W.L. and U.S. Postal Service, Newport Branch, Wilmington, DE (Board decision, February 22, 2010)

ECAB final decision. The Board affirmed OWCP’s April 30, 2009 schedule award for five percent permanent impairment of W.L.’s right leg. 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).

Plain-English summary

W.L., a postal mail carrier, sought a schedule award after an accepted right knee injury and several surgeries. His physician rated leg impairment at seven percent using calf measurements, but later measurements showed the opposite size difference. The Board found the unexplained changes made that rating unreliable. It accepted OWCP’s five percent rating for knee pain and crepitation and found no basis for an additional pain rating. The Board affirmed the award.

Decision snapshot

• Authority: FECA schedule awards under 5 U.S.C. § 8107; impairment evaluation under 20 C.F.R. § 10.404.
• Outcome: Five percent right leg schedule award affirmed.
• Key point: Inconsistent limb measurements did not support a higher rating, and the accepted rating already accounted for pain.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
W.L., Appellant
)
)
and ) Docket No. 09-1515
) Issued: February 22, 2010
U.S. POSTAL SERVICE, NEWPORT BRANCH,
)
Wilmington, DE, Employer
)
__________ )

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On May 11, 2009 appellant, through his representative, filed a timely appeal from the April 30, 2009 merit decision of the Office of Workers’ Compensation Programs, which awarded schedule compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.

ISSUE

The issue is whether appellant has more than a five percent impairment of his right lower extremity.

FACTUAL HISTORY

On July 9, 1998 appellant, then a 27-year-old mail carrier, sustained an injury in the performance of duty when he slipped and fell on a wet floor. The Office accepted his claim for lumbar and right knee sprain. Appellant underwent right knee synovectomies on May 4, 1999, March 21, 2000 and November 7, 2000. He underwent excision of a right knee neuroma on August 1, 2001. Appellant filed a claim for a schedule award. In July 2008, Dr. George L. Rodriguez, a physiatrist, compared the circumferences of appellant’s thighs and found the right to be 0.5 centimeters smaller. He also compared the calves and found the right to be 1.5 centimeters smaller. On August 10, 2008 Dr. Rodriguez offered an impairment rating of seven percent of the right lower extremity due to mild calf atrophy. As appellant was suffering significantly from right knee pain, he included an additional pain-related impairment.

On August 12, 2008 Dr. Rodriguez again compared appellant’s thighs but found the right to be 2.0 centimeters larger. He found the right calf to be 2.0 centimeters larger than the left calf. Dr. Rodriguez continued to report through March 2009 that appellant’s right thigh and calf were larger than his left.

An Office medical adviser noted the inconsistency in thigh and calf measurements, with apparent atrophy on the right becoming apparent atrophy on the left. He found that the findings were unreliable and should not be used to determine permanent impairment. The medical adviser found that a rating for patellofemoral pain was the most applicable rating under the circumstances. Appellant had a history of direct trauma to the joint, he had a complaint of pain around the patellofemoral joint, and there was crepitation on physical examination. The medical adviser therefore found a five percent impairment of the right lower extremity. He added that no additional rating for pain was appropriate, as the rating already addressed patellofemoral pain.

In a decision dated April 30, 2009, the Office issued a schedule award for a five percent impairment of appellant’s right lower extremity.

On appeal, appellant’s representative argues that the Board should either accept Dr. Rodriguez’ measurements or remand the case for a second opinion evaluation to determine the proper measurements of appellant’s calf and thigh.

LEGAL PRECEDENT

Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of schedule awards for the loss or loss of use of specified members, organs or functions of the body. Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of permanent impairment according to the standards set forth in the specified edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment.2

A claimant seeking compensation under the Act has the burden of establishing the essential elements of his claim by the weight of the reliable, probative and substantial evidence.3

1
5 U.S.C. § 8107.
2
20 C.F.R. § 10.404.
3
Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

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 ANALYSIS

To support his claim for a schedule award, appellant submitted an impairment rating from his physiatrist, Dr. Rodriguez, who based his August 10, 2008 impairment rating on mild atrophy in the right calf and an additional pain-related impairment. The atrophy noted on examination that date differed with that subsequently reported by the physician. On August 12, 2008 Dr. Rodriguez reported that appellant now had moderate atrophy in the left thigh and moderate atrophy in the left calf when compared to the right.4 He would continue to report relative atrophy on the left through March 2009. The Board finds that Dr. Rodriguez’ impairment rating is of diminished probative value. His measurements from July to August 2008 are inconsistent and remain unexplained. Dr. Rodriguez’ measurements after the August 10, 2008 impairment rating show no impairment of the right lower extremity due to atrophy.

Table 17-31, page 544 of the A.M.A., Guides provides impairment estimates for arthritis based on joint space narrowing. In an individual with a history of direct trauma, a complaint of patellofemoral pain, and crepitation on physical examination, but without joint space narrowing on x-rays, the table states that a five percent lower extremity impairment is given. The Office medical adviser confirmed that appellant met these criteria. The impairment rating based on patellofemoral pain is supported by the medical evidence of record and it appropriately reflects appellant’s primary complaint of right knee pain.

The Board finds that the medical evidence supports no more than a five percent impairment of appellant’s right lower extremity due to patellofemoral pain. As this rating directly encompasses pain, and as the chapter in the A.M.A., Guides devoted to pain-related impairment should not be redundant of or inconsistent with principles of impairment rating described in other chapters5, the Office properly awarded no additional rating for pain-related impairment. The Board will affirm the Office’s April 30, 2009 decision.

The Board cannot, as appellant’s representative suggests, accept Dr. Rodriguez’ July 2008 measurements. The unexplained change in measurements from July to August 2008 raises the question of reliability; unreliable findings provide no basis for the payment of a schedule award. As for directing the Office to further develop the medical evidence to reliably determine circumferences, it is appellant who bears the burden of proof to establish his entitlement to a schedule award.

CONCLUSION

The Board finds that appellant has no more than a five percent impairment of his right lower extremity.

4
American Medical Association, Guides to the Evaluation of Permanent Impairment 530 (5th ed. 2001) (Table 17-6).
5
A.M.A., Guides 570.

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 ORDER

IT IS HEREBY ORDERED THAT the April 30, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 22, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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