T.H. and U.S. Postal Service, Post Office, Bowling Green, OH (Board decision, November 23, 2009)

ECAB final decision on this appeal. The Board affirmed OWCP's September 5, 2008 and March 3, 2009 denials of T.H.'s schedule award claim. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 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

T.H., a Postal Service window clerk, sought a schedule award after a fall caused accepted back and right hand conditions. He claimed impairment of his right arm and both legs. OWCP asked for a medical rating under the A.M.A. Guides, but his physician's progress reports described symptoms without rating permanent impairment. The Board held that those reports did not establish a ratable loss of use caused by the accepted conditions and affirmed both denials.

Decision snapshot

• Authority: Schedule awards under 5 U.S.C. § 8107(c) and impairment ratings under 20 C.F.R. § 10.404.
• Outcome: OWCP's September 5, 2008 and March 3, 2009 decisions affirmed.
• Key point: Reports describing symptoms did not establish permanent impairment without a rating tied to the A.M.A. Guides.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.H., Appellant
)
)
and ) Docket No. 09-1166
) Issued: November 23, 2009
U.S. POSTAL SERVICE, POST OFFICE,
)
Bowling Green, OH, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On March 31, 2009 appellant filed a timely appeal from Office of Workers’ Compensation Programs’ merit decisions dated September 5, 2008 and March 3, 2009 denying his claim for a schedule award. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUE

The issue is whether appellant has sustained any permanent impairment to a scheduled member of his body causally related to his accepted lower back and right wrist conditions, thereby entitling him to a schedule award under 5 U.S.C. § 8107.

FACTUAL HISTORY

On February 20, 2007 appellant, a 50-year-old window clerk, injured his lower back and right hand when he slipped on a patch of ice and fell to the ground. He filed a claim for benefits, which the Office accepted for back sprain of the lumbar region, sprain of the right hand, L3-4 disc degeneration and aggravation of lumbar spondylosis. In reports dated December 6, 19 and 26, 2007, Dr. Todd A. Meredith, a specialist in internal medicine, noted complaints of back pain and right wrist pain. He stated that appellant had degenerative disease at L3-4 and L5/S1, which was aggravated by factors of employment and by the February 2007 work injury. Dr. Meredith noted that the results of a magnetic resonance imaging scan showed mild, broad-based disc bulges at L3-4 and L4-5, with mild spondylotic changes and midline protrusion at L5.

On July 15, 2008 appellant filed a Form CA-7 claim for a schedule award based on a partial loss of use of his right upper extremity and left and right lower extremities.

By letter dated August 6, 2008, the Office asked Dr. Edward J. Wojciechowski, Board- certified in family practice and appellant’s treating physician, to submit an impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment (fifth edition) (the A.M.A., Guides). It did not receive a response to this request.

In a March 20, 2008 report, Dr. William G. James, Board-certified in anesthesiology, stated that appellant had experienced moderate pain in his right lower lumbar spine for approximately one year. He stated that the pain was sharp and throbbing. Dr. James advised that the pain radiated into the right posterior leg and right medial leg, with numbness and tingling in the right lower leg. He submitted periodic progress reports in which he reviewed appellant’s lumbar symptomatology and essentially reiterated his previous findings and conclusions.

By decision dated September 5, 2008, the Office denied appellant’s claim for a schedule award. It stated that appellant failed to submit medical evidence sufficient to establish that he had any permanent impairment stemming from his accepted conditions.

By letter dated September 9, 2008, appellant’s attorney requested an oral hearing, which was held on December 10, 2008. Appellant continued to submit intermittent progress reports from Dr. James, in which he stated the medical history and reiterated previously stated findings and conclusions. None of these reports, however, contained an evaluation of permanent impairment stemming from appellant’s accepted conditions.

By decision dated March 3, 2009, an Office hearing representative affirmed the September 5, 2008 decision.

LEGAL PRECEDENT

The schedule award provision of the Federal Employees’ Compensation Act1 set forth the number of weeks of compensation to be paid for permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of compensation is paid in proportion to the percentage loss of use.2 However, the Act does not specify the manner in which the percentage of loss of use of a member is to be determined. For consistent results and to ensure equal justice under the law to all claimants, the Office has

1
5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).
2
5 U.S.C. § 8107(c)(19).

2 adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule losses.3 The claimant has the burden of proving that the condition for which a schedule award is sought is causally related to his or her employment.4

ANALYSIS

The Office determined that appellant had no ratable permanent impairment of his lower extremities and his right upper extremity. It advised appellant that he was required to submit a medical report containing an impairment rating, which correlated with the A.M.A., Guides. However, the only medical evidence appellant submitted was Dr. James’ intermittent progress reports. These reports noted that appellant had a degenerative back condition and pain stemming from his accepted right wrist condition but did not contain an impairment rating pertaining to these conditions. Additionally, Dr. James did not relate any of his findings to the applicable tables and charts of the A.M.A., Guides. The Office properly determined that Dr. James’ reports did not provide a basis for a schedule award under the Act.5 Based on this evidence, it properly found that appellant had no ratable permanent impairment of his right upper extremity or his right or left lower extremity causally related to his accepted right wrist and lower back conditions, pursuant to the A.M.A., Guides.

As there is no other medical evidence establishing that appellant sustained any permanent impairment of a schedule member, the Office properly found that appellant was not entitled to a schedule award due to his accepted right wrist and lower back conditions. The Board will affirm the September 5, 2008 and March 3, 2009 decisions.

CONCLUSION

The Board finds that appellant has not established that he sustained any permanent impairment to a scheduled member of his body causally related to his accepted right wrist and lower back conditions, thereby entitling him to a schedule award under 5 U.S.C. § 8107.

3
20 C.F.R. § 10.404.
4
Veronica Williams, 56 ECAB 367, 370 (2005).
5
The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician, which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580, 585 (2005).

3
 ORDER

IT IS HEREBY ORDERED THAT the March 3, 2009 and September 5, 2008 decisions of the Office of Workers’ Compensation Programs be affirmed.

Issued: November 23, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4