L.S. and U.S. Postal Service, Post Office, Milwaukee, WI (Board decision, August 24, 2012)

ECAB remand decision. The Board set aside OWCP's November 30, 2011 schedule award decision and remanded for a medical rating using the required spinal nerve impairment method. The correct upper extremity impairment remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

L.S., a postal employee with an accepted cervical disc condition, sought a schedule award for permanent impairment of his arms. After an earlier Board remand, OWCP obtained a new examination and granted an increased award. The Board found that the physicians rated a brachial plexus condition even though the examiner said the impairment originated in the cervical spine. They had not applied the method for rating spinal nerve impairment in the July/August 2009 Guides Newsletter, as the Board's prior decision required. It set aside the award decision and directed OWCP to obtain a rating using that method.

Decision snapshot

• Authority: FECA schedule award impairment rating and the July/August 2009 Guides Newsletter.
• Outcome: November 30, 2011 decision set aside and remanded for a new medical rating.
• Key point: A cervical spine related arm impairment required the adopted spinal nerve rating method.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.S., Appellant
)
)
and ) Docket No. 12-661
) Issued: August 24, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Milwaukee, WI, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On January 25, 2012 appellant filed a timely appeal from a November 30, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) granting him an increased schedule award. The Board docketed the appeal as No. 12-661.

The Board has reviewed the record on appeal and finds that the case is not in posture for decision. This case has previously been before the Board.1 In its most recent decision dated April 4, 2011, the Board set aside an April 19, 2010 OWCP decision finding that appellant had no more than a nine percent permanent impairment of the right upper extremity.2 The Board determined that neither the second opinion examiner nor the medical adviser appropriately rated his impairment of the extremity resulting from a spinal nerve impairment under the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides). The Board remanded the case for OWCP to obtain a medical

1
OWCP accepted that appellant sustained an aggravation of cervical disc disease due to factors of his federal employment. The Board issued multiple decisions from 2003 to 2008 setting aside OWCP’s schedule award decisions, an overpayment decision and reversing a loss of wage-earning capacity determination. Docket Nos. 02- 1072 (issued January 17, 2002); 02-1225 (issued June 2, 2003); 05-1726 (issued November 22, 2005); 06-122 (issued October 19, 2006); 07-1753 (issued December 31, 2007 and 08-1247 (issued December 12, 2008). 2 Docket No. 10-1562 (issued April 4, 2011). opinion regarding the extent of appellant’s right upper extremity impairment consistent with the July/August 2009 edition of The Guides Newsletter.3

On June 16, 2011 OWCP referred appellant to Dr. Michael D. Plooster, a Board-certified orthopedic surgeon, for a second opinion examination. In a report dated July 13, 2011, Dr. Plooster found “significant cervical spine abnormalities” but noted that he was “not asked to comment nor rate the disability as it pertains specifically to the cervical spine.” He asserted that the “origins of [appellant’s] extremity problems are coming from the cervical spine and not from the upper extremities.” Dr. Plooster advised that he would “do the best I can to give an impairment rating to the upper extremities. This, however, is not in line with a specific diagnosis that is causing [appellant’s] anatomic and functional disability.” Dr. Plooster selected the diagnosis of a brachial plexus impairment and used Table 15-20 on page 434 of the sixth edition of the A.M.A., Guides to find a 13 percent right upper extremity impairment and a 20 percent left upper extremity impairment. In a supplemental report dated August 15, 2011, he again noted that the “diagnosis in this case is cervical in origin and not brachial plexus….” On September 4, 2011 an OWCP medical adviser reviewed Dr. Plooster’s report and concurred with his impairment rating using the brachial plexus diagnosis.

Dr. Plooster and OWCP’s medical adviser agreed that appellant had a 13 percent right upper extremity impairment and a 20 percent left upper extremity impairment. Neither physician referred to the July/August 2009 Newsletter regarding spinal nerve extremity impairments. The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to rating spinal nerve impairments consistent with sixth edition methodology.4 OWCP has adopted this approach for rating impairment of the upper or lower extremities caused by a spinal injury.5 As the Board explained in its prior decision, OWCP should obtain an opinion that applies the July/August 2009 Newsletter to evaluate any impairment of an extremity caused by a spinal injury. As the medical evidence does not contain a report consistent with OWCP’s procedures for rating an impairment from a spinal nerve injury, the case will be remanded for further development of the medical evidence. On remand OWCP should obtain an opinion regarding the extent of appellant’s permanent impairment of the upper extremities due to his cervical spine injury consistent with The Guides Newsletter. Following this and any further development deemed necessary, it should issue an appropriate decision.

3
Christopher R. Brigham, MD, Rating Spinal Nerve Extremity Impairment Using the sixth edition, The Guides Newsletter (July/August 2009). 4 Id.
5
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

2
 IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated November 30, 2011 is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: August 24, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3