United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.C., Appellant

and

U.S. POSTAL SERVICE, CHESTNUT HILL 

POST OFFICE, Chestnut Hill, MA, Employer

__________________________________________

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Docket No. 20-1219

Issued: June 16, 2021

Appearances: Case Submitted on the Record

John L. DeGeneres, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 28, 2020 appellant, through counsel, filed a timely appeal from a December 2, 

2019 merit decision and a May 21, 2020 nonmerit decision of the Office of Workers’

 

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

Compensation Programs (OWCP).2 Pursuant to the Federal Employees’ Compensation Act3

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this 

case.

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish a permanent 

aggravation of right hip and knee osteoarthritis; (2) whether OWCP abused its discretion in 

denying appellant’s request for subpoenas; and (3) whether it properly denied appellant’s request 

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

FACTUAL HISTORY

On February 14, 2015 appellant, then a 71-year-old city carrier, filed an occupational 

disease claim (Form CA-2) alleging that factors of his federal employment accelerated right hip 

and knee osteoarthritis. In a narrative statement, he described his letter carrier duties beginning in 

1986. Appellant reported that he underwent right knee arthroscopic surgery on January 5, 1999 

and that in 2009 he began experiencing right knee pain when walking and standing. He related 

that he began having right hip pain in 2004, and on January 12, 2006 he underwent a right hip 

replacement. 

In a February 7, 2015 report, Dr. Byron V. Hartunian, an orthopedic surgeon, noted 

appellant’s medical and surgical history, his description of job duties, and his complaints of right 

knee and hip pain and stiffness. He reviewed some medical records including a September 18, 

2013 right knee x-ray that showed degenerative changes. On examination appellant demonstrated 

discomfort on combined flexion and rotation at the right groin area, and swelling and moderate 

tenderness over the right knee medial joint line. Dr. Hartunian diagnosed status post right total 

hip replacement for end-stage degenerative arthritis with secondary surgery needed to treat 

heterotopic bone formation, which resulted in severe right hip mobility restriction, and 

degenerative right knee arthritis with 1 millimeter (mm) of cartilage interval at the medial 

femorotibial joint. He advised that appellant had reached maximum medical improvement 

regarding his right hip on September 25, 2007 and regarding his right knee on March 17, 2009. 

Dr. Hartunian opined that appellant’s regular job duties of constant and repetitive walking, 

squatting, stooping, climbing, bending, lifting, carrying, stair climbing, and twisting exerted 

repeated stress to appellant’s lower extremities causing chronic inflammation that accelerated 

 

2 Appellant submitted a timely oral argument request before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, he asserted that oral argument should be granted because a supervisor 

allegedly falsified an injury report to conceal his absence from duty. The Board, in exercising its discretion, denies 

his request for oral argument because the arguments on appeal can adequately be addressed in a decision based on a 

review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve 

a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as 

submitted to the Board.

3 5 U.S.C. § 8101 et seq.
3

articular cartilage loss and contributing to the development and progression of his right lower 

extremity arthritis. He cited to medical literature that supported his opinion.4 

In a development letter dated April 13, 2015, OWCP notified appellant of the factual 

deficiencies of his claim and advised him of the type of medical evidence needed. It provided a 

questionnaire for his completion and afforded him 30 days to submit the necessary evidence. 

A notice dated April 20, 2015 indicated that appellant was retiring from the employing 

establishment, effective May 29, 2015. 

In correspondence dated April 29, 2015, counsel responded to the April 13, 2015 

development letter. He maintained that Dr. Hartunian’s report was sufficient to establish 

appellant’s claim. Counsel attached appellant’s questionnaire responses in which he indicated that 

his old medical records were no longer available. 

On June 30, 2015 OWCP referred appellant, the medical record, a set of questions, and a 

statement of accepted facts (SOAF) to Dr. Christopher B. Geary, a Board-certified orthopedic 

surgeon, for a second opinion regarding whether appellant’s right hip and knee conditions were 

causally related to appellant’s work activities. In an August 4, 2015 report, Dr. Geary noted his 

review of the medical record and appellant’s description of his work and medical history. He also 

related appellant’s physical examination findings. Dr. Geary opined that appellant’s right hip and 

knee conditions were not related to his work activities, but rather to chronic degenerative 

osteoarthritis. He advised that the work activities would have caused a temporary aggravation of 

both conditions that would have ceased one or two months after he ceased all work activities. 

Dr. Geary opined that there was no causation or acceleration due to appellant’s work and that,

while the right total hip arthroplasty was necessary given appellant arthritis, it was not due to his 

federal work activities. He concluded that appellant suffered from chronic degenerative 

osteoarthritis that was an underlying condition and not due to appellant’s work activities. 

By decision dated August 17, 2015, OWCP accepted temporary aggravation of right hip 

osteoarthritis, resolved July 29, 2015, and temporary aggravation of right knee osteoarthritis, 

resolved July 29, 2015. 

On September 4, 2015 appellant, through counsel, requested an oral hearing before a

representative of OWCP’s Branch of Hearings and Review. 

Following a preliminary review, by decision dated November 30, 2015, the hearing 

representative reversed the August 17, 2015 decision. She found that a conflict in the medical 

evidence existed between the opinions of Dr. Hartunian, appellant’s physician, and Dr. Geary, 

OWCP’s referral physician, regarding whether the accepted aggravations of appellant’s right hip 

and knee osteoarthritis were temporary or permanent. 

On March 24, 2016 OWCP referred appellant to Dr. John H. Chaglassian, Board-certified 

in orthopedic surgery, for an impartial medical evaluation. In an April 27, 2016 report,

 

4 Appellant also submitted additional medical evidence regarding his prior treatment for his right knee and right hip 

conditions and a position description. 
4

Dr. Chaglassian noted his review of the medical record, a medical history provided by appellant, 

and his complaints of intermittent right knee swelling and intermittent right hip pain. Right knee 

examination demonstrated no effusion, redness, or heat, and some synovial hypertrophy. A varus 

deformity was present with no ligamentous instability and normal patellar tracking. Neurovascular 

examination was normal. Right hip examination demonstrated no tenderness and discomfort with 

flexion to 90 degrees. Dr. Chaglassian noted that appellant reported that he did not sustain a 

specific work injury and opined that he had a predisposition for progressive arthritis in the joints 

that was not work related. He continued that, although appellant’s total hip replacement was 

reasonable and necessary, it was not due to appellant’s federal job duties. Dr. Chaglassian 

concluded that appellant may have sustained a temporary aggravation of his right hip and knee 

arthritis related to work, but this would have ceased a few months after he stopped work. 

By decision dated May 9, 2017, OWCP found that the special weight of the medical 

evidence rested with the opinion of Dr. Chaglassian and reiterated that the accepted conditions 

were temporary aggravations of right hip and knee osteoarthritis, resolved January 29, 2015. 

On May 30, 2017 appellant, through counsel, again requested a hearing before a

representative of OWCP’s Branch of Hearings and Review. During the hearing held on

October 25, 2017, counsel asserted that Board case law and OWCP procedures were supportive 

that appellant sustained permanent aggravation, and that the reports of Dr. Geary and

Dr. Chaglassian were not well rationalized. Appellant testified regarding his work duties and 

indicated that his right hip and knee conditions did not improve after his retirement. 

By decision dated February 5, 2018, an OWCP hearing representative set aside the May 9, 

2017 decision and remanded the case for OWCP to obtain a supplemental opinion from

Dr. Chaglassian followed by a de novo decision regarding the nature and extent of appellant’s

work-related aggravation of right knee and hip osteoarthritis, whether such aggravation was 

temporary or permanent, if temporary, whether it had ceased and when, and whether the evidence 

supported expansion of the claim for work-related acceleration of right hip and/or right knee 

osteoarthritis. 

On March 1, 2018 OWCP asked Dr. Chaglassian to furnish a supplemental report. It 

enclosed the original case record, a SOAF dated February 27, 2018 that included the accepted 

conditions of temporary aggravations of right hip and right knee osteoarthritis, and a description 

of appellant’s job duties. OWCP also included specific questions regarding appellant’s job duties

and the cause of his right lower extremity osteoarthritis. 

In a May 17, 2018 report, Dr. Chaglassian noted his April 27, 2016 evaluation. He opined 

that the medical literature did not support that an individual was more likely to develop arthritis 

because of a certain job such as a letter carrier. Dr. Chaglassian indicated that appellant did not 

report that he had sustained direct hip or knee injuries, and opined that the need for total hip 

replacement was primarily related to progressive arthritis and not because of appellant’s work 

duties as a letter carrier. He advised that he was in agreement with Dr. Geary. Dr. Chaglassian 

concluded, within a reasonable degree of medical certainty, that the fact that a temporary 

aggravation was accepted did not alter his opinion that the temporary aggravation of arthritis in 

the right hip and knee related to appellant’s work would have ceased when he retired and was not 

a permanent aggravation. 
5

By decision dated May 23, 2018, OWCP found that appellant had not established

permanent aggravation of right hip and right knee osteoarthritis. It found that the weight of the 

medical evidence rested with the opinion of Dr. Chaglassian. 

On June 5, 2018 appellant, through counsel, requested an oral hearing before a

representative of OWCP’s Branch of Hearings and Review. The hearing was held on

November 29, 2018. Counsel argued that the opinions of Dr. Geary and Dr. Chaglassian were of 

diminished probative value. Following the hearing, appellant submitted a January 2, 2019 

statement in which he indicated that Dr. Chaglassian had not questioned him regarding his right 

hip and knee conditions since retirement and maintained that appellant continued to have pain in 

both. Counsel submitted evidence previously of record and a May 3, 2018 report in which

Dr. Justin Kung, a Board-certified radiologist, noted his review of an April 23, 2018 right knee 

x-ray. He indicated that these demonstrated that the right medial compartment space interval 

measured 0.0 mm, with bone-on-bone contact and subchondral sclerosis, and that the lateral 

compartment joint space interval measured 9.0 mm. Dr. Kung noted tricompartmental osteophytes 

and concluded that there was severe degenerative change in the right knee medial compartment. 

By decision dated February 5, 2019, the hearing representative set aside the May 23, 2018 

decision, finding that Dr. Chaglassian’s opinion was not supported by probative medical rationale. 

She remanded the case for OWCP to ask Dr. Chaglassian for a well-reasoned explanation as to 

how and why appellant’s work activities were insufficient to result in a permanent aggravation of 

his right hip and knee arthritis. If Dr. Chaglassian was unwilling to provide a sufficient response, 

she indicated a new referee examination should be scheduled. 

On February 20, 2019 OWCP asked Dr. Chaglassian to provide a well-reasoned 

explanation as to how or why appellant’s work activities were insufficient to result in permanent 

aggravation of his right hip and right knee conditions. It asked that he explain how a progressive 

arthritic condition could be temporary in nature or return to a baseline condition once it was

aggravated. 

In a March 6, 2019 response, Dr. Chaglassian referred to his May 17, 2018 report. He 

indicated that arthritis was not associated or caused by certain progression, which involved 

prolonged standing, bending, lifting, getting in and out of or driving trucks, noting that it was 

unknown why some people got arthritis. Dr. Chaglassian opined that there was no work-related 

progression or temporary aggravation related to appellant’s employment duties. 

In a de novo decision dated July 17, 2019, OWCP reiterated that appellant had only 

established temporary aggravation of right hip and right knee osteoarthritis, resolved on 

July 29, 2015. 

On July 23, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. On August 21, 2019 counsel 

requested subpoenas for Dr. Geary and Dr. Chaglassian or that they be asked additional questions, 

which he provided. He also submitted two reports from Dr. Chaglassian regarding other 

individuals, not appellant. 
6

In correspondence dated September 16, 2019, OWCP’s hearing representative denied the 

request for issuance of subpoenas. 

A hearing was held on October 22, 2019. 

By decision dated December 2, 2019, the hearing representative affirmed the July 17, 2019 

decision. She formally denied appellant’s request for subpoenas and found that the medical 

evidence of record was insufficient to establish that he sustained a permanent aggravation or 

acceleration of right knee or hip osteoarthritis. 

On February 21, 2010 appellant, through counsel, requested reconsideration. Counsel 

submitted evidence previously of record and continued to maintain that Dr. Chaglassian’s opinion 

was not well rationalized. 

By decision dated May 21, 2010, OWCP denied appellant’s request for reconsideration of 

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

LEGAL PRECEDENT -- ISSUE 1

When an employee claims that a condition not accepted or approved by OWCP was due to 

an employment injury, he or she bears the burden of proof to establish that the condition is causally 

related to the employment injury.5

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.6 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment factors must be based on a 

complete factual and medical background. Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s 

specific employment factors.7

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the 

physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.”

8

 In situations where 

there exist opposing medical reports of virtually equal weight and rationale and the case is referred 

to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such 

 

5 C.C., Docket No. 19-1948 (issued January 8, 2021); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. 

Asaramo, 55 ECAB 200 (2004). 

6 T.W., Docket No. 20-0767 (issued January 13, 2021); T.H., 59 ECAB 388; Robert G. Morris, 48 ECAB 

238 (1996).

7 C.D., Docket No. 20-0762 (issued January 13, 2021); B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. 

Moore, 52 ECAB 132 (2000).

8 5 U.S.C. § 8123(a).
7

specialist, if sufficiently well rationalized and based upon a proper factual background, must be 

given special weight.9

The Federal (FECA) Procedure Manual provides that the findings of an OWCP referral 

physician or impartial medical specialist must be based on the factual underpinnings of the claim, 

as set forth in the SOAF.10 When OWCP’s referral physician or impartial medical specialist does 

not use the SOAF as the framework in forming his or her opinion, the probative value of the 

opinion is diminished or negated altogether.11

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision regarding whether appellant 

sustained permanent aggravation of right hip and knee osteoarthritis. 

OWCP properly determined that there was a conflict in the medical opinion evidence 

between Dr. Hartunian, an attending physician, and Dr. Geary, an OWCP referral physician

regarding appellant’s alleged right hip and knee conditions. In order to resolve the conflict, 

pursuant to 5 U.S.C. § 8123(a), OWCP referred appellant, the medical record, and a SOAF to

Dr. Chaglassian for an impartial medical examination and an opinion on the matter. 

In his April 27, 2016 report, Dr. Chaglassian opined that, while appellant may have 

sustained a temporary aggravation of his right hip and knee arthritis related to work, this would 

have ceased a few months after he stopped work. In a May 17, 2018 supplemental report, he

indicated that the accepted temporary aggravation of arthritis in the right hip and knee related to 

appellant’s work would have ceased when he retired and was not a permanent aggravation. In a 

March 6, 2019 supplemental opinion, Dr. Chaglassian referred to his May 17, 2018 report. He 

indicated that arthritis was not associated or caused by certain professions that involved prolonged 

standing, bending, lifting, getting in and out of or driving trucks, writing that it was unknown why 

some people got arthritis. Dr. Chaglassian opined that there was no work-related progression or 

temporary aggravation related to appellant’s job. In his March 6, 2019 report, he advised that there 

was no work-related progression or temporary aggravation related to appellant’s job.

The Board finds that Dr. Chaglassian, however, failed to acknowledge OWCP’s prior 

determination, as set forth in the SOAF, that the accepted employment factors were sufficient to 

cause an aggravation of appellant’s right hip and knee osteoarthritic condition. Dr. Chaglassian

opinion is, therefore, of diminished probative value regarding whether appellant sustained a workrelated permanent aggravation of his right hip and knee conditions and, thus, is insufficient to carry 

the special weight of the medical evidence.

12

 As such, a conflict in medical evidence remains.

 

9 N.G., Docket No. 20-0557 (issued January 5, 2021); R.H., 59 ECAB 382 (2008).

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.810.11a 

(September 2019). 

11 Id. at Chapter 3.600.3(a) (October 1990).

12 See S.B., Docket No. 20-0675 (issued November 23, 2020).
8

Therefore, in order to resolve the conflict in the medical opinion evidence, the case will be 

remanded to OWCP for referral of the case record, including an updated SOAF, to a new impartial 

medical specialist for examination and for a rationalized medical opinion, which evaluates whether

appellant sustained a permanent aggravation of preexisting degenerative osteoarthritis causally 

related to the accepted factors of his federal employment. After this and other such further 

development OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision with respect to whether 

appellant established permanent aggravation of right hip and knee osteoarthritis.13

ORDER

IT IS HEREBY ORDERED THAT the May 21, 2020 and December 2, 2019 decisions

of the Office of Workers’ Compensation Programs are set aside, and the case is remanded for 

further proceedings consistent with this decision of the Board.

Issued: June 16, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

13 In light of the Board’s disposition of Issue 1, Issues 2, and 3 are rendered moot.