J.J. and U.S. Postal Service, International Annex, Jacksonville, FL (Board decision, December 23, 2010)

ECAB final decision. The Board affirmed OWCP’s October 19, 2009 schedule award of six percent impairment for each upper extremity. 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

J.J., a postal mail sorter, had accepted bilateral carpal tunnel syndrome and ulnar nerve compression. An OWCP medical adviser combined the median and ulnar nerve ratings under the sixth edition of the impairment guides to reach six percent for each arm. The Board found the method appropriate and found no medical evidence of greater permanent impairment. It affirmed the awards.

Decision snapshot

• Authority: 5 U.S.C. § 8107.
• Outcome: Six percent impairment award for each arm affirmed.
• Key point: The medical adviser applied the relevant impairment tables, and no higher supported rating appeared in the record.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.J., Appellant
)
)
and ) Docket No. 10-839
) Issued: December 23, 2010
U.S. POSTAL SERVICE, POST OFFICE,
)
INTERNATIONAL ANNEX, Jacksonville, FL,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 February 3, 2010 appellant filed a timely appeal from an October 19, 2009 decision of the Office of Workers’ Compensation Programs regarding a schedule award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.

ISSUE

The issue is whether appellant has established that she sustained more than a six percent permanent impairment of each upper extremity, for which she received a schedule award.

FACTUAL HISTORY

The Office accepted that on or before January 16, 2004 appellant, then a 54-year-old mail sorter, sustained bilateral carpal tunnel syndrome and bilateral ulnar nerve compression at the elbows due to repetitive upper extremity motion in the performance of duty. She underwent a right median nerve release in April 2005, authorized by the Office. Following surgery, she returned to limited-duty work. Dr. Walter F. Ray, an attending Board-certified neurosurgeon, submitted reports from April 2004 through July 2008 noting continuing symptoms of bilateral median and ulnar neuropathy, with sensory deficits in the fingers of the right hand. Dr. Tai Q. Nguyen, an attending Board-certified neurosurgeon, treated appellant from June 2005 to July 2008. He opined that the right median nerve release did not improve appellant’s symptoms.

On August 27, 2008 the Office obtained a second opinion from Dr. Steven J. Lancaster, a Board-certified orthopedic surgeon, who reviewed a statement of accepted facts and the medical record. Dr. Lancaster opined that appellant reached maximum medical improvement. On examination of both upper extremities, he found decreased sensation in the ulnar and median nerve distributions, weakness of thumb flexion and abduction, very weak pinch strength, atrophy of the hypothenar eminence and a positive Tinel’s sign at the wrist. Range of motion of both elbows and all digits was full. Dr. Lancaster diagnosed status post right carpal tunnel release with residual dysesthesias, severe left carpal tunnel syndrome and bilateral ulnar nerve compression at the elbows.

In November 20, 2008 and January 12, 2009 reports, Dr. Ismail Salahi, an attending osteopathic physician, recommended a pain management program to treat symptoms of bilateral carpal tunnel syndrome.1

The Office found a conflict of medical opinion between Dr. Lancaster, for the government, and appellant’s attending physicians regarding the nature and extent of her ongoing residuals. To resolve the conflict, the Office selected Dr. John Stark, a Board-certified orthopedic surgeon. In a July 15, 2009 report, Dr. Stark diagnosed bilateral carpal tunnel syndrome complicated by a psychological overlay and the onset of idiopathic osteoarthritis in both hands.

On September 8, 2009 appellant claimed a schedule award. The Office then asked an Office medical adviser to review the medical record and provide an impairment rating according to the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter, “A.M.A., Guides”).

In a September 10, 2009 report, an Office medical adviser reviewed the record and found that appellant had reached maximum medical improvement as of August 27, 2008, the date of Dr. Lancaster’s second opinion evaluation. He concurred with the diagnoses of bilateral carpal tunnel syndrome and bilateral ulnar nerve entrapment at the elbow, with residual thenar atrophy, decreased sensation in the median and ulnar nerve distribution and a positive Tinel’s sign. Referring to Table 15-23, page 4492 of the sixth edition of the A.M.A., Guides, the Office medical adviser found a Grade Modifier 2, based on a motor conduction block by

1
In an April 7, 2009 report, Dr. Radhika Chithriki, an attending Board-certified psychiatrist, held appellant off work for 30 days due to “depression, paranoid thoughts and carpal tunnel pain” exacerbated by work stress.1 In a July 27, 2009 letter, Dr. Salahi opined that “depression [was] a great portion of [appellant’s] ongoing disability.” The Board notes that there is no claim of record for an emotional condition related to the accepted upper extremity conditions or other work factors. 2 Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled “Entrapment/Compression Neuropathy Impairment.”

2 electrodiagnostic testing, significant intermittent symptoms and decreased sensation. He noted that the record did not contain a QuickDASH functional scale score. The Office medical adviser assessed a “default” upper extremity impairment of five percent for moderate functional impairment of the median nerves. He assigned Grade Modifier 1 for ulnar nerve entrapment, due to demonstrated conduction delay, mild intermittent symptoms and normal physical findings. The Office medical adviser assigned a default value of two percent upper extremity impairment. He explained that “[w]ith multiple entrapments the nerve qualifying for the larger impairment, that is median nerve with a value of 5 percent UEI [upper extremity impairment] for each side … is combined with 50 percent rating of the second nerve, the ulnar nerve that was rated 2 percent UEI. Combined value of 5 percent plus 1 percent” resulted in a 6 percent schedule award for each upper extremity.

In a September 15, 2009 letter, the Office requested that appellant show the medical adviser’s report to her attending physician and submit any response within 30 days. Appellant submitted a March 5, 2009 report from Dr. Radhika Chithriki, an attending Board-certified psychiatrist, addressing psychiatric symptoms.

By decision dated October 19, 2009, the Office granted appellant a schedule award for a six percent impairment of each upper extremity. The award, equivalent to 37.44 weeks of compensation, ran from October 26, 2008 to July 15, 2009.

LEGAL PRECEDENT

The schedule award provisions of the Federal Employees’ Compensation Act3 provide for compensation to employees sustaining impairment from loss or loss of use of specified members 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 mater which rests in the sound 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 American Medical Association, Guides to the Evaluation of Permanent Impairment has been adopted by the Office as a standard for evaluation of schedule losses and the Board has concurred in such adoption.4 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides, published in 2008.5

The sixth edition of the A.M.A., Guides provides a diagnosis based method of evaluation utilizing the World Health Organization’s International Classification of Functioning, Disability and Health (ICF).6 Under the sixth edition, the evaluator identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers based on functional

3
5 U.S.C. §§ 8101-8193.
4
Bernard A. Babcock, Jr., 52 ECAB 143 (2000).
5
FECA Bulletin No. 09-03 (issued March 15, 2009).
6
A.M.A., Guides (6th ed., 2008), page 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A Contemporary Model of Disablement.”

3 history (GMFH), physical examination (GMPE) and clinical studies (GMCS).7
The net adjustment formula is (GMFH-CDX) + (GMPE - DCX) + (GMCS- CDX).

ANALYSIS

The Office accepted that appellant sustained bilateral carpal tunnel syndrome and bilateral ulnar nerve compression at the elbows. Appellant underwent a right median nerve release in 2005, authorized by the Office. She claimed a schedule award on September 8, 2009. To obtain an impairment rating, the Office forwarded the medical record to an Office medical adviser for review.

An Office medical adviser submitted a September 10, 2009 report following the assessment formula of the sixth edition of the A.M.A., Guides. He utilized the clinical findings of Dr. Lancaster, a Board-certified orthopedic surgeon and second opinion physician who found appellant had reached maximum medical improvement. Regarding median nerve involvement, the Office medical adviser found a Grade 2 modifier according to Table 15-23 for decreased sensation with significant symptoms on physical examination and a motor conduction block. He assessed a five percent impairment of each upper extremity for moderate functional impairment. Regarding ulnar nerve involvement, the Office medical adviser assigned a Grade Modifier 1 due to mild intermittent symptoms, conduction delay and normal physical findings. This resulted in a default rating of two percent for each upper extremity. The Office medical adviser used the grading method set forth on page 449 of the A.M.A., Guides to combine the two ratings, adding the full 5 percent value for the median nerve to 50 percent of the 2 percent rating for the ulnar nerve, resulting in a 6 percent schedule award for each arm.

The Board finds that the Office medical adviser applied the appropriate tables and grading schemes of the sixth edition of the A.M.A., Guides to Dr. Lancaster’s clinical findings. Also, there is no medical evidence of record demonstrating a greater percentage of permanent impairment. The Board notes that the Office afforded appellant an opportunity to submit her attending physician’s response to the medical adviser’s impairment rating, but she did not do so. Therefore, the Office properly relied on the Office medical adviser’s assessment of a six percent impairment of each upper extremity based on the sixth edition of the A.M.A., Guides.8

CONCLUSION

The Board finds that appellant has not established that she sustained more than a six percent impairment of each upper extremity, for which she received a schedule award.

7
Id. at pp. 494-531.
8
P.B., 61 ECAB ___ (Docket No. 10-103, issued July 23, 2010).

4
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated October 19, 2009 is affirmed.

Issued: December 23, 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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