P.R., claiming as widow of E.R., and Department of Agriculture, U.S. Forest Service, Munising, MI (Board decision, May 25, 2011)

ECAB final decision. The Board set aside OWCP’s June 22, 2010 schedule award decision and remanded for a reasoned review of the medical evidence. 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

E.R. requested an additional schedule award before his death. His widow, P.R., pursued the claim. OWCP relied on its medical adviser’s impairment rating but did not explain why that rating represented the weight of the evidence. The Board found that OWCP and its hearing representative had failed to give findings and reasons sufficient for review. It returned the case for consideration of the medical evidence and a new decision.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a); 20 C.F.R. § 10.126.
• Outcome: June 22, 2010 schedule award decision set aside and remanded.
• Key point: OWCP had to explain its reliance on the medical adviser’s impairment rating.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.R., claiming as widow of E.R., Appellant ) )
and ) Docket No. 10-1963
) Issued: May 25, 2011
DEPARTMENT OF AGRICULTURE, U.S.
)
FOREST SERVICE, Munising, MI, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On July 27, 2010 appellant filed an application for review of a decision of the Office of Workers’ Compensation Programs dated June 22, 2010. The appeal was docketed as No. 10-1963.

The employee, a 65-year-old groundskeeper, struck his right elbow on the corner of a building while mowing grass on August 14, 1998. He filed a claim for benefits, which the Office accepted for right lateral epicondylitis.

In a Form CA-7 dated May 10, 2004, the employee requested a schedule award based on a partial loss of use of his right upper extremity. He submitted a November 15, 2006 report from Dr. Dee Ann Bialecki-Haase, a Board-certified family practitioner, who found that the employee had a 10 percent impairment of the right upper extremity pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment (fifth edition) (A.M.A., Guides). By decision dated August 28, 2007, the Office granted the employee a schedule award for a 10 percent permanent impairment of the right lower extremity.

In an August 25, 2008 report, Dr. Bialecki-Haase found that the employee had an 18 percent impairment of the right upper extremity pursuant to the fifth edition of the A.M.A., Guides. In a March 26, 2009 Form CA-7, the employee requested an additional schedule award based on a partial loss of use of his right upper extremity. By letter dated May 11, 2009, the Office advised Dr. Bialecki-Haase that she needed to submit a new report and impairment rating in conformance with the updated, sixth edition of the A.M.A., Guides, which became effective as of May 1, 2009.1 Dr. Bialecki-Haase did not respond to this request. The employee died on May 29, 2009.

In a November 13, 2009 report, an Office medical adviser reviewed Dr. Bialecki-Haase’s August 25, 2008 report and found that the employee had sustained a seven percent impairment of the right lower extremity due to his accepted right lateral epicondylitis condition pursuant to Table 15-4 at pages 398-400 of the sixth edition of the A.M.A., Guides.

By decision dated December 8, 2009, the Office denied appellant’s request for an additional schedule award. It stated that the Office medical adviser’s seven percent impairment rating represented the weight of the medical evidence because his November 13, 2009 report contained the only impairment evaluation of record rendered in conformance with the updated, sixth edition of the A.M.A., Guides. The Office did not discuss or analyze his findings or indicate whether he properly applied the relevant tables of the A.M.A., Guides.

By letter dated December 15, 2009, appellant’s attorney requested an oral hearing, which was held on March 19, 2010.

By decision dated June 22, 2010, an Office hearing representative affirmed the December 8, 2009 Office decision. The hearing representative stated that the Office medical adviser reviewed the findings from Dr. Bialecki-Haase’s August 25, 2008 report and properly applied the relevant tables of the A.M.A., Guides. However, she did not discuss or analyze the Office medical adviser’s findings or provide reasons to support her finding that his impairment rating was properly rendered in accordance with the applicable tables of the sixth edition of the A.M.A., Guides.

Section 20 C.F.R. § 10.126 requires the Office to issue a decision containing findings of fact and a statement of reasons.2 The Office erred in its December 8, 2009 and June 22, 2010 decisions by failing to adequately support its reliance on the Office medical adviser’s November 13, 2009 report and provide sufficient reasons why it found that his impairment rating represented the weight of the medical evidence. The hearing representative’s decision is additionally flawed because the only reason it provided for relying on the Office medical adviser’s report was that it was the only impairment rating rendered in conformance with the sixth edition of the A.M.A., Guides. This acceptance of a rating, merely on the basis that it was rendered in conformance of the sixth edition, does not allow the Board a complete review of the basis of the decision. As the hearing representative did not correct these omissions and make the required findings in her June 22, 2010 decision, her affirmance of the December 8, 2009 Office decision was in error.

1
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
As of May 1, 2009, the sixth edition will be used. FECA Bulletin No. 09-03 (issued March 15, 2008). 2 20 C.F.R. § 10.126.

2
 The Board finds that the Office failed to give proper consideration to the medical evidence of record in this case. Accordingly, the case will be set aside and remanded for consideration of the medical evidence pursuant to the standards set out in 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.126. After such further development as the Office deems necessary, it should issue an appropriate decision to protect appellant’s appeal rights.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated June 22, 2010 be set aside and the case be remanded for further action consistent with this order of the Board.

Issued: May 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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