E.P. and U.S. Postal Service, Post Office, Somerdale, NJ (Board decision, June 20, 2011)

ECAB final decision. The Board affirmed OWCP’s June 10, 2010 decision limiting the right arm schedule award to one percent impairment. 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.P., a postal employee, sought a schedule award above one percent for his right arm. He argued that an older edition of the impairment guides should apply. The Board held that the edition in force when OWCP decided the award controlled, and two medical opinions using that edition agreed on one percent impairment. It affirmed the award.

Decision snapshot

• Authority: 5 U.S.C. § 8107; 20 C.F.R. § 10.404.
• Outcome: One percent right arm impairment award affirmed.
• Key point: The applicable guide edition depended on the award decision date, and its rating supported one percent.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.P., Appellant
)
)
and ) Docket No. 10-2398
) Issued: June 20, 2011
U.S. POSTAL SERVICE, POST OFFICE,
)
Somerdale, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas R. Uliase, Esq., for the appellant
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 September 27, 2010 appellant timely appealed the June 10, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed a prior schedule award. Pursuant to the Federal Employees’ Compensation Act1 and 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 greater than one percent impairment of the right upper extremity.

FACTUAL HISTORY

Appellant, then a 39-year-old letter carrier, has an accepted traumatic injury claim for right shoulder contusion, which arose on January 18, 1997 when he slipped and fell on ice. He did not lose anytime from work due to his right shoulder injury, therefore, his claim was

1
5 U.S.C. §§ 8101-8193. administratively closed and the case record destroyed due to inactivity. On January 23, 2009 appellant filed a claim for a schedule award. On February 25, 2009 OWCP initiated efforts to reconstruct the case record.

On April 22, 2009 OWCP received a May 30, 2006 impairment rating from Dr. David Weiss, a Board-certified orthopedic surgeon. Applying the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (2001), Dr. Weiss found five percent impairment of the right upper extremity due to loss of shoulder motion (two percent) and pain (three percent).2

OWCP subsequently referred appellant to Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon. In a report dated October 23, 2009, Dr. Hanley found one percent impairment of the right upper extremity based on the sixth edition of the A.M.A., Guides (2008), which OWCP adopted effective May 1, 2009.3

On January 24, 2010 the district medical adviser (DMA) reviewed the record, including Dr. Hanley’s report, and concurred with the finding of one percent impairment of the right upper extremity.

By decision dated February 22, 2010, the Office granted a schedule award for one percent impairment of the right upper extremity. The award covered a period 312 weeks, from October 23 to November 13, 2009.

Appellant’s counsel requested a review of the written record. In a decision dated June 10, 2010, the Branch of Hearings & Review affirmed the February 22, 2010 schedule award.

LEGAL PRECEDENT

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use of specified members, functions and organs of the body.4 FECA, however, does not specify the manner by which the percentage loss of a member, function or organ shall be determined. To ensure consistent results and equal justice under the law, good administrative practice requires the use of uniform standards applicable to all claimants. The implementing regulations have adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.5 Effective May 1, 2009, schedule awards are determined in accordance with the A.M.A., Guides (6th ed. 2008).6

2
Dr. Weiss also rated appellant’s right lower extremity.
3
The rating was based on appellant’s right shoulder contusion. Dr. Hanley cited Table 15-5 (Shoulder Regional Grid), A.M.A., Guides 401 (6th ed. 2008).
4
For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).
5
20 C.F.R. § 10.404.
6
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1 (January 2010).

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 ANALYSIS

OWCP based the February 22, 2010 schedule award on the one percent impairment rating Dr. Hanley calculated under the sixth edition of the A.M.A., Guides. The DMA concurred with Dr. Hanley’s one percent rating. Appellant’s counsel did not specifically challenge the validity of Dr. Hanley’s examination and findings, but instead argued that appellant should have received a schedule award for five percent impairment under the fifth edition of the A.M.A., Guides as Dr. Weiss calculated in May 2006.

Counsel claimed he initially submitted Dr. Weiss’ impairment rating in July 2006 and that OWCP unreasonably delayed issuing a decision regarding appellant’s entitlement to a schedule award. As previously noted, the instant claim was administratively closed and the record destroyed due to inactivity. There is no evidence to substantiate counsel’s assertion that he previously submitted Dr. Weiss’ May 30, 2006 report in support of a schedule award under the current claim.7 There is also no evidence that appellant previously filed for a schedule award with respect to the current claim. The record indicates that OWCP received Dr. Weiss’ May 30, 2006 report on April 22, 2009.

Counsel argued that the Office’s delay in issuing a decision constituted a denial of due process. He asserted that appellant has a property right in a schedule award benefit under the fifth edition of the A.M.A., Guides and that a protected property interest cannot be deprived without due process. In support of this contention, counsel cited Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge, 424 U.S. 319 (1976). However, these cases held only that a claimant who was in receipt of benefits (in Goldberg public assistance, and in Mathews Social Security benefits) could not have those benefits terminated without procedural due process.

In Harry D. Butler,8 the Board noted that Congress delegated authority to the Director regarding the specific methods by which permanent impairment is to be rated. Pursuant to this authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all claimants and the Board has concurred in the adoption.9 On March 15, 2009 the Director exercised authority to advise that as of May 1, 2009 all schedule award decisions of the Office should reflect use of the sixth edition of the A.M.A., Guides.10 The applicable date of the sixth edition is as of the schedule award decision reached. It is not determined by either the date of maximum medical improvement or when the claim for such award was filed.

As noted, both Dr. Hanley and the DMA agreed that appellant had one percent impairment of the right upper extremity due to a shoulder contusion. Applying Table 15-5,

7
Appellant has at least three other claims for employment-related hernias, which Dr. Weiss referenced in his May 30, 2006 report. 8 43 ECAB 859 (1992).
9
Id. at 866.
10
FECA Bulletin No. 09-03 (issued March 15, 2009). The FECA Bulletin was incorporated in the Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a) (January 2010).

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A.M.A., Guides 401, both found that appellant’s right shoulder contusion represented a class 1 impairment with a range of one to three percent impairment of the upper extremity. After appropriate adjustment for Functional History, Physical Examination and Clinical Studies, Dr. Hanley and the DMA concurred that appellant had one percent impairment of the right upper extremity.11 The Board finds that these two reports conform to the A.M.A., Guides (6th ed. 2008), and thus, represent the weight of the medical evidence regarding the extent of appellant’s right upper extremity impairment. Appellant has not submitted any credible medical evidence indicating he has greater than one percent impairment of the right upper extremity.

CONCLUSION

Appellant failed to establish that he has greater than one percent impairment of the right upper extremity.

ORDER

IT IS HEREBY ORDERED THAT the June 10, 2010 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: June 20, 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

11
See Table 15-6, A.M.A., Guides 406 (6th ed. 2008).

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