S.A. and U.S. Postal Service, Post Office, Greensboro, NC (Board decision, April 7, 2016)

ECAB final decision. The Board set aside OWCP’s December 10, 2015 schedule award and returned the claim for further development. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

S.A., a Postal Service letter carrier, received a schedule award for three percent permanent impairment of her left arm after a wrist fracture at work. The Board found that OWCP's medical adviser selected the default impairment value under the applicable evaluation guide but did not calculate the required grade modifiers or apply the adjustment formula. Because OWCP had undertaken to develop the medical evidence, it had to obtain a complete rating. The Board set aside the award and directed OWCP to develop the impairment evidence and issue a new decision. It did not determine the correct impairment percentage.

Decision snapshot

• Authority: 5 U.S.C. § 8107; 20 C.F.R. § 10.404.
• Outcome: December 10, 2015 schedule award set aside and remanded for a complete impairment rating.
• Key point: The default wrist-impairment value alone did not complete the required evaluation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.A., Appellant
)
)
and ) Docket No. 16-0458
) Issued: April 7, 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 January 11, 2016 appellant filed a timely appeal from a December 10, 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 three percent permanent impairment of her left upper extremity, for which she received a schedule award.

FACTUAL HISTORY

On April 16, 2015 appellant, then a 54-year-old city letter carrier, filed a traumatic injury claim (Form CA-1) alleging that on April 16, 2015 she sustained a left wrist injury due to a fall

1
5 U.S.C. § 8101 et seq. at work. OWCP accepted that appellant sustained a left closed fracture at the lower end of the radius with the ulna.2

Appellant was treated conservatively for her left wrist fracture and she underwent a functional capacity evaluation on October 9, 2015.

In an October 22, 2015 report, Dr. Benjamin Graves, an attending Board-certified orthopedic surgeon, reported the findings of his physical examination of appellant. He indicated that appellant was able to flex and extend her wrists with near symmetric range of motion. Appellant’s left hand showed no gross deformity or lesions and light sensation was present in her left upper extremity. Dr. Graves indicated that the September 17, 2015 left wrist x-rays showed a healed fracture with no obvious bony abnormality and he diagnosed “other closed extra- articular fracture of distal end of left radius with routine healing.” He noted that, under the North Carolina Commission Rating Guide, appellant had five percent permanent impairment of her left hand.

On November 18, 2015 appellant filed a claim for compensation (Form CA-7) claiming a schedule award due to her accepted employment injury.

On November 30, 2015 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as an OWCP medical adviser, indicated that he had reviewed the medical evidence of record, including the October 22, 2015 examination findings of Dr. Graves. He found that, under the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides), appellant had three percent permanent impairment of her left upper extremity. Dr. Harris indicated that appellant reached maximum medical improvement on October 22, 2015 and noted, “For purposes of calculating [s]chedule [a]ward utilizing [the sixth edition of the A.M.A., Guides], the claimant has three percent upper extremity impairment for residual problems status post fracture left distal radius [Class of Diagnosis 1C] (Table 15-3/Page 396).”

By decision dated December 10, 2015, OWCP granted appellant a schedule award for three percent permanent impairment of her left upper extremity. It was based on the November 30, 2015 impairment rating of Dr. Harris, the OWCP medical adviser who reviewed the medical findings of record, including the October 22, 2015 examination findings of Dr. Graves. The award ran for 9.36 weeks from October 22 to December 26, 2015.

LEGAL PRECEDENT

The schedule award provision of FECA3 and its implementing regulations4 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

2
Appellant stopped work after her April 16, 2015 injury and received disability compensation on the daily rolls beginning June 5, 2015.
3
5 U.S.C. § 8107.
4
20 C.F.R. § 10.404.

2 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.5 The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.6

In determining impairment for the upper extremities under the sixth edition of the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity to be rated. With respect to the wrist, the relevant portion of the arm for the present case, reference is made to Table 15-3 (Wrist Regional Grid) beginning on page 395. After the Class of Diagnosis (CDX) is determined from the Wrist Regional Grid (including identification of a default grade value), the net adjustment formula is applied using the grade modifier for Functional History (GMFH), grade modifier for Physical Examination (GMPE), and grade modifier for Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE

• CDX) + (GMCS - CDX).7 Under Chapter 2.3, evaluators are directed to provide reasons for
  their impairment rating choices, including choices of diagnoses from regional grids and calculations of modifier scores.8

                                             ANALYSIS
  

  OWCP accepted that on April 16, 2015 appellant sustained a left closed fracture at the
  lower end of the radius with the ulna. On November 18, 2015 appellant filed a claim for compensation (Form CA-7) claiming a schedule award due to her accepted employment injury. By decision dated December 10, 2015, OWCP granted her a schedule award for three percent permanent impairment of her left upper extremity. The award was based on the November 30, 2015 impairment rating of Dr. Harris, a Board-certified orthopedic surgeon serving as an OWCP medical adviser. Dr. Harris reviewed the medical findings of record, including the October 22, 2015 examination findings of Dr. Graves, an attending Board-certified orthopedic surgeon.9

  On November 30, 2015 Dr. Harris indicated that he had reviewed the medical evidence of
  

  record, including the October 22, 2015 examination findings of Dr. Graves. He found that, under the sixth edition of the A.M.A., Guides, appellant had three percent permanent impairment of her left upper extremity. Dr. Harris noted, “For purposes of calculating [s]chedule [a]ward utilizing

5
Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6 (January 2010); and Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (January 2010). 6
Federal (FECA) Procedure Manual, Part 2 id. at Chapter 2.808.5a (February 2013).
7
See A.M.A., Guides 401-11 (6th ed. 2009). Table 15-3 also provides that, if motion loss is present for a claimant
who has certain wrist conditions denoted by an asterisk on the table, impairment may alternatively be assessed using section 15.7 (range of motion impairment). Such a range of motion impairment stands alone and is not combined with a diagnosis-based impairment. Id. at 397, 475-78. 8
Id. at 23-28.
9
The Board notes that Dr. Graves provided an impairment rating but that it was not calculated under the relevant
standards of the sixth edition of the A.M.A., Guides. See supra note 6.

                                                     3

[the sixth edition of the A.M.A., Guides], the claimant has three percent upper extremity impairment for residual problems status post fracture left distal radius [Class of Diagnosis 1C] (Table 15-3/Page 396).”

   The Board notes that Dr. Harris chose a diagnoses-based impairment (wrist fracture) for

appellant’s left upper extremity and assigned her condition the default value of three percent impairment under Table 15-3 of the sixth edition of the A.M.A., Guides.10 However, Dr. Harris did not perform a complete impairment rating evaluation in that he did not derive any grade modifiers (including those for functional history, physical examination, and clinical studies) or apply the net adjustment formula for appellant’s left upper extremity condition.11

    While the claimant has the burden to establish entitlement to compensation, OWCP

shares responsibility in the development of the evidence.12 Accordingly, once OWCP undertakes to develop the medical evidence, it has the responsibility to do so in the proper manner.13 Therefore, the case shall be remanded to OWCP to address the above-mentioned aspects of the OWCP medical adviser’s rating of appellant’s left upper extremity impairment. After carrying out such development, OWCP shall issue a de novo decision regarding appellant’s left upper extremity impairment.

                                             CONCLUSION

   The Board finds that the case is not in posture for decision regarding whether appellant

has more than three percent permanent impairment of her left upper extremity, for which she received a schedule award. The case is remanded to OWCP for further development.

10
A.M.A., Guides 396, Table 15-3.
11
See supra notes 7 and 8.
12
Russell F. Polhemus, 32 ECAB 1066 (1981).
13
See Robert F. Hart, 36 ECAB 186 (1984).

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ORDER

   IT IS HEREBY ORDERED THAT the December 10, 2015 decision of the Office of

Workers’ Compensation Programs is set aside and the case remanded to OWCP for further proceedings consistent with this decision of the Board.

Issued: April 7, 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

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