T.S. and U.S. Postal Service, Post Office, Grand Rapids, MI (Board decision, March 22, 2013)

ECAB final decision. The Board reversed OWCP's denial of an increased schedule award and remanded with instructions to award T.S. an additional 30 percent impairment of the right leg. 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

T.S., a postal worker, had a right leg amputation below the knee after a work injury and had received a schedule award for 70 percent impairment. He requested a higher award. The Board held that FECA treats an amputation above the ankle as loss of the leg, so the statutory rule controls over a lower rating under the impairment guide. It found T.S. entitled to a 100 percent leg impairment award and directed OWCP to pay the remaining 30 percent.

Decision snapshot

• Authority: Schedule award for loss of a leg and amputation above the ankle, 5 U.S.C. § 8107(c)(2), (c)(16).
• Outcome: October 25, 2012 denial reversed; remanded to award an additional 30 percent leg impairment.
• Key point: FECA's express amputation rule supersedes a lower impairment guide rating.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.S., Appellant
)
)
and ) Docket No. 13-281
) Issued: March 22, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Grand Rapids, MI, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On November 20, 2012 appellant, through his attorney, filed a timely appeal from an October 25, 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 schedule award decision.

ISSUE

The issue is whether appellant has more than a 70 percent permanent impairment of the right lower extremity.

FACTUAL HISTORY

On May 6, 2004 appellant, then a 57-year-old review clerk, filed a traumatic injury claim alleging that on May 2, 2004 he fractured his heel when he fell down stairs. OWCP accepted the

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5 U.S.C. § 8101 et seq. claim for a right comminuted calcaneus fracture, a postoperative infection, chronic osteomyelitis and a traumatic unilateral amputation of the leg.

Appellant underwent surgery on June 1, 2004 to repair the fracture. Following the surgery he developed osteomyelitis. On December 11, 2004 appellant underwent an amputation below the right knee.

In an impairment evaluation dated January 31, 2006, Dr. Perry W. Greene, Jr., an orthopedic surgeon and OWCP referral physician, found that appellant had “an amputation of his right leg seven inches below the knee on the right side” as a result of his employment injury. He determined that, according to the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides), appellant had a 28 percent permanent impairment. On June 4, 2006 an OWCP medical adviser reviewed Dr. Greene’s report and found that appellant had a 70 percent permanent impairment of the lower extremity.

By decision dated June 30, 2006, OWCP granted appellant a schedule award for a 70 percent permanent impairment of the right lower extremity. The period of the award ran for 201.60 weeks from January 31, 2006 to December 12, 2009.

In a November 16, 2010 impairment evaluation, Dr. William N. Grant, a Board-certified internist, discussed appellant’s history of injury and noted that he had a below-knee amputation on the right side. He diagnosed right peripheral vascular disease, klebsiella pneumonia, a right amputation, a closed fracture of the calcaneus, right postoperative wound infection, a right open wound on the foot, right ankle joint pain and chronic osteomyelitis of the right ankle. Citing the sixth edition of the A.M.A., Guides, Dr. Grant identified the diagnosis as a class 4 amputation under Table 16-16 on page 542. He applied grade modifiers of 4 for Functional History (GMFH) and Physical Examination (GMPE) to find no net adjustment. Dr. Grant concluded that appellant had an 80 percent impairment of the right lower extremity “based on his history, inclusive of multiple surgeries, postop[erative] wound infection and daily severe pain.”

On April 21, 2011 an OWCP medical adviser reviewed the medical evidence and noted that Dr. Grant applied the diagnosis set forth in Table 16-16 for an amputation three inches below the knee, which yielded a default value of 80 percent. He questioned the measurement for the amputation and noted that a standard amputation would be greater than three inches below the knee, which would yield a default value of 70 percent. OWCP’s medical adviser applied grade modifiers and found that appellant had a 70 percent permanent impairment of the right lower extremity.

By letter dated May 31, 2011, OWCP requested that appellant’s attorney provide additional information from Dr. Grant regarding the length of the amputation.

In a November 3, 2011 response, Dr. Grant opined that the A.M.A., Guides did not require a specific measurement. He advised that appellant had an 80 percent impairment of the right lower extremity.

On November 17, 2011 an OWCP medical adviser related that he was unable to provide the extent of an impairment rating without the measurement of appellant’s stump. He then concurred with the prior finding of a 70 percent lower extremity impairment rating.

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By decision dated April 30, 2012, OWCP denied appellant’s claim for an increased schedule award. It found that the evidence did not establish more than the previously awarded 70 percent impairment of the right lower extremity.

On May 4, 2012 appellant, through his attorney, requested a telephone hearing before an OWCP hearing representative. At the telephone hearing, held on August 15, 2012, his attorney argued that he had total loss of function due to his amputation and thus should receive a schedule award for a 100 percent loss of use of the leg.

By decision dated October 25, 2012, OWCP’s hearing representative affirmed the April 30, 2012 decision.

LEGAL PRECEDENT

The schedule award provision of FECA,2 and its implementing federal regulations,3 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.4 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.5

ANALYSIS

OWCP accepted that appellant sustained a right comminuted calcaneus fracture, a postoperative infection, chronic osteomyelitis and a traumatic unilateral amputation of the leg below the right knee due to a May 2, 2004 employment injury. On June 30, 2006 it granted him a schedule award for a 70 percent permanent impairment of the right lower extremity. In decisions dated April 30 and October 25, 2012, it denied appellant’s request for an additional schedule award after finding that the medical evidence did not support a greater impairment under the sixth edition of the A.M.A., Guides.

The Board finds that appellant is entitled to a schedule award for a 100 percent permanent impairment of the right lower extremity. Section 8107(c)(16) of FECA provides that, if an arm or leg is amputated above the wrist or ankle, compensation is the same as for loss of the arm or leg, respectively. Appellant underwent an amputation of his right leg below the knee that was causally related to his employment. Therefore, as the statute supersedes the A.M.A.,

2
5 U.S.C. § 8107.
3
20 C.F.R. § 10.404.
4
Id. at § 10.404(a).
5
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

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Guides, he is entitled to impairment equal to that of the loss of a leg.6 OWCP’s decision, consequently, is reversed and the case remanded for it to award appellant an additional 30 percent impairment of the right leg due to his leg amputation above the ankle.

CONCLUSION

The Board finds that appellant is entitled to a schedule award for a 100 percent impairment of the right lower extremity.

ORDER

IT IS HEREBY ORDERED THAT the October 25, 2012 decision of the Office of Workers’ Compensation Programs is reversed and the case is remanded for further proceedings consistent with this opinion of the Board.

Issued: March 22, 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

6
5 U.S.C. § 8107(c)(2), (c)(16); see also Chris J. Stasinopoulos, Docket No. 05-74 (issued June 23, 2005).

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