C.T. and U.S. Postal Service, Post Office, Duluth, GA (Board decision, September 10, 2010)

ECAB remand decision. The Board set aside OWCP's October 21, 2009 denial of C.T.'s schedule award claim and directed further medical review; whether she has a ratable lower-extremity impairment remains unresolved. 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, while the claim awaits a new OWCP decision. 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

C.T., a postal mail handler, sought a schedule award for impairment of her legs after accepted bilateral plantar fasciitis and left peripheral neuropathy. OWCP's medical adviser found no ratable impairment and OWCP denied the claim. The Board found that the adviser had discussed an unaccepted condition but had not addressed whether a nerve study supported impairment from the accepted left peripheral neuropathy. It ordered OWCP to ask the adviser to assess impairment from the accepted conditions and then issue a new decision.

Decision snapshot

• Authority: 5 U.S.C. § 8107 and 20 C.F.R. § 10.404 govern schedule awards and impairment standards.
• Outcome: October 21, 2009 denial set aside; case remanded for medical development.
• Key point: The medical review omitted the accepted left peripheral neuropathy when assessing possible permanent impairment.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.T., Appellant
)
)
and ) Docket No. 10-487
) Issued: September 10, 2010
U.S. POSTAL SERVICE, POST OFFICE,
)
Duluth, GA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On December 16, 2009 appellant timely appealed the October 21, 2009 merit decision of the Office of Workers’ Compensation Programs, which denied her claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the schedule award claim.1

ISSUE

The issue is whether appellant has a ratable impairment of the lower extremities.

FACTUAL HISTORY

Appellant, a 45-year-old mail handler, has an accepted claim for bilateral plantar fasciitis and left peripheral neuropathy, which arose on or about September 25, 2006. On June 24, 2009

1
The record on appeal contains evidence received after the Office issued its October 21, 2009 decision. The Board may not consider evidence that was not in the case record when the Office rendered its final decision. 20 C.F.R. § 501.2(c) (2009). she filed a claim for a schedule award.2 The Office subsequently wrote to appellant’s podiatrist, Dr. Naim G. Shaheed, requesting that he provide an impairment rating in accordance with the 6th edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (2008).

Dr. Shaheed examined appellant on July 21, 2009, and in a report dated September 12, 2009 he found one percent impairment of the left lower extremity due to plantar fasciitis. He noted, among other things, a positive nerve conduction study.3 Dr. Shaheed also submitted a September 17, 2009 impairment rating worksheet, which the Office provided. He noted that appellant had intense local pain to the plantar left heel, but diffuse pain to the left lower back and leg consistent with the sciatic nerve tract. Dr. Shaheed also indicated that appellant had left-side weakness more related to ankle eversion. There was no evidence of atrophy. Dr. Shaheed further noted that the weakness was localized to the gastrocnemius/soleus complex. Appellant reached maximum medical improvement on December 20, 2007.

The district medical adviser (DMA) reviewed Dr. Shaheed’s findings and in a report dated October 8, 2009, found zero percent impairment of the lower extremities. With respect to the left lower extremity, he noted that the March 7, 2007 nerve conduction study indicated that appellant’s difficulties with her left lower extremity were caused by S1 radiculopathy, which was not an accepted condition. The DMA found no impairment of the left lower extremity on account of plantar fibromatosis. As to appellant’s right lower extremity, he indicated that there was no reference to any impairment of this extremity found in records.

By decision dated October 21, 2009, the Office denied appellant’s claim for a schedule award. The decision was based upon the DMA’s October 8, 2009 report.

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.4 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.,

2
Appellant previously filed for a schedule award on January 5, 2009. However, the contemporaneous medical evidence indicated that she had not yet reached maximum medical improvement. 3 The record includes a March 7, 2007 nerve conduction velocity (NCV) test that was interpreted as abnormal.
The results were noted to be consistent with “S1 radiculopathy,” which “may be due to a herniated nucleus pulposus and/or trauma to the nerve at that level.” The NCV findings were also consistent with sensory neuropathy. An electromyography (EMG) was recommended for locating the compressed area of the nerve. 4 For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation.
5 U.S.C.
§ 8107(c)(2) (2006).

2
Guides as the appropriate standard for evaluating schedule losses.5 Effective May 1, 2009, schedule awards are determined in accordance with the A.M.A., Guides (6th ed. 2008).6

ANALYSIS

Appellant’s attorney argues that the schedule award should have been approved. He noted that the claim was accepted for left lower extremity nerve damage in addition to bilateral plantar fasciitis. Counsel contends that the Office should have referred appellant for a second opinion examination rather than relying exclusively on the DMA’s report.

The Board finds that the case is not in posture for decision. While the DMA was correct in noting that the Office had not accepted appellant’s claim for S1 radiculopathy, he makes no mention of the fact that the claim was accepted for left peripheral neuropathy. He did not specifically address whether the March 7, 2007 NCV test results are consistent with the accepted condition of left peripheral neuropathy. Because the evidence relied upon by the Office does not fully address the extent of any employment-related permanent impairment, the case shall be remanded for further medical development. On remand, the Office shall inquire of the DMA whether appellant has any lower extremity impairment due to her accepted left peripheral neuropathy and/or plantar fasciitis. After such further development as the Office deems appropriate, a de novo decision shall be issued regarding appellant’s claim for a schedule award.

CONCLUSION

The case is not in posture for decision.

5
20 C.F.R. § 10.404.
6
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1 (January 2010).

3
 ORDER

IT IS HEREBY ORDERED THAT the October 21, 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: September 10, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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