J.B. and U.S. Postal Service, Post Office, New Orleans, LA (Board decision, June 18, 2015)

ECAB final decision. The Board affirmed OWCP’s September 10, 2014 denial of a schedule award. 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).

Plain-English summary

J.B., a Postal Service tractor trailer operator, had accepted neck and back sprains after a work-related vehicle collision. He requested a schedule award for permanent impairment. The Board found that his physician’s surgical reports contained no impairment rating or findings sufficient to evaluate one under the required standards. It affirmed the denial because the record did not establish a ratable permanent impairment.

Decision snapshot

• Authority: 5 U.S.C. § 8107 and 20 C.F.R. § 10.404, schedule awards.
• Outcome: September 10, 2014 schedule award denial affirmed.
• Key point: Surgical records without an impairment rating or adequate examination findings did not establish a schedule award claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.B., Appellant
)
)
and ) Docket No. 15-391
) Issued: June 18, 2015
U.S. POSTAL SERVICE, POST OFFICE,
)
New Orleans, LA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JAMES A. HAYNES, Alternate Judge

JURISDICTION

On December 9, 2015 appellant filed a timely appeal of a September 10, 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 established that he sustained impairment resulting from his accepted employment injuries.

On appeal appellant contends that, as he sustained permanent injuries as the result of his employment injury, he is entitled to a schedule award.

1
5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

On October 22, 2010 appellant, then a 61-year-old tractor trailer operator, filed a traumatic injury claim alleging that on that day he sustained neck and lower back injuries as a result of being rear-ended while driving a tractor trailer in the performance of duty. OWCP accepted the claim for lumbar and neck sprains.

On December 3, 2013 appellant filed a claim for a schedule award.

In a letter dated December 19, 2013, OWCP informed appellant of the medical evidence required to establish a schedule award claim. It also advised that any permanent impairment rating must use the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides). Appellant was given 30 days to provide the requested information.

In support of his claim appellant submitted surgical reports by Dr. David J. Wyatt, a treating physician Board-certified in orthopedic surgery. Diagnoses included L4-5 instability with spondylosis, status post motor vehicle accident and bilateral L4-5 and L5-S1 facet arthropathy with facet generated mechanical back pain. On March 18 and May 13, 2011 Dr. Wyatt performed bilateral L4-5 and L5-S1 facet block. In a July 8, 2011 report, he performed a bilateral L3-5 radiofrequency rhizotomy procedure on appellant.

By decision dated September 10, 2014, OWCP denied appellant’s claim for a schedule award as he failed to submit any medical report with an impairment rating or examination findings warranting review by an OWCP medical adviser.

LEGAL PRECEDENT

The schedule award provision of FECA2 and its implementing regulations3 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 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 has been adopted by the implementing regulations as the appropriate standard for evaluating schedule losses.4 Effective May 1, 2009, OWCP adopted the sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that date.5

2
Id. at § 8107.
3
20 C.F.R. § 10.404.
4
Id.
5
Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

2
 The sixth edition requires identifying the impairment for the Class of Diagnosis (CDX) condition which is then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).6 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides Newsletter, rating spinal nerve extremity impairment using the sixth edition (July/August 2009) is to be applied.7

ANALYSIS

OWCP denied appellant’s claim for a schedule award as the record did not include an impairment rating. Prior to denying his claim, it advised appellant of the need to submit an impairment rating under the A.M.A., Guides (6th ed. 2009). In support of his claim appellant submitted reports dated March 18, May 13, and July 8, 2011 from Dr. Wyatt. Dr. Wyatt’s surgical reports do not address impairment. In addition, these records do not include a sufficiently detailed description of impairment that would allow one to visualize the character and degree of appellant’s disability or whether appellant had reached maximum medical improvement.

Without a medical evaluation of permanent impairment under the sixth edition of the A.M.A. Guides, appellant has failed to establish a prima facie claim for a schedule award. The Board will therefore affirm OWCP’s September 10, 2014 decision.

On appeal appellant argues that he sustained permanent injuries as a result of the accepted employment injury and will need the money from a schedule award for future medical treatment. As noted above he has not submitted any medical evidence containing an impairment rating as requested by OWCP. Accompanying his appeal appellant resubmitted copies of Dr. Wyatt’s reports. As discussed above these reports are insufficient to establish his claim for a schedule award as they contain no impairment rating using the sixth edition of the A.M.A., Guides.

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 met his burden of proof to establish that he is entitled to a schedule award as a result of his accepted employment injuries.

6
A.M.A., Guides 494-531.
7
See L.S., Docket No. 13-1703 (issued March 5, 2014); G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, supra note 5 at Chapter 3.700, Exhibit 1, n.5 (January 2010). The Guides Newsletter is included as Exhibit 4.3.

3
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated September 10, 2014 is affirmed.

Issued: June 18, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

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

4