J.H. and U.S. Postal Service, Post Office, Drexel Hill, PA (Board decision, May 20, 2015)

ECAB final decision. The Board set aside OWCP’s December 5, 2014 decision and remanded J.H.’s schedule award case for further development. The extent of additional impairment remains 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

J.H., a postal letter carrier, sought a larger schedule award for impairment of both lower extremities. The Board had previously directed OWCP to explain how it applied the impairment guide’s criteria and grade modifiers. On remand, a new physician adopted the earlier rating without answering those questions. The Board found that OWCP had not complied with its prior decision. It set aside the new decision and ordered further development and a fresh determination of the impairment rating.

Decision snapshot

• Authority: FECA schedule award assessment under the sixth edition of the A.M.A. Guides.
• Outcome: December 5, 2014 decision set aside; case remanded for a new impairment decision.
• Key point: Adopting the earlier rating did not answer the Board’s questions about its calculation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.H., Appellant
)
)
and ) Docket No. 15-546
) Issued: May 20, 2015
U.S. POSTAL SERVICE, POST OFFICE,
)
Drexel Hill, PA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge

On January 13, 2015 appellant, through counsel, filed a timely application for review of the December 5, 2014 decision of the Office of Workers’ Compensation Programs (OWCP), which denied an increased schedule award.

On the prior appeal,1 the Board set aside OWCP’s November 18, 2013 decision and remanded the case for a de novo decision on the extent of appellant’s bilateral lower extremity impairment under Table 4-12, page 69 of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009). The Board found that neither Dr. Robert A. Smith, the Board-certified orthopedic surgeon and second opinion physician, nor OWCP medical adviser explained how they used the criteria of that table to determine appellant’s impairment. Although Dr. Smith placed the impairment in class 2, he did not explain how appellant met the criteria. He did not explain how appellant’s functional history

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Docket No. 14-333 (issued June 25, 2014). On September 8, 1998 appellant, a 46-year-old letter carrier, sustained an injury in the performance of duty when he lifted his mail satchel. OWCP accepted his claim for lumbosacral strain, displacement of an intervertebral disc, aggravation of lumbar degenerative disc disease, phlebitis, and thrombophlebitis. Appellant received a schedule award for 18 percent impairment of his right lower extremity and for 10 percent impairment of his left lower extremity. On July 17, 2012 OWCP issued a schedule award for an additional 10 percent impairment of the left lower extremity, for a total rating of 20 percent on that side. met the criteria for mild, nor did he explain how appellant’s physical findings met the criteria for mild on the right and moderate on the left.

OWCP referred appellant to Dr. Willie E. Thompson, a Board-certified orthopedic surgeon, but he simply adopted Dr. Smith’s earlier opinion, which he described as well-reasoned, clear, and succinct. An OWCP medical adviser agreed with Dr. Thompson’s conclusion.

The Board finds that OWCP has not complied with the Board’s June 25, 2014 decision.
The Board remanded the case for further development because neither Dr. Smith nor the OWCP medical adviser explained how appellant met the stated criteria for a class 2 impairment under Table 4-12, page 69 of the A.M.A., Guides, nor did they explain how they chose the relevant grade modifiers. As appellant’s representative correctly observes, the further development that OWCP undertook did nothing to resolve those issues. Dr. Thompson adopted Dr. Smith’s opinion without elaboration or clarification. The Board will therefore set aside OWCP’s December 5, 2014 decision and remand the case for further development that will answer the questions the Board raised in its June 25, 2014 decision. Following such development, OWCP shall issue a de novo decision on appellant’s bilateral lower extremity impairment under Table 4-12 of the A.M.A., Guides.

IT IS HEREBY ORDERED THAT the December 5, 2014 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action.

Issued: May 20, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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