P.G. and U.S. Postal Service, Raymond Annex, Pasadena, CA (Board decision, March 16, 2011)

ECAB final decision. The Board affirmed OWCP's February 5, 2010 schedule award based on six percent permanent impairment of P.G.'s left arm. 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

P.G., a postal carrier, sought a larger award after accepted neck, shoulder, and back conditions. His physician used an older edition of the impairment guides and calculated whole-person ratings, which the Board found unsuitable for this schedule award. OWCP's medical adviser applied the sixth edition to the left shoulder range-of-motion findings and calculated six percent arm impairment. The Board affirmed that rating and said the other body-part claims were not before it because OWCP had issued no final decisions on them.

Decision snapshot

• Authority: FECA schedule award provision, 5 U.S.C. § 8107.
• Outcome: February 5, 2010 six percent left arm award affirmed.
• Key point: The Board used the applicable arm impairment method, not the older whole-person ratings.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.G., Appellant
)
)
and ) Docket No. 10-1724
) Issued: March 16, 2011
U.S. POSTAL SERVICE, RAYMOND ANNEX,
)
Pasadena, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On June 15, 2010 appellant filed a timely appeal from a February 5, 2010 merit decision of the Office of Workers’ Compensation Programs granting him a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule award case.

ISSUE

The issue is whether appellant has more than six percent permanent impairment of the left upper extremity.

FACTUAL HISTORY

On April 27, 2007 appellant, then a 55-year-old mail carrier, filed an occupational disease claim alleging that he sustained pain in his neck, left shoulder and lower back due to factors of his federal employment. The Office accepted the claim for a neck sprain, bilateral shoulder and upper arm sprain, thoracic and lumbar back sprain and a closed dislocation of the fourth cervical vertebra. On November 27, 2008 appellant filed a claim for a schedule award. In an impairment evaluation dated March 10, 2008, Dr. Julio Westerband, a Board-certified orthopedic surgeon, reviewed the history of injury and the results of diagnostic studies. He measured range of motion of the left shoulder as 147 degrees flexion, 50 degrees extension, 136 degrees abduction, 50 degrees adduction and 90 degrees internal and external rotation.1 Dr. Westerband found tenderness of the left clavical and acromioclavicular joint and left upper trapezius, supraspinatus and deltoid muscles. He diagnosed cervical and lumbar disc protrusions and strain/sprain, left shoulder sprain/strain and left shoulder impingement. Dr. Westerband provided range of motion for the cervical and lumbar spine and opined that appellant had an eight percent whole person impairment of the cervical spine and an eight percent whole person impairment of the lumbar spine. He further found two percent whole person impairment due to loss of range of motion of the left shoulder using the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides). Dr. Westerband found an additional three percent whole person impairment using Figure 18-1 on page 574 of the A.M.A., Guides. He utilized the Combined Values Chart to conclude that appellant had 20 percent whole person impairment.

On January 1, 2010 an Office medical adviser reviewed Dr. Westerband’s March 10, 2008 report. Applying the sixth edition of the A.M.A., Guides, he determined that 147 degrees of flexion yielded three percent impairment, 136 degrees abduction yielded no impairment, 50 degrees adduction yielded three percent impairment, and 90 degrees internal and external rotation yielded no impairment.2 The Office medical adviser found no adjustment for functional history according to Table 15-36 on page 477. He added the loss of range of motion to find six percent impairment of the left upper extremity. The Office medical adviser noted that the Federal Employees’ Compensation Act3 (the Act) did not provide impairments for the spine or whole person. He concluded that appellant reached maximum medical improvement on March 10, 2008.

By decision dated February 5, 2010, the Office granted appellant a schedule award for six percent permanent impairment of the left upper extremity. The period of the award ran for 18.72 weeks from March 10 to July 19, 2008.

On appeal appellant argues that he is entitled to a greater award as his injury has resulted in significant financial hardship. He also requests compensation for his bilateral shoulders, neck, low back, spine and lower extremities. Appellant argues that he had 20 percent impairment of both shoulders and his lower back. He further described his difficulty performing activities due to his injury, his loss of earning capacity and financial stress.

1
Range of motion for the right shoulder yielded normal findings.
2
A.M.A., Guides 477, Table 15-36.
3
5 U.S.C. §§ 8101-8193.

2
 LEGAL PRECEDENT

The schedule award provision of the Act,4 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 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.7

ANALYSIS

The Office accepted that appellant sustained neck sprain, bilateral shoulder and upper arm sprain, thoracic sprain, lumbar sprain and a closed dislocation of the fourth cervical vertebra due to factors of his federal employment. In his March 10, 2008 impairment evaluation, Dr. Westerband found tenderness of the left acromioclavicular and clavical joint, left upper trapezius, supraspinatus and deltoid muscles. He measured range of motion of the bilateral shoulders and cervical and lumbar spine. Dr. Westerband applied the fifth edition of the A.M.A., Guides and found that appellant had two percent whole person impairment due to loss of range of motion of the left shoulder. The Act, however, does not provide for impairment of the whole person.8 Further, subsequent to May 1, 2009, the applicable edition of the A.M.A., Guides for determining impairments is the sixth edition. Dr. Westerband based his impairment determination on the fifth edition of the A.M.A., Guides. A medical opinion not based on the appropriate edition of the A.M.A., Guides has diminished probative value in determining the extent of a claimant’s permanent impairment.9 Regarding Dr. Westerband’s determination that appellant had eight percent whole person impairment of the cervical spine and eight percent whole person impairment of the lumbar spine, the Act specifically excludes the back as an organ and, therefore, the back does not come under the provisions for payment of a schedule award.10

On January 1, 2010 an Office medical adviser applied the sixth edition of the A.M.A., Guides to Dr. Westerband’s clinical findings. He found that range of motion best revealed the extent of the left shoulder impairment. Table 15-5 on page 401 of the sixth edition of the A.M.A., Guides, relevant to determining shoulder impairments, provides that a shoulder

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 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 8 Marilyn S. Freeland, 57 ECAB 607 (2006); Tania R. Keka, 55 ECAB 354 (2004).
9
Fritz A. Klein, 53 ECAB 642 (2002).
10
D.N., 59 ECAB 576 (2008); Francesco C. Veneziani, 48 ECAB 572 (1997).

3 sprain/strain yields from one to two percent shoulder impairment, depending on the class of impairment and grade modifiers. Table 15-5 marks the shoulder impairment diagnosis due to a sprain/strain with an asterisk. The asterisk indicates that, if motion loss is present, the shoulder impairment may alternatively be assessed using loss of range of motion.11 The impairment due to loss of range of motion stands alone and is not combined with a diagnosis-based impairment.12 The Office medical adviser utilized Table 15-34 and found that 147 degrees of flexion yielded three percent impairment, 136 degrees abduction yielded no impairment, 50 degrees adduction yielded three percent impairment, and 90 degrees internal and external rotation yielded no impairment.13 He additionally determined that appellant was not entitled to an adjustment for functional history under Table 15-36. The Board notes, however, that, under Table 15-34, 136 degrees abduction constitutes three percent impairment and 50 degrees extension constitutes no impairment. However, any error is harmless as the total left upper extremity impairment remains six percent. The Office medical adviser noted that he had no impairment of the right upper extremity.14 He concluded that appellant had six percent permanent impairment of the left upper extremity. There is no evidence in conformance with the A.M.A., Guides showing a greater impairment.

On appeal appellant asserts that he experienced a loss of earning capacity and financial hardship as a result of his employment injury. The amount payable pursuant to a schedule award, however, does not take into account the effect that the impairment has on employment opportunities, wage-earning capacity, sports, hobbies or other lifestyle activities.15 Disability for work under section 8105 of the Act is not a factor included in a schedule award impairment rating under section 8107 and a schedule award is not intended to be compensation for wage loss or potential wage loss.

Appellant maintains that he has 20 percent impairment of his left shoulder. Section 8107 provides a compensation schedule for payment of awards for permanent impairment of listed body members. The schedule establishes how many weeks of compensation an employee will receive in the event of total functional loss or dismemberment. Partial loss of function of the bodily member is awarded for a proportionate number of weeks. For complete loss of use of the arm, the maximum number of weeks of compensation is 312 weeks. Since appellant’s permanent impairment of the left arm is six percent, he is entitled to six percent of 312 weeks, or 18.72 weeks of compensation. Under the schedule award provisions, he is entitled to no more.

Appellant also requests a compensation for his right shoulder, neck, low back, spine and lower extremities. The Board’s jurisdiction, however, is limited to reviewing final decisions of 11 A.M.A., Guides 403, 405, Table 15-5.
12
Id. at 475, Table 15-34.
13
Id. at 477, Table 15-36.
14
As previously noted, the range of motion measurements for appellant’s right upper extremity yielded no impairment.
15
Ruben Franco, 54 ECAB 496 (2003).

4 the Office.16 The Office has not issued a final decision on these issues and thus they are not before the Board at this time.17

CONCLUSION

The Board finds that appellant has no more than six percent permanent impairment of the left upper extremity.

ORDER

IT IS HEREBY ORDERED THAT the February 5, 2010 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 16, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16
20 C.F.R. § 501.2(c)(1).
17
Appellant submitted new medical evidence with his appeal. The Board has no jurisdiction to review new evidence on appeal; see 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and requested reconsideration under 5 U.S.C. § 8128.

5