E.M. and U.S. Postal Service, Post Office, Byram, MS (Board decision, October 27, 2015)

ECAB remand decision. The Board set aside OWCP’s schedule award and sent the additional-impairment claim back for a new rating and decision; entitlement above 24 percent 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 of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

E.M., a postal driver, had accepted rotator cuff injuries and a prior award for 16 percent impairment of his right arm. After shoulder replacement surgery, OWCP awarded another eight percent based on a 24 percent rating from his surgeon and its medical adviser. The Board found that both physicians used the default rating for a shoulder implant without assessing functional history, examination findings, or clinical studies as the impairment guide required. It set aside the award and directed OWCP to obtain a supplemental rating and issue a new decision. The release dates the award July 8, 2015 in its factual history but calls it July 8, 2014 in its analysis and order.

Decision snapshot

• Authority: 5 U.S.C. § 8107; 20 C.F.R. § 10.404.
• Outcome: Schedule award set aside and remanded for a new impairment rating; the release gives conflicting years for the award date.
• Key point: The default shoulder implant rating required review of the grade modifiers before OWCP could set the final impairment percentage.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.M., Appellant
)
)
and ) Docket No. 15-1633
) Issued: October 27, 2015
U.S. POSTAL SERVICE, POST OFFICE,
)
Byram, MS, 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 ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On August 17, 2014 appellant filed a timely appeal from the July 8, 2015 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 has more than 24 percent impairment of his right upper extremity.

FACTUAL HISTORY

On May 11, 2006 appellant, a 52-year-old postal driver, sustained a traumatic injury in the performance of duty while forcefully pulling the stuck door of a general purpose container. OWCP accepted his claim for bilateral complete rotator cuff rupture. Appellant received a

1
5 U.S.C. § 8101 et seq. schedule award for 16 percent impairment of his right upper extremity and 9 percent impairment of his left upper extremity.

On June 11, 2013 appellant underwent a right reverse total shoulder arthroplasty and tenodesis of the biceps tendon. On February 6, 2014 Dr. Daniel P. Dare, the attending Board- certified orthopedic surgeon, reported that the arthroplasty was “doing actually quite well.” Range of motion was approximately 65 to 70 percent of normal. Pain was in the functional range with average strength. Appellant filed a claim for an increased schedule award.

In a decision dated November 19, 2014, OWCP denied an additional schedule award. It noted that Dr. Dare did not respond to a request for an impairment rating. Appellant acknowledged that his physician was not responding to the request for an impairment rating on his total right shoulder replacement. He therefore requested that OWCP refer him for a second opinion or to the district medical adviser.

OWCP referred appellant’s case to a medical adviser, who noted that the results of the June 11, 2013 surgery were satisfactory. Referring to Table 15-5, page 405, of the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009), the medical adviser noted that appellant’s right shoulder arthroplasty represented 24 percent permanent impairment of the upper extremity. As appellant had already received a schedule award for 16 percent impairment of his right upper extremity, he was entitled to an award for an additional 8 percent.

In March 2015 OWCP received a report from Dr. Dare, who apologized for the long delay, explaining the chart and associated documents were misplaced. Dr. Dare reviewed appellant’s history and found that he had done reasonably well following the arthroplasty. It was his opinion that appellant’s impairment was 24 percent of the right upper extremity.

Given the opinions of OWCP’s medical adviser and Dr. Dare, an OWCP hearing representative, reversed the November 19, 2014 denial of an increased schedule award and directed OWCP to pay additional benefits.

In a decision dated July 8, 2015, OWCP issued a schedule award for an additional eight percent impairment of appellant’s right upper extremity.

LEGAL PRECEDENT

The schedule award provision of FECA2 and the 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. FECA, however, does not specify the manner in which the percentage of loss shall be determined. The method used in making such a determination is a matter that rests within the sound discretion of OWCP.4

2
5 U.S.C. § 8107.
3
20 C.F.R. § 10.404.
4
Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

2
 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. OWCP has adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.6

ANALYSIS

Under the A.M.A., Guides, diagnosis-based impairment is the primary method of evaluation for the upper extremities. The first step is to choose the diagnosis that is most applicable for the region being assessed.7 Specific criteria for that diagnosis determine which class is appropriate: no objective problem, mild problem, moderate problem, severe problem, very severe problem approaching total function loss. The A.M.A., Guides assigns a default impairment rating for each diagnosis by class. This default impairment rating may then be adjusted using such grade modifiers as functional history, physical examination and clinical studies.8

Table 15-5, page 405, of the A.M.A., Guides shows that a shoulder arthroplasty implant represents a moderate impairment of the upper extremity ranging from 20 to 25 percent. The default impairment rating is 24 percent. Procedures require that the grade modifiers associated with functional history, physical examination, and clinical studies will be used to calculate a net adjustment that permits modification of the default value.9 In other words, once the impairment class is determined according to diagnostic criteria, the final impairment grade within a particular class is determined by the grade modifiers.10

Both, Dr. Dare, the attending surgeon, and OWCP’s medical adviser ignored appellant’s functional history, physical examination, and clinical findings. They simply found the default impairment value for a shoulder arthroplasty implant and stopped there. They did not follow the procedures for determining appellant’s final impairment.

The Board will therefore set aside OWCP’s July 8, 2014 decision and remand the case for further development of the medical evidence. OWCP shall obtain a supplemental report from its medical adviser that follows the impairment calculation methodology set forth in the A.M.A., Guides. The medical adviser shall address each grade modifier and identify the findings that justify each modification of grade. After such further development of the evidence as may

5
20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001).
6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (January 2010). 7 A.M.A., Guides 387, 389 (6th ed. 2009).
8
Id. at 497.
9
Id. at 405.
10
Id. at 409.

3 become necessary, OWCP shall issue a de novo decision on appellant’s claim for an additional schedule award.

CONCLUSION

The Board finds that this case is not in posture for decision. Further development of the medical evidence is warranted. The A.M.A., Guides requires the proper consideration of grade modifiers to determine appellant’s final impairment.

ORDER

IT IS HEREBY ORDERED THAT the July 8, 2014 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action.

Issued: October 27, 2015
Washington, DC

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

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

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

4