J.P. and Department of Labor, Mine Safety & Health Administration, Vincennes, IN (Board decision, May 11, 2010)

ECAB remand decision. The Board set aside OWCP’s March 31, 2009 schedule award denial and directed further medical review. This order does not decide whether J.P. has a compensable left arm impairment. Under 20 C.F.R. § 501.6(d), this Board decision becomes final as to the matter decided 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

J.P., a federal mine inspector, injured his left shoulder and biceps while pulling himself from a mine vehicle. His surgeon rated six percent arm impairment but did not explain the calculation under the applicable impairment guide. A second opinion doctor found normal motion and strength, yet did not address J.P.’s pain, biceps tenderness or positive examination sign. The Board set aside OWCP’s award denial and directed it to obtain a reasoned medical clarification before deciding the claim.

Decision snapshot

• Authority: FECA schedule awards, 5 U.S.C. § 8107; impairment standard, 20 C.F.R. § 10.404.
• Outcome: March 31, 2009 schedule award denial set aside and remanded.
• Key point: The medical review had to address findings of pain and biceps tenderness before ruling out permanent impairment.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.P., Appellant
)
)
and ) Docket No. 09-2083
) Issued: May 11, 2010
DEPARTMENT OF LABOR, MINE SAFETY &
)
HEALTH ADMINISTRATION, Vincennes, IN,
)
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
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On August 11, 2009 appellant filed a timely appeal from the March 31, 2009 merit decision of the Office of Workers’ Compensation Programs, which denied his schedule award claim. 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 is entitled to a schedule award.

FACTUAL HISTORY

On June 13, 2007 appellant, then a 56-year-old coal mine inspector, sustained an injury in the performance of duty when he used his arms to pull himself out of a mantrip.1 The Office accepted his claim for left rotator cuff tear, left ruptured biceps tendon and sprain of the left

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A train-like vehicle that brings the miners down to and up from the coal mine. shoulder, upper arm and rotator cuff. On February 28, 2008 appellant underwent arthroscopic subacromial decompression with rotator cuff repair.

Appellant claimed a schedule award. On September 2, 2008 Dr. Terry Fenwick, the attending orthopedic surgeon, examined appellant’s left shoulder and found that appellant had pain with end range of motion. A supraspinatus isolation test showed 5-/5 biceps strength. There was medial mid-substance tenderness from a prior rupture. Dr. Fenwick diagnosed left bicep tendon muscle tear or rupture and sprains and strains of the shoulder and upper arm. He indicated that appellant was at maximum medical improvement. On December 16, 2008 Dr. Fenwick stated that appellant had a six percent impairment of his left arm based on loss of strength and pain.

On February 26, 2009 Dr. Richard T. Katz, a physiatrist, professor of clinical neurology and Office referral physician, provided a second opinion. He related appellant’s history of injury, reviewed an imaging study and noted appellant’s complaints. Dr. Katz described his findings on physical examination. There was no pain upon palpating the acromioclavicular joint or subdeltoid bursa. There was no pain over the proximal insertion of the biceps muscle, but there was tenderness in the mid portion of the biceps medially, and Yergason’s sign was positive at the mid portion of the biceps. There was no focal tenderness over the medial or lateral epicondyles and no epicondylar pain with provocative maneuvers. Dr. Katz reported normal ranges of left shoulder motion and no weakness postarthroscopic surgery for a partial rotator cuff tear. He also reported normal ranges of left elbow motion with no evidence of loss of biceps function proximally or distally.

On March 10 2009 an Office medical adviser reviewed the medical evidence and determined that Dr. Katz found no impairment to the left upper extremity.

In a decision dated March 31, 2009, the Office denied appellant’s schedule award claim.

LEGAL PRECEDENT

Section 8107 of the Federal Employees’ Compensation Act2 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.3

ANALYSIS

To support his claim for a schedule award, appellant submitted a December 16, 2008 rating from Dr. Fenwick, his orthopedic surgeon, who found that appellant had a six percent impairment of his left upper extremity based on loss of strength and pain; however, he did not explain the basis for his rating. On September 2, 2008 Dr. Fenwick reported 5-/5 biceps strength

2
5 U.S.C. § 8107.
3
20 C.F.R. § 10.404.

2 with medial mid-substance tenderness from a prior pain with end of range of motion. He failed to address how he calculated his impairment rating using specific tables or figures in the A.M.A. Guides.

The A.M.A., Guides cautions against the use of strength evaluations and places a burden on the evaluating physician to show that loss of strength represents an impairing factor that has not been considered adequately by other methods, that the loss of strength is based on unrelated etiologic or pathomechanical causes, and that decreased motion or painful conditions do not prevent effective application of maximal force in the region being evaluated.4 Because Dr. Fenwick did not show that appellant was one of those rare cases that justified a rating for strength, his impairment rating carries little probative value.

Dr. Katz, the second opinion physiatrist, reported some positive findings on February 26, 2009. There was tenderness in the mid portion of the biceps medially, and Yergason’s sign was positive at the mid portion of the biceps. Dr. Katz concluded there was normal range of motion and no weakness or loss of biceps function, but he did not address appellant’s complaint of pain, the finding of biceps tenderness or the positive Yergason’s sign.

The Board finds that this case is not in posture for decision as further medical development is warranted. The Office should obtain clarification from Dr. Katz or the Office medical adviser on whether appellant has permanent impairment based on his complaint of pain, tenderness in the mid portion of his biceps or his positive Yergason’s sign. The clarification should be well reasoned and based on the protocols of the A.M.A., Guides. After such further development as may be necessary, the Office shall issue an appropriate final decision on appellant’s entitlement to a schedule award.

CONCLUSION

The Board finds that this case is not in posture for decision.

4
A.M.A., Guides 507-08 (5th ed. 2001).

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 ORDER

IT IS HEREBY ORDERED THAT the March 31, 2009 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action consistent with this opinion.

Issued: May 11, 2010
Washington, DC

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

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

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

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