United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.N., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Worchester, MA, Employer

__________________________________________

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Docket No. 17-1475

Issued: May 23, 2018

Appearances: Case Submitted on the Record

David P. McCormack, 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 June 22, 2017 appellant, through counsel, filed a timely appeal from a January 24, 2017 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more than 

180 days elapsed from OWCP’s last merit decision dated December 14, 2015, to the filing of this 

appeal, pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks jurisdiction over the merits of the claim. 

 

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 Appellant timely requested oral argument before the Board. By order dated December 19, 2017, the Board 

exercised its discretion and denied the request as the matter could be adequately adjudicated based on a review of the 

case record. Order Denying Oral Argument, Docket No. 17-1475 (issued December 19, 2017).

3 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On May 18, 2012 appellant, then a 64-year-old retired letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained a permanent aggravation of right ankle 

osteoarthritis causally related to factors of his federal employment.4 He attributed his ankle 

condition to walking with an altered gait while awaiting surgery for a prior employment-related 

left knee injury.

5

 Appellant received treatment following his work injury from Dr. Byron V. 

Hartunian, an orthopedic surgeon. On May 14, 2012 Dr. Hartunian opined that he sustained an 

acceleration of his underlying arthritis due to work duties, which included lifting, carrying, 

standing, and climbing.

OWCP referred appellant to Dr. Steven A. Silver, a Board-certified orthopedic surgeon, 

for a second-opinion examination. It requested that he address whether either appellant’s work 

duties or his prior left knee injury under OWCP File No. xxxxxx836 caused or aggravated his right 

ankle condition. On October 25, 2012 Dr. Silver opined that appellant sustained a temporary 

aggravation of preexisting degenerative arthritis of the right ankle when he favored his left knee 

after an injury. He found that work activities did not cause appellant’s right ankle arthritis, noting 

that he had underlying gout.

On November 7, 2012 OWCP accepted the present claim for a temporary aggravation of 

preexisting right ankle osteoarthritis that had resolved as of August 2009.

Appellant, on February 13, 2013, filed a claim for a schedule award (Form CA-7). He 

submitted a January 25, 2013 impairment evaluation from Dr. Hartunian, who opined that he had 

five percent permanent impairment of the right lower extremity under the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides).6 On April 24, 2013 Dr. Hartunian opined that appellant’s work duties had permanently 

accelerated his right ankle arthritis.

OWCP subsequently found a conflict existed between Dr. Hartunian and Dr. Silver 

regarding whether appellant sustained an employment-related temporary or permanent 

aggravation of his right ankle arthritis. It referred him to Dr. John H. Chaglassian, a Boardcertified orthopedic surgeon, for an impartial medical examination to determine whether he 

sustained a temporary or permanent employment-related aggravation of a preexisting right ankle

 

4 The employing establishment advised that appellant had retired on March 22, 2011 and was last exposed to the 

conditions alleged to have caused his condition around September 2010. OWCP assigned the claim File No. 

xxxxxx190.

5 Appellant’s prior claim was assigned File No. xxxxxx836. That claim was accepted for left medial meniscal tear 

and sprains of the left medial collateral ligament and left cruciate ligament

6 A.M.A. Guides (6th ed. 2009).
3

condition and, if he sustained a permanent aggravation, to rate any permanent impairment of the 

right lower extremity in accordance with the A.M.A., Guides. OWCP provided Dr. Chaglassian 

with an attachment setting forth the definition of aggravation, acceleration, and precipitation.

On March 5, 2014 Dr. Chaglassian discussed appellant’s history of work injuries to his left 

knee and right ankle. He found that his arthritis was unrelated to his employment, but was instead 

due to obesity, gout, plantar fasciitis, and weak arches. Dr. Chaglassian noted that appellant used 

crutches for only one week after his left knee surgery, and that following this time he bore weight 

on each leg equally. He found that he sustained a temporary aggravation of his preexisting right 

ankle condition that lasted approximately six weeks after his left knee surgery. Dr. Chaglassian 

determined that appellant had not sustained a permanent aggravation of his condition.

By decision dated February 20, 2015, OWCP denied appellant’s claim for a schedule 

award. It found that Dr. Chaglassian’s opinion constituted the special weight of the evidence and 

established that appellant had no permanent aggravation of his right ankle arthritis.

On March 6, 2015 appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative. He subsequently requested a review of the written record in lieu of an oral 

hearing.

Dr. Hartunian, in a report dated September 10, 2015, asserted that Dr. Silver did not 

address whether appellant’s work duties caused or contributed to the progression of his arthritis of 

the right ankle. He cited medical research supporting that physical activity caused joint 

inflammation and an acceleration of arthritis. Dr. Hartunian advised that Dr. Silver failed to 

address whether appellant’s work duties contributed to his right ankle arthritis by causing chronic 

inflammation.

By decision dated December 14, 2015, OWCP’s hearing representative affirmed the 

February 20, 2015 decision. She found that the additional report from Dr. Hartunian, who was on 

side of the conflict in opinion, was insufficient to either outweigh or create a new conflict with the 

opinion of Dr. Chaglassian. The hearing representative noted that Dr. Hartunian did not address 

how appellant’s right ankle progressed beyond that resulting from natural progression. 

On December 12, 2016 appellant, through counsel, requested reconsideration. Counsel

contended that the hearing representative improperly framed the issue as whether appellant’s 

January 23, 2009 left knee injury aggravated his right ankle arthritis. Instead, counsel framed the 

issue as whether appellant’s 17-year tenure as a letter carrier contributed in any way to his right 

ankle osteoarthritis, thus permanently aggravating the condition. He further asserted that OWCP 

failed to provide Dr. Silver and Dr. Chaglassian with a complete definition of acceleration, citing 

S.S.

7

 Counsel argued that, under Board case law, OWCP must provide physicians with accurate 

and complete definitions of causation. He further maintained that Dr. Silver did not address 

whether appellant’s work duties caused or contributed to his right ankle osteoarthritis, and thus,

his opinion was invalid and insufficient to create a conflict in medical opinion. Counsel alleged 

that the hearing representative erred in finding Dr. Hartunian’s opinion insufficient.

 

7 Docket No. 10-1369 (issued November 9, 2010).
4

In a November 1, 2016 narrative statement, appellant asserted that he continued to have 

right ankle problems after Dr. Chaglassian found that his temporary aggravation would have 

resolved. He questioned why the physician did not ask whether he had continued right ankle pain.

Dr. Hartunian, in a report dated November 16, 2016, reviewed OWCP’s December 14, 

2015 decision. He advised that medical research demonstrated that osteoarthritis did not have a 

natural progression or course, but that instead symptoms usually fluctuated, with some individuals 

having no trouble for years. Dr. Hartunian noted that if work duties contributed in any way to a 

claimant’s condition it was compensable.

By decision dated January 24, 2017, OWCP denied appellant’s request for reconsideration 

of the merits of his claim under section 8128(a). It found that he had not raised a relevant legal 

argument and that the newly submitted report from Dr. Hartunian was cumulative in nature. 

On appeal counsel asserts that OWCP failed to provide its referral physicians with the 

proper standard of causation. He also raises arguments regarding the merits of the claim, 

contending that Dr. Hartunian’s opinion is sufficient to meet appellant’s burden of proof to show 

a permanent aggravation of arthritis due to his employment. Counsel alleges that

Dr. Chaglassian’s opinion is of insufficient probative value to resolve the conflict in medical 

opinion.

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against payment of compensation at any time on his own motion or on application.8

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a 

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; 

or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.9

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP’s decision for which review is sought.10 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.11 If the request is timely, but fails to meet at least one 

of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.12

 

8 5 U.S.C. § 8128(a).

9 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010).

10 Id. at § 10.607(a).

11 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

12 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
5

ANALYSIS

In its last merit decision dated December 14, 2015, OWCP denied appellant’s schedule 

award claim after finding that he sustained only a temporary employment-related aggravation of 

his preexisting right ankle osteoarthritis that had resolved by August 2009. On December 12, 2016

appellant, through counsel, timely requested reconsideration. The issue is whether he submitted 

evidence or argument in support of his reconsideration request sufficient to warrant reopening his 

case for further merit review pursuant to section 10.606(b)(3).

The Board finds that appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, advanced a relevant legal argument not previously considered, or submitted

pertinent new and relevant evidence. On reconsideration, counsel argued that OWCP failed to 

provide the referral physician, Dr. Silver, and the referee physician, Dr. Chaglassian, with a 

complete definition of acceleration, as required by S.S. He maintained that, consequently,

Dr. Silver’s opinion was invalid and insufficient to create a conflict in medical opinion, and that

Dr. Chaglassian’s opinion was of no weight. In S.S., however, the Board found the case was not 

in posture for decision when OWCP provided a referee physician with an inaccurate definition of 

aggravation, noting that it informed the physician that an aggravation of symptoms of an 

underlying condition was not an aggravation of the underlying condition. In this case, OWCP 

provided Dr. Silver and Dr. Chaglassian with definitions of causation, aggravation, acceleration, 

and precipitation that adequately confirmed to the definitions set forth in its procedures.13 

Consequently, counsel’s contention lacks a reasonable color of validity.14 Where a legal argument 

presented has no reasonable color of validity, OWCP is not required to reopen the case for merit 

review.15

Counsel also alleged that the hearing representative failed to consider whether work duties 

permanently aggravated appellant’s right ankle osteoarthritis. OWCP’s hearing representative, 

however, found that the evidence was insufficient to show that factors of his federal employment 

materially worsened his preexisting right ankle condition. 

A claimant may be entitled to merit review by submitting relevant and pertinent evidence 

not previously considered by OWCP. In a November 1, 2016 statement, appellant related that he 

had continued right ankle problems after Dr. Chaglassian found that his temporary aggravation 

had resolved. The issue, however, is whether the medical evidence is sufficient to show that he 

sustained a permanent aggravation of his right ankle condition. Appellant’s lay opinion regarding 

 

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (January 2013).

14 The Board notes that OWCP procedures do not affirmatively mandate that such definitions be sent to referral 

physicians, but instead contemplate that OWCP will provide information appropriate to the question at issue. See

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.7(f) 

(September 2009) (when OWCP needs to define such terms as aggravation, precipitation or acceleration, it should do 

so in a letter to the physician).

15 See D.F., Docket No. 17-0694 (issued June 22, 2017); D.T., Docket No. 14-1239 (issued December 9, 2014).
6

his condition is not relevant to the medical issue in this case, which can only be resolved through 

the submission of probative medical evidence from a physician.16

In a report dated November 16, 2016, Dr. Hartunian maintained that medical research 

found that osteoarthritis did not have a natural progression, but that instead symptoms in 

individuals varied. He noted that causation was established if work factors contributed in any way 

to a condition. Dr. Hartunian’s report, however, is general in nature rather than specific to 

appellant and thus does not constitute pertinent new and relevant evidence sufficient to reopen his 

claim for merit review.17 

On appeal counsel contends that OWCP did not provide its physician with the appropriate 

causation standard. As noted, however, it included definitions of causation, aggravation, 

acceleration, and precipitation consistent with the definitions set forth in its procedures.18 Counsel 

further argues the merits of the case, contending that Dr. Chaglassian’s opinion was of insufficient 

probative value and that Dr. Hartunian’s opinion constitutes the weight of the evidence. As noted, 

however, the Board does not have jurisdiction over the merits of this claim. Appellant did not 

show that OWCP erroneously applied or interpreted a specific point of law, advance a relevant 

legal argument not previously considered by OWCP or constitute pertinent new and relevant 

evidence not previously considered. As he did not meet any of the necessary regulatory 

requirements, he is not entitled to further merit review.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

 

16 See L.G., supra note 8; Gloria J. McPherson, 51 ECAB 441 (2000).

17 See B.J., Docket No. 15-0795 (issued June 15, 2015).

18 See supra note 10.
7

ORDER

IT IS HEREBY ORDERED THAT the January 24, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 23, 2018

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