C.V. and U.S. Postal Service, Post Office, Falls Church, VA (Board decision, January 21, 2010)

ECAB final decision. The Board upheld OWCP's finding of seven percent impairment of each leg but modified the March 20, 2009 schedule award to use the 75 percent compensation rate for C.V. 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).

Plain-English summary

C.V., a postal letter carrier with accepted conditions in both feet and ankles, challenged a schedule award. The Board found that OWCP had rated both legs at seven percent, providing 40.32 weeks of compensation in total. It rejected her podiatrist's added impairment ratings because they were unexplained and could not be combined with the motion rating under the impairment guide. The Board agreed, however, that OWCP had paid the basic two thirds rate despite records showing an eligible spouse. It affirmed the impairment percentages and changed the award to the 75 percent rate.

Decision snapshot

• Authority: FECA schedule awards, 5 U.S.C. § 8107; impairment and dependent compensation rules, 20 C.F.R. §§ 10.404–10.405.
• Outcome: Seven percent impairment of each leg affirmed; payment rate modified to 75 percent.
• Key point: OWCP had paid both legs but used the wrong compensation rate for a claimant with an eligible spouse.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.V., Appellant
)
)
and ) Docket No. 09-1215
) Issued: January 21, 2010
U.S. POSTAL SERVICE, POST OFFICE,
)
Falls Church, VA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On April 8, 2009 appellant timely appealed the March 20, 2009 merit decision of the Office of Workers’ Compensation Programs, which granted a schedule award. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of the claim.

ISSUE

The issue is whether appellant has greater than seven percent impairment of both the left and right lower extremity.

FACTUAL HISTORY

Appellant, a 52-year-old letter carrier, has an accepted occupational disease claim for bilateral Achilles tendinitis and bilateral calcaneal spur, which arose on or about February 26, 2000. She underwent surgeries on August 31, 2000 and August 13, 2003, for her left and right foot, respectively. On February 12, 2008 appellant filed a claim for a schedule award. Appellant’s podiatrist, Dr. Paul B. Cannon, submitted a May 14, 2008 impairment rating. He found seven percent bilateral lower extremity impairment due to loss of ankle motion. Dr. Cannon also found an additional 18 percent impairment bilaterally for Achilles tendinitis with spurring and 4 percent bilaterally for heel spur syndrome.

On January 22, 2009 Dr. Willie E. Thompson, a Board-certified orthopedic surgeon and district medical adviser (DMA), reviewed the record, including Dr. Cannon’s May 14, 2008 report. He found seven percent bilateral impairment for loss of ankle motion based on Dr. Cannon’s measurement of zero degrees dorsiflexion. The DMA further noted that Dr. Cannon’s report did not otherwise adhere to the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001).

By decision dated March 20, 2009, the Office granted a schedule award for seven percent impairment of the left and right lower extremities. The award covered a period of 40.32 weeks beginning August 13, 2004.

LEGAL PRECEDENT

Section 8107 of the Federal Employees’ Compensation Act 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.1 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 results and equal justice under the law, good administrative practice requires the use of uniform standards applicable to all claimants. The implementing regulations have adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.2 Effective February 1, 2001, schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).3

ANALYSIS

Appellant claims that she was mistakenly paid a schedule award for only her right foot.
Because she underwent surgery on both feet, she argued that the two different body parts should have been rated separately and she should have received an award for each lower extremity. Appellant also argued that the Office should have paid compensation at the 3/4 rate (75 percent) because of her marital status. She indicated that she had been married since February 13, 1988 and had not been separated or divorced.

With respect to appellant’s first argument, the Board notes that she was in fact granted a schedule award for impairment of both the left and right lower extremity. The March 20, 2009 schedule award clearly indicated that appellant had seven percent impairment for both the left and right lower extremity. Appellant received a total of 40.32 weeks’ compensation, which

1
For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation.
5 U.S.C.
§ 8107(c)(2) (2006).
2
20 C.F.R. § 10.404 (2009).
3
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

2 corresponds to 20.16 weeks or seven percent impairment for each lower extremity.4 Her podiatrist, Dr. Cannon, and the DMA agreed that there was seven percent impairment of both the left and right lower extremities due to loss of ankle motion (dorsiflexion).5 Dr. Cannon found an additional 22 percent impairment for each lower extremity. However, his May 14, 2008 report does not explain how he arrived at this rating. The lower extremity evaluation worksheet that accompanied Dr. Cannon’s May 14, 2008 narrative suggests that the additional 22 percent bilateral impairment was a diagnosis-based estimate (DBE).6 However, the A.M.A., Guides preclude a combination of impairments for loss of range of motion and DBE ratings.7

The Board finds that the DMA’s January 22, 2009 impairment rating conforms to the A.M.A., Guides (5th ed. 2001), and thus, represents the weight of the medical evidence regarding the extent of appellant’s bilateral lower extremity impairment. Appellant has not submitted any credible medical evidence indicating that she has greater than seven percent impairment of either the left or right lower extremity.

As to her second argument, appellant is correct that the Office mistakenly paid her at the 66 2/3 rate rather than 3/4 or 75 percent. Basic compensation for disability or impairment is equal to 66 2/3 percent of the injured employee’s monthly pay.8 Compensation may be increased to 75 percent of the employee’s monthly pay if he or she has an eligible dependent.9 Although appellant neglected to identify her spouse as a dependent on her February 12, 2008 claim for a schedule award, previous CA-7s that she submitted identified her husband as an eligible dependent. Moreover, the payment history for the claim indicates that the Office previously compensated appellant at the 75 percent rate. Accordingly, the March 20, 2009 schedule award is modified to reflect appellant’s entitlement to compensation at the 75 percent rate.

CONCLUSION

Appellant has not established that she has greater than seven percent impairment of both the left and right lower extremity. The Board further finds that she is entitled to compensation at the rate of 75 percent due to her current marital status.

4
See supra note 1.
5
See A.M.A., Guides 537, Table 17-11.
6
See id. at 546-47, Table 17-13.
7
See id. at 526, Table 17-2.
8
5 U.S.C. §§ 8105(a), 8107(a).
9
20 C.F.R. §§ 10.404(b), 10.405.

3
 ORDER

IT IS HEREBY ORDERED THAT the March 20, 2009 decision of the Office of Workers’ Compensation Programs is affirmed as modified.

Issued: January 21, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4