R.N. and U.S. Postal Service, Post Office, Springdale, AR (Board decision, May 25, 2018)

ECAB final decision. The Board affirmed OWCP’s November 7, 2016 schedule award for 12 percent right leg impairment and denied a larger rating. 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

R.N., a postal worker, had accepted knee and ankle conditions and underwent right knee surgery. He challenged OWCP’s award for 12 percent permanent right leg impairment. The Board found that OWCP’s medical adviser correctly applied the impairment guides to the surgical findings and that no qualifying evidence supported a higher percentage. It upheld the award and its duration.

Decision snapshot

• Authority: 5 U.S.C. § 8107.
• Outcome: November 7, 2016 award for 12 percent right leg impairment affirmed.
• Key point: The medical adviser’s guide based rating supported the existing award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.N., Appellant
)
)
and ) Docket No. 17-1123
) Issued: May 25, 2018
U.S. POSTAL SERVICE, POST OFFICE,
)
Springdale, AR, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On May 1, 2017 appellant filed a timely appeal from a November 7, 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.

ISSUE

The issue is whether appellant met his burden of proof to establish more than 12 percent permanent impairment of his right lower extremity, for which he previously received a schedule award.

FACTUAL HISTORY

On February 26, 2014 appellant then a 61-year-old city carrier, filed a claim for a traumatic injury (Form CA-1) alleging that, on February 6, 2014, he injured his lower extremities when he

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5 U.S.C. § 8101 et seq. slipped on ice and fell while delivering mail on his route. OWCP accepted his traumatic injury claim for right ankle sprain, right medial collateral ligament sprain, right medial meniscus tear, and bilateral chondromalacia patella. It also authorized a right knee arthroscopic procedure performed on June 10, 2014.2 In October 2014, appellant returned to work in a limited-duty capacity.

An October 21, 2014 functional capacity evaluation (FCE) performed by Steve Flory, physical therapist, also included a right lower extremity permanent impairment rating under the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (2009) (A.M.A., Guides). Mr. Flory based the 10 percent impairment rating on appellant having undergone partial medial and lateral meniscectomies.3

In a November 17, 2014 report, appellant’s surgeon, Dr. Powell, similarly found 10 percent right lower extremity permanent impairment under the A.M.A., Guides 509 (6th ed. 2009). He explained that appellant’s diagnosis of partial medial and lateral meniscal injury represented a “[c]lass 2” impairment Class of Diagnosis (CDX) under Table 16-3, A.M.A., Guides 509 (6th ed. 2009). The impairment range was 7 to 13 percent, with a default (C) lower extremity impairment of 10 percent. Dr. Powell assigned a grade modifier of 2 for Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS) for “moderate problem.” Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), he calculated that appellant had a net adjustment of (2-2) + (2-2) + (2-2) = 0, which equated to 10 percent permanent impairment of the right lower extremity.4

Appellant retired effective January 1, 2016. On June 11, 2016 he filed a claim for a schedule award (Form CA-7).

OWCP referred the case record to Dr. Michael M. Katz, a Board-certified orthopedic surgeon and district medical adviser (DMA). On July 26, 2016 Dr. Katz reviewed the medical evidence of record and determined that appellant had reached maximum medical improvement (MMI) as of October 21, 2014, the date of the FCE. He concurred with the diagnosis of partial medial and lateral meniscectomies, but noted that the correct class of impairment for this diagnosis was class 1, not class 2 as Dr. Powell previously indicated. Dr. Katz assigned a grade modifier of 2 for (GMFH) and a grade modifier of 1 for (GMPE).5 Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX), Dr. Powell calculated that appellant had a net adjustment of (2-1) + (1-1) + (n/a) = 1, which equated to a class 1, grade D impairment under Table 16-3, A.M.A., Guides 509 (6th ed. 2009). The final right lower extremity impairment rating was 12 percent.

2
Dr. Mark Powell, a Board-certified orthopedic surgeon, performed an arthroscopic right knee partial medial and lateral meniscectomies, chondroplasty, plica excision, and removal of loose bodies. 3 Table 16-3, Knee Regional Grid, A.M.A., Guides 509 (6th ed. 2009).
4
See section 16.3d, A.M.A., Guides 521 (6th ed. 2009).
5
He did not assign a grade modifier for clinical studies as it was not supported by the evidence of record.

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 By decision dated November 7, 2016, OWCP granted appellant a schedule award for 12 percent permanent impairment of his right lower extremity. The award ran for 34.56 weeks for the period October 21, 2014 to June 19, 2015.

LEGAL PRECEDENT

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.6 FECA, however, does not specify 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. The implementing regulations have adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.7 Effective May 1, 2009, schedule awards are determined in accordance with the sixth edition of the A.M.A., Guides (2009).8

After obtaining all necessary medical evidence, the case file should be routed to the DMA for an opinion concerning the nature and percentage of impairment in accordance with the A.M.A., Guides.9 The DMA should provide his or her rationale for the percentage of impairment specified.10

ANALYSIS

OWCP accepted appellant’s traumatic injury claim for right ankle sprain, right medial collateral ligament sprain, right medial meniscus tear, and bilateral chondromalacia patella. On June 10, 2014 appellant underwent OWCP-approved right knee arthroscopic surgery, which included partial medial and lateral meniscectomies. On November 7, 2016 OWCP granted him a schedule award for 12 percent permanent impairment of the right lower extremity. The award ran for a 34.56-week period from October 21, 2014 to June 19, 2015. It is appellant’s burden to submit sufficient evidence to establish the extent of permanent impairment.11

In his November 17, 2014 report, Dr. Powell indicated that appellant had 10 percent permanent impairment of the right (knee) lower extremity. He found that appellant’s partial medial and lateral meniscectomies represented a “class 2” impairment (CDX 2) under Table 16-3, A.M.A., Guides 509 (6th ed. 2009). However, a “partial medial and lateral” meniscectomy is only

6
For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C.
§ 8107(c)(2).
7
20 C.F.R. § 10.404.
8
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). 9 Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6f.
10
Id.
11
See Annette M. Dent, 44 ECAB 403 (1993).

3 a class 1 impairment (CDX 1) under Table 16-3. As a consequence of this classification error (CDX), Dr. Powell miscalculated the applicable net adjustment (0) and found only 10 percent permanent impairment of the right (knee) lower extremity.

In accordance with its procedures, OWCP properly referred the evidence of record to its DMA, Dr. Katz. In his July 26, 2016 report, Dr. Katz determined that appellant had reached MMI as of October 21, 2014, the date of the FCE. He concurred with Dr. Powell’s diagnosis of partial medial and lateral meniscectomy, but noted that the correct class of impairment for this diagnosis was a class 1. Dr. Katz assigned a grade modifier of 2 for functional history and a grade modifier of 1 for physical examination. He explained that the record did not support assignment of a grade modifier for clinical studies. Applying the net adjustment formula (GMFH 2 - CDX 1) + (GMPE 1 - CDX 1), the DMA found a net adjustment of +1, which represented a class 1, grade D impairment of 12 percent of the right lower extremity.

The Board finds that OWCP’s DMA applied the appropriate tables and grading schemes of the sixth edition of the A.M.A., Guides to Dr. Powell’s clinical findings. The DMA’s calculations were mathematically accurate. There is no other medical evidence of record utilizing the appropriate tables of the sixth edition of the A.M.A., Guides demonstrating a greater percentage of permanent impairment. For these reasons, the Board finds that OWCP properly relied on an OWCP DMA’s assessment of 12 percent permanent impairment of the right lower extremity, in granting appellant’s schedule award.

On appeal appellant contends that he had to use his own personal saved leave to get him to his retirement date of January 2, 2016 and is seeking a schedule award payment for the period June 19, 2015 to January 2, 2016. However, OWCP properly began the award on the date of MMI as found by OWCP’s DMA.12 The period covered by a schedule award commences on the date that the employee reaches MMI from the residuals of the employment injury.13 In this case, the period of award ran for 34.56 weeks, the amount of time statutorily mandated under FECA for 12 percent permanent impairment of the right lower extremity.14

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 met his burden of proof to establish more than 12 percent permanent impairment of his right lower extremity, for which he previously received a schedule award.

12
C.V., Docket No. 14-1449 (issued October 14, 2014).
13
Albert Valverde, 36 ECAB 233, 237 (1984).
14
5 U.S.C. § 8107(c)(2).

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 ORDER

IT IS HEREBY ORDERED THAT the November 7, 2016 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: May 25, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

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