L.H. and U.S. Postal Service, Post Office, Sarasota, FL (Board decision, April 1, 2013)

ECAB final decision. The Board affirmed OWCP’s June 22, 2012 denial of L.H.’s schedule award claim for his accepted left knee injury. It found that the record lacked current medical evidence establishing permanent impairment. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

L.H., a postal distribution clerk, injured his left knee while throwing parcels in 1995. OWCP accepted a knee sprain and torn medial meniscus, and he later underwent surgery. He applied for a schedule award in 2012. OWCP asked for a current medical report describing any permanent impairment under the applicable impairment guide, but received no response. The Board found that the record contained no recent medical evidence showing an impairment caused by the accepted injury and affirmed the denial.

Decision snapshot

• Authority: FECA schedule awards, 5 U.S.C. § 8107.
• Outcome: June 22, 2012 denial of left knee schedule award affirmed.
• Key point: A schedule award requires current medical evidence describing and rating permanent impairment from the accepted injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.H., Appellant
)
)
and ) Docket No. 13-280
) Issued: April 1, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Sarasota, FL, Employer
)
__________ )

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

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On November 19, 2012 appellant filed a timely appeal from a June 22, 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 met his burden of proof to establish that he has a permanent impairment caused by the accepted conditions.

On appeal appellant asserts that he submitted medical evidence.

1
5 U.S.C. §§ 8101-8193.
FACTUAL HISTORY

On July 17, 1995 appellant, then a 40-year-old distribution clerk, filed a traumatic injury claim alleging that he injured his left knee throwing parcels the previous day. He did not stop work. OWCP accepted that appellant sustained an employment-related knee sprain and torn medial meniscus. On February 20, 1997 Dr. Charles W. Rush, a Board-certified orthopedic surgeon, performed arthroscopic repair of the left knee. Appellant was off work from February 20 through March 8, 1997 and received appropriate compensation. He returned to full duty and his request for leave buyback was approved. On March 2, 2004 appellant filed a recurrence claim that was denied by OWCP in a September 16, 2004 decision.

On May 2, 2012 appellant filed a schedule award claim.2 By letter dated May 17, 2012, OWCP informed him of the type medical evidence needed to support his claim, which should include a rating in accordance with the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).3 In a report dated June 19, 2012, an OWCP medical adviser stated that there was not enough information in the record to permit an impairment rating in accordance with the A.M.A., Guides. He further indicated that a date of maximum medical improvement was needed. No response was received from appellant.

By decision dated June 22, 2012, OWCP denied the claim because the record did not contain a narrative medical report outlining appellant’s current condition and whether he had a permanent impairment as a result of the employment injury. It noted that appellant had not responded to the May 17, 2012 letter.

LEGAL PRECEDENT

The schedule award provision of FECA,4 and its implementing federal regulations,5 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 for all claimants, OWCP has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after

2
The employing establishment indicated that at that time appellant was working four hours per day due to an injury under a separate claim.
3
A.M.A., Guides to the Evaluation of Permanent Impairment (6th ed. 2008).
4
5 U.S.C. § 8107.
5
20 C.F.R. § 10.404.
6
Id. at § 10.404(a).

2
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.7 For decisions issued after May 1, 2009, the sixth edition will be used.8

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World Health Organization’s International Classification of Functioning, Disability and Health (ICF).9 Under the sixth edition, for lower extremity impairments, the evaluator identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).10 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11 Under Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices, including choices of diagnoses from regional grids and calculations of modifier scores.12

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish entitlement to a schedule award for his accepted left knee condition.

The A.M.A., Guides has been adopted as the uniform standard applicable to all claimants of a schedule award.13 Before the A.M.A., Guides can be utilized, however, a description of the claimant’s impairment must be obtained from his or her physician.14 The description must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly visualize the impairment with its resulting restrictions and limitations.15 In this case, by letter dated May 17, 2012, OWCP informed appellant of the type medical evidence needed to support his claim. Appellant did not respond.

Appellant stated on appeal that medical information was forwarded to OWCP. The record before the Board contains no recent medical evidence. The last medical evidence of record is a March 7, 1997 attending physician’s report in which Dr. Rush indicated that appellant could return to full duty.

7
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
8
FECA Bulletin No. 09-03 (issued March 15, 2009).
9
A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A Contemporary Model of Disablement.” 10 Id. at 494-531.
11
Id. at 521.
12
Id. at 23-28.
13
20 C.F.R. § 10.404(a).
14
A.A., 59 ECAB 726 (2008).
15
Id.

3
Without the necessary reasoned medical opinion evidence establishing the type and extent of appellant’s impairment correlated with the A.M.A., Guides and explaining the causal relationship between these findings and the accepted employment injury, appellant has failed to establish that he sustained a permanent impairment as a result of his accepted conditions.16

Appellant may request a schedule award or increased schedule award based on evidence of a new exposure or medical evidence showing progression of an employment-related condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant did not establish that he was entitled to a schedule award for the accepted left knee conditions.

ORDER

IT IS HEREBY ORDERED THAT the June 22, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: April 1, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

16
See S.B., Docket No. 12-1489 (issued January 25, 2013).

4