M.R. and Defense Finance and Accounting Service, Fort Sill, IN (Board decision, November 29, 2012)

ECAB remand decision. The Board set aside OWCP's October 6, 2011 schedule award denial and remanded for a medical adviser review of the complete record. Whether M.R. has ratable leg impairment remains open. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

M.R., a Defense Finance and Accounting Service employee, sought a leg schedule award after an accepted back injury. Medical evaluators gave differing impairment ratings. OWCP's adviser did not review one of the submitted physician reports. The Board set aside the denial and directed a complete adviser review and new award decision.

Decision snapshot

• Authority: FECA schedule award for leg impairment.
• Outcome: October 6, 2011 denial set aside and remanded.
• Key point: The medical adviser had not reviewed all relevant reports.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.R., Appellant
)
)
and ) Docket No. 12-914
) Issued: November 29, 2012
DEFENSE FINANCE & ACCOUNTING
)
SERVICE, Fort Sill, IN, 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
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On March 14, 2012 appellant filed a timely application for review of an October 6, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for a schedule award.

The Board has duly considered the matter and notes that the case is not in posture for a decision. On March 16, 2004 appellant was injured in a slip and fall. OWCP accepted the claim for right sprain/strain lumbosacral joint/ligament and right thoracic or lumbosacral neuritis or radiculitis. Appellant requested a schedule award and submitted a September 9, 2010 report from Dr. John W. Ellis, a Board-certified family practitioner, who opined that, under the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), appellant had 13 percent impairment of the right leg and 20 percent impairment of the left leg based on motor and sensory deficits. On November 9, 2010 an OWCP medical adviser reviewed Dr. Ellis’s September 9, 2010 impairment evaluation and explained that his interpretation of findings from a June 24, 2010 electromyogram/nerve conduction velocity study (EMG/NCV) differed from that of Dr. Ellis regarding whether there was evidence of lumbar spinal nerve motor radiculopathy. Based on this and other concerns, the medical adviser requested that OWCP obtain another evaluation.
Thereafter, appellant submitted a June 9, 2011 report, Dr. M. Stephen Wilson, an orthopedic surgeon, who opined that, under the sixth edition of the A.M.A., Guides, appellant had 14 percent right leg impairment and 22 percent left leg impairment due to motor and sensory deficits. Dr. Wilson explained the methodologies used to compute the impairment rating. On June 13, 2011, OWCP referred appellant for a second opinion regarding her schedule award claim. In a July 7, 2011 report, Dr. Michael S. Smith, a Board-certified physiatrist and OWCP referral physician, reviewed appellant’s history, noted findings and diagnoses. He stated that appellant’s examination showed no evidence of radiculopathy but clear symptoms of spinal stenosis with pseudoclaudication symptoms. Dr. Smith opined that while appellant had disability related to pain and mobility, no award could be provided under the A.M.A., Guides based on her spine condition. On July 21 2011 an OWCP medical adviser reviewed the statement of accepted facts and Dr. Smith’s July 7, 2011 impairment evaluation. Based on Dr. Smith’s report and the A.M.A., Guides, the medical adviser found no impairment of the lower extremities. In an October 6, 2011 decision, OWCP denied appellant’s schedule award claim. Weight of the medical evidence was accorded to the medical adviser’s review of Dr. Smith’s July 7, 2011 impairment evaluation.

OWCP procedures provide that, after obtaining all necessary medical evidence, the file should be routed to OWCP’s medical adviser for an opinion concerning the nature and percentage of impairment. These procedures contemplate that the medical adviser shall review all germane medical reports as they specify that, when more than one evaluation of the impairment is present, it will be especially important for the medical adviser to provide medical reasoning.1 In this instance, the medical adviser did not review Dr. Wilson’s June 9, 2011 report. His review only addresses Dr. Smith’s July 7, 2011 report. OWCP did not explain why it found it unnecessary to consider Dr. Wilson’s opinion on permanent impairment in light of its procedures. Accordingly, the case shall be remanded for further development.

On remand, OWCP shall forward the complete record to OWCP’s medical adviser for a determination of whether appellant has any impairment due to her March 16, 2004 employment injury. After such further development as OWCP deems appropriate, a de novo decision shall be issued regarding appellant’s claim for a schedule award.2

1
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6d (January 2010).
2
Due to the Board’s disposition of this case, appellant’s arguments on appeal will not be addressed.

2
IT IS HEREBY ORDERED THAT the October 6, 2011 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action consistent with this order of the Board.

Issued: November 29, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

3