W.S. and U.S. Postal Service, Post Office, Stockton, NJ (Board decision, March 4, 2010)

ECAB remand decision. The Board set aside OWCP’s April 8, 2009 decision affirming a three percent impairment award for each leg and returned the case for an impartial medical examination and a new decision. The impairment ratings remain unresolved. 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

W.S., a rural letter carrier with an accepted back injury, received a schedule award for three percent impairment of each leg. His physician rated each leg at 24 percent, based on motor deficits and pain. OWCP’s medical adviser rejected those findings and based the award on a sensory deficit. The Board found an unresolved conflict between the medical opinions and ordered OWCP to refer W.S. to an impartial examiner before deciding the award again.

Decision snapshot

• Authority: FECA schedule awards and impartial medical examination under 5 U.S.C. §§ 8107(c)(2), 8123(a).
• Outcome: April 8, 2009 decision set aside; impairment claim remanded for an impartial examination and a new decision.
• Key point: The conflicting ratings from the claimant's physician and OWCP's medical adviser required an impartial examiner.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
W.S., Appellant
)
)
and ) Docket No. 09-1781
) Issued: March 4, 2010
U.S. POSTAL SERVICE, POST OFFICE,
)
Stockton, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION

On July 8, 2009 appellant timely appealed the April 8, 2009 merit decision of the Office of Workers’ Compensation Programs, which affirmed an August 4, 2008 schedule award. 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 greater than three percent impairment of both the left and right lower extremity.

FACTUAL HISTORY

Appellant, a 62-year-old rural letter carrier, has an accepted occupational disease claim for lumbar sprain and herniated disc at L5-S1, which arose on or about June 2, 2005. On April 24, 2008 he filed a claim for a schedule award. Appellant submitted an October 18, 2007 report from Dr. Nicholas Diamond, a pain management specialist, who diagnosed L5-S1 herniated nucleus pulposus with left S1 nerve root involvement, left S1 radiculitus, per clinical impression, chronic lumbosacral strain and sprain, and chronic myofascial pain syndrome. Dr. Diamond found 24 percent impairment of the left and right lower extremity. Three percent of the rating was for pain and the other 21 percent was for motor strength deficits involving the L4, L5 and S1 nerve roots. Dr. Diamond evaluated appellant’s motor strength deficits pursuant to Table 15-16 and 15-18 at page 424 of the American Medical Association, Guides to the Evaluation of Permanent Impairment. He found nine percent impairments of the L4 and L5 nerve roots, as well as a five percent impairment of the left S1 nerve root pursuant to the A.M.A., Guides. According to Dr. Diamond, appellant had reached maximum medical improvement.

In a statement dated January 23, 2008, appellant’s treating physician, Dr. David J. Miller, stated that he had reviewed Dr. Diamond’s report and agreed with his finding of 24 percent bilateral lower extremity impairment.

On May 8, 2008 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and district medical adviser (DMA), reviewed the record, including Dr. Diamond’s October 18, 2007 report. He disagreed with Dr. Diamond’s finding of motor strength deficits at L4, L5 and S1. Dr. Berman opined that based upon his review of the records he did not believe appellant had any motor strength deficits. Instead, he found three percent impairment based on a Grade 3 sensory deficit involving the S1 nerve root, bilaterally. Dr. Berman also disagreed with Dr. Diamond’s additional three percent rating for pain.

By decision dated August 4, 2008, the Office granted a schedule award for three percent impairment of the left and right lower extremities. The award covered a period of 17.28 weeks beginning May 6, 2007. The Branch of Hearings and Review affirmed the schedule award in a decision dated April 8, 2009.1

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.2 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.3 Effective February 1, 2001, schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).4

ANALYSIS

As argued by appellant on appeal, the Board finds that there is an unresolved conflict in medical opinion between the DMA and Dr. Diamond and, therefore, the case shall be set aside and remanded for referral to an impartial medical examiner. The Act provides that if there is

1
A hearing was held on December 17, 2008.
2
For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2) (2006).
3
20 C.F.R. § 10.404 (2009).
4
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

2 disagreement between the physician making the examination for the Office and the employee’s physician, the Office shall appoint a third physician who shall make an examination.5 Dr. Diamond found 21 percent impairment of the left and right lower extremity for motor strength deficits involving the L4, L5 and S1 nerve roots and 3 percent impairment due to pain, pursuant to Table 15-16 and 15-18 of the A.M.A., Guides. Dr. Miller agreed with Dr. Diamond’s assessment. Dr. Berman disagreed with Dr. Diamond’s finding of motor strength deficits at L4, L5 and S1 and an additional impairment for pain, instead, he found three percent impairment based on a Grade 3 sensory deficit involving the S1 nerve root, bilaterally. Because of the unresolved conflict in medical opinion between Dr. Berman and Dr. Diamond the case will be remanded to the Office for referral to an impartial medical examiner. After such further development of the case record as the Office deems necessary, a de novo decision shall by issued.

CONCLUSION

The case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the April 8, 2009 decision of the Office of Workers’ Compensation Programs is set aside, and the case is remanded for further action consistent with this decision.

Issued: March 4, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5
5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

3