B.M. and Department of Agriculture, Forest Service, Clovis, CA (Board decision, August 16, 2010)

ECAB remand decision. The Board set aside OWCP's August 20, 2009 decision affirming a four percent left leg schedule award and remanded for a determination of whether B.M. has greater impairment. The final award percentage remains unresolved. The Board's decision binds OWCP and FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b). A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

B.M., a Forest Service firefighter, injured his left knee while clearing brush and later received a schedule award for four percent permanent impairment of his left leg. OWCP's medical adviser used a pain rating of four percent instead of the treating surgeon's two percent rating for a partial meniscectomy, concluding that the ratings could not be combined. The Board found that the applicable impairment guide permits a peripheral nerve injury rating to be combined with a diagnosis-based rating. It set aside OWCP's decision and returned the case for a determination of whether the combined rating warrants a larger award. The Board did not decide the final impairment percentage.

Decision snapshot

• Authority: FECA schedule awards, 5 U.S.C. § 8107, and the impairment rating rule, 20 C.F.R. § 10.404.
• Outcome: Four percent award decision set aside; remanded to determine whether left leg impairment exceeds four percent.
• Key point: The guide allows the two kinds of impairment ratings to be combined, so OWCP must reconsider the total.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.M., Appellant
)
)
and ) Docket No. 09-2232
) Issued: August 16, 2010
DEPARTMENT OF AGRICULTURE, FOREST
)
SERVICE, Clovis, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, 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 September 8, 2009 appellant filed a timely appeal of an August 20, 2009 schedule award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUE

The issue is whether appellant has more than four percent impairment of the left leg for which he received a schedule award.

FACTUAL HISTORY

On June 27, 2001 appellant, then a 36-year-old wild land firefighter, twisted his left knee while clearing brush. He stopped work on August 14, 2001 when his crew was let go because no work was available. Appellant did not return to work.1 The Office accepted his claim for left knee strain, torn left medial meniscus and left chondromalacia of the patella.

Dr. Anthony Montana, Board-certified in family medicine, diagnosed left knee strain with medial meniscus tear. In a January 13, 2004 report, he noted appellant’s complaint of left knee snapping, popping, locking and giving way. Dr. Montana’s examination of the left knee revealed a moderate degree of tenderness medially with pain, full range of motion and no gross laxity. He referred appellant to Dr. Robert Mochizuki, a Board-certified orthopedic surgeon, for an orthopedic and surgical evaluation.

On February 12, 2004 Dr. Mochizuki reviewed diagnostic tests of appellant’s left knee revealing persistent horizontal cleavage tear of the posterior horn of the medial meniscus, chondromalacia and resolved medial collateral ligament strain. He diagnosed left knee medial meniscus tear, left knee chondromalacia of the patella and possible chondromalacia of the medial femoral condyle. On April 12, 2004 Dr. Mochizuki performed a left knee arthroscopy with resection of the torn portion of the medial meniscus as well as an arthroscopic synovectomy of all three compartments of the left knee. On August 23, 2004 he noted appellant’s postsurgical complaint of pain in the medial aspect of the left knee.

An August 31, 2004 magnetic resonance imaging (MRI) scan report of the left knee, read by Dr. Kenneth Krone, a Board-certified diagnostic radiologist, found exacerbation in the appearance of appellant’s left medial meniscus tear, chondromalacia of the patella and a small joint effusion with Baker’s cyst.

On September 30, 2004 Dr. Mochizuki recommended another left knee arthroscopy with synovectomy and resection of the torn portion of the medial meniscus. He performed surgery on December 28, 2004. In a March 10, 2005 report, Dr. Mochizuki advised that appellant could return to light duty on March 15, 2005. On May 5, 2005 he opined that appellant’s work injury was permanent and stationary and that no additional treatment was recommended.

On April 3, 2008 the Office referred appellant to Dr. Alice Martinson, a Board-certified orthopedic surgeon, for a second opinion on whether he could perform the duties of a safety inspector, a position for which the Office provided training.

In a May 7, 2008 report, Dr. Martinson noted appellant’s complaint of pressure in the popliteal area of the left knee that increased with intermittent swelling of the anterior part of his knee. Appellant also reported pain with squatting and climbing stairs. Examination revealed that left knee range of motion had 0 degrees of extension to 140 degrees of flexion, no palpable effusion, palpable synovial clicks with active and passive flexion and extension but no frank patellofemoral crepitus. Dr. Martinson also found a small Baker’s cyst palpable in the left popliteal fossa, equal circumferential measurement of both knees and thighs and mild generalized tenderness about the left knee. She diagnosed torn medial meniscus of the left knee and status post partial arthroscopic medial meniscectomy that was performed twice.

1
Appellant worked at nonfederal governmental jobs intermittently between June 2002 and January 2003. In January 2003, he was diagnosed with nonwork-related cellulitis and was advised to stop working by his treating physician. Appellant subsequently began receiving wage-loss compensation from the Office.

2
Dr. Martinson opined that records and diagnostic tests established that appellant sustained a medial meniscus tear at the time of injury but that findings on examination were minimal and recent MRI scan findings were equivocal. She noted that his subjective factors of disability consisted of intermittent swelling of the left knee, increased discomfort in the left knee with squatting, climbing and intermittent giving way of the left knee. Dr. Martinson opined that there were insufficient objective findings of left knee pathology to warrant additional surgery. She also noted that arthroscopic exploration was a reasonable consideration if there were future medically-documented recurrent effusions or increased symptoms. Dr. Martinson indicated that appellant was totally disabled from his last day of work in 2001 through March 15, 2005 when his physician recommended that he return to light duty. She also opined that he was able to perform the duties of a safety inspector.2

On October 24, 2008 appellant filed a schedule award claim.

In a November 7, 2008 letter, the Office requested that Dr. Mochizuki provide an opinion on appellant’s permanent impairment of his left lower extremity based on the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001).

In a December 18, 2008 report, Dr. Mochizuki noted examining appellant that date and provided a detailed summary of appellant’s history of injury and treatment received. He noted his most recent previous examination of appellant on May 5, 2005. Appellant had current complaints of throbbing and aching left knee pain. Dr. Mochizuki indicated that x-rays taken that day and from May 5, 2005 were normal. His examination revealed normal back range of motion without swelling, atrophy or muscle spasm. Dr. Mochizuki indicated that appellant’s hip had normal range of motion with no muscle atrophy or weakness. He found that appellant’s left knee did not appear to have any significant swelling. Dr. Mochizuki noted tenderness to palpation of the patellofemoral joint and medial joint space with slight pain laterally.

Dr. Mochizuki measured zero for right and left anterior drawer, posterior drawer, valgus stress, effusion, patellofemoral crepitus and patellar subluxation. He also measured 120 degrees of flexion and 0 degrees of extension for both knees. Dr. Mochizuki found that appellant’s ankles had normal range of motion without swelling or instability and that his feet were without swelling and atrophy. He diagnosed mild chondromalacia patella of the left knee and status post left knee arthroscopy with partial resection of the torn portion of the medial meniscus of the left knee. Dr. Mochizuki indicated that appellant’s subjective ratable factors of permanent disability were “occasional minimal at rest, increasing to intermittent slight to moderate with kneeling, squatting, crawling and climbing activities or other activities involving comparable physical effort.” Objective factors of permanent impairment included partial tear of the posterior horn of the medial meniscus and symmetrical knee range of motion. Dr. Mochizuki opined that appellant’s left knee injury from June 27, 2001 was permanent and stationary on May 5, 2005 for the purposes of ratability. He further opined that, based on Table 17-33 on page 546 of the A.M.A., Guides, appellant had two percent left lower extremity impairment and one percent whole person impairment for a partial tear of the medial meniscus of the left knee.

2
In an October 20, 2008 decision, the Office reduced appellant’s wage-loss compensation to zero finding that his capacity to earn wages as a safety inspector represented his wage-earning capacity. Appellant has not appealed this decision.

3
 In a February 9, 2009 report, an Office medical adviser reviewed Dr. Mochizuki’s December 18, 2008 report and Dr. Martinson’s May 7, 2008 second opinion evaluation. Based on Dr. Mochizuki’s subjective factors of ratable permanent impairment, he graded appellant’s pain complaints, relative to the femoral nerve, a maximum of Grade 3, citing the grading scheme in Tables 15-15 and 16-10 of the A.M.A., Guides. The medical adviser noted that this would be for pain and altered sensation that may interfere with activity, equaling a maximum of 60 percent impairment for sensory deficit. He referenced the 7 percent maximum pain impairment for the femoral nerve, which he multiplied the 60 percent grade to total 4.2 percent impairment that he rounded to 4 percent. The medical adviser also determined zero percent impairment for full range of motion and absence of atrophy or weakness. He noted that Dr. Mochizuki also used the diagnosis-based estimate for partial medial meniscectomy, citing Table 17-33, to determine two percent left lower extremity impairment. The medical adviser noted that the impairments could not be combined under Table 17-2. Therefore, appellant would benefit from the higher award of four percent. The medical adviser noted that appellant reached maximum medical improvement on December 28, 2005, one year following his second surgery.

In a March 5, 2009 decision, the Office granted appellant a schedule award for four percent permanent impairment of the left lower extremity. The award ran for 11.52 weeks from December 18, 2008 to March 8, 2009.

Appellant requested a telephone hearing on March 13, 2009 that was held on June 24, 2009.

In an August 20, 2009 decision, an Office hearing representative affirmed the March 5, 2009 schedule award, finding that no medical evidence established more than four percent impairment.

LEGAL PRECEDENT

The schedule award provision of the Federal Employees’ Compensation Act3 and its implementing regulations 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. The Act, however, does not specify the manner in which the percentage loss of a member shall be determined. The method used in making such determination is a matter which rests in the sounds discretion of the Office. For consistent results and to ensure equal justice, the Board has authorized 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 Office for evaluating schedule losses and the Board has concurred in such adoption.4

3
5 U.S.C. §§ 8101-8193. See 5 U.S.C. § 8107.
4
See 20 C.F.R. § 10.404; R.D., 59 ECAB ___ (Docket No. 07-379, issued October 2, 2007).

4
 ANALYSIS

Appellant received a schedule award for four percent impairment of the left lower extremity due to his accepted left knee strain, torn left medial meniscus and left chondromalacia of the patella.

In a December 18, 2008 report, Dr. Mochizuki provided a detailed summary of appellant’s history of injury and noted appellant’s complaint of knee pain. His examination revealed normal back, hip and ankle range of motion with no atrophy and no weakness. Regarding the left knee, Dr. Mochizuki measured zero for anterior and posterior drawer, valgus stress, effusion, patellofemoral crepitus and patellar subluxation. He also measured 120 degrees of flexion and 0 degrees of extension to determine normal left knee range of motion. Dr. Mochizuki diagnosed mild chondromalacia patella of the left knee and status post left knee arthroscopy with partial resection of the torn portion of the medial meniscus of the left knee. He determined appellant’s impairment based on a diagnosis-based estimate and explained that a partial medial meniscectomy equaled two percent impairment of the left lower extremity according to Table 17-33 on page 546 of the A.M.A., Guides.5

In a February 9, 2009 report, an Office medical adviser reviewed Dr. Mochizuki’s impairment determination and concluded that appellant had four percent impairment of the left knee. The medical adviser determined that the subjective factors of impairment identified by Dr. Mochizuki -- occasional minimal at rest, increasing to intermittent slight to moderate with kneeling, squatting, crawling and climbing activities or other activities involving comparable physical effort -- equated to Grade 3 classification of sensory deficit or pain resulting from a peripheral nerve disorder and assigned 60 percent sensory deficit impairment, citing Table 16-10 on page 482 of the A.M.A., Guides. The Office medical adviser indicated that the femoral nerve had a seven percent maximum impairment for pain or dysesthesia.6 Pursuant to the procedure in Table 16-10, he multiplied 60 percent sensory deficit grade by 7 percent femoral nerve maximum impairment to derive 4.2 percent that he rounded to 4 percent.7 The medical adviser determined that, as appellant had zero percent impairment for full range of motion and absence of atrophy or weakness, he had a total of four percent impairment of the left lower extremity. He also noted four percent impairment was the proper impairment determination as two percent impairment for a diagnosis-based estimate, as determined by Dr. Mochizuki, would provide a lower award. The Board finds that the Office medical adviser’s rating of pain or dysesthesia is consistent with Dr. Mochizuki’s findings.

The Office medical adviser determined that Dr. Mochizuki’s two percent impairment rating for partial medial meniscectomy could not be combined with the rating for pain due to a peripheral nerve injury. Table 17-2 on page 526 of the A.M.A., Guides, however, indicates that 5 Dr. Mochizuki also determined that a partial medial meniscectomy equaled one percent whole person impairment. However, whole person impairment is not permitted under the Act. See B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009). 6 A.M.A., Guides 552, Table 17-37.
7
The policy of the Office is to round the calculated percentage of impairment to the nearest whole number. See J.P., 60 ECAB ___ (Docket No. 08-832, issued November 13, 2008).

5 peripheral nerve injury rating can be combined with a diagnosis-based estimates to determine total lower extremity impairment. The Board will remand the case to the Office to determine whether appellant has greater impairment of the left leg.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ decision dated August 20, 2009 is set aside. The case is remanded for further action in conformance with this decision.

Issued: August 16, 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

6