United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.B., Appellant

and

U.S. POSTAL SERVICE, PARLIN POST 

OFFICE, Parlin, NJ, Employer

__________________________________________

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Docket No. 20-0286

Issued: July 9, 2021

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 18, 2019 appellant, through counsel, filed a timely appeal from a June 26, 

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 June 26, 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 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 

disability from work commencing June 26, 2017, causally related to the accepted April 2, 2013

employment injury.

FACTUAL HISTORY

On April 30, 2013 appellant, then a 39-year-old mail carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on April 2, 2013 he injured his left knee when he stepped in a divot and 

twisted his leg while in the performance of duty. OWCP initially accepted his claim for a tear of 

the medial meniscus of the left knee and subsequently expanded acceptance of the claim to include 

localized primary osteoarthritis of the left lower leg. Appellant intermittently stopped work. On 

October 14, 2016 he returned to limited-duty work, and on October 21, 2016 he returned to fullduty work.

In a May 22, 2017 report, Dr. David Lessing, a Board-certified orthopedic surgeon, 

indicated that appellant complained of pain and swelling in his left knee. Appellant’s physical 

examination revealed pain in the medial aspect of his left knee, but otherwise normal results. His

diagnosis was listed as internal derangement of the left knee. Dr. Lessing indicated that appellant 

should work in a sedentary capacity until he obtained a magnetic resonance imaging (MRI) scan 

of his left knee. He also completed a May 22, 2017 form noting appellant’s date of injury as 

April 2, 2013 and indicated by checking a box marked “Yes” that appellant’s current condition 

was related to his April 2, 2013 injury. Dr. Lessing opined that appellant could return to sedentary 

work.

A June 1, 2017 MRI scan of appellant’s left knee was compared to an October 21, 2013 

MRI scan of appellant’s left knee and interpreted by Dr. Barry Katz, Board-certified in radiology. 

It revealed postoperative changes in the medial and lateral menisci, findings that were suggestive 

of a tear in the anterior horn of the lateral meniscus with an adjacent meniscal cyst, a small effusion, 

chronic degenerative changes with signal changes along both sides of the medial joint space 

compartment, and proximal patellar tendinopathy. 

In a June 12, 2017 report, Dr. Lessing indicated that he reviewed appellant’s June 1, 2017 

left knee MRI scan and noted that appellant had undergone previous medial and lateral 

meniscectomies. He indicated that appellant’s anterior lateral knee pain matched the MRI scan 

findings. A physical examination of appellant’s left knee displayed minimal effusion and 

otherwise normal results. Dr. Lessing noted that appellant felt his condition had improved and 

while he was currently on light duty, he was to return to full duty on June 19, 2017. Dr. Lessing 

also noted that if appellant’s symptoms were provoked by regular duty in a way that indicated he 

had an anterolateral meniscal tear, he would consider an arthroscopy. An undated form was also 

received wherein Dr. Lessing noted appellant’s date of injury as April 2, 2013 and indicated by 

checking a box marked “Yes” that appellant’s current condition was related to his April 2, 2013 

injury. He noted appellant’s diagnosis as osteoarthritis of the left knee and returned appellant to 

work full duty on June 19, 2017. 

Appellant returned to full-duty work on June 19, 2017. 
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In a July 6, 2017 form, Dr. Lessing again noted appellant’s diagnosis of osteoarthritis of 

the left knee. He indicated that as of July 8, 2017 appellant could return to sedentary work,

primarily sitting, and he noted that appellant was able to walk every two to three hours. 

On July 14, 2017 Dr. Wadie Toma, a Board-certified rheumatologist, indicated that 

appellant was seen in his office that day. He requested that appellant be excused from work.

On August 9, 2017 appellant filed a claim for compensation (Form CA-7) for leave without 

pay (LWOP) used for the period June 24 to July 29, 2017. On the reverse side of the claim form, 

the employing establishment indicated that it challenged the entire period claimed by appellant. 

Attached time analysis forms (Form CA-7a) indicated that appellant had stopped work on 

June 27, 2017. 

In a development letter dated August 18, 2017, OWCP informed appellant of the 

deficiencies in his “recurrence” claim and advised him of the type of evidence necessary to 

establish his claim. It noted his accepted conditions of tear of the medial meniscus of the left knee 

and localized primary osteoarthritis of the left lower leg, and it requested that appellant provide a 

rationalized medical report explaining the basis of his claimed recurrence. OWCP also provided 

appellant a questionnaire for completion and afforded him 30 days to provide the requested 

evidence. 

OWCP thereafter received a July 6, 2017 report from Dr. Lessing wherein he noted that 

appellant’s left knee gave out after he returned to full-duty work. Dr. Lessing indicated that 

appellant became symptomatic again, but that his pain was not localized to the anterior horn of the 

lateral meniscus, but rather was located in the posterior, lateral, suprapatellar, and medial aspects. 

Appellant’s physical examination revealed normal results, and Dr. Lessing opined that appellant’s 

symptoms were more related to his arthritis than to a retear of his meniscus. He concluded that 

appellant should return to sedentary work because his left knee would not tolerate regular duty. 

In an August 21, 2017 report, Dr. Lessing indicated that appellant tolerated light duty well, 

but when he performed his letter carrier route he was only able to complete half of it and then 

developed left knee pain and swelling. Physical examination of appellant’s left knee revealed a 

popliteal cyst and minimal pain upon palpation, more medially than elsewhere. Dr. Lessing noted 

that appellant’s left knee x-rays displayed loss of medial joint space, almost bone-on-bone, and 

medial tibial sclerosis. He concluded that, due to the x-ray findings, a partial knee replacement 

was a reasonable treatment to explore and indicated that appellant should continue working light 

duty in the interim. 

On August 21, 2017 Dr. Lessing completed a form indicating that appellant’s work status 

was unchanged. 

By decision dated October 3, 2017, OWCP denied appellant’s recurrence claim as of 

June 26, 2017, finding that the medical evidence of record was insufficient to establish that he was 

disabled from work due to a material worsening of his accepted conditions. 

OWCP subsequently received additional evidence. In a September 18, 2017 medical 

report, Dr. Cris Beiro, a Board-certified orthopedic surgeon, reviewed appellant’s history of injury 

and medical treatment. Dr. Beiro noted that appellant complained of left knee pain while 

ascending and descending stairs, rising from a seated position, kneeling, and after prolonged 

standing and walking. Appellant also noted swelling, clicking, locking, and instability of the left 
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knee. Physical examination of appellant’s left knee revealed mild swelling, tenderness in the 

medial joint line and medial tibial plateau, range of motion from 5 to 125 degrees with crepitus 

throughout and pain at terminal flexion, an antalgic gait, and varus deformity. Dr. Beiro noted that 

x-rays of appellant’s left knee revealed severe degenerative changes in the medial compartment 

with subchondral sclerosis and osteophytes. Joint space narrowing was seen in the medial 

compartment with bone on bone and no space maintained. A varus deformity and mild-tomoderate degenerative joint disease were also noted. Dr. Beiro noted appellant’s diagnosis of left 

knee osteoarthritis and suggested unicompartmental knee arthroplasty. 

Dr. Lessing, in a September 26, 2017 narrative report, noted that appellant should be 

evaluated for a partial knee replacement. He indicated that he initially saw appellant on April 18, 

2013 when he complained of left knee pain due to a twisting injury at work, and a left knee MRI 

scan revealed that he had a torn medial meniscus. Dr. Lessing explained that appellant had

undergone an arthroscopy and medial meniscectomy in May 2013 and he did well postoperatively,

but continued to have residual medial symptoms. Appellant was subsequently diagnosed with left 

knee osteoarthritis due to a progressive loss of medial joint space. Dr. Lessing noted that since 

appellant’s last visit on August 21, 2017 he had been working as a mail carrier episodically based 

on his symptoms, and that he currently complained of pain and swelling at the medial aspect of 

the knee aggravated by stairs and weight bearing. Physical examination of appellant’s left knee 

revealed focal medial joint line tenderness and some swelling. Dr. Lessing reviewed appellant’s 

recent left knee MRI scan and x-rays and indicated that his current diagnosis was osteoarthritis of 

the left knee. He indicated that due to the arthritis, appellant’s left knee was limited in its ability 

to bear weight and ascend stairs, which impaired his ability to perform his work duties. Dr. Lessing 

explained that appellant’s original twisting injury damaged his articular cartilage and the meniscal 

tissue in his knee, and he opined that the post-meniscectomy knee was more susceptible to arthritic 

progression than a knee with an intact meniscus due to the loss of the protective function of the 

meniscus with the procedure. He concluded that appellant’s left knee osteoarthritis was causally 

related to his employment injury. 

On October 2, 2017 Dr. Beiro indicated that appellant presented with left knee pain and 

that his symptoms had not improved. He conducted a physical examination which revealed mild 

swelling, tenderness in the medial joint line and medial tibial plateau, range of motion from 5 to 

125 degrees with crepitus throughout and pain at terminal flexion, an antalgic gait, and varus 

deformity. Dr. Beiro noted appellant’s diagnosis of left knee osteoarthritis and recommended 

unicompartmental knee arthroplasty.

October 13, 2017 left knee x-rays interpreted by Dr. Laura Grygotis, Board-certified in 

radiology, revealed unicompartmental knee prosthesis in the medial articular compartment. 

An October 13, 2017 operative report by Dr. Beiro indicated that appellant suffered a left 

knee injury at work, and that inflammation and secondary injury led to meniscal tearing and 

progression of degenerative joint disease. Dr. Beiro reviewed appellant’s history of treatment and 

indicated that he had performed a left unicompartmental knee arthroplasty.

Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving as a district medical 

adviser (DMA), reported on October 13, 2017 that he had reviewed OWCP’s statement of accepted 

facts (SOAF) and appellant’s medical records. Dr. Hammel indicated that appellant’s left knee

joint revision procedure was causally related to his accepted medical condition, but that that he 
5

needed more information about appellant’s functional limitations to determine whether it was 

medically necessary. 

On October 31, 2017 appellant, through counsel, requested a review of the written record

by a representative of OWCP’s Branch of Hearings and Review. 

OWCP subsequently received appellant’s completed development questionnaire dated 

November 14, 2017. He related that since his original workplace injury, he had experienced left 

knee pain and swelling. Appellant indicated that he had undergone arthroscopic surgery on May 1, 

2013 and then received synthetic cartilage injections every six months, but in 2015 developed an 

allergic reaction to the injections that caused swelling and stopped their efficacy in treating his 

pain. In May 2017, Dr. Lessing informed appellant that he should perform light-duty work due to 

increased pain and swelling in his knee. Appellant noted that there were many days where he was 

not able to work at all because he could not bend his knee or walk due to the amount of pain and 

swelling. He explained that his recurrence occurred when he experienced this increased pain in 

his left knee, and he indicated that his June 1, 2017 MRI scan of his left knee confirmed that he

had a meniscus retear and a Baker’s cyst. He noted that both Dr. Lessing and Dr. Beiro had 

recommended a partial knee replacement.

Appellant submitted additional Form CA-7a time analysis forms claiming compensation 

for LWOP for intermittent wage loss from July 31 to October 7, 2017. 

By decision dated January 29, 2018, an OWCP hearing representative affirmed OWCP’s 

October 3, 2017 decision, finding that appellant had not established a recurrence of disability 

commencing June 27, 2017 causally related to his accepted employment injury. 

In an August 29, 2018 second opinion report, Dr. Andrew Farber, an osteopath and Boardcertified orthopedic surgeon, reviewed appellant’s history of injury and medical records and 

opined that it was reasonable to relate appellant’s left knee degenerative progression to his 

accepted employment injury, and therefore his unicompartmental knee replacement surgery was 

appropriate. 

On October 17, 2018 OWCP authorized appellant’s left knee replacement surgery and 

recurrence of disability as of October 13, 2017. 

On December 28, 2018 appellant, through counsel, requested reconsideration. 

By decision dated March 20, 2019, OWCP denied modification of its January 29, 2018 

decision. 

On April 16, 2019 appellant, through counsel, requested reconsideration. 

The record reflects that on April 25, 2019 OWCP placed appellant on the supplemental 

rolls for his recurrence of disability as of October 11, 2017. 

By decision dated June 26, 2019, OWCP denied modification of its March 20, 2019 

decision. 
6

LEGAL PRECEDENT

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.4

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.5 Where no such rationale is present, 

the medical evidence is of diminished probative value.6

ANALYSIS

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

It is well established that proceedings under FECA are not adversarial in nature and, while 

appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.7 OWCP has an obligation to see that justice is 

done.8

The Board finds that, although the medical reports by Dr. Lessing are insufficiently 

rationalized to meet appellant’s burden of proof to establish that his claimed recurrence as of 

June 27, 2017 was due to the April 2, 2013 employment injury, his reports were sufficient to 

require further development of the case by OWCP.9 Dr. Lessing’s opinion is based upon a 

complete factual history and medical background and expresses an unequivocal opinion that is 

supportive of the claim. The Board has explained that to establish a period of disability the medical 

evidence must provide a discussion of how objective medical findings, attributable to the accepted 

conditions, support a finding that a claimant could not perform his job duties.10 Dr. Lessing 

explained that while appellant had attempted to return to full-duty work on June 19, 2017, he 

sustained pain and swelling of his left knee when attempting to complete his letter carrier duties. 

He explained that appellant’s left knee osteoarthritis limited his ability to bear weight on the knee 

 

4 20 C.F.R. § 10.5(x).

5 See J.S., Docket No. 19-1035 (issued January 24, 2020).

6

Id.

7 T.L., Docket No. 19-1572 (issued March 12, 2020).

8

Id.

9 See N.L., Docket No. 19-1456 (issued July 14, 2020). 

10 See S.G., Docket No. 18-0209 (issued October 4, 2018); R.A., Docket No. 19-1595 (issued August 13, 2020); 

Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).
7

and ascend stairs. Dr. Lessing also explained that appellant’s left knee x-rays supported his left 

knee complaints and indicated a progression of his accepted left knee arthritis condition. 

Therefore, his opinion raises an inference of causal relationship sufficient to require further

development by OWCP.11. 

The case is therefore remanded to OWCP to obtain a rationalized medical opinion as to 

whether appellant sustained a recurrence of disability commencing June 26, 2017 due to the 

accepted employment injury. On remand, OWCP shall refer appellant along with a statement of 

accepted of facts (SOAF)12 and the case record to a specialist in the appropriate field of medicine 

to provide a rationalized opinion as to whether his claimed recurrence of disability commencing 

June 26, 2017 was causally related to his accepted conditions. If the physician opines that 

appellant has not sustained a recurrence of disability causally related to the employment injury, he 

or she must explain with rationale how or why their opinion differs from that of Dr. Lessing. After 

this and other such further development deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

 

11 I.S., Docket No. 19-1461 (issued April 30, 2020).

12 The SOAF shall clarify the specific period of the claimed recurrence of disability. 
8

ORDER

IT IS HEREBY ORDERED THAT the June 26, 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: July 9, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board