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U. S. DEPARTMENT OF LABOR

 

Employees’ Compensation Appeals Board

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In the Matter of BONA COOPER and DEPARTMENT OF THE ARMY,

ARMY DEPOT, Corpus Christi, TX

 

Docket No. 00-976; Submitted on the Record;

Issued February 7, 2001

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DECISION and ORDER

 

Before   WILLIE T.C. THOMAS, BRADLEY T. KNOTT,

VALERIE D. EVANS-HARRELL

 

 

            The issue is whether appellant has more than a three percent permanent impairment to her right thumb.

            The Office of Workers’ Compensation Programs accepted that appellant sustained a right hand contusion and aggravation of right thumb arthritis in the performance of duty on September 9, 1996.  By decision dated March 31, 1997, the Office issued a schedule award for a three percent permanent impairment of the right thumb.

            In a decision dated December 2, 1999, the Office determined that appellant was not entitled to an additional schedule award.  By decision dated December 30, 1999, the Office denied modification.

            The Board finds that the case is not in posture for decision.

            Section 8107 of the Federal Employees’ Compensation Act provides that, if there is permanent disability involving the loss or loss of use of a member or function of the body, the claimant is entitled to a schedule award for the permanent impairment of the scheduled member or function.[1]  Neither the Act nor the regulations specify the manner in which the percentage of impairment for a schedule award shall be determined.  For consistent results and to ensure equal justice for all claimants the Office has adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment as the uniform standard applicable to all claimants.[2]

            In this case, the attending physician, Dr. Christopher Miskovsky, an orthopedic surgeon, opined in a report dated October 15, 1999 that appellant had an 11 percent permanent impairment to the right arm.  Dr. Miskovsky indicated that this was based on 10 percent for loss of grip strength, and 1 percent for loss of range of motion in the thumb.  In a report dated December 1, 1999, an Office medical adviser opined that appellant had a two percent thumb impairment, with no ratable grip strength impairment.

            Under the A.M.A., Guides, the formula for determining loss of grip strength is to subtract the abnormal strength in the injured arm from the normal strength, divide by the normal strength and calculate the percentage loss, then apply Table 34.[3]  The Office medical adviser stated in his report that the difference between his calculation (of no ratable impairment for loss of strength) and that of Dr. Miskovsky is that the A.M.A., Guides compare grip strength of the injured extremity to a standard grip strength, while Dr. Miskovsky compared the grip strength of the injured extremity to the uninjured extremity.  The Board finds that this is not an accurate assessment of the case.

            While there are instances, such as range of motion, when the A.M.A., Guides do not use comparisons between the injured extremity and the uninjured extremity,[4] the A.M.A., Guides specifically provides that grip strength for the injured arm is “compared to those of the opposite extremity, which usually is normal.”[5]  The application of tables for average grip strength, listed in Table 31-33, is used “if both extremities are involved.”[6]  Therefore, the “normal strength” used in the basic formula appears to be that of the opposite arm, unless both extremities are injured.

            In this case, the Office medical adviser applied the formula using a “normal strength” derived from Table 32, the average grip strength based on age, rather than the grip strength of the opposite arm.[7]  Since only one arm was involved, the A.M.A., Guides direct the examiner to use the opposite extremity grip strength in applying the loss of strength formula.[8]

            The case will be remanded to the Office for a supplemental report from an Office medical adviser for an opinion as to the degree of permanent impairment based on thumb range of motion and the specific provisions of the A.M.A., Guides as to calculating loss of grip strength.  After such further development as the Office deems necessary, it should issue an appropriate decision.

            The decisions of the Office of Workers’ Compensation Programs dated December 30 and December 2, 1999, are set aside and the case remanded to the Office for further action consistent with this decision of the Board.

Dated,  Washington, D.C.

            February 7, 2001

 

 

 

 

                                                                                                            Willie T.C. Thomas

                                                                                                            Member

 

 

 

 

                                                                                                            Bradley T. Knott

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Valerie D. Evans-Harrell

                                                                                                            Alternate Member