J.H. and Department of Labor, Post Office, Trumbull, CT (Board decision, January 25, 2011)

ECAB final decision. The Board affirmed OWCP’s January 29, 2010 decision denying J.H. a schedule award beyond the three percent right arm impairment already awarded. 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.H., a letter carrier, had an accepted right elbow condition and a prior schedule award for three percent right arm impairment. She sought a larger award based on physicians’ ratings under an older edition of the medical guide. The Board found that the medical adviser’s rating under the applicable sixth edition supported only one percent impairment. Because that was less than her existing award, it upheld the decision denying any additional payment.

Decision snapshot

• Authority: FECA schedule awards, 5 U.S.C. § 8107.
• Outcome: January 29, 2010 denial of an increased award affirmed.
• Key point: The applicable impairment guide did not support a rating greater than the three percent already awarded.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.H., Appellant
)
)
and ) Docket No. 10-966
) Issued: January 25, 2011
DEPARTMENT OF LABOR, POST OFFICE,
)
Trumbull, CT, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, 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 February 23, 2010 appellant, through counsel, filed a timely appeal from a January 29, 2010 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 established that she is entitled to greater than three percent permanent impairment of the right upper extremity, for which she received a schedule award.

FACTUAL HISTORY

This case has previously been before the Board on appeal. On June 19, 2002 appellant, then a 43-year-old letter carrier, filed a traumatic injury claim alleging that on that date she sustained right elbow, shoulder and wrist injuries while pulling cased mail. In an April 8, 2003 decision, the Board affirmed the August 5, 2002 Office decision denying her traumatic injury claim. The Board found that appellant failed to meet her burden of proof to establish that she sustained an injury in the performance of duty on June 19, 2002.1 The facts and the circumstances of the case up to that point are set forth in the Board’s prior decision and are incorporated herein by reference.

Subsequent to the Board’s decision, the Office accepted appellant’s claim for right lateral epicondylitis and her claim for a recurrence of disability for the period August 8 to 12, 2002. On September 12, 2006 appellant filed a claim for a schedule award.

In a November 7, 2006 report, Dr. David B. Brown, a treating Board-certified orthopedic surgeon, concluded that she had 10 percent right upper extremity impairment. A physical examination revealed good right elbow mobility in flexion and rotation and mild right forearm lateral epicondylar discomfort.

On July 9, 2007 Dr. Barry W. Levine, a Board-certified internist and an Office medical adviser, reviewed Dr. Brown’s report and found no ratable impairment.

By decision dated March 28, 2008, the Office denied appellant’s claim for a schedule award.

On March 29, 2008 appellant’s counsel requested a telephonic hearing.

By decision dated October 2, 2008, an Office hearing representative vacated the March 28, 2008 decision and remanded the case for referral to a second opinion physician.

On remand from the hearing representative’s decision, the Office referred appellant to Dr. Balazs Somogyi, a second opinion Board-certified orthopedic surgeon, to provide an opinion on permanent impairment. On October 30, 2008 Dr. Somogyi determined that appellant had 10 percent right upper extremity impairment based on loss of grip strength using Table 16-34, page 509 of the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (hereinafter A.M.A., Guides).

In a November 3, 2008 report, Dr. David I. Krohn, an Office medical adviser and Board- certified internist, reviewed the medical evidence including Dr. Somogyi’s October 15, 2008 report. He concluded that Dr. Somogyi incorrectly applied the A.M.A., Guides when calculating appellant’s impairment based on decreased grip strength. Using Table 16-10, page 482 and Table 16-15, page 492 Dr. Krohn found a total of 3 percent right upper extremity impairment (60 percent multiplied by 5 percent).

By decision dated December 22, 2008, the Office granted appellant a schedule award for three percent right upper extremity impairment. The award was for 9.36 weeks and ran from June 19 to August 23, 2002.

On December 30, 2008 appellant’s counsel requested a telephonic hearing.

1
Docket No. 03-320 (issued April 8, 2003).

2
 By decision dated July 21, 2009, the Office hearing representative remanded the case to the Office medical adviser for additional review under the sixth edition of the A.M.A., Guides.

In an August 1, 2009 report, Dr. Krohn concluded that appellant had one percent right upper extremity impairment using the sixth edition of the A.M.A, Guides. In reaching this determination, he used Table 15-4, page 399 and assigned Class 1 for her lateral epicondylitis with residual pain which was equal to one percent right upper extremity impairment. Using Table 15-8, page 408, Dr. Krohn found a Grade 2 modifier for moderate tenderness over palpation. Next, the Office medical adviser noted that a Grade 1 modifier was appropriate using Table 15-7, page 406 for pain symptoms with vigorous/strenuous activity. Using Table 15-9, page 410, no modifier was appropriate for any relevant findings or clinical studies. Combining the modifiers resulted in a net adjustment of zero and a total one percent right upper extremity permanent impairment.

By decision dated September 14, 2009, the Office denied appellant’s request for an additional schedule award.

In a letter dated September 23, 2009, appellant’s counsel requested a telephonic hearing, which was held on November 30, 2009.

By decision dated January 29, 2010, the Office hearing representative affirmed the September 14, 2009 decision.

LEGAL PRECEDENT

The schedule award provision of the Federal Employees’ Compensation Act2 and its implementing regulations3 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.4 Effective May 1, 2009, the Office adopted the sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that date.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 2 5 U.S.C. § 8107.
3
20 C.F.R. § 10.404.
4
Id. See C.M., 61 ECAB ___ (Docket No. 09-1268, issued January 22, 2010); Billy B. Scoles, 57 ECAB 258 (2005).
5
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claim, Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

3 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 history (GMFH), physical examination (GMPE) and clinical studies (GMCS).7 The net adjustment formula is (GMFH-CDX) + (GMPE - CDX) + (GMCS - CDX).8

ANALYSIS

The Office accepted appellant’s claim for right lateral epicondylitis and a recurrence of disability for the period August 8 to 12, 2002. On December 22, 2008 it granted her a schedule award for three percent right upper extremity impairment. Appellant disagreed with the impairment rating found by the Office. The question to be resolved is whether she is entitled to greater than three percent impairment, for which she received a schedule award. The Board finds that the medical evidence of record does not establish a greater impairment than the three percent impairment appellant has already received.

The only medical report discussing the relevant tables in the sixth edition is the August 24, 2009 report of Dr. Krohn, an Office medical adviser, who applied the most recent edition of the A.M.A., Guides to the clinical findings of Dr. Somogyi. Dr. Krohn followed the assessment formula of the sixth edition of the A.M.A., Guides. He first identified the impairment class for the diagnosed condition (CDX) according to Table 15-4, one percent impairment for lateral epicondylitis of the right arm with a history of painful injury and residual symptoms. The medical adviser then found a Grade 1 modifier according to Table 15-7 for functional history (GMFH) and a Grade 2 modifier according to Table 15-8 for moderate tenderness on physical examination (GMPE). As there were no relevant clinical studies (GMCS), the net adjustment formula for this case is (GMFH-CDX or 1-1 = 0) + (GMPE - CDX or 2-1 = 1) + (GMCS - CDX or 0-1 = -1) which resulted in a zero percent net adjustment (0+1+ 1 = 0). The medical adviser found a one percent permanent impairment of the right 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. Somogyi’s clinical findings. Neither Dr. Somoygi nor Dr. Brown provided an impairment rating based on the sixth edition of the A.M.A., Guides. Therefore, the Office properly relied on the only medical impairment rating based on the sixth edition of the A.M.A., Guides to find one percent permanent impairment of the right upper extremity.

CONCLUSION

The Board finds that appellant has not established that she is entitled to greater than three percent permanent impairment of the right upper extremity, for which she received a schedule award.

6
A.M.A., Guides (6th ed. 2009), at 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A Contemporary Model of Disablement. 7 A.M.A., Guides (6th ed. 2009), pp. 383-419.
8
Id. at 411.

4
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated January 29, 2010 is affirmed.

Issued: January 25, 2011
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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