A.P. and Department of Veterans Affairs, Veterans Administration Medical Center, Wilkes Barre, PA (Board decision, October 26, 2010)

ECAB remand decision; schedule award entitlement remains unresolved. The Board set aside OWCP’s June 24 and December 1, 2009 decisions denying A.P. a schedule award and returned the claim for a medical rating of a covered body member or function. 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).

Plain-English summary

A.P., a VA maintenance mechanic, had accepted aggravations of lumbar disc conditions and sought a schedule award for leg impairment. OWCP denied the award after its second opinion physician used a lumbar spine grid from the sixth edition of the impairment guides to assign a zero rating. The Board held that this grid rated the back, which was not a covered scheduled member under FECA. It found the medical record lacked a reasoned sixth edition rating of any covered member or function. The Board set aside the denial and directed OWCP to develop the medical evidence and decide the award claim again.

Decision snapshot

• Authority: FECA schedule awards under 5 U.S.C. § 8107; exclusion of the back under 5 U.S.C. § 8101(20).
• Outcome: June 24 and December 1, 2009 denials set aside; schedule award claim remanded.
• Key point: A lumbar spine grid could not decide the rating of a covered leg impairment.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.P., Appellant
)
)
and ) Docket No. 10-584
) Issued: October 26, 2010
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Wilkes Barre, PA, 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 December 17, 2009 appellant filed a timely appeal from a December 1, 2009 merit 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 a permanent impairment to a scheduled member of the body entitling him to a schedule award.

FACTUAL HISTORY

On September 27, 2006 appellant, then a 56-year-old maintenance mechanic, filed a traumatic injury claim (Form CA-1) alleging that he sustained an injury on September 25, 2006 when he turned and felt pain in his right leg. The Office accepted aggravation of degenerative disc disease L1-S1 and aggravation of herniated disc L3-4. On February 6, 2009 appellant filed a claim for compensation (Form CA-7) indicating he was claiming a schedule award. He submitted a February 3, 2009 report from Dr. Todd Hochman, an internist, who opined that appellant had a 10 percent permanent impairment to the left leg for sensory and motor deficit under the 5th edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment.

The Office referred appellant for a second opinion examination by Dr. Robert Draper, an orthopedic surgeon, who was advised by the Office to use the 6th edition of the A.M.A., Guides and provide an opinion as to the degree of employment-related permanent impairment to the legs. In a report dated February 23, 2009, Dr. Draper provided a history and results on examination. He stated that he would not use the 6th edition because it did not appear that under the 6th edition a rating for radiculopathy to the legs could be established. Dr. Draper found that under the 5th edition of the A.M.A., Guides appellant had a one percent permanent impairment to the left leg for sensory deficit or pain.

On May 27, 2009 the Office referred appellant for a second opinion examination by Dr. Peter Feinstein, an orthopedic surgeon. In a report dated June 10, 2009, Dr. Feinstein provided a history, reviewed medical records and provided results on examination. He reported left paravertebral and muscular discomfort on direct palpation and subjective sensory changes on both feet. Dr. Feinstein indicated there were no objective findings of atrophy or decreased strength. With respect to a permanent impairment causally related to the employment injuries under the 6th edition, he indicated that the only applicable table was 17-4, Class 0 for complaints of back pain with no objective findings on examination. Dr. Feinstein stated that therefore appellant did not have a ratable impairment.

In a report dated June 12, 2009, an Office medical adviser opined that the weight of the evidence indicated a zero percent permanent impairment to the legs. He noted the findings by Dr. Feinstein under Table 17-4.

By decision dated June 24, 2009, the Office determined that appellant was not entitled to a schedule award. Appellant requested a telephonic hearing, which was held on September 29, 2009. In a decision dated December 1, 2009, the hearing representative affirmed the June 24, 2009 Office decision.

LEGAL PRECEDENT

Section 8107 of the Federal Employees’ Compensation Act provides that, if there is permanent disability involving the loss or loss of use of a member or function of the body, the claimant is entitled to a schedule award for the permanent impairment of the scheduled member or function.1 Neither the Act nor the regulations specify the manner in which the percentage of impairment for a schedule award shall be determined. For consistent results and to ensure equal

1
5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule award is payable and the maximum number of weeks of compensation to be paid; additional members of the body are found at 20 C.F.R. § 10.404(a).

2 justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.2

ANALYSIS

In this case, the Office undertook additional development of the medical evidence with respect to the schedule award issue. As of May 1, 2009, any decision regarding a schedule award must be based on the 6th edition.3 The Office referred appellant to Dr. Feinstein for a second opinion examination. Dr. Feinstein identified Table 17-4, and found appellant had a Class 0 impairment rating. The Office medical adviser concurred in this finding, but Table 17-4 is the lumbar spine regional grid for impairments to the lumbar spine.4 It is well established that neither the Act nor its regulations provide for a schedule award for impairment to the back or to the whole body. Furthermore, the back is specifically excluded from the definition of “organ” under the Act.5 The Board has held that Table 17-4 is not an appropriate basis for an impairment rating under the Act.6

The Board accordingly finds that the medical evidence does not contain a sufficiently reasoned medical opinion as to the degree of permanent impairment to a scheduled member or function of the body under the 6th edition of the A.M.A., Guides. When the Office refers a claimant for a second opinion evaluation and the report does not adequately address the relevant issues, the Office should secure an appropriate report on the relevant issues.7

The case will be remanded to the Office for further development of the medical evidence on the schedule award issue presented. After such further development as the Office deems necessary, it should issue an appropriate decision.

CONCLUSION

The Board finds that the case is not in posture for decision with respect to entitlement to a schedule award, and the case is remanded for further development of the medical evidence.

2
A. George Lampo, 45 ECAB 441 (1994).
3
FECA Bulletin No. 09-03 (issued March 15, 2009).
4
A.M.A., Guides 570, Table 17-4.
5
See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).
6
See H.J., Docket No. 09-2366 (issued June 23, 2010).
7
See Robert Kirby, 51 ECAB 474, 476 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983); Richard W. Kinder, 32 ECAB 863 (1981).

3
 ORDER

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation Programs dated December 1 and June 24, 2009 are set aside and the case remanded for further action consistent with this decision of the Board.

Issued: October 26, 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

4