R.J. and Department of Defense, Tyndall Air Force Base, FL (Board decision, December 1, 2009)

ECAB final decision on this appeal. The Board affirmed OWCP's March 24, 2009 schedule award for three percent impairment of R.J.'s right upper extremity. 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

R.J., a Defense Department toolmaker, injured his right elbow at work and received a schedule award for three percent impairment of his right arm. He sought a larger award based on his physician's rating. The Board found conflicting figures in that physician's report and said his range-of-motion calculation did not match the A.M.A. Guides. It also explained that FECA does not provide a schedule award for whole-person impairment. The Board held that the evidence did not establish more than three percent right-arm impairment and affirmed the award.

Decision snapshot

• Authority: Schedule awards under 5 U.S.C. § 8107 and 20 C.F.R. § 10.404.
• Outcome: Three percent right-upper-extremity award, covering 9.36 weeks, affirmed.
• Key point: The larger rating was internally inconsistent and did not follow the applicable impairment tables.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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R.J., Appellant
)
)
and ) Docket No. 09-1202
)
Issued: December 1, 2009
DEPARTMENT OF DEFENSE, TYNDALL
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AIR FORCE BASE, FL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On April 3, 2009 appellant filed a timely appeal from a March 24, 2009 decision of the Office of Workers’ Compensation Programs adjudicating his schedule award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.

ISSUE

The issue is whether appellant has more than three percent impairment to his right upper extremity.

FACTUAL HISTORY

On August 31, 2006 appellant, then a 56-year-old toolmaker, filed a claim for a traumatic injury on August 14, 2006 when a rachet broke causing his right elbow to slam into grating. The Office accepted his claim for a fractured right elbow and olecranon bursitis. On August 30, 2007 appellant underwent a right olecranon bursectomy and exostectomy. On February 26, 2009 appellant filed a claim for a schedule award. In a report dated December 19, 2007, Dr. Mark J. Tenholder, an attending Board-certified orthopedic surgeon, provided findings on physical examination and opined that appellant had reached maximum medical improvement. He stated that appellant could return to full duty and had zero percent impairment of his right upper extremity based on a state impairment guide.

In a November 7, 2008 report, Dr. Robert B. Dehgan, a Board-certified physiatrist, reviewed appellant’s medical history and provided findings on physical examination. There was no redness, swelling or deformity of the right elbow. Angle of the elbow, medial and lateral ligaments was stable. Range of motion of the right elbow was 125 degrees of flexion, 10 degrees of extension and 80 degrees of pronation and supination. In an addendum report dated February 4, 2009, Dr. Dehgan stated that appellant had 50 percent impairment of the upper extremity for a disorder of the ulnohumeral joint, based on Table 16-18 at page 499 of the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (the A.M.A., Guides) and section 16.7 (Impairment of the Upper Extremities Due to Other Disorders). However, in the impairment worksheet portion of his report, he indicated that appellant had no impairment due to this section in the A.M.A., Guides regarding other disorders. In the worksheet, Dr. Dehgan determined that appellant had 20 percent elbow impairment due to decreased range of motion, including 15 percent for 125 degrees of flexion and 5 percent for 10 degrees of extension. He determined that appellant had 10 percent upper extremity impairment that converted to 6 percent whole person impairment based on Table 16-3 (Conversion of Impairment of the Upper Extremity to Impairment of the Whole Person), line 11, at page 439 of the fifth edition of the A.M.A., Guides. On appeal appellant requests that the Board modify the Office’s schedule award decision to reflect Dr. Dehgan’s impairment rating.

On March 18, 2009 an Office medical adviser stated that appellant had three percent right upper extremity impairment based on decreased elbow range of motion and Table 16-34 at page 472 of the A.M.A., Guides (two percent for 125 degrees of flexion1 and one percent for 10 degrees of extension).2

By decision dated March 24, 2009, the Office granted appellant a schedule award based on three percent right upper extremity for 9.36 weeks, from November 7, 2008 to January 11, 2009.3

1
Table 16-34 provides two percent impairment for 120 degrees of flexion and one percent for 130 degrees. The Office medical adviser applied the higher of the two percentages. 2 See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter 2.808.6(d) (August 2002) (after obtaining all necessary medical evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the percentage of impairment specified, especially when there is more than one evaluation of the impairment present). 3 The Act provides for 312 weeks of compensation for 100 percent loss or loss of use of the upper extremity.
5 U.S.C. § 8107(c)(10). Multiplying 312 weeks by 3 percent equals 9.36 weeks of compensation.

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 LEGAL PRECEDENT

The schedule award provision of the Federal Employees’ Compensation Act4 and its implementing regulations5 set forth the number of weeks of compensation payable to employees sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of the body. However, the Act does not specify the manner in which the percentage of loss shall be determined. For consistent results and to ensure equal justice under the law to all claimants, good administrative practice necessitates the use of a single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for evaluating schedule losses.6

ANALYSIS

Dr. Dehgan reviewed appellant’s medical history and provided findings on physical examination. There was no redness, swelling or deformity of the right elbow. Angle of the elbow, medial and lateral ligaments was stable. Range of motion of the right elbow was 125 degrees of flexion, 10 degrees of extension and 80 degrees of pronation and supination. Dr. Dehgan stated that appellant had 50 percent impairment of the upper extremity for a disorder of the ulnohumeral joint, based on Table 16-18 at page 499 of the fifth edition of the A.M.A., Guides in section 16.7 (Impairment of the Upper Extremities Due to Other Disorders). In the impairment worksheet portion of his report, however, he indicated that appellant had no impairment based on this section of the A.M.A., Guides. Consequently, there is a conflicting determination in Dr. Dehgan’s report regarding impairment due to a disorder of the ulnohumeral joint under the section on impairment due to other disorders. In the worksheet, Dr. Dehgan determined that appellant had 20 percent elbow impairment due to decreased range of motion, including 15 percent for 125 degrees of flexion and 5 percent for 10 degrees of extension. However, Table 16-34 at page 472 of the A.M.A., Guides provides between one and two percent for 125 degrees of flexion7 and one percent for 10 degrees of extension. Therefore, Dr. Dehgan’s rating of appellant’s impairment due to decreased range of motion is incorrect. He further determined that appellant had 10 percent upper extremity impairment that converted to 6 percent whole person impairment based on Table 16-3 at page 439 of the fifth edition of the A.M.A., Guides. It is unclear how Dr. Dehgan determined the 10 percent upper extremity impairment in his worksheet which he applied to Table 16-3 at page 439. In any event, neither the Act nor the implementing regulations provide for a schedule award for the body as a whole.8 Due to these deficiencies, Dr. Dehgan’s report does not establish that appellant has more than three percent right upper extremity impairment.

4
5 U.S.C. § 8107.
5
20 C.F.R. § 10.404.
6
Id. at § 10.404.
7
As noted, the Office medical adviser applied the higher of the two percentages.
8
See Guiseppe Aversa, 55 ECAB 164, 167 (2003).

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 CONCLUSION

The Board finds that appellant has no more than three percent right upper extremity impairment for which he received a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated March 24, 2009 is affirmed.

Issued: December 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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