United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.T., Appellant

and

U.S. POSTAL SERVICE, SOUTHWEST 

CARRIER ANNEX, Chicago, IL, Employer

__________________________________________

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Docket No. 18-0262

Issued: November 22, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On March 15, 2017 appellant filed a timely appeal from a December 5, 2016 merit decision 

and February 2, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). 

The Board, having duly considered the matter, concludes that the case is not in posture for 

decision.

On June 21, 2005 appellant, then a 42-year-old mail carrier, filed an occupational disease 

claim (Form CA-2), which OWCP accepted under File No. xxxxxx333 for bilateral shoulder 

calcifying tendinitis, right shoulder region other affections, bilateral chondromalacia patella, and 

bilateral flat foot. He also had a prior claim under File No. xxxxxx006, which OWCP accepted 

for left shoulder strain. OWCP administratively combined File Nos. xxxxxx333 and xxxxxx006, 

with the latter serving as the master file. It granted appellant schedule award compensation as 

follows: 19 percent permanent impairment of the right upper extremity; a total of 16 percent 

permanent impairment of the left upper extremity;1a total of 26 percent permanent impairment of 

 

1 For the left upper extremity, OWCP initially granted appellant a schedule award for 3 percent permanent 

impairment, and then issued an additional schedule award for 13 percent permanent impairment.
2

the right lower extremity;2and a total of 26 percent permanent impairment of the left lower 

extremity.3

On July 9, 2016 appellant filed a claim for an additional schedule award (Form CA-7) due 

to increased permanent impairment of the upper and lower extremities.

By development letter dated July 26, 2016, OWCP requested that appellant submit a report 

from his attending physician containing an impairment rating in accordance with the sixth edition 

of the American Medical Association, Guides to the Evaluation of Permanent Impairment

(A.M.A., Guides).

4

In response, OWCP received an August 9, 2016 letter from Paul S. Pepich, a physical 

therapist, who conducted an impairment evaluation of appellant’s bilateral knee and shoulder 

conditions utilizing the diagnosis-based impairment (DBI) method under the sixth edition of the 

A.M.A., Guides. Mr. Pepich found four percent permanent impairment of each lower extremity 

and four percent permanent impairment of each upper extremity. He concluded that appellant had 

reached maximum medical improvement (MMI). Subsequently, in an October 18, 2016 letter, 

Mr. Pepich, utilizing the range of motion (ROM) method under the sixth edition of the A.M.A., 

Guides for rating appellant’s bilateral feet conditions, found 9 percent permanent impairment of 

the right foot and 13 percent permanent impairment of the left foot.

Dr. Arthur S. Harris, an OWCP medical adviser and Board-certified orthopedic surgeon, 

reviewed Mr. Pepich’s findings and, after applying the DBI methodology, concluded that appellant 

had no additional permanent impairment of either the upper or lower extremities. He noted that

Mr. Pepich was a physical therapist and that, since his impairment ratings had not been verified by 

a physician, they were invalid. Consequently, OWCP, by a December 5, 2016 decision, denied 

appellant’s claim for an increased schedule award compensation for additional permanent 

impairment of his bilateral upper and lower extremities. Appellant subsequently requested a 

review of the written record. By February 2, 2017 nonmerit decision, a representative of OWCP’s 

Branch of Hearings and Review denied appellant’s request for a review of the written record, as 

untimely filed.

To support a claim for a schedule award, an employee must submit an impairment rating 

from a qualified physician that is in accordance with the A.M.A., Guides.

5

Pursuant to OWCP’s procedures, if a claimant does not provide an impairment evaluation 

from his/her physician when requested, and there is an indication of permanent impairment in the 

medical evidence of file, the claims examiner should refer the claim for a second opinion 

 

2 For the right lower extremity, OWCP initially granted appellant a schedule award for 3 percent permanent 

impairment, and then issued an additional schedule award for 23 percent permanent impairment.

3 For the left lower extremity, OWCP initially granted appellant a schedule award for 4 percent permanent 

impairment, and then issued an additional schedule award for 22 percent permanent impairment.

4 A.M.A., Guides (6th ed. 2009).

5 L.W., Docket No. 16-1317 (issued June 21, 2017); E.O., Docket No. 12-0517 (issued July 6, 2012); James 

Robinson, Jr., 53 ECAB 417 (2002).
3

evaluation. The claims examiner may also refer the case to the district medical adviser prior to 

scheduling a second opinion examination to determine if the evidence in the file is sufficient for 

the district medical adviser to provide an impairment rating.6

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence to see that justice 

is done.7 Once OWCP undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case.8 

The Board concludes that Mr. Pepich, in his August 9 and October 18, 2016 reports,

indicated that appellant had reached MMI, and had an increased impairment. OWCP’s medical 

adviser then determined that Mr. Pepich’s findings were insufficient to determine the nature and 

extent of any increased impairment as he is a physical therapist and his reports were not 

countersigned by a physician. Thus, the medical adviser opined that Mr. Pepich’s examination 

was invalid. As there is an indication of permanent impairment in the medical evidence of file, 

OWCP should, therefore, have obtained an opinion from a second opinion physician with regard 

to appellant’s permanent impairment of his bilateral upper and lower extremities.

9

On remand OWCP shall refer appellant to an appropriate specialist for a medical opinion 

on the degree of appellant’s additional permanent impairment due to his bilateral upper and lower 

extremity conditions. After this and other such further development of the case record as OWCP 

deems necessary, it shall issue a de novo decision.10 Accordingly,

 

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.6(d) (March 2017).

7 See Richard E. Simpson, 55 ECAB 490 (2004).

8 See M.E., Docket No. 16-0770 (issued July 26, 2016).

9 Supra note 9.

10 In light of the Board’s disposition regarding the schedule award issue, the issue regarding the denial of the request 

for review of the written record as untimely filed is rendered moot.
4

IT IS HEREBY ORDERED THAT the February 2, 2017 and December 5, 2016 

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

for further proceedings consistent with this order of the Board.

Issued: November 22, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board