J.T. and U.S. Postal Service, Post Office, Albany, NY (Board decision, February 12, 2013)

ECAB final decision on the merits. The Board affirmed OWCP's February 21, 2012 decision declining a further left arm schedule award beyond the earlier 22 percent award. 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 order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

J.T., a postal city carrier, had received a 22 percent left arm award after a shoulder injury and later received a seven percent award under a newer impairment guide. OWCP determined the later rating was not an addition to the earlier 22 percent and kept the more favorable prior award. The Board held that an increased award decided after May 1, 2009 had to use the sixth edition of the guide, regardless of the injury or improvement date. It affirmed OWCP's decision and denied oral argument.

Decision snapshot

• Authority: Schedule awards under 5 U.S.C. § 8107 and the applicable impairment guide.
• Outcome: February 21, 2012 schedule award decision affirmed.
• Key point: The sixth edition applied to the later award decision, and the seven percent rating was not an additional award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.T., Appellant
)
)
and ) Docket No. 12-1755
) Issued: February 12, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Albany, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Francois M. Nabwangu, Esq., for the appellant
Office of Solicitor, for the Director

ORDER AFFIRMING CASE

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

On August 20, 2012 appellant, through his representative, filed a timely appeal from a February 21, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed his August 12, 2011 schedule award claim.1 The Board assigned Docket No. 12-1755.2

A review of the record reflects that appellant filed a claim for a schedule award on July 19, 2007. By decision dated January 9, 2008, appellant was granted a schedule award for 22 percent impairment of the left upper extremity under the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (2001) (A.M.A., Guides). The date of maximum medical improvement was noted as June 8, 2007 and the period of the award ran from June 8, 2007 to September 30, 2008.

1
On January 8, 2005 appellant, a 45-year-old city carrier, sustained a traumatic injury when he slipped on ice and fell on his left shoulder. OWCP accepted his claim for left shoulder sprain. 2 The Board notes that appellant has requested oral argument before the Board. Pursuant to 20 C.F.R. § 501.5(a), oral argument may be held in the discretion of the Board. In the present case, the legal issue before the Board is well settled. In the opinion of the Board, oral argument in this appeal would further delay issuance of a Board decision and would not serve a useful purpose. The Board will deny the request for oral argument.
On November 6, 2008 appellant underwent surgery for his left shoulder rotator cuff tear.
On December 18, 2009 he filed a claim for an additional schedule award. By decision dated April 20, 2010, appellant was granted a schedule award for seven percent impairment of the left upper extremity utilizing the sixth edition of the A.M.A., Guides (2009). The date of maximum medical improvement was noted as December 11, 2009 and the period of the award ran from December 11, 2009 to May 12, 2010. The decision did not address or mention the January 9, 2008 schedule award for a 22 percent impairment of the upper left extremity. Appellant disagreed with the April 20, 2010 OWCP decision and requested an appeal before the Board. The appeal was docketed as No. 10-1530. By decision dated May 6, 2011, the Board remanded the claim to determine whether OWCP found an additional seven percent impairment of the left upper extremity or mistakenly issued a duplicate schedule award. By decision dated August 12, 2011, OWCP found that appellant was not entitled to the schedule award issued for 7 percent impairment under the sixth edition of the A.M.A., Guides as the district medical adviser determined that it was not in addition to the 22 percent already received and constituted an overpayment. Thus, it determined that appellant was entitled to 22 percent impairment under the fifth edition rather than the 7 percent impairment he would have been awarded under the sixth edition of the A.M.A., Guides, issuing him the more favorable schedule award. Appellant appealed OWCP’s decision and by decision dated February 21, 2012, the hearing representative affirmed OWCP’s August 12, 2011 decision.

The Board has duly considered the matter and will affirm OWCP’s February 21, 2012 decision. Appellant’s representative argues that, when appellant filed a claim for an additional schedule award, it should have been adjudicated under the fifth edition of the A.M.A., Guides and not the sixth edition which rendered a seven percent schedule award impairment. In support of his argument, he states that both the date of injury and maximum medical improvement predate the May 1, 2009 implementation of the sixth edition of the A.M.A. Guides.

In this case, appellant simply made a claim for an increased schedule award. He had no vested right to a schedule award under the fifth edition of the A.M.A., Guides for decisions issued after May 1, 2009. In Harry D. Butler,3 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.4 On March 15, 2009 the Director exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP should reflect use of the sixth edition of the A.M.A., Guides.5 The Bulletin notes, a claimant who has received a schedule award calculated under a previous edition and who claims an increased award, will receive a calculation according to the sixth edition for any decision issued on or after May 1, 2009.6 The applicable date of the sixth edition is as of the schedule

3
43 ECAB 859 (1992).
4
Id. at 866.
5
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). 6 20 C.F.R. § 10.404.

2 award decision reached. It is not determined by either the date of maximum medical improvement or when the claim for such award was filed. Accordingly,

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

Issued: February 12, 2013
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