G.S. and Department of the Army, Tank Automotive and Armaments Command (Board decision, April 12, 2017)

ECAB final decision. The Board set aside OWCP’s September 4, 2015 decision and remanded the case. 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

G.S., an Army employee, sought more than the seven percent permanent impairment award he had received for his left arm. The Board found that OWCP had not consistently applied its upper extremity impairment rating methods. It set aside the decision and sent the claim back for a uniform method and a new decision.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq., 5 U.S.C. § 8107.
• Outcome: September 4, 2015 left arm schedule award decision set aside and remanded.
• Key point: OWCP needed a consistent upper extremity impairment rating method.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
G.S., Appellant
)
)
and ) Docket No. 16-0377
) Issued: April 12, 2017
DEPARTMENT OF THE ARMY, TANK
)
AUTOMOTIVE & ARMAMENTS COMMAND,
)
Rock Island, IL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 28, 2015 appellant, through counsel, filed a timely appeal from a September 4, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 5 U.S.C. § 8101 et seq.
3
The Board notes that appellant submitted additional evidence to OWCP after it rendered its September 4, 2015 decision. The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R.
§ 501.2(c)(1).
 ISSUE

The issue is whether appellant established more than seven percent permanent impairment of the left upper extremity, for which he previously received a schedule award.

On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

FACTUAL HISTORY

On October 19, 2012 appellant, a 52-year-old machinist, filed a claim for a traumatic injury (Form CA-1) alleging injuries to his neck and left shoulder on October 5, 2012 as a result of moving a beam. Appellant returned to work on October 6, 2012.

In a December 7, 2012 letter, OWCP accepted the claim for left rotator cuff sprain, partial tear of left rotator cuff, left bicipital tenosynovitis, and left biceps tendon rupture. It authorized left shoulder surgery which was performed by Dr. Anthony D’Angelo, Jr., an orthopedic surgeon, on January 21, 2013.4

On April 18, 2014 appellant, through counsel, filed a claim for a schedule award (Form CA-7) and submitted medical evidence, including an April 15, 2014 report from Dr. D’Angelo who provided the following work restrictions: reaching and reaching above the shoulder one to two times per hour; pushing and pulling with the left upper extremity one to two times per hour; lifting no more than 10 pounds floor to waist, one to two times per hour; and overhead lifting no more than five pounds, one to two times per hour.5

In an April 28, 2014 letter, OWCP advised appellant of the deficiencies of his schedule award claim. It afforded him 30 days to submit additional evidence, including a medical report containing a detailed description of his permanent impairment based on the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (2009) (hereinafter A.M.A., Guides).

Subsequently, appellant submitted a June 24, 2014 report from Dr. D’Angelo who opined that appellant had reached maximum medical improvement as of April 8, 2014. He determined that appellant had 20 percent permanent impairment of the left upper extremity based on a diagnosis of recurrent or nonhealed rotator cuff tear of the left shoulder and an additional diagnosis of rupture of long head of left biceps tendon. Dr. D’Angelo asserted that Chapters 1, 2, and 15 of the sixth edition of the A.M.A., Guides were utilized to determine this impairment rating. Appellant was assigned to class 2 with modification based on a history of continued pain, decreased functional activity, range of motion, strength testing, and an arthrogram showing rotator cuff tear.

4
In his January 21, 2013 operative report, Dr. D’Angelo noted that appellant had a partial 70 percent tear of the left rotator cuff. He performed a left shoulder rotator cuff repair. 5 On May 7, 2014 OWCP referred appellant to vocational rehabilitation services to assist him in returning to work. Appellant returned to work at the employing establishment in a light-duty temporary assignment on June 2, 2014.

2
 On August 8, 2014 an OWCP medical adviser reviewed Dr. D’Angelo’s June 24, 2014 report and found that his 20 percent permanent impairment rating was unacceptable because it did not properly follow the A.M.A., Guides. The medical adviser explained that Dr. D’Angelo did not reference any specific grid diagnoses and failed to discuss appellant’s history or physical examination findings in terms of how they would allow class 2 modifications.

OWCP referred appellant to Dr. Farid Manshadi, a Board-certified physiatrist, for a second opinion evaluation to determine the nature and extent of any permanent impairment due to his accepted conditions. In an October 20, 2014 report, Dr. Manshadi reviewed a statement of accepted facts, appellant’s medical history, and reported findings from his physical examination. He found that appellant’s left shoulder range of motion was limited and using a goniometer found that forward flexion was 94 degrees, extension was 33 degrees, abduction was 92 degrees, external rotation was 25 degrees, internal rotation was 30 degrees, and adduction was 20 degrees. On manual muscle testing, left shoulder flexion and abduction were at 4/5, external rotation was 4+/5, internal rotation was 4+/5, and extension was 5-/5. Dr. Manshadi asserted that appellant sustained a work injury on October 5, 2012 which required left shoulder surgery but, postoperatively, he sustained further tear which was a full-thickness, nonretracted rotator cuff tear. He opined that appellant reached maximum medical improvement at the time of his assessment on October 1, 2014 and remained with reduced range of motion of the left shoulder, weakness of the rotator cuff, and weakness of the left elbow flexors, namely the biceps tendon. Dr. Manshadi concluded that appellant had seven percent permanent impairment of the left upper extremity based on use of the diagnosis-based impairment (DBI) method in Table 15-5,6 page 403, of the sixth edition of the A.M.A., Guides. He assigned appellant to class 1 for rotator cuff injury with a full-thickness tear equating a default impairment rating of five percent. Dr. Manshadi assigned a grade modifier of 3 for Functional History (GMFH), grade modifier of 2 for Physical Examination (GMPE), and grade modifier of 2 for Clinical Studies (GMCS), equaling a net adjustment of 4 for a total impairment rating of seven percent. He found that appellant had five percent permanent impairment for his distal biceps tendon rupture, but because this was lower than his rating for his rotator cuff injury, appellant had seven percent permanent impairment of the left arm.

On October 29, 2014 an OWCP medical adviser concurred with Dr. Manshadi’s seven percent impairment rating of the left upper extremity and maximum medical improvement date of October 1, 2014.

By decision dated November 25, 2014, OWCP granted appellant a schedule award for seven percent permanent impairment of the left upper extremity for 21.84 weeks for the period October 1, 2014 to March 2, 2015.

On December 8, 2014 counsel requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. Appellant submitted a January 12, 2015 report from Dr. Maruti Kari, an anesthesiologist who diagnosed left shoulder pain, rotator cuff tear, and possible subacromial bursitis. He also submitted a March 27, 2015 report from a registered nurse who provided the following permanent restrictions: 10-pound weight restriction with no

6
A.M.A., Guides 401-05, Table 15-5 of the sixth edition is entitled Shoulder Regional Grid.

3 work or lifting below waist; no climbing, working above shoulder-height, or operating hazardous machinery; and may drive company buggy.

In an April 16, 2015 report, Dr. D’Angelo explained that his impairment rating was determined using the Table 15-1, page 385, of the sixth edition of the A.M.A., Guides, which placed appellant in impairment class 2, default grade C. He based his functional history adjustment grade modifier of 3 on Table 15-7, page 406, for continued left shoulder pain that had increased over time and nighttime pain consistent with a rotator cuff tear. The grade modifier for physical examination was 1 based on Table 15-6, page 406, for consistent pain to palpation of the rotator cuff and pain against resistance with muscle strength testing. The grade modifier for clinical studies was 2 based on Table 15-6, page 406, and Table 15-9, page 410, for a magnetic resonance imaging (MRI) scan which revealed a rotator cuff tear. Dr. D’Angelo calculated that the net adjustment totaled zero, equaling 21 percent permanent impairment of the left arm. He indicated that his previous impairment rating of 20 percent was a typographical error.

A May 12, 2015 MRI scan of the left shoulder demonstrated moderate left acromioclavicular joint degenerative changes and irregular osteophytes.

A telephonic oral hearing was held before an OWCP hearing representative on June 24, 2015. The hearing representative held the case record open for 30 days for the submission of additional evidence.

In response, appellant submitted a June 23, 2015 report from Dr. Kari who reiterated his diagnoses and asserted that on February 18, 2015 a door slammed on appellant’s left shoulder and injured it.

On August 19, 2015 a registered nurse provided the following work restrictions for the period August 19 through September 16, 2015: no climbing; no work above shoulder height; no operating hazardous machinery or company vehicles; no lifting with left arm; and no driving. Appellant also submitted a September 1, 2015 report from an unidentifiable healthcare provider who advised that appellant was unable to perform his job functions due to an exacerbation of his chronic injury and reinjury to the left shoulder based on a left shoulder MRI scan that showed a full-thickness rotator cuff tear.

By decision dated September 4, 2015, an OWCP hearing representative affirmed the November 25, 2014 schedule award decision.

LEGAL PRECEDENT

Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules and regulations for the administration and enforcement of FECA. The Secretary of Labor has vested the authority to implement the FECA program with the Director of OWCP.7 Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use of specified members, functions, and organs of the body.8 FECA, however, does not specify

7
See 20 C.F.R. §§ 1.1-1.4.
8
For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).

4 the manner by which the percentage loss of a member, function, or organ shall be determined. To ensure consistent results and equal justice under the law, good administrative practice requires the use of uniform standards applicable to all claimants. Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.9

The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections, Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included various changes to the original text, intended to serve as an erratum/supplement to the first printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second printing of the sixth edition.

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition of the A.M.A., Guides (2009).10 The Board has approved the use by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the body for schedule award purposes.11

ANALYSIS

The issue on appeal is whether appellant established more than seven percent permanent impairment of the left upper extremity, for which he previously received a schedule award.

The Board finds that this case is not in posture for decision.

The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent interpretation has been followed regarding the proper use of the DBI or the range of motion methodology when assessing the extent of permanent impairment for schedule award purposes.12 The purpose of the use of uniform standards is to ensure consistent results and to ensure equal justice under the law to all claimants.13 In T.H., the Board concluded that OWCP physicians are at odds over the proper methodology for rating upper extremity impairment, having observed attending physicians, evaluating physicians, second opinion physicians, impartial medical examiners, and district medical advisers use both DBI and range of motion methodologies interchangeably without any consistent basis. Furthermore, the Board has observed that physicians interchangeably cite to language in the first printing or the second printing when justifying use of either range of motion or DBI methodology. Because OWCP’s

9
20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).
10
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013). 11 Isidoro Rivera, 12 ECAB 348 (1961).
12
T.H., Docket No. 14-0943 (issued November 25, 2016).
13
Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

5 own physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent results and equal justice under the law for all claimants.14

In light of the conflicting interpretation by OWCP of the sixth edition with respect to upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing regulations and/or internal procedures, to establish a consistent method for rating upper extremity impairment. In order to ensure consistent results and equal justice under the law for cases involving upper extremity impairment, the Board will set aside the September 4, 2015 decision. Following OWCP’s development of a consistent method for calculating permanent impairment for upper extremities to be applied uniformly, and such other development as may be deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity schedule award.

CONCLUSION

The Board finds this case not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the September 4, 2015 decision of the Office of Workers’ Compensation Programs is set aside, and the case is remanded for further action consistent with this decision.

Issued: April 12, 2017
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

14
Supra note 12.

6