he sustained a left knee injury when he bent down to pick 

up a letter he had dropped while in the performance of duty. He stopped work on the date of injury. 

OWCP accepted appellant’s claim for left knee medial meniscus tear and authorized a left knee

arthroscopy which was performed on April 8, 2014 by Dr. Stuart B. Cherney, an attending Boardcertified orthopedic surgeon. It paid appellant temporary total disability compensation on the 

supplemental rolls commencing April 8, 2014.

A medical report dated February 5, 2018 from Dr. Cherney indicated that appellant 

presented for a follow-up examination of his left knee condition. He provided findings on physical 

examination and reviewed x-ray results. Dr. Cherney diagnosed a progression of patellofemoral 

chondrosis/arthrosis.

On February 26, 2018 appellant filed a notice of recurrence (Form CA-2a) alleging that he 

sustained a recurrence of disability on February 12, 2018 due to his accepted employment injury. 

On the reverse side of the claim form, an employing establishment supervisor indicated that 

appellant returned to full-time, full-duty work without restrictions on September 13, 2014. The 

supervisor also indicated that he had been out of work since the date of the alleged recurrence of 

disability. A copy of appellant’s official position description as a city carrier was submitted.

In a development letter dated March 8, 2018, OWCP requested that appellant submit 

additional factual and medical evidence in support of his recurrence of disability claim. It provided 

a questionnaire and asked him to submit a narrative statement from his attending physician. 

OWCP afforded appellant 30 days to respond. 

OWCP subsequently received a report dated February 19, 2018 by Dr. Cherney who noted 

a history of the February 19, 2014 employment injury and appellant’s left knee symptoms and 

provided findings on physical examination. Dr. Cherney indicated that he had requested 

authorization for a left knee magnetic resonance imaging (MRI) scan to assess a possible retorn 

medial meniscus and progression of chondritic lesions. He opined that appellant’s current findings 

and level of symptoms were attributable to his February 19, 2014 employment injury. Dr. Cherney

also noted that he had requested authorization for left knee injections to help control his persistent 

pain and inflammation. He concluded that, due to the progression of appellant’s symptoms, he 

was unable to return to his letter carrier position.

In a completed development questionnaire dated March 13, 2018, appellant noted that on 

February 12, 2018 he was seen by his physician who had treated him since January 12, 2018 due 

to his February 19, 2014 employment injury. He related that since his return to work on 

September 13, 2014 until the date of his questionnaire, his left knee had not improved. Appellant
3

contended that now his right knee was starting to bother him. He believed that his disability was 

due to his original injury because his knee kept giving “in,” which caused him to fall many times. 

Appellant also experienced difficulty with going up and down stairs. He had not sustained other 

injuries or illnesses on or off work since his original injury. Appellant also had no hobbies and/or 

activities that may have affected his work-related condition.

By decision dated April 10, 2018, OWCP denied appellant’s claim for an employmentrelated recurrence of disability commencing February 12, 2018. It found that the medical evidence 

submitted was insufficient to establish that he was totally disabled from work on or after 

February 12, 2018 due to his accepted February 19, 2014 employment injury. 

OWCP received additional reports dated March 26 and June 27, 2018 from Dr. Cherney. 

In these reports, Dr. Cherney reexamined appellant’s left knee and advised that his symptoms were 

consistent with exacerbation of patella chondrosis or possible retorn medial meniscus. He 

attributed these symptoms to appellant’s February 19, 2014 employment injury and to early 

chondritic/arthritic changes in the medial and patellofemoral compartments. Dr. Cherney opined 

that he was permanently and totally disabled from work. He advised that appellant’s long-term 

prognosis was poor with expected progression of degenerative changes in the knee.

On August 21, 2018 appellant, through counsel, requested reconsideration of OWCP’s 

April 10, 2018 decision and submitted an additional report dated July 18, 2018 from Dr. Cherney. 

Dr. Cherney reiterated appellant’s history of injury. He noted appellant’s medical treatment, 

including his own treatment. Dr. Cherney listed as final left knee diagnoses displaced bucket 

handle tear of the medial meniscus, patella chondrosis/arthrosis, and three compartment synovitis 

all of which appellant had undergone arthroscopy surgery on April 8, 2014. He also listed as final 

left knee diagnoses of a Baker’s cyst and medial chondrosis/arthrosis. Dr. Cherney opined that 

appellant’s left knee injuries, including medial meniscus tear and patella chondrosis, were the 

result of his February 19, 2014 employment injury. He indicated that, following the April 8, 2014 

surgery, he had persistent daily pain and stiffness which had worsened over the past four years. 

Dr. Cherney opined that appellant’s long-term prognosis was that he would continue to have pain 

and stiffness of varying degrees of severity and post-traumatic arthritic changes. He would also 

have functional impairment which included difficulty ascending and descending stairs and an 

inability to kneel or squat. Dr. Cherney noted that a May 2, 2018 MRI scan showed early posttraumatic degenerative changes in the patellofemoral joint and medial and lateral compartments. 

He maintained that these changes were consistent and attributable to the meniscus tear and patella 

chondrosis. Dr. Cherney further maintained that the degenerative changes were attributable to a 

delay in surgery while awaiting authorization and prolonged physical therapy in an attempt to 

restore maximal range of motion. He related that the result of the medial meniscus which could 

not be repaired also increased the probability of progressive post-traumatic osteoarthritic changes 

in the medial compartment which would cause additional knee pain, stiffness, and pain with all 

weight-bearing activities. Dr. Cherney advised appellant against performing work duties that 

required prolonged standing, walking, lifting, stair climbing, kneeling, and squatting. He indicated 

that appellant had begun to experience right knee pain which was attributable to compensation for 

his left knee injury. Dr. Cherney concluded that, as appellant had daily pain which limited weightbearing and overall functional activity, he was totally disabled.
4

By decision dated November 16, 2018, OWCP denied modification of its prior decision. 

It found that Dr. Cherney’s reports were insufficient to establish appellant’s recurrence claim. 

LEGAL PRECEDENT

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

earn the wages that the employee was receiving at the time of injury.3 Disability is, thus, not

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

wages.4 An employee who has a physical impairment causally related to his or her federal

employment, but who nonetheless has the capacity to earn the wages that he or she was receiving

at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning

capacity.

5

 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.6

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.7

When an appellant claims a recurrence of disability due to an accepted employment-related 

injury, he or she has the burden of proof to establish by the weight of the reliable, probative, and 

substantial evidence that the recurrence of disability is causally related to the original injury. This 

burden includes the necessity of furnishing evidence from a qualified physician who, on the basis 

of a complete and accurate factual and medical history, concludes that the condition is causally 

related to the employment injury and supports this conclusion with sound medical reasoning.8

ANALYSIS

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

total disability commencing February 12, 2018 causally related to his accepted February 19, 2014 

employment injury.

OWCP accepted appellant’s original claim for left knee medial meniscus tear as a result of 

the February 19, 2014 employment injury. Appellant underwent authorized arthroscopic left knee 

 

3 20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

4 See L.W., Docket No. 17-1685 (issued October 9, 2018).

5 See D.G., Docket No. 18-0597 (issued October 3, 2018).

6 See D.R., Docket No. 18-0232 (issued October 2, 2018).

7 Supra note 3 at § 10.5(x).

8 D.S., Docket No. 17-1401 (issued March 23, 2018); Ricky S. Storms, 52 ECAB 349 (2001); Helen Holt, 50 ECAB 

279 (1999).
5

surgery on April 8, 2014. He returned to full-time, full-duty work on September 13, 2014. 

Appellant stopped work on February 12, 2018 and claimed a recurrence of total disability 

commencing on that date due to the accepted February 19, 2014 employment injury.

Appellant submitted a series of reports from his attending physician, Dr. Cherney. In 

reports dated February 19, March 26, June 27, and July 18, 2018, Dr. Cherney provided a history 

of the February 19, 2014 employment injury. He diagnosed several left knee conditions, including 

displaced bucket handle tear of the medial meniscus, patella and medial chondrosis/arthrosis, three 

compartment synovitis, and a Baker’s cyst. Dr. Cherney found that appellant was permanently 

and totally disabled from work and listed his physical restrictions. He opined that the diagnosed 

conditions and resultant total disability were caused by the accepted February 19, 2014 

employment injury. The Board finds that while Dr. Cherney’s opinion is generally supportive of 

causal relationship, he has not provided adequate medical rationale explaining the basis of his 

opinion. Dr. Cherney indicated that his diagnoses of meniscus tear and patella chondrosis were 

based on May 2, 2018 MRI scan results, which revealed degenerative changes in the 

patellofemoral joint and medial and lateral compartments of the left knee, delayed surgical repair 

of the meniscus tear, and prolonged physical therapy to attempt to restore maximal range of 

motion. However, he has failed to explain the mechanism by which the February 19, 2014

employment injury caused or aggravated these conditions, as well as, appellant’s other diagnosed 

conditions and recurrence of disability. The Board has held that a report is of limited probative 

value regarding causal relationship if it does not contain medical rationale explaining how the 

claimed medical condition/disability was causally related to an employment incident.9 Therefore, 

the Board finds that Dr. Cherney’s reports are insufficient to establish appellant’s recurrence 

claim.10

Furthermore, Dr. Cherney’s remaining report dated February 5, 2018 lacks probative value 

as it predates the time of the claimed February 12, 2018 recurrence and does not address the 

relevant time period.11

As appellant has not submitted medical evidence sufficient to establish a recurrence of total 

disability commencing February 12, 2018 causally related to his February 19, 2014 employment 

injury, the Board finds that he has not met his burden of proof.12

On appeal, counsel contends that Dr. Cherney’s July 18, 2018 medical report is sufficient 

to establish continuing employment-related disability as of February 12, 2018. However, for the 

reasons noted above, Dr. Cherney’s medical report failed to contain a rationalized medical opinion 

explaining how appellant’s inability to work beginning February 12, 2018 resulted from his 

accepted February 19, 2014 employment injury. Therefore, his opinion is insufficient to establish 

that appellant’s disability was caused by the accepted employment injury.

 

9 G.G., Docket No. 18-1788 (issued March 26, 2019); E.W., Docket No. 17-1988 (issued January 29, 2019).

10 G.G., id.; K.G., Docket No. 15-0669 (issued April 8, 2016).

11 G.G., id.; C.S., Docket No. 17-1345 (issued May 24, 2018).

12 G.G., id.; J.D., Docket No. 18-0616 (issued January 11, 2019); Alfredo Rodriguez, 47 ECAB 437 (1996).
6

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 12, 2018 causally related to his accepted February 19, 2014 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the November 16, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 10, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board