B.V. and U.S. Postal Service, Main Post Office, Alexandria, LA (Board decision, March 13, 2018)

ECAB final decision. The Board affirmed OWCP’s October 14, 2016 denial of B.V.’s schedule award request. 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

B.V., a postal worker, sought a schedule award for permanent impairment. The Board found that he had not established permanent impairment of a member covered by the schedule award provision. It affirmed OWCP’s denial.

Decision snapshot

• Authority: 5 U.S.C. § 8107.
• Outcome: October 14, 2016 schedule award denial affirmed.
• Key point: A schedule award required proof of permanent impairment to a covered member.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.V., Appellant
)
)
and ) Docket No. 17-0656
) Issued: March 13, 2018
U.S. POSTAL SERVICE, MAIN POST OFFICE,
)
Alexandria, LA, 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
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 31, 2017 appellant filed a timely appeal from an October 14, 2016 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.2

ISSUE

The issue is whether appellant has established permanent impairment to a scheduled member entitling him to a schedule award.

1
5 U.S.C. § 8101 et seq.
2
Following issuance of the October 24, 2015 OWCP decision, appellant submitted new evidence to OWCP. The Board is precluded from reviewing evidence which was not before OWCP at the time of its final decision. Therefore, the Board lacks jurisdiction to review this additional evidence for the first time on appeal. See 20 C.F.R.
§ 501.2(c)(1).
 FACTUAL HISTORY

On March 14, 2013 appellant, then a 43-year-old carrier, filed a traumatic injury claim (Form CA-1) alleging that on that date he injured his right ankle in the performance of duty.3 OWCP accepted the claim for a right ankle sprain.

Appellant stopped work on March 13, 2013. His physician released him to resume his usual work on March 18, 2013.

On May 11, 2016 appellant filed a claim for a schedule award (Form CA-7). By letter dated May 20, 2016, OWCP requested that he submit a report from his attending physician addressing whether he had reached maximum medical improvement and the extent of any employment-related impairment in accordance with the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4

By decision dated October 14, 2016, OWCP denied appellant’s claim for a schedule award. It noted that he had not submitted evidence supporting a permanent impairment as requested.

LEGAL PRECEDENT

The schedule award provision of FECA,5 and its implementing federal regulation,6 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 for all claimants, OWCP has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

A claimant has the burden of proof under FECA to establish a permanent impairment of a scheduled member or function as a result of his employment injury entitling him to a schedule award.9 Before the A.M.A., Guides can be utilized a description of impairment must be obtained from his physician. In obtaining medical evidence required for a schedule award, the evaluation made by the attending physician must include a description of the impairment including, where 3 Subsequent to the employment injury the employing establishment properly executed a Form CA-16.
4
A.M.A., Guides (6th ed. 2009).
5
5 U.S.C. § 8107.
6
20 C.F.R. § 10.404.
7
Id. at § 10.404(a).
8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 9 See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

2 applicable, the loss in degrees of active and passive motion of the affected member or function, the amount of any atrophy or deformity, decrease in strength or disturbance of sensation or other pertinent descriptions of the impairment. This description must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly visualize the impairment with its resulting restrictions and limitations.10

ANALYSIS

OWCP accepted that appellant sustained a right ankle sprain due to a March 14, 2013 employment injury. On May 11, 2016 he filed a schedule award claim.

OWCP, on May 20, 2016, requested that appellant submit an impairment evaluation from his physician addressing the extent of any employment-related permanent impairment using the A.M.A., Guides. Appellant did not, however, submit an impairment evaluation or other medical evidence establishing permanent impairment. As noted, he must submit an evaluation from a physician that includes a description of impairment in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly visualize the impairment with its resulting restrictions and limitations.11 Appellant failed to submit any medical evidence establishing a permanent impairment due to his accepted right ankle sprain and thus has not met his burden of proof.12

Appellant may request a schedule award or increased schedule award at any time 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 permanent impairment to a scheduled member entitling him to a schedule award.

10
D.M., Docket No. 11-0775 (issued October 11, 2011); Peter C. Belkind, 56 ECAB 580 (2005).
11
See C.B., Docket No. 16-0060 (issued February 2, 2016).
12
See P.L., Docket No. 13-1592 (issued January 7, 2014).

3
 ORDER

IT IS HEREBY ORDERED THAT the October 14, 2016 decision of the Office of Workers’ Compensation Programs is affirmed.13

Issued: March 13, 2018
Washington, DC

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

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

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

13
The record contains a Form CA-16 dated March 14, 2013 and signed by the employing establishment. The Board has held that where an employing establishment properly executes a Form CA-16, which authorizes medical treatment as a result of an employee’s claim for an employment-related injury, it creates a contractual obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless of the action taken on the claim. See D.M., Docket No. 13-0535 (issued June 6, 2013); Val D. Wynn, 40 ECAB 666 (1989). See also 20 C.F.R. § 10.300; Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter 3.300.3(a)(3) (February 2012).

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