P.W. and U.S. Postal Service, North Shepherd Post Office (Board decision, April 25, 2024)

ECAB final decision. The Board affirmed OWCP’s refusal to award more than six percent permanent impairment of the employee’s right arm. A party may petition the Board for reconsideration within 30 days of issuance unless this order 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

A postal carrier technician developed accepted carpal tunnel syndrome after repetitive hand work. She received a schedule award for six percent permanent impairment of the right arm and sought a larger award. Her treating physician’s rating and the district medical adviser’s review both supported six percent. The Board found no medical basis for a higher rating and affirmed OWCP’s January 26, 2024 decision.

Decision snapshot

• Authority: Schedule awards under 5 U.S.C. § 8107(c).
• Outcome: No increase beyond six percent right arm impairment.
• Key point: The submitted impairment ratings supported the percentage already awarded.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.W., Appellant
)
)
and ) Docket No. 24-0295
)
Issued: April 25, 2024
U.S. POSTAL SERVICE, NORTH SHEPHERD )
POST OFFICE, Houston, TX, 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 JANICE B. ASKIN, Judge
JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 30, 2024 appellant filed a timely appeal from a January 26, 2024 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 met her burden of proof to establish greater than six percent permanent impairment of her right upper extremity, for which she previously received a schedule award.

1
5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

This case has previously been before the Board. 2 The facts and circumstances of the case as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On October 15, 2018 appellant, then a 55-year-old postal carrier technician, filed an occupational disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome (CTS) due to factors of her federal employment, including repetitive movement of her hands. She noted that she first became aware of her condition and realized its relationship to her federal employment on January 1, 2018. Appellant did not stop work. On May 3, 2023 OWCP accepted the claim for bilateral CTS and sprain of lumbar spine ligaments.

On May 11, 2023 appellant filed a claim for compensation (Form CA-7) for a schedule award.

By development letter dated May 12, 2023, OWCP informed appellant of the deficiencies of her schedule award claim. It advised her of the type of medical evidence needed, a detailed narrative report from her treating physician based upon a recent examination, including the date of maximum medical improvement (MMI), the diagnosis upon which the impairment rating was based, a detailed description of any preexisting impairment, a final rating of the permanent impairment, and discussion of the rationale for calculation of the impairment, with references to the applicable criteria of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 OWCP afforded appellant 30 days to submit the necessary evidence.

In a September 30, 2023 report, Dr. Robert Lowry, a physical medicine and rehabilitation specialist, examined appellant and provided findings. He referred to the A.M.A., Guides Table 15-23, Entrapment/Compression Neuropathy Impairment at page 449. Dr. Lowry assigned a grade modifier for clinical studies (GMCS) of 1 for conduction delay based on distal motor latency of the right median nerve equal to 4.7 milliseconds (m/s), which was greater than the 4.5 m/s normal limit; a grade modifier for functional history (GMFH) of 3 based on constant symptoms; and a grade modifier for physical examination (GMPE) of 2 based on decreased sensation; and he noted a QuickDASH score of 61, severe. He related that the grade modifiers of 1+3+2 yielded an average grade modifier of 2, with a default impairment rating of five percent, and that he increased the impairment rating to six percent based on the QuickDASH score of 61. Dr. Lowry determined that appellant had six percent permanent impairment of the right upper extremity.

Dr. Lowry provided an October 18, 2023 follow-up report reiterating his opinion that appellant was at MMI and had six percent impairment of the right upper extremity.

On December 14, 2023 OWCP referred appellant, along with the case record, a statement of accepted facts (SOAF), and a series of questions to Dr. Michael M. Katz, a Board-certified

2
Order Remanding Case, Docket No. 21-1101 (issued March 30, 2023).
3
A.M.A., Guides (6 th ed. 2009).

2 orthopedic surgeon serving as an OWCP district medical adviser (DMA) and requested th at he evaluate appellant’s permanent impairment under the sixth edition of the A.M.A., Guides.

In a December 26, 2023 report, Dr. Katz concurred with Dr. Lowry’s rating of six percent right upper extremity permanent impairment. He referred to Table 15-23 at page 449 of the A.M.A., Guides for Entrapment/Compression Neuropathy Impairment and noted median nerve entrapment with a GMCS of 1 for test findings based on electro diagnostics with delay; GMPE of 2 for physical findings of decreased sensation; and a GMFH 2 for based on significant intermittent symptoms. Dr. Katz explained that his grade modifier of 2 for GMFH, based on significant intermittent symptoms, differed from Dr. Lowry’s GMFH of 3 for history, based on constant symptoms. He noted that per the A.M.A., Guides, page 433, “[c]onstant symptoms means that pain or numbness is constantly present and at least conduction block if not axon loss must be present on electrodiagnostic testing to substantiate the symptom severity” but this was not the case based on Dr. Lowry’s interpretation of the electro diagnostics. However, the DMA further noted that his grade modifiers of 1+2+2 yielded an average grade modifier of 2, the same as Dr. Lowry’s report, and, therefore, the DMA concurred that appellant had 6 percent right upper extremity permanent impairment. Dr. Katz noted that appellant reached MMI on September 30, 2023, the date of Dr. Lowry’s report.

By decision dated January 26, 2024, OWCP granted appellant a schedule award for six percent permanent impairment of the right upper extremity.

LEGAL PRECEDENT

The schedule award provisions of FECA 4 and its implementing regulations5 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. FECA, however, does not specify the manner in which the percentage of loss of a member 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 and the Board has concurred in such adoption.6 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used to calculate schedule awards. 7

Impairment due to CTS is evaluated under the scheme found in Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text. 8 In Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories Test Findings, History, and Physical Findings. The grade modifier levels are averaged to arrive at the appropriate 4 5 U.S.C. § 8107.
5
20 C.F.R. § 10.404.
6
Id. at § 10.404(a); see R.M., Docket No. 20-1278 (issued May 4, 2022); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010). 8 A.M.A., Guides 449.

3 overall grade modifier level and to identify a default rating value. The default rating value may be modified up or down based on functional scale, an assessment of impact on daily living activities. 9

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish greater than six percent permanent impairment of her right upper extremity, for which she previously received a schedule award.

Appellant’s treating physician, Dr. Lowry, determined that she had six percent permanent impairment of her right upper extremity based on Table 15 -23, Entrapment/Compression Neuropathy Impairment at page 449 of the A.M.A., Guides. He found that appellant had an average grade modifier of 2, based on GMCS of 1, GMFH of 3, and GMPE of 2 for physical findings. Dr. Lowry further explained that these findings resulted in a default rating for five percent which was increased to six percent based on appellant’s QuickDASH score of 61.

In accordance with its procedures, 10 OWCP properly referred the evidence of record to Dr. Katz, serving as the DMA. The DMA, Dr. Katz, concurred with Dr. Lowry’s permanent rating of six percent. The DMA agreed with Dr. Lowry’s selection of a GMCS of 1 for test findings based on electro diagnostics with delay, and GMPE of 2 for physical findings of decreased sensation. Dr. Katz assigned a GMFH of 2, based on significant intermittent symptoms, which differed from Dr. Lowry’s finding of a GMFH of 3 based on constant symptoms. However, the average of the grade modifiers remained 2 and Dr. Katz concurred with Dr. Lowry that appellant had six percent right upper extremity permanent impairment.

As both the treating physician and the DMA concurred that appellant had six percent permanent impairment of the right upper extremity, the Board finds that appellant has not met her burden of proof to establish greater than the six percent permanent impairment of her right upper extremity previously awarded.

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 permanent impairmen t.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish greater than six percent permanent impairment of her right upper extremity, for which she previously received a schedule award.

9
Id. at 448-49.
10
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (March 2017).

4
 ORDER

IT IS HEREBY ORDERED THAT the January 26, 2024 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: April 25, 2024
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

5