B.P. and U.S. Postal Service, Post Office, Houston, TX (Board decision, October 22, 2009)

ECAB final decision. The Board affirmed OWCP's August 26, 2008 schedule award for four percent permanent impairment of B.P.'s right arm. Under 20 C.F.R. § 501.6(d), this Board decision becomes final as to this appeal 30 days after issuance unless the Board specifies another period. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

B.P., a Postal Service mail handler with accepted bilateral carpal tunnel syndrome, sought a larger award for lasting impairment of his right arm after surgery. His treating surgeon and OWCP's medical adviser each rated the right-arm impairment at four percent based on reduced wrist flexion and extension. The Board found that the medical adviser properly applied the rating guide and that no other findings supported a higher right-arm rating. The surgeon also listed a whole-person percentage, but the Board explained that the schedule award does not cover whole-person impairment. It affirmed OWCP's four-percent award.

Decision snapshot

• Authority: 5 U.S.C. § 8107 and 20 C.F.R. § 10.404 govern schedule awards and the impairment rating guide.
• Outcome: OWCP's August 26, 2008 four-percent right-arm schedule award affirmed.
• Key point: The documented wrist-motion limits supported four percent right-arm impairment and no higher award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.P., Appellant
)
)
and ) Docket No. 09-304
) Issued: October 22, 2009
U.S. POSTAL SERVICE, POST OFFICE,
)
Houston, TX, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On November 12, 2008 appellant filed a timely appeal from the August 26, 2008 decision of the Office of Workers’ Compensation Programs.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination.

ISSUE

The issue is whether appellant has more than four percent permanent impairment of his right upper extremity, for which he received a schedule award.

FACTUAL HISTORY

On October 30, 2005 appellant, then a 52-year-old mail handler, filed an occupational disease claim for bilateral carpal tunnel syndrome (CTS). He did not stop work. The Office accepted appellant’s claim for bilateral CTS. It authorized a right revision and carpal tunnel

1
The Board notes that the record contains a September 29, 2008 wage-earning capacity decision. Appellant has not appealed this decision. release, which appellant underwent on October 20, 2007. Appellant received compensation benefits.

In a February 5, 2008 report, Dr. Todd E. Siff, a Board-certified orthopedic surgeon and treating physician, noted that appellant was post right carpal tunnel release. He advised that appellant had some residual tingling in the small finger and ring finger. Dr. Siff opined that appellant was at maximum medical improvement.

On February 7, 2008 appellant filed a claim for a schedule award.2 By letter dated March 20, 2008, the Office requested that appellant’s physician provide an impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) hereinafter (A.M.A., Guides).

In a June 17, 2008 report, Dr. Siff diagnosed right CTS and advised that appellant reached maximum medical improvement on June 6, 2008. He provided range of motion findings for the right wrist, which included 50 degrees of flexion for two percent impairment and 50 degrees of extension for two percent impairment. Dr. Siff added these values to find that appellant had four percent impairment of the right upper extremity and also indicated four percent whole person impairment.

In a July 8, 2008 report, the Office medical adviser applied the findings of Dr. Stiff to the fifth edition of the A.M.A., Guides and agreed that appellant had four percent impairment of his right upper extremity. He referred to Table 16-28 and 31,3 and indicated that, for 50 degrees of flexion and extension, each represented two percent impairment. The Office medical adviser added these impairments to find four percent impairment to the right arm. He noted that his findings were the same as Dr. Siff and advised that he did not describe any impairment to the left upper extremity. The Office medical adviser opined that June 17, 2008 was the date of maximum medical improvement.

On August 26, 2008 the Office granted appellant a schedule award for four percent impairment of the right upper extremity. The award covered a period of 12.48 weeks from June 17 to August 30, 2008.

LEGAL PRECEDENT

Section 8107 of the Federal Employees’ Compensation Act4 sets forth the number of weeks of compensation to be paid for the permanent loss of use of specified members, functions and organs of the body.5 The Act, however, does not specify the manner by which the percentage loss of a member, function, or organ shall be determined. To ensure consistent

2
An earlier request for a schedule award was denied by decision dated January 16, 2007, as appellant had not reached maximum medical improvement.
3
A.M.A., Guides 467-69.
4
5 U.S.C. §§ 8101-8193.
5
Id. at § 8107.

2 results and equal justice for all claimants under the law, good administrative practice requires the use of uniform standards applicable to all claimants.6 The Act’s implementing regulations has adopted the A.M.A., Guides as the appropriate standard for evaluating schedule award losses.7

ANALYSIS

The Board finds that appellant has not established that he has more than four percent permanent impairment of his right upper extremity. In this case, Dr. Siff and the Office medical adviser agreed that appellant had four percent impairment of the right upper extremity due to his accepted CTS. Dr. Siff’s report noted appellant’s range of motion findings in the right wrist and found four percent impairment based on two percent impairment for loss of flexion and loss of extension. He also indicated that appellant had four percent whole person impairment, but did not explain this reference to whole person impairment. The Board notes that there can be no schedule award based on whole person impairment as neither the Act nor Office regulations provide for the payment of a schedule award for the whole person.8

An Office medical adviser reviewed Dr. Siff’s report and agreed that appellant had four percent impairment of the right arm. The Office medical adviser noted the range of motion measurements found by Dr. Siff and properly referred to Figure 16-28 and 31 of the A.M.A., Guides9 and provided findings for range of motion for the wrist. Under Figure 16-28,10 50 degrees of flexion and 50 degrees of extension would each result in two percent impairment, or a total of four percent impairment of the right arm. The medical adviser noted there were no other findings warranting an impairment rating. The Board finds that the Office medical adviser properly applied the A.M.A., Guides, and that the Office properly found that appellant was not entitled to greater than four percent impairment of the right upper extremity.

CONCLUSION

The Board finds that appellant has not established that he has more than four percent permanent impairment of his right upper extremity, for which he received a schedule award.

6
Ausbon N. Johnson, 50 ECAB 304, 311 (1999).
7
20 C.F.R. § 10.404.
8
S.K., 60 ECAB ___ (Docket No. 08-848, issued January 26, 2009).
9
A.M.A., Guides 467-69.
10
Id. at 467.

3
ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated August 26, 2008 is affirmed.

Issued: October 22, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

4