D.D. and U.S. Postal Service (Board decision, October 19, 2012)

ECAB final decision on the merits. The Board affirmed OWCP's December 16, 2011 denial of D.D.'s schedule award. The Board's compensation decision is final under 5 U.S.C. § 8128(b), without ordinary judicial review. 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

D.D., a postal employee, sought a schedule award for permanent impairment. The Board found that the record did not establish entitlement to an award under FECA's schedule award provisions. It affirmed OWCP's denial.

Decision snapshot

• Authority: Schedule award.
• Outcome: Award denial affirmed.
• Key point: Entitlement to a ratable award was not established.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.D., Appellant
)
)
and ) Docket No. 12-1117
) Issued: October 19, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Minneapolis, MN, 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 March 21, 2012 appellant filed a timely appeal from a December 16, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) with respect to a schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) 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 established entitlement to a schedule award under 5 U.S.C. § 8107.

FACTUAL HISTORY

On January 29, 2010 appellant, then a 42-year-old mail handler, filed an occupational disease claim (Form CA-2) alleging that she sustained a left elbow injury causally related to

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5 U.S.C. § 8101 et seq. repetitive activity in her federal employment. OWCP accepted the claim for left medial and lateral epicondylitis.

In a report dated March 9, 2011, Dr. Frank Norberg, an attending orthopedic surgeon, provided a history and results on examination. He reported that there was no numbness or tingling, with normal gait, balance, grip strength, pinch strength, finger abduction and adduction strength. Dr. Norberg diagnosed status post debridement of medial epicondylitis and status post plasma injection for lateral epicondylitis. He stated that appellant “would have two percent rating on the workers’ compensation schedule under 5223.0120, Subpart 3(g) for debridement of medial epicondylitis.”

By report dated November 21, 2011, an OWCP medical adviser noted that Dr. Norberg had identified what appeared to be a state workers’ compensation statute. He noted the results on examination reported by Dr. Norberg and opined that, given the lack of significant objective findings, appellant did not have a permanent impairment to the left arm.

In a decision dated December 16, 2011, OWCP found the evidence was insufficient to establish entitlement to a schedule award.

LEGAL PRECEDENT

The schedule award provision of FECA2 and its implementing regulations3 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, FECA 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 to all claimants, good administrative practice necessitates the use of a single set of tables so that there may be uniform standards applicable to all claimants.4 The American Medical Association, Guides to the Evaluation of Permanent Impairment has been adopted by the implementing regulations as the appropriate standard for evaluating schedule losses.5 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition.6

2
5 U.S.C. § 8107.
3
20 C.F.R. § 10.404 (1999).
4
See Ronald R. Kraynak, 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).
5
Supra note 3.
6
FECA Bulletin No. 09-03 (issued March 15, 2009).

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ANALYSIS

The Board notes that the only decision on the current appeal is dated December 16, 2011.7 The medical evidence from Attending Physician Dr. Norberg regarding a permanent impairment was a March 9, 2011 report. Dr. Norberg provided brief examination results and referred to an impairment based on “debridement of medial epicondylitis.” The medical evidence necessary to support a schedule award includes a physician’s report that provides a detailed description of the impairment.8 Dr. Norberg did not provide a detailed description of the impairment. In addition, the Board has held that a medical report that does not describe the basis for the impairment rating or refer to specific tables in the A.M.A., Guides is of diminished probative value.9 Dr. Norberg appeared to refer to a state workers’ compensation statute without discussing the A.M.A., Guides or otherwise describing the basis for an impairment under FECA. OWCP’s medical adviser noted the normal examination results and opined that appellant did not have a ratable permanent impairment.

The Board finds that the medical evidence of record prior to December 16, 2011 was not sufficient to establish a schedule award under 5 U.S.C. § 8107. There was no probative medical evidence supporting an employment-related permanent impairment under the A.M.A., Guides. Appellant may request a schedule award based on evidence submitted after December 16, 2011 showing a permanent impairment under the A.M.A., Guides.

CONCLUSION

The Board finds that appellant has not established entitlement to a schedule award pursuant to 5 U.S.C. § 8107.

7
The record indicates that appellant pursued additional appeal rights following the December 16, 2011 decision, although the accompanying appeal rights clearly stated that a claimant may request only one type of appeal at that time. Once the Board took jurisdiction over the schedule award issue on March 21, 2012, OWCP does not have concurrent jurisdiction and any OWCP decision issued on the schedule award issue while the Board had jurisdiction is null and void. Douglas E. Billings, 41 ECAB 880, 895 (1990). OWCP decisions dated March 28 and May 3, 2012 are null and void. 8 See James E. Jenkins, 39 ECAB 860 (1988); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6(c) (August 2002). 9 See Mary L. Henninger, 52 ECAB 408 (2001).

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ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated December 16, 2011 is affirmed.

Issued: October 19, 2012
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

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