United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.K., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

COATESVILLE VETERANS MEDICAL 

CENTER, Coatesville, PA, Employer

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Docket No. 18-0604

Issued: October 21, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On January 29, 2018 appellant, through counsel, filed a timely appeal from a December 21, 

2017 decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the 

Appellate Boards assigned Docket No. 18-0604.

On January 27, 2016 appellant, then a 37-year-old structural firefighter, filed a traumatic 

injury claim (Form CA-1) alleging that on January 26, 2016 he sustained a left knee injury when 

he slipped and fell on snow and ice exiting his vehicle while in the performance of duty. OWCP 

 

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 The Board notes that,following the December 21, 2017 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

accepted the claim for left knee tear of medial meniscus, left knee sprain of medial collateral 

ligament, and contusion of left lower leg. Appellant stopped work on the date of injury and 

received wage-loss compensation.3 On May 3, 2016 he underwent an authorized left knee 

arthroscopy, partial medial meniscectomy, and medial compartment chondroplasty. Appellant 

returned to full-time sedentary work with restrictions on June 13, 2016.

On July 22, 2016 appellant filed a claim for wage-loss compensation (Form CA-7),

commencing July 7, 2016, and on the same date he also filed a notice of recurrence (Form CA-2a),

alleging that he sustained a recurrence of disability commencing July 7, 2016 due to his accepted 

January 23, 2016 employment injury. He indicated that his left knee pain and symptoms were 

ongoing and had increased since he returned to light-duty work. 

In a development letter dated August 1, 2016, OWCP requested that appellant submit a 

physician’s opinion supported by a medical explanation as to how his accepted employmentrelated medical conditions worsened to the extent that he was disabled from work. 

On September 8, 2016 appellant described the circumstances surrounding his recurrence, 

reporting that his left knee symptoms never resolved and he experienced pain on a daily basis, 

often times causing his knee to give out without warning. 

On October 17, 2016 OWCP referred appellant to Dr. Noubar A. Didizian, a Boardcertified orthopedic surgeon, for a second opinion examination. It did not request that he address 

appellant’s objective findings of disability due to his accepted conditions as of July 7, 2016. 

In a November 8, 2016 medical report, Dr. Didizian reported that appellant was currently 

recovering from his May 3, 2016 left knee surgery, resulting in limited motion and the use of a 

cane. He further explained that three weeks of modified-duty work would not cause a recurrence 

or necessitate a work stoppage on July 7, 2016. 

By decision dated December 29, 2016, OWCP denied appellant’s claim for a recurrence of 

disability. It found that the medical evidence of record was insufficient to establish disability 

commencing July 7, 2016 due to a material change/worsening of his accepted conditions. 

On September 22, 2017 appellant, through counsel, requested reconsideration. 

By decision dated December 21, 2017, OWCP denied modification of the December 29, 

2016 decision finding that the evidence of record was insufficient to establish a recurrence of total 

disability commencing July 7, 2016 due to a material change/worsening of his accepted conditions 

or a consequential injury.

The Board, having reviewed the case record submitted by OWCP, finds that this case is 

not in posture for decision.4

 

3 OWCP subsequently determined that the accepted injury occurred on January 23, 2016. 

4

See T.Z., Docket No. 17-0679 (issued May 9, 2019).
3

OWCP’s procedures require that, in cases where recurrent disability from work is claimed 

within 90 days or less from the first return to duty, the claimant is not required to produce the same 

evidence as for a recurrence claimed long after apparent recovery and return to work. 5 Thus, in 

cases where a recurrence is claimed within 90 days or less from the return to work, the focus is on 

disability rather than causal relationship.6 

The Board finds that OWCP should have developed the claim under the proper recurrence

standard, emphasizing disability rather than causal relationship. Pursuant to OWCP’s procedures, 

appellant should have been asked to submit a narrative statement from his attending physician 

which described the duties appellant could not perform, and the demonstrated objective findings 

that formed the basis for renewed disability from work.7 However, the August 1, 2016 OWCP 

development letter improperly instructed appellant to provide medical evidence in accordance with 

the standard for a recurrence of disability claim after 90 days of his return to duty, which required

that appellant establish a material worsening of the accepted condition.8

The Board also finds that OWCP improperly developed the recurrence claim when 

providing instructions to the second opinion physician. Dr. Didizian’s November 8, 2016 report

failed to discuss and evaluate appellant’s disability and work capabilities as a result of his accepted 

left knee conditions. 

Once OWCP undertakes development of the medical evidence, it has the responsibility to 

do so in a manner that will resolve the relevant issues in the case.9 As appellant received improper

guidance from OWCP regarding the specific evidence required to establish a recurrence claim 

within 90 days of his return to duty and as OWCP did not seek to obtain the relevant medical 

information from Dr. Didizian, the Board finds that this case must be remanded for further 

development.10 Accordingly, the case will be remanded for OWCP to properly develop appellant’s 

recurrence claim. Following this and other further development as deemed necessary, OWCP shall 

issue an appropriate merit decision.11

 

5 R.W., Docket No. 17-0720 (issued May 21, 2018).

6 K.R., Docket No. 19-0413 (issued August 7, 2019).

7 A.C., Docket No. 17-0384 (issued September 11, 2017); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Recurrences, Chapter 2.1500.5 (June 2013).

8

Id. at Chapter 2.1500.6.

9

See K.S., Docket No. 18-0845 (issued October 26, 2018).

10 See S.S., Docket No. 17-0871 (issued November 6, 2017).

11 See generally, B.N., Docket No. 17-0787 (issued July 6, 2018); C.D., Docket No. 17-1074 (issued 

August28, 2017).
4

IT IS HEREBY ORDERED THAT the December 21, 2017 decision of the Office of 

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

consistent with this order of the Board. 

Issued: October 21, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board