K.J. and U.S. Postal Service, Post Office, Milwaukee, WI (Board decision, February 26, 2020)

ECAB final decision. The Board affirmed OWCP’s April 22, 2019 denial of a schedule award after an accepted left lower leg puncture wound. 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

A postal carrier sought a schedule award after a dog bite to her left calf at work. OWCP had accepted the puncture wound. The Board found that her doctors did not document maximum medical improvement or describe permanent impairment attributable to the accepted wound. It affirmed the award denial.

Decision snapshot

• Authority: FECA schedule award rule, 5 U.S.C. § 8107.
• Outcome: OWCP’s April 22, 2019 schedule award denial affirmed.
• Key point: The record lacked a medical assessment of permanent impairment from the accepted injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.J., Appellant
)
)
and ) Docket No. 19-1492
) Issued: February 26, 2020
U.S. POSTAL SERVICE, POST OFFICE,
)
Milwaukee, WI, 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, Deputy Chief Judge JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 1, 2019 appellant, through counsel, filed a timely appeal from an April 22, 2019 merit decision of the Office of Workers’ Compensation Programs.2 Pursuant to the Federal

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 Subsequent to OWCP’s April 22, 2019 decision, the Board issued a decision in this case on other issues. By decision dated June 19, 2019, the Board affirmed in part and set aside in part an August 30, 2018 OWCP decision. Docket No. 19-0131 (issued June 19, 2019). It found that appellant had not met her burden of proof to establish a recurrence of disability beginning March 1, 2016 due to her accepted August 19, 2015 employment injury. The Board further found, however, that the case was not in posture for decision regarding whether the acceptance of her claim should be expanded to include reflex sympathetic dystrophy (RSD)/complex regional pain syndrome (CRPS) and remanded the case for further development of the medical evidence on this issue. Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.4

ISSUE

The issue is whether appellant has met her burden of proof to establish permanent impairment of a scheduled member or function of the body, warranting a schedule award.

FACTUAL HISTORY

On August 21, 2015 appellant, then a 31-year-old carrier, filed a traumatic injury claim (Form CA-1) alleging that on August 19, 2015 she injured her left calf when a dog bit her while she was in the performance of duty. OWCP accepted the claim for a puncture wound to the left lower leg. It paid wage-loss compensation for intermittent time lost from work in October 2015.5

On October 20, 2017 appellant filed a claim for a schedule award (Form CA-7).6

In a development letter dated November 2, 2017, OWCP requested that appellant submit an impairment evaluation from her physician addressing whether she had reached maximum medical improvement (MMI) and evaluating the extent of permanent impairment, if any, in accordance with the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).7

Thereafter, OWCP received reports dated June 29, 2017 through June 19, 2018 from Dr. Matthew M. Richlen, Board-certified in family medicine. Dr. Richlen diagnosed RSD/CRPS and provided work restrictions.

3
5 U.S.C. § 8101 et seq.
4
The Board notes that following the April 22, 2019 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. 5 By decision dated April 8, 2016, OWCP denied appellant’s claim for wage-loss compensation from October 28 to 30, 2015. It found that the medical evidence was insufficient to establish disability from employment during the claimed period. 6 By decision dated June 7, 2016, OWCP denied appellant’s claim for a recurrence of disability. By decision dated November 22, 2016, an OWCP hearing representative affirmed the June 7, 2016 decision. He further found that the medical evidence was insufficient to support that appellant had sustained RSD due to her accepted employment injury. By decision dated March 24, 2017, OWCP denied modification of its November 22, 2016 decision. By decision dated September 27, 2017, it denied modification of its March 24, 2017 decision. By decision dated August 30, 2018, OWCP denied modification of its September 27, 2017 decision. 7 A.M.A., Guides (6th ed. 2009).

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 Appellant further submitted reports dated August 30 and November 1, 2017 from Dr. Steven James Donatello, a Board-certified anesthesiologist, who diagnosed RSD/CRPS and recommended a spinal cord stimulator.

By decision dated October 11, 2018, OWCP denied appellant’s schedule award claim finding that she had not submitted medical evidence addressing the relevant issue of whether she had reached MMI.

On October 19, 2018 appellant, through counsel, requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review.

On October 22, 2018 Dr. Richlen diagnosed RSD/CRPS and provided work restrictions.

A telephonic hearing was held on March 8, 2019. Appellant described her continued problems with her left leg. Counsel requested that OWCP hold the record open for 30 days for the submission of an impairment evaluation.

By decision dated April 22, 2019, OWCP’s hearing representative affirmed the October 11, 2018 decision. She found that appellant had not submitted evidence supporting that she had reached MMI or that she had sustained a permanent impairment causally related to her accepted employment injury.8

LEGAL PRECEDENT

The schedule award provisions of FECA,9 and its implementing federal regulation,10 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 loss of a member shall be determined. The method used in making such a determination is a matter which rests in the discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a single set of tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of permanent impairment according to the standards set forth in the specified edition of the A.M.A., Guides, published in 2009.11 The Board has approved the use by OWCP

8
OWCP’s hearing representative noted that the case was currently accepted for a dog bite, but that the Board had instructed OWCP to further develop the issue of whether appellant had sustained RSD/CRPS due to her accepted employment injury. 9 Supra note 3.
10
20 C.F.R. § 10.404.
11
For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

3 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.12

A claimant has the burden of proof under FECA to establish permanent impairment of a scheduled member or function as a result of his or her employment injury entitling him or her to a schedule award.13 Before the A.M.A., Guides can be utilized a description of impairment must be obtained from his or her 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 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.14

OWCP’s procedures provide that, if a claimant has not submitted an impairment evaluation, it should request a detailed report that “includes history of clinical presentation, physical findings, functional history, clinical studies or objective tests, analysis of findings, and the appropriate impairment based on the most significant diagnosis, as well as a discussion of how the impairment rating was calculated.”15 If the claimant does not provide an impairment evaluation, “and there is no indication of permanent impairment in the medical evidence of file, the CE [claims examiner] may proceed with a formal denial of the award.”16

It is the claimant’s burden of proof to establish that he or she has sustained a permanent impairment of a scheduled member or function of the body as a result of an employment injury.17 OWCP procedures provide that, to support a schedule award, the file must contain competent medical evidence which shows that the impairment has reached a permanent and fixed state and indicates the date on which this occurred (date of MMI), 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.18

12
P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).
13
See M.G., Docket No. 19-0823 (issued September 17, 2019); I.T., Docket No. 18-1049 (issued December 31, 2018).
14
K.F., Docket No. 18-1517 (issued October 9, 2019); A.T., Docket No. 18-0864 (issued October 9, 2018).
15
Supra note 11 at Chapter 2.808.6(a) (March 2017).
16
Supra note 11 at Chapter 2.808.6(c).
17
D.F., Docket No. 18-1337 (issued February 11, 2019).
18
Supra note 11 at Chapter 2.808.4 (March 2017).

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 ANALYSIS

The Board finds that appellant has not met her burden of proof to establish permanent impairment of a scheduled member or function of the body, warranting a schedule award.

Appellant submitted medical reports from Dr. Richlen diagnosing RSD/CRPS and providing work restrictions and from Dr. Donatello recommending a spinal cord stimulator trial. However, neither of these physicians addressed whether she had reached MMI or described a permanent impairment due to her accepted puncture wound.19 As noted, before the A.M.A., Guides can be utilized a description of impairment must be obtained from the claimant’s physician. The evaluation made by the attending physician must include a description of the impairment including, where 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.20 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.21

The Board finds that the medical reports of record do not establish that appellant’s accepted puncture wound had reached MMI, do not describe the impairment in sufficient detail so that it can be visualized on review, and do not compute the percentage of impairment in accordance with the A.M.A., Guides.22 On November 2, 2017 OWCP requested that she submit a medical opinion addressing whether she had reached MMI and the extent of permanent impairment; however, she did not provide such a rating. Accordingly, the Board finds that appellant has not met her burden of proof to establish her schedule award claim.23

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 met her burden of proof to establish permanent impairment of a scheduled member or function of the body, warranting a schedule award.

19
See K.F., Docket No. 18-1517 (issued October 9, 2019).
20
See S.W., Docket No. 19-1078 (issued January 9, 2020).
21
K.F., supra note 19; A.T., Docket No. 18-0864 (issued October 9, 2018).
22
C.T., Docket No. 18-0257 (issued May 21, 2019).
23
D.F., supra note 17.

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 ORDER

IT IS HEREBY ORDERED THAT the April 22, 2019 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 26, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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