S.R. and U.S. Postal Service, Post Office, Cornersburg, OH (Board decision, October 4, 2010)

ECAB final decision. The Board affirmed OWCP's October 20, 2009 decision upholding a total right leg impairment rating of 18 percent, including a four percent increase over an earlier award. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

S.R., a postal carrier with an accepted right ankle sprain, sought a larger schedule award after an earlier 14 percent right leg rating. His physician rated 26 percent by combining lost ankle motion with muscle weakness. The Board found that the applicable medical guide did not allow those two rating methods to be combined. OWCP's medical adviser used the motion findings alone to calculate 18 percent, and the Board accepted that calculation. It affirmed the award of an additional four percent.

Decision snapshot

• Authority: FECA schedule awards under 5 U.S.C. § 8107 and rating standards under 20 C.F.R. § 10.404.
• Outcome: October 20, 2009 decision affirming a total 18 percent right leg rating upheld.
• Key point: The guide barred combining motion loss and muscle weakness, leaving the supported rating at 18 percent.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.R., Appellant
)
)
and ) Docket No. 10-282
) Issued: October 4, 2010
U.S. POSTAL SERVICE, POST OFFICE,
)
Cornersburg, OH, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On November 9, 2009 appellant, through his representative, filed a timely appeal from the October 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 the case.

ISSUE

The issue is whether appellant has more than an 18 percent impairment of his right leg, for which he received schedule awards.

On appeal appellant contends that the Office’s decision is contrary to fact and law.

FACTUAL HISTORY

On November 14, 2000 appellant, then a 29-year-old carrier technician, filed a traumatic injury claim alleging that his ankle buckled on a step. On March 1, 2001 the Office accepted appellant’s claim for Grade 2 right ankle sprain. On September 24, 2002 appellant underwent a right ankle stabilization with exploration of the ankle joint for cartilage damage. On May 18, 2003 he filed a claim for a schedule award. By decision dated October 1, 2003, the Office issued a schedule award for 14 percent impairment of the right lower extremity.

On November 19, 2008 appellant filed a claim for an increased schedule award. In a December 19, 2008 report, Dr. Todd S. Hochman, a Board-certified internist, opined that appellant had 26 percent impairment to the right lower extremity as a result of the November 14, 2000 employment injury. Applying the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides), Dr. Hochman addressed loss of range of motion to the right ankle. He noted that appellant had a plantar flexion to 15 degrees, which was a seven percent impairment;1 8 degrees of dorsiflexion, which was a seven percent impairment;2 16 degrees of inversion, which was two percent impairment, and 5 degrees of eversion, which was also two percent impairment.3 He added the impairment to total 18 percent impairment of the right leg. On manual muscle testing appellant had strength grades of 4/5 with inversion and eversion that was a 5 percent impairment for inversion and 5 percent for eversion or 10 percent impairment for loss of strength.4 Combining the impairment of 10 percent with 18 percent, resulted in a total 26 percent impairment of the right lower extremity pursuant to the A.M.A., Guides.

The Office referred the case to the Office medical adviser to determine appellant’s degree of impairment for schedule award purposes. In a March 9, 2009 report, the Office medical adviser agreed with Dr. Hochman’s calculations for impairment due to loss of range of motion. The Office medical adviser added the impairment values to find 18 percent as rated by Dr. Hochman. He noted, however, that Dr. Hochman incorrectly combined range of motion and manual muscle testing data. The Office medical adviser noted that Table 17-2 at page 526, the Cross-Usage Chart clearly precluded combining range of motion and muscle strength impairment. Therefore, the rating should be based on the modality resulting in the greatest impairment. The Office medical adviser found that appellant had an 18 percent impairment to the right lower extremity.

By decision dated April 29, 2009, the Office granted a schedule award for an additional 4 percent impairment of appellant’s right leg, representing a total impairment to the right lower extremity of 18 percent.

On May 18, 2009 appellant requested an oral hearing. At the hearing held on August 3, 2009, the hearing representative agreed to leave the record open for 30 days for submission of additional evidence. No further evidence was received.

By decision dated October 20, 2009, the hearing representative found that appellant did not have more than 18 percent impairment to his right leg and affirmed the April 29, 2009 schedule award.

1
A.M.A., Guides 537, Table 17-11.
2
Id.
3
Id. at Table 17-12.
4
A.M.A., Guides 532, Table 17-8.

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 LEGAL PRECEDENT

The schedule award provision of the Federal Employees’ Compensation Act5 and its implementing regulations6 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. However, the Act does not specify the manner in which the percentage of loss shall be determined. For consistent results and to ensure equal justice under the law to all claimants, good administrative practice necessitates 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 implementing regulations as the appropriate standard for evaluating schedule losses.7

ANALYSIS

The Board finds that appellant has no more than an 18 percent impairment to his right lower extremity. Both Dr. Hochman and the Office medical adviser properly applied the A.M.A., Guides when calculating appellant’s impairment for loss of range of motion. Both physicians noted that appellant had seven percent impairment for ankle plantar flexion of 15 degrees and a seven percent impairment for ankle extension of 8 degrees.8 Both Dr. Hochman and the Office medical adviser found a two percent impairment for 16 degrees of hindfoot inversion and two percent impairment for 5 degrees of hindfoot eversion.9 Total loss of range of motion to the right leg was obtained by adding these figures for 18 percent impairment to the right leg.

Dr. Hochman rated an additional impairment based on muscle weakness of the right ankle but, as noted by the Office medical adviser, Dr. Hochman incorrectly combined loss of range of motion with manual muscle testing data. The A.M.A., Guides provide that range of motion and muscle strength cannot be used in combination to rate impairment.10

The Board finds that the Office medical adviser used the appropriate tables of the A.M.A., Guides to determine the percentage of impairment to appellant’s right leg. The Office medical adviser accurately applied the rating criteria to Dr. Hochman’s findings and explained why Dr. Hochman could not combine weakness in conjunction with loss of motion. The Board finds that, as the Office’s medical adviser properly applied the A.M.A., Guides to Dr. Hochman’s clinical findings, his opinion represents the weight of the medical evidence in this case.11

5
5 U.S.C. § 8107.
6
20 C.F.R. § 10.404.
7
Id.
8
A.M.A., Guides 537, Table 17-11.
9
Id. at Table 17-12.
10
Id. at 526, Table 17-2.
11
See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

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 CONCLUSION

The Board finds that appellant has no more than an 18 percent impairment of his right lower extremity.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated October 20, 2009 is affirmed.

Issued: October 4, 2010
Washington, DC

Colleen Duffy Kiko, 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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