N.N. and U.S. Postal Service, Southeastern Pennsylvania P & DC, Southeastern, PA (Board decision, August 10, 2010)

ECAB final decision. The Board affirmed OWCP's August 18, 2009 decision denying N.N. an additional schedule award for her right arm. She had already received an award for 13 percent impairment, and the Board found no greater impairment established by the medical evidence. The Board's decision binds OWCP and is 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

N.N., a postal distribution clerk, had received a schedule award for 13 percent impairment of her right arm after an accepted wrist sprain. On remand from an earlier Board decision, OWCP obtained another examination that rated her impairment at three percent under the fifth edition of the A.M.A. Guides. The Board found that the examining physician measured wrist motion and explained why weakness and pain did not add to the rating. It had previously found the treating physician's higher rating inconsistent with the Guides. Because the new evidence showed no impairment above the 13 percent already awarded, the Board affirmed the denial of an additional award.

Decision snapshot

• Authority: Schedule awards under 5 U.S.C. § 8107 and impairment evaluation under 20 C.F.R. § 10.404.
• Outcome: August 18, 2009 OWCP decision affirmed; no additional schedule award beyond the prior 13 percent right arm award.
• Key point: An examination applying the governing impairment guide did not support a larger award than N.N. had already received.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
N.N., Appellant
)
)
and ) Docket No. 10-355
) Issued: August 10, 2010
U.S. POSTAL SERVICE, SOUTHEASTERN
)
PENNSYLVANIA P & DC, Southeastern, PA,
)
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
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On November 20, 2009 appellant filed a timely appeal from an August 18, 2009 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 schedule award determination in this case.

ISSUE

The issue is whether appellant has more than a 13 percent impairment of the right arm for which she received a schedule award.

On appeal her attorney asserts that the report of the Office referral physician, does not constitute the weight of medical opinion or, in the alternative a medical conflict was created with the opinion of the attending physician.

FACTUAL HISTORY

This case has previously been before the Board. By decision dated August 6, 2008, the Board found the case was not in posture for decision regarding the extent of impairment to appellant’s right arm. The medical reports of record did not rate impairment in compliance with the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).1 The referenced medical reports were an April 6, 2004 report from Dr. David Weiss, an attending osteopath and an undated report from an Office medical adviser. The Board remanded the case to the Office to obtain a medical opinion regarding appellant’s right upper extremity impairment that conformed Office procedures and the A.M.A., Guides.2 The facts of the previous Board decision are incorporated herein by reference.3

Following the Board’s August 6, 2008 decision, the Office forwarded the record to Dr. Arnold T. Berman, an Office medical adviser Board-certified in orthopedic surgery. In a September 6, 2008 report, Dr. Berman advised that a schedule award was recommended based on decreased range of motion. He utilized Figure 16-28 of the A.M.A., Guides and found that supination and pronation were both normal, that radial deviation of 7 degrees yielded a 3 percent impairment and ulnar deviation of 35 degrees yielded no impairment. Dr. Berman concluded that appellant had a three percent right upper extremity impairment, with the date of maximum medical improvement January 18, 2008.

The Office referred appellant to Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon, for a second opinion evaluation. In a January 20, 2009 report, Dr. Hanley noted the history of injury and provided findings on physical examination of the upper extremities, including normal shoulder and elbow range of motion. Regarding right wrist range of motion, he advised that under Figure 16-28 of the fifth edition of the A.M.A., Guides, extension of 60 degrees and flexion of 75 degrees yielded no impairment and that under Figure 16-31 ulnar deviation of 40 degrees yielded no impairment and radial deviation of 5 degrees yielded a 3 percent impairment of the right wrist. Dr. Hanley noted that there were no complaints of weakness, therefore, it was not a factor in rating impairment. As appellant did not complain of significant pain an “add-on” impairment for pain was found not to be appropriate. Dr. Hanley diagnosed history of right wrist strain and concluded that maximum medical improvement was reached on January 18, 2008. He concluded that appellant had a three percent impairment of the right upper extremity.

In a February 5, 2009 report, Dr. Morley Slutsky, an Office medical adviser Board- certified in preventive medicine, reviewed the medical record including Dr. Hanley’s report. He applied Dr. Hanley’s right wrist range of motion measurements to the A.M.A., Guides and agreed that appellant had a three percent right upper extremity impairment due to diminished

1
A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).
2
Docket No. 08-602 (issued April 6, 2004).
3
On March 13, 2002 appellant then a 37-year-old distribution clerk sustained an employment-related right wrist sprain. On August 20, 2004 she filed a schedule award claim and submitted an April 6, 2004 report in which Dr. David Weiss, an osteopath, opined that she had a total 23 percent right upper extremity impairment. Following review by an Office medical adviser, by decision dated February 7, 2007, appellant was granted a schedule award for a 13 percent impairment of the right upper extremity. The decision was affirmed by an Office hearing representative on August 1, 2007.

2 range of motion. Dr. Slutsky also agreed that she had no impairment for pain or sensory loss based on Dr. Hanley’s examination.

By decision dated February 20, 2009, the Office found that appellant was not entitled to an additional schedule award. Appellant requested a hearing that was held on June 23, 2009. Counsel argued that Dr. Hanley’s report should not be the weight of medical opinion because he did not provide grip strength measurements or rate pain. Alternatively a conflict in medical evidence arose between Dr. Weiss and Dr. Hanley.

In an August 18, 2009 decision, an Office hearing representative noted the Board’s finding that Dr. Weiss did not adequately rate impairment under the A.M.A., Guides. Dr. Weiss found the opinion of Dr. Hanley, represented the weight of medical opinion and established no greater than the 13 percent impairment previously awarded.

LEGAL PRECEDENT

The schedule award provision of the Federal Employees’ Compensation Act4 and its implementing federal regulations,5 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 for all claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.7 For decisions issued after May 1, 2009, the sixth edition will be used.8

ANALYSIS

The Board finds that appellant does not have more than 13 percent impairment as previously awarded. In the August 6, 2008 decision, the Board addressed the April 6, 2004 report of Dr. Weiss and found that it did not comport with the A.M.A., Guides.9 The impairment rating provided by Dr. Weiss was found to be of reduced probative value.

The Office referred appellant to Dr. Hanley for a second opinion evaluation. In a January 20, 2009 report, he provided findings on physical examination of the right upper extremity, including range of motion findings. Regarding the right wrist, Dr. Hanley properly found that under Figure 16-28 of the fifth edition of the A.M.A., Guides, extension of 60 degrees

4
5 U.S.C. § 8107.
5
20 C.F.R. § 10.404.
6
Id. at § 10.404(a).
7
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
8
FECA Bulletin No. 09-03 (issued March 15, 2009).
9
Supra note 2.

3 and flexion of 75 degrees yielded no impairment10 and that under Figure 16-31 ulnar deviation of 40 degrees yielded no impairment.11 Under Figure 16-31, radial deviation of 5 degrees yielded a 3 percent impairment of the right wrist.12 Dr. Hanley noted that, as there were no complaints of weakness, this did not contribute to appellant’s impairment. As she did not complain of any significant pain, an add-on impairment for pain was not appropriate. Dr. Hanley advised that maximum medical improvement was reached on January 18, 2008 and properly concluded that appellant had a three percent impairment of the right upper extremity.

In a February 5, 2009 report, Dr. Slutsky, an Office medical adviser, noted his review of Dr. Hanley’s report and agreed with his conclusion that appellant had a three percent right upper extremity impairment due to diminished right wrist range of motion and agreed that she was not entitled to an increased schedule award for a pain impairment.

Dr. Hanley properly applied the A.M.A., Guides in reaching his conclusion that appellant had a three percent right upper extremity impairment. He set fourth findings on examination of appellant and addressed why he excluded factors such as weakness and sensory loss (pain) from consideration. Dr. Hanley’s report constitutes the weight of medical opinion and establishes no greater impairment than previously awarded.

CONCLUSION

The Board finds that appellant has not established that she has more than 13 percent right arm impairment.

10
A.M.A., Guides, supra note 1 at 467.
11
Id. at 469.
12
Id.

4
 ORDER

IT IS HEREBY ORDERED THAT the August 18, 2009 decision of the Office of Workers’ Compensation Programs be affirmed.

Issued: August 10, 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

5