M.C. and Department of Homeland Security, Transportation Security Administration, Newark, NJ (Board decision, September 5, 2014)

ECAB remand decision. The Board set aside OWCP’s February 7, 2013 denial of a schedule award and returned the case for further medical development. Whether M.C. had a ratable hip-related leg impairment remained unresolved. 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).

Plain-English summary

M.C. sought a schedule award for permanent impairment. A referee physician recorded hip flexion of 100 degrees but also described the measurements as normal, and OWCP’s medical adviser did not address the range-of-motion finding. The Board found that the record left open whether a range-of-motion rating could apply under the adopted impairment guide. It set aside the denial and directed OWCP to obtain clarification from the referee physician before issuing a new decision.

Decision snapshot

• Authority: FECA schedule awards, 5 U.S.C. § 8107; scheduled body members, 20 C.F.R. § 10.404(a).
• Outcome: Schedule award denial set aside and remanded for medical clarification.
• Key point: The unexplained hip-flexion measurement could affect whether a leg impairment was ratable.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.C., Appellant
)
)
and ) Docket No. 13-1954
) Issued: September 5, 2014
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORATATION SECURITY
)
ADMINISTRATION, Newark, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On August 1, 2013 appellant, through counsel, filed a timely appeal from a February 7, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (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 an employment-related permanent impairment to a scheduled member or function of the body under 5 U.S.C. § 8107.

1
Under the Board’s Rules of Procedure, if the date of delivery of the notice of appeal (in this case August 12,
2013) would result in loss of appeal rights with respect to the 180-day time limitation for filing an appeal, the appeal will be considered to be filed as of the date of postmark. 20 C.F.R. § 501.3(e) and (f). In this case, the appeal was postmarked August 1, 2013, which is within 180 days of February 7, 2013. 2
5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

    The case has previously been before the Board. By decision dated September 12, 2012,

the Board remanded the case for further development of the medical evidence with respect to a schedule award.3 The Board noted that the referee physician, Dr. Andrew Carollo, a Board- certified orthopedic surgeon, had reported examination findings in a February 16, 2011 report that range of motion for hip flexion in both hips was 100 degrees, with normal reported as 120 degrees.4 The Board remanded the case for an OWCP medical adviser’s opinion as to whether the report from Dr. Carollo required clarification.

   On return of the case record, OWCP requested that an OWCP medical adviser review

Dr. Carollo’s report and provide an opinion with respect to a permanent impairment under the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). In a report dated October 16, 2012, the medical adviser stated that Dr. Carollo found no weakness or atrophy, normal reflexes and normal sensation. He did not discuss hip range of motion. The medical adviser opined that appellant had no impairment under the A.M.A., Guides.

   By decision dated November 30, 2012, OWCP found that appellant was not entitled to a

schedule award. On December 19, 2012 appellant requested a review of the written record. By decision dated February 7, 2013, the hearing representative affirmed the November 30, 2012 decision. He found that the weight of the medical evidence did not establish a permanent impairment.

                                         LEGAL PRECEDENT

   5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of

use of a member or function of the body, the claimant is entitled to a schedule award for the permanent impairment of the scheduled member or function.5 Neither FECA nor the regulations specify the manner in which the percentage of impairment for a schedule award shall be determined. For consistent results and to ensure equal justice for all claimants, OWCP has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition.7

3
Docket No. 12-790 (issued September 12, 2012).
4
Dr. Carollo had also stated that hip measurements “were within normal limits” without further explanation.
5
5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body are found at 20 C.F.R. § 10.404(a). 6
A. George Lampo, 45 ECAB 441 (1994).
7
FECA Bulletin No. 09-03 (issued March 15, 2009).

                                                      2

ANALYSIS

   In the present case, the Board had remanded the case for an OWCP medical adviser to

review the referee physician report, specifically with reference to Dr. Carollo’s findings with respect to the hips. OWCP asked a medical adviser to review Dr. Carollo’s report, although it did not specifically discuss the hip range of motion. The medical adviser did not comment on the question of hip range of motion.

   The Board notes that, under the A.M.A., Guides, an impairment based loss of range of

motion in the lower extremities may be determined in accord with section 16.7.8 This method is used “only if no other approach is available” to rate the impairment.9 The report from OWCP’s medical adviser indicates that a diagnosis-based method would not result in a ratable impairment. The medical adviser stated that Dr. Carollo found no weakness or atrophy, normal reflexes and normal sensation.

   A medical question remains, however, as to whether an impairment based on loss of

range of motion would be appropriate in this case. The 100 degrees of hip flexion range of motion reported by Dr. Carollo would result in a five percent leg impairment if a range of motion approach was utilized.10 To properly resolve the conflict, the referee physician, Dr. Carollo, must address his findings regarding hip flexion and specifically clarify his opinion as to an impairment under the A.M.A., Guides. OWCP should note the reported range of motion findings and the applicable provisions of the A.M.A., Guides with respect to an impairment based on loss of range of motion and secure a probative medical opinion from the referee physician that is sufficient to resolve the conflict. After such further development as OWCP deems necessary, it should issue an appropriate decision.

                                       CONCLUSION

    The Board finds that the case is not in posture for decision and is remanded to OWCP for

further development of the medical evidence.

8
A.M.A., Guides 543-53.
9
Id. at 552.
10
A.M.A., Guides 549, Table 16-24. Under Table 16-24, hip flexion of 80 to 100 degrees is a “mild” leg
impairment of five percent.

                                               3

ORDER

    IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated February 7, 2013 is set aside and the case remanded for further action consistent with this decision of the Board.

Issued: September 5, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4