M.B. and Department of the Navy, Naval Academy, Annapolis, MD (Board decision, January 29, 2013)

ECAB final decision on the merits. The Board affirmed OWCP’s May 21, 2012 denial of M.B.’s schedule award claim. The Board’s decision on the claim 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

M.B., a Navy food service worker, had an accepted right wrist sprain and later sought a schedule award. The attending surgeon supplied no opinion rating permanent impairment. A nurse practitioner reported examination findings but gave no impairment rating and advised follow-up with the surgeon, who also supplied no rating. The Board found no probative rating of a covered body member and affirmed the denial.

Decision snapshot

• Authority: Schedule awards under 5 U.S.C. § 8107.
• Outcome: May 21, 2012 schedule award denial affirmed.
• Key point: A physician’s supported permanent impairment rating was missing.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.B., Appellant
)
)
and ) Docket No. 12-1695
) Issued: January 29, 2013
DEPARTMENT OF THE NAVY, NAVAL
)
ACADEMY, Annapolis, MD, Employer
)
__________ )

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

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On August 6, 2012 appellant filed a timely appeal from a May 21, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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 an employment-related permanent impairment to a scheduled member or function of the body under 5 U.S.C. § 8107.

FACTUAL HISTORY

On July 15, 2010 appellant, then a 54-year-old food service worker, completed a traumatic injury claim (Form CA-1) alleging that she sustained a right hand injury in the performance of duty on July 13, 2010 when she slipped while holding onto the handle of a truck.

1
5 U.S.C. § 8101 et seq.
OWCP accepted the claim for a right wrist sprain. Appellant underwent right wrist arthroscopic surgery on December 27, 2010. The attending orthopedic surgeon, Dr. Garth Smith, diagnosed right wrist triangular fibrocartilaginous complex (TFCC) tear, right wrist synovitis and right carpal tunnel syndrome.

Appellant returned to work in a light-duty position on March 17, 2011. In a report dated August 19, 2011, Dr. Smith stated that appellant was still having some diffuse symptoms on the ulnar aspect of the wrist that are aggravated with heavy lifting and heavy rotational activities. He opined that she had reached maximum medical improvement and final impairment rating should be considered.

On April 5, 2012 appellant filed a claim (Form CA-7) for a schedule award. By letter dated April 10, 2012, OWCP advised that appellant needed to submit medical evidence that included a detailed description of a permanent impairment and a calculation as to the degree of impairment pursuant to the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). Appellant was advised that, if evidence was not received within 30 days, a decision would be issued based on the evidence of record.

In a report dated April 13, 2012, a nurse practitioner provided results on examination.
The nurse practitioner stated that appellant would need to follow up with Dr. Smith for a disability rating.

In a decision dated May 21, 2012, OWCP found that appellant was not entitled to a schedule award under 5 U.S.C. § 8107. It determined that the medical evidence did not establish a permanent impairment.

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 A.M.A., Guides 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
20 C.F.R. § 10.404 (1999).
6
FECA Bulletin No. 09-03 (issued March 15, 2009).

2
OWCP procedures indicate that medical evidence for a schedule award should include an attending physician’s detailed report with a description of the impairment, physical findings, functional history, clinical studies and an opinion as to impairment under the A.M.A., Guides.7

ANALYSIS

As noted, the medical evidence necessary to establish a schedule award under 5 U.S.C.
§ 8107 requires a detailed medical report from the attending physician discussing the physical findings, the impairment and the percentage calculated under the A.M.A., Guides. Appellant did not submit any probative medical evidence to establish permanent impairment of his right arm. The April 13, 2012 report from the nurse practitioner is of no probative medical value as a nurse practitioner is not a physician under FECA.8 The attending physician, Dr. Smith, did not provide any opinion with respect to permanent impairment.

On appeal, appellant submitted an additional medical report. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of the May 21, 2012 decision on appeal.9 The Board cannot consider new evidence on appeal. Based on the evidence before OWCP at the time of the May 21, 2012 decision, appellant did not establish entitlement to a schedule award pursuant to 5 U.S.C. § 8107.

Appellant may request a schedule award before OWCP based on medical evidence showing progression of an employment-related condition resulting in permanent impairment.

CONCLUSION

The Board finds that appellant has not established a permanent impairment to a scheduled member or function of the body under 5 U.S.C. § 8107.

7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(c) (January 2010). 8 See A.A., Docket No. 12-1116 (issued November 8, 2012).
9
20 C.F.R. § 501.2(c)(1).

3
ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated May 21, 2012 is affirmed.

Issued: January 29, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

4