A.T. and U.S. Postal Service, Post Office, Laguna Hills, CA (Board decision, June 24, 2014)

ECAB final decision and order. The Board affirmed OWCP’s denial of A.T.’s schedule award claim because the record did not establish permanent impairment from his accepted right hand conditions. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order 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

A.T., a postal distribution clerk, had accepted right hand conditions, including trigger finger, carpal tunnel syndrome and a ganglion cyst. He underwent surgery and later requested a schedule award for permanent impairment. OWCP asked for a physician’s report rating the impairment under the applicable guide, but the record contained no such report. The Board found that the surgery itself did not establish a ratable permanent impairment. It affirmed the denial despite earlier OWCP letters that had incorrectly suggested he was entitled to an award.

Decision snapshot

• Authority: FECA schedule award, 5 U.S.C. § 8107; 20 C.F.R. § 10.404(a).
• Outcome: February 6, 2014 denial of a schedule award affirmed.
• Key point: The record lacked a physician’s detailed permanent impairment evaluation for the accepted conditions.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.T., Appellant
)
)
and ) Docket No. 14-880
) Issued: June 24, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Laguna Hills, CA, 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 March 7, 2014 appellant filed a timely appeal from a February 6, 2014 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 sustained permanent impairment to a scheduled member or function of the body entitling him to a schedule award.

FACTUAL HISTORY

On March 17, 2008 appellant, then a 66-year-old distribution clerk, filed an occupational claim (Form CA-2) alleging injury to his right ring finger while sorting flats during his federal

1
5 U.S.C. § 8101 et seq. employment. OWCP accepted the claim on April 22, 2008 for trigger finger of the right ring finger. Appellant returned to work in a light-duty position.

In a report dated July 13, 2009, Dr. Neil Harness, a Board-certified orthopedic surgeon, reported that appellant was having bilateral hand numbness, right worse than left, with right ring and long finger triggering. He stated that appellant had a history of a carpal tunnel release four or five years earlier and current diagnostic testing revealed bilateral carpal tunnel syndrome, right greater than left. On August 19, 2009 appellant underwent surgery that included a right carpal tunnel release, right ring and long finger trigger finger release and ring finger ganglion cyst excision.

On February 25, 2013 appellant submitted a CA-7 claim form for a schedule award. By letter dated March 18, 2013, OWCP advised appellant that the medical evidence was not sufficient to establish permanent impairment due to the accepted condition. It requested that appellant submit a detailed medical report with respect to any permanent impairment under the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). In a letter dated March 25, 2013, appellant’s representative stated that if OWCP needed additional medical evidence, it should arrange for a proper examination.

By letter dated July 18, 2013, OWCP advised appellant that the claim was accepted for right carpal tunnel syndrome and right ganglion cyst.

In a decision dated February 6, 2014, OWCP determined that appellant was not entitled to a schedule award. It found the medical evidence of record was insufficient to establish that he sustained permanent impairment to the right upper extremity based on the accepted conditions.

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.2 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.3 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition.4

An employee seeking compensation for a permanent impairment under FECA has the burden of establishing the essential elements of the claim, including that an employment injury contributed to a permanent impairment of a scheduled member or function of the body.5 The 2 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). 3 A. George Lampo, 45 ECAB 441 (1994).
4
FECA Bulletin No. 09-03 (issued March 15, 2009).
5
See A.B., Docket No. 12-1392 (issued January 24, 2013).

2 medical evidence necessary to support a schedule award includes a physician’s detailed report that provides a sufficient description of the impairment.6

ANALYSIS

OWCP accepted that appellant sustained right trigger finger of the right hand, right carpal tunnel syndrome and a right ganglion cyst. There is no probative medical evidence, however, addressing any permanent impairment to the right arm under the A.M.A., Guides. The medical evidence necessary to support a schedule award is evidence that describes the impairment in detail, shows the impairment has reached maximum medical improvement and provides an opinion as to the percentage of impairment under the A.M.A., Guides.7 Appellant underwent right arm and hand surgery on August 19, 2009, performed by Dr. Harness. There is no medical report in the record describing any permanent impairment to the right hand or arm due to the accepted conditions. OWCP asked appellant in a March 18, 2013 letter for a medical report addressing permanent impairment. According to its procedures, if the claimant does not provide an impairment evaluation when requested, and there is no indication of permanent impairment in the medical record, it may proceed with a formal denial of the award.8

On appeal, appellant states that he was confused because OWCP had earlier indicated that he was entitled to a schedule award. The January 24 and February 6, 2013 letters were incorrect in advising appellant that he was entitled to a schedule award based on an August 19, 2009 surgery report, but the March 18, 2013 letter clarified that he needed to submit probative medical evidence with respect to establishing permanent impairment.

CONCLUSION

The Board finds that appellant has not established a permanent impairment to a scheduled member or function of the body entitling him to a schedule award under FECA.

6
See James E. Jenkins, 39 ECAB 860 (1988); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(b) (February 2013). 7 See A.W., Docket No. 13-621 (issued July 22, 2013); Federal (FECA) Procedure Manual, id. at Chapter 2.808.5(b) (February 2013).
8
Federal (FECA) Procedure Manual, id. at Chapter 2.808.6(c) (February 2013).

3
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated February 6, 2014 is affirmed.

Issued: June 24, 2014
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

4