D.J. and U.S. Postal Service, Post Office, Milwaukee, WI (Board decision, June 21, 2013)

ECAB final decision. The Board affirmed OWCP’s denial of an additional schedule award for D.J.’s left arm. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.J., a postal distribution clerk, had previously received awards for six percent permanent impairment of her left arm. She sought another award based on an accepted left trigger finger condition. The Board found that her medical reports did not give an impairment rating for that condition. One physician described other arm problems and disability, but did not explain permanent impairment from the trigger finger. The Board upheld OWCP’s denial of an additional award.

Decision snapshot

• Authority: FECA schedule awards under 5 U.S.C. § 8107.
• Outcome: August 6, 2012 denial of an additional schedule award affirmed.
• Key point: The claimant needed a medical assessment of permanent impairment from the accepted trigger finger condition.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.J., Appellant
)
)
and ) Docket No. 13-662
) Issued: June 21, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Milwaukee, WI, Employer
)
__________ )

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On January 28, 2013 appellant filed a timely appeal from an August 6, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for 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 more than six percent impairment of the left arm.

FACTUAL HISTORY

On November 20, 1995 appellant, then a 50-year-old distribution clerk, sustained an injury as a result of lifting a tray out of an all-purpose container. OWCP accepted the claim for right shoulder strain, right rotator cuff with subacromial decompression, right shoulder arthroscopy. It subsequently accepted left lateral epicondylitis in File No. xxxxxx835.

1
5 U.S.C. § 8101 et seq.
Appellant also had a claim accepted for left trigger finger in File No. xxxxxx214. OWCP combined the claims into master File No. xxxxxx835.

On December 22, 1997, a district medical adviser (DMA) confirmed an impairment rating of 15 percent of the right upper extremity due to rotator cuff tendinitis in claim File No. xxxxxx835.

On August 8, 2000 a medical adviser confirmed an impairment rating of five percent of the left upper extremity due to left elbow lateral epicondylitis with a date of maximum medical improvement (MMI) of April 19, 2000. Appellant received a schedule award for a 15 percent permanent impairment of the right upper extremity and 5 percent permanent impairment of the left upper extremity, File No. xxxxxx835.

On June 7, 2004 appellant underwent left elbow arthroscopy with synovial debridement, left lateral epicondylar release with ostectomy and a left shoulder cortisone injection.

On January 23, 2003 appellant submitted a request for an additional schedule award. On June 23, 2003 the DMA indicated that no additional impairment was warranted.

By decision dated October 14, 2003, OWCP denied appellant’s claim for an increased schedule award in File No. xxxxxx835.

On June 17, 2004 appellant filed a CA-7 claim for schedule award benefits. An authorization for impairment rating was forwarded to Dr. Eric Gaenslen, a Board-certified orthopedic surgeon. In an August 30, 3005 report, Dr. Gaenslen calculated a permanent impairment of four percent of the left upper extremity at the elbow with a date of MMI as August 30, 2005. In an August 31, 2005 report, he recommended zero percent impairment of the left thumb, noting the MMI date as September 15, 2004. The medical evidence of record was referred to a medical adviser for review.

In a February 28, 2006 report, the DMA calculated an additional one percent impairment for the lateral epicondylitis according to the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). No additional impairment was given for the left thumb due to lack of documented residual impairment.2

By decision dated May 31, 2006, appellant was granted a schedule award for an additional one percent of the left upper extremity, or a total of six percent left arm impairment3

On September 19, 2009 appellant filed a claim for a schedule award for her accepted left trigger finger.

2
FECA Bulletin No. 09-03 (issued March 15, 2009). FECA Bulletin No. 09-03 was incorporated in the Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a) (January 2010). 3 File No. xxxxxx835.

2
By letter dated October 8, 2009, OWCP requested that appellant submit an impairment evaluation from her attending physician in accordance with the sixth edition of the A.M.A., Guides.4 It provided 30 days to submit the requested information.

Appellant submitted a January 8, 2010 x-ray of her left elbow and a January 31, 2010 medical report from Dr. Gaenslen who diagnosed symptoms of ulnar nerve compression at the level of the elbow or possibly wrist and some lesser rotator cuff impingement syndrome.

By decision dated June 8, 2010, OWCP denied appellant’s claim for a schedule award. It found that the medical evidence was not sufficient to establish impairment as a result of appellant’s left trigger finger condition.

On May 5, 2011 appellant requested reconsideration of OWCP’s decision. She submitted a July 8, 2010 magnetic resonance imaging (MRI) scan of the left shoulder, a July 19, 2010 diagnostic report documenting an MRI scan of the cervical spine and unsigned treatment notes dated June 30 through August 11, 2010.

In an undated attending physician’s report, Dr. Devinder Verma, a treating physician, diagnosed cervical radiculopathy and left ulnar neuropathy from lifting and bending at work over time. In a July 12, 2010 report, Dr. Robert Taylor, Board-certified in physical medicine and rehabilitation, documented appellant’s treatment and diagnosed left ulnar neuropathy at the elbow.

By decision dated May 31, 2011, OWCP affirmed the June 8, 2010 decision, finding that the medical evidence of record failed to establish that appellant had greater impairment to her left arm.

Appellant requested reconsideration. In an April 11, 2012 note, Dr. Verma stated that appellant’s condition had reached MMI since July 2010. He noted chronic left ulnar neuropathy, tendinitis of left elbow and pain and weakness of the left hand and elbow. Dr. Verma opined that appellant had moderate-to-severe disability based on 50 to 70 percent degrees of active and passive motion of the left elbow and hand.

By decision dated August 6, 2012, OWCP affirmed the May 31, 2011 decision finding that the evidence of record failed to establish that appellant had more than six percent impairment of the left arm.

LEGAL PRECEDENT

The schedule award provision of FECA and its implementing regulations 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.5 However, FECA does not 4 A.M.A., Guides (2009). 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. The applicable date of the sixth edition is as of the schedule award decision reached. It is not determined by either the date of MMI or when the claim for such award was filed. 5 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

3 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. The A.M.A., Guides (6th ed.) has been adopted by the implementing regulations as the appropriate standard for evaluating schedule losses.6

It is the claimant’s burden to establish that he or she has sustained a permanent impairment of the scheduled member or function as a result of any employment injury7. OWCP procedures provide that, to support a schedule award, the file must contain competent medical evidence which shows that the impairment has reached a permanent and fixed state and indicates the date on which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized on review and computes the percentage of impairment in accordance with the A.M.A., Guides.8

The sixth edition requires identifying 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).9 The net adjustment formula is GMFH-CDX + GMPE-CDX + GMCS-CDX.

ANALYSIS

Appellant received schedule awards for left arm impairment of six percent for left lateral epicondylitis.

OWCP also accepted appellant’s claim for left trigger finger due to an employment- related work injury. On September 19, 2009 appellant filed a claim for a schedule award. By decisions dated June 8, 2010, May 31, 2011 and August 6, 2012, OWCP denied her claim, finding that she had not submitted sufficient medical evidence to establish greater permanent impairment resulting from this condition.

Appellant has not submitted sufficient evidence to establish that her left trigger finger condition resulted in permanent impairment to her left arm. By letter dated October 8, 2009, OWCP informed her of the evidence necessary to establish her schedule award claim and requested that she submit an impairment evaluation from her attending physician in accordance with the sixth edition of the A.M.A., Guides.

Appellant submitted various reports, including diagnostic studies, unsigned treatment notes and medical reports documenting continued treatment for her cervical condition and left

6
K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010). 7 Tammy L. Meehan, 53 ECAB 229 (2001).
8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(b) (August 2002). 9 A.M.A., Guides 494-531.

4 elbow. None of these reports addressed her left trigger finger or provided any impairment rating based on this condition.

The April 11, 2012 medical note from Dr. Verma stated that appellant’s impairment had reached MMI since July 2010. Dr. Verma noted chronic left ulnar neuropathy, tendinitis of left elbow and pain and weakness of the left hand and elbow. He opined that appellant had moderate-to-severe disability based on 50 to 70 percent degrees of active and passive motion of the left elbow and hand. Dr. Verma did not provide a specific rating of the left trigger finger condition.

The Board finds that Dr. Verma’s report is not sufficient to establish greater impairment.
The Board notes that OWCP procedures provide that maximum medical improvement must be reached before a schedule award can be made.10 Dr. Verma noted appellant’s ulnar neuropathy and tendinitis of the left elbow but failed to discuss appellant’s left trigger finger. The report is insufficient to establish that appellant sustained any permanent impairment due to left trigger finger.

It is appellant’s burden of proof to establish that she sustained a permanent impairment of a scheduled member as a result of an employment injury.11 The medical evidence must include a description of any physical impairment in sufficient detail so that the claims examiner and others reviewing the file would be able to clearly visualize the impairment with its resulting restrictions and limitations.12 Appellant did not submit such evidence and thus, OWCP properly denied her schedule award claim.13

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 has not established that she is entitled to a schedule award.

10
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1) (October 1990).
11
See supra note 7.
12
See A.L., Docket No. 08-1730 (issued March 16, 2009).
13
V.W., Docket No. 09-2026 (issued February 16, 2010); L.F., Docket No. 10-343 (issued November 29, 2010).

5
ORDER

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ decision dated August 6, 2012 is affirmed.

Issued: June 21, 2013
Washington, DC

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

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

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

6