D.G. and U.S. Postal Service, Post Office, Greensboro, NC (Board decision, March 25, 2016)

ECAB final decision. The Board affirmed OWCP’s May 28, 2015 schedule award decision for five percent permanent left arm impairment. 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

D.G., a Postal Service mail carrier, had an accepted left shoulder condition and surgery for a rotator cuff tear. Her physician rated her arm impairment at 10 percent but did not explain his calculation under the applicable impairment guide. OWCP's medical adviser supported a five percent rating using the guide's table for a full-thickness rotator cuff injury. The Board affirmed the five percent award because the higher rating lacked adequate findings and explanation.

Decision snapshot

• Authority: 5 U.S.C. § 8107.
• Outcome: OWCP's May 28, 2015 schedule award affirmed.
• Key point: The physician's 10 percent rating lacked a supported calculation under the impairment guide.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.G., Appellant
)
)
and ) Docket No. 16-0221
) Issued: March 25, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
Greensboro, NC, 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 November 16, 2015 appellant filed an appeal of a May 28, 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(e), the Board has jurisdiction to consider the merits of this case.

ISSUE

The issue is whether appellant has established more than five percent permanent impairment of her left upper extremity.

FACTUAL HISTORY

Appellant, a 55-year-old mail carrier, filed an occupational disease claim (Form CA-2) on September 13, 2013 alleging that she developed a left shoulder condition causally related to

1
5 U.S.C. § 8101 et seq. employment factors. OWCP accepted the claim for disorder of bursae and tendons in the left shoulder.

On November 1, 2013 appellant underwent arthroscopic surgery on her left shoulder to ameliorate the following conditions: impingement with high grade partial thickness or possibly full-thickness damage to the supraspinatus and biceps tendinopathy; and full thickness supraspinatus tear at the tuberosity. The procedure was performed by Dr. Donald A. Campbell, Board-certified in orthopedic surgery.

On December 8, 2014 appellant filed a claim for a schedule award (Form CA-7) based on a partial loss of use of her left upper extremity.

In a December 3, 2014 report, Dr. Campbell related findings from a functional capacity evaluation. He thereafter concluded that appellant had 10 percent permanent of the left shoulder and left arm. Dr. Campbell offered no explanation as to how he calculated appellant’s degree of permanent impairment. He did not indicate that this rating was made in conformance with the American Medical Association, Guides to the Evaluation of Permanent Impairment (sixth edition) (A.M.A., Guides).2

In an April 3, 2015 report, an OWCP medical adviser reviewed Dr. Campbell’s November 1, 2013 surgical report and December 3, 2014 report and found that appellant had a five percent left upper extremity impairment under the A.M.A., Guides. He calculated this rating by finding that she had a class 1 impairment for rotator cuff injury, full thickness tear at Table 15- 5, page 403 of the A.M.A., Guides,3 the shoulder regional grid for rating upper extremity impairments. The medical adviser found that appellant had a grade C impairment which corresponded to five percent permanent impairment, for residual loss, functional with normal motion.

By decision dated May 28, 2015, OWCP granted appellant a schedule award for five percent permanent impairment of the left upper extremity for the period December 13, 2014 to April 1, 2015, for a total of 15.6 weeks of compensation.

LEGAL PRECEDENT

The schedule award provision of FECA4 and its implementing regulations5 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

2
A.M.A., Guides (6th ed. 2nd prtg. 2009).
3
A.M.A., Guides at 403.
4
5 U.S.C. § 8107.
5
20 C.F.R. § 10.404.

2 all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, the Office began using the A.M.A., Guides (6th ed. 2009).7

It is the claimant’s burden to establish that she has sustained a permanent impairment of the scheduled member or function as a result of any employment injury.8 Before an award may be made, it must be medically determined that no further improvement can be anticipated and the impairment must reach a fixed and permanent state, which is known as maximum medical improvement.9 OWCP procedures provide that, to support a schedule award, the file must contain competent medical evidence which describes the impairment in sufficient detail so that it can be visualized on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.10

The sixth edition of the A.M.A., Guides requires identifying the impairment class 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). The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11

ANALYSIS

OWCP procedures provide that, after obtaining all necessary medical evidence, the file should be routed to OWCP medical adviser for an opinion concerning the nature and percent of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the percentage of impairment specified.12

OWCP accepted appellant’s September 13, 2013 occupational disease claim for disorder of bursae and tendons of the left shoulder and authorized surgery for full-thickness supraspinatus tear. Dr. Campbell, appellant’s treating physician, rated 10 percent permanent impairment of appellant’s left arm and left shoulder. He, however, did not render this rating in accordance with the A.M.A., Guides, and OWCP procedures. Dr. Campbell’s report did not provide sufficient objective medical findings which would allow the visualization of appellant’s permanent

6
Id.
7
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013). 8 Tammy L. Meehan, 53 ECAB 229 (2001).
9
Supra note 7 at Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1) (January 2010).
10
Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.7 (February 2013).
See A.A., Docket No. 16-0041 (issued February 11, 2016).
11
Supra note 2 at 411.
12
See supra note 7 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f) February 2013).

3 impairment.13 Furthermore, he offered no explanation as to how he rated appellant’s impairment under the A.M.A., Guides.

OWCP’s medical adviser calculated a five percent upper extremity impairment for the left shoulder by relying on Table 15-5 on page 403 of the A.M.A., Guides. He found that appellant had a class 1 impairment for rotator cuff injury, full thickness tear at Table 15-5, page 403 of the A.M.A., Guides. The medical adviser found that appellant had a grade C impairment which corresponded to a five percent impairment rating, for residual loss, functional with normal motion. The Board finds that the April 3, 2015 impairment rating of OWCP’s medical adviser was rendered in conformance with the sixth edition of the A.M.A., Guides. Accordingly, as OWCP’s medical adviser provided the only impairment rating of record rendered in accordance with the applicable protocols and tables of the A.M.A., Guides, OWCP properly found that appellant was not entitled to a schedule award greater than five percent impairment in its May 28, 2015 decision.

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 established that she has more than five percent permanent impairment of her left upper extremity.

13
Id.

4
 ORDER

IT IS HEREBY ORDERED THAT the May 28, 2015 decision of the Office of Workers’ Compensation Programs be affirmed.

Issued: March 25, 2016
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

5