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United States Department of Labor

Employees’ Compensation Appeals Board

 

 

___________________________________________   CAROL E. BROWNING, Appellant   and   U.S. DEPARTMENT OF LABOR, MINE SAFETY & HEALTH ADMINISTRATION, Mount Hope, WV, Employer ___________________________________________

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Docket No. 04-1 Issued: July 26, 2004

Appearances:                                                                          Case Submitted on the Record

Carol E. Browning, pro se

Office of Solicitor, for the Director      

 

 

DECISION AND ORDER

 

Before:

COLLEEN DUFFY KIKO, Member

DAVID S. GERSON, Alternate Member

WILLIE T.C. THOMAS, Alternate Member

 

 

JURISDICTION

 

On September 25, 2003 appellant filed a timely appeal from decisions of the Office of Workers’ Compensation Programs dated April 2 and July 17, 2003 denying her request for modification of a December 5, 1997 schedule award for a 10 percent permanent impairment of the right and left upper extremities.  Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 

 

ISSUE

 

The issue on appeal is whether appellant sustained greater than a 10 percent impairment of the right and left upper extremities, for which she received a schedule award.

 

FACTUAL HISTORY

 

The Office accepted that on or before September 9, 1993 appellant, then a 47-year-old secretary, sustained bilateral carpal tunnel syndrome in the performance of duty.  Appellant underwent a median nerve release on the left on June 6, 1994 and on the right on November 10, 1994.  She subsequently claimed a schedule award and was referred to Dr. Paul Bachwitt, a Board-certified orthopedic surgeon and second opinion physician, who in a June 20, 1997 report found a 10 percent impairment of each upper extremity due to mild median nerve entrapment according to Table 16, page 57 of the fourth edition of the American Medical Association’s, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).[1]  By decision dated December 5, 1997, the Office issued appellant a schedule award for a 10 percent permanent impairment of the right and left upper extremities.

Following a January 26, 1999 diagnosis of recurrent bilateral carpal tunnel syndrome, appellant underwent a repeat median nerve release on the right on May 20, 1999 and on the left on June 24, 1999.  She then filed a claim for an additional schedule award.  The Office referred her to Dr. Manjula Narayan, a Board-certified physiatrist, who submitted an October 17, 2000 report finding a 10 percent impairment of each upper extremity due to mild median nerve entrapment.  By decision dated April 24, 2001, the Office denied appellant’s claim for an increased schedule award.  Appellant requested an oral hearing on May 23, 2001 later changing her request to a review of the written record.  She did not submit additional evidence.  By decision dated and finalized May 9, 2002, an Office hearing representative affirmed the April 24, 2001 decision.

Appellant requested reconsideration on February 6, 2003 and submitted an August 22, 2002 report from Dr. Clifford H. Carlson, an attending Board-certified physiatrist.  On August 5, 2002 examination Dr. Carlson found decreased cutaneous sensation in the right forearm, bilaterally positive Tinel’s and Phalen’s signs, grip strength of 20 kilograms (kg) on the left and 12 kg on the right, bilaterally reduced wrist motion,[2] sensory impairment of the right middle finger and thumb and left index, middle finger and thumb and diminished “two-point discrimination for the right middle finger and right thumb.”  Dr. Carlson stated that, according to Table 16, page 57 of the fourth edition of the A.M.A., Guides, appellant had a 10 percent impairment of the left upper extremity and a 15 percent impairment of the right upper extremity for median nerve entrapment evidenced by diminished grip strength and sensory loss.  

In a March 23, 2003 report, the Office medical adviser found that Dr. Carlson’s report was insufficient to increase the prior schedule award as he relied on the fourth edition of the A.M.A., Guides instead of the fifth edition in effect as of February 21, 2001.  The Office medical adviser stated that Dr. Carlson’s history and findings could not be extrapolated into a rating under the fifth edition of the A.M.A., Guides as the sensory impairment rating was not based on Table 16-10 of the fifth edition of the A.M.A., Guides.[3]  By decision dated April 2, 2003, the Office denied modification of the prior schedule award.

Appellant again requested reconsideration on April 22, 2003 and submitted an April 17, 2003 report from Dr. Carlson applying Tables 16-10, 16-11[4] and 16-15[5] of the fifth edition of the A.M.A., Guides to his August 5, 2002 findings.  Regarding the left upper extremity, Dr. Carlson found a Grade 4 motor deficit according to Table 16-11, equaling a 10 percent maximum motor deficit from the median nerve according to Table 16-15.  Dr. Carlson then multiplied the maximum value of 25 percent for the median nerve by 10 percent to derive a 2.5 percent impairment of the left upper extremity for reduced grip strength, which he rounded up to 3 percent.  Dr. Carlson found a Grade 3 or 33 percent sensory deficit of both upper extremities based on “two-point discrimination findings” of “6 to 8 mm [millimeter] for the median nerve innervated fingers of the right hand and 7 to 8 mm for the median nerve innervated fingers of the left hand.  This is applied to a maximum of 39 percent upper extremity impairment for sensory deficit regarding the median nerve,” resulting in a 13 percent impairment of each upper extremity due to loss of sensation.  Using the Combined Values Chart, Dr. Carlson combined the 13 percent sensory and 3 percent motor deficits for the left upper extremity to equal 15 percent.  Dr. Carlson found a 13 percent right upper extremity impairment for sensory deficit.

On April 30, 2003 an Office medical adviser questioned the two-point discrimination findings included in his April 17, 2003 recalculation as there was no evidence he performed such testing during his August 5, 2002 examination.  

By decision dated July 17, 2003, the Office denied modification of the previous decision on the grounds that Dr. Carlson’s April 17, 2003 report did not properly utilize the A.M.A., Guides.  The Office found that the weight of the medical evidence continued to rest with the rating of the Office medical adviser.

 

LEGAL PRECEDENT

 

The schedule award provision of the Federal Employees’ Compensation Act[6] and its implementing regulation[7] 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.  The Office has adopted the A.M.A., Guides as the appropriate standard for evaluating scheduled losses.  As of February 1, 2001, all new schedule awards are based on the fifth edition of the A.M.A., Guides.  Also, as of February 1, 2001, any recalculation of a previous schedule award pursuant to an appeal, request for reconsideration, or decision of an Office hearing representative, is based on the fifth edition of the A.M.A., Guides regardless of the date of the medical examination.[8] 

 

ANALYSIS

 

In this case, the Office issued two decisions denying appellant’s requests for an increased schedule award beyond the 10 percent awarded for each upper extremity on December 5, 1997.  By decision dated April 2, 2003, the Office found that an August 22, 2002 report from Dr. Carlson, an attending Board-certified physiatrist, was insufficient to warrant modification of the December 5, 1997 schedule award as it was based on the fourth edition of the A.M.A., Guides and not the fifth edition.  As medical opinions not based on the appropriate edition of the A.M.A., Guides are of diminished probative value, the Office properly afforded the report lesser probative value.[9]  The Board also notes that Dr. Carlson based his August 22, 2002 impairment rating in part on diminished grip strength resulting from compression neuropathy of the median nerve.  However, the fifth edition of the A.M.A., Guides and the Office’s procedures provide that in compression neuropathies, additional impairment values are not given for decreased grip strength.[10]  Also, Dr. Carlson’s findings regarding sensory loss were not sufficiently detailed to allow the Office medical adviser to extrapolate a percentage of impairment under the fifth edition of the A.M.A., Guides. 

 

Appellant then submitted an April 17, 2003 report from Dr. Carlson, applying Table 16‑10 of the fifth edition of the A.M.A., Guides to his August 5, 2002 clinical findings, noting that two-point discrimination at 6 to 8 mm on the right and 7 to 8 mm on the left equaled 13 and 15 percent permanent impairments of the right and left upper extremities respectively.  The Office medical adviser questioned whether Dr. Carlson performed two-point discrimination testing during the August 5, 2002 examination and the Office issued its July 17, 2003 decision denying modification of its prior decision.  The Board notes, however, that Dr. Carlson stated in his August 22, 2002 report, that he found diminished “two-point discrimination for the right middle finger and right thumb,” indicating that he did perform two-point discrimination testing on the right hand.  However, he did not include the measurements obtained from that testing in his August 22, 2002 report.  Thus, there is insufficient contemporaneous evidence to substantiate those measurements or those offered for the left hand.[11]  Therefore, the Office properly found that Dr. Carlson’s April  17, 2003 report was insufficient to warrant modification of the December 5, 1997 schedule award.

 

CONCLUSION

 

The Board finds that appellant did not submit sufficient medical evidence to establish that she sustained greater than a 10 percent impairment of each upper extremity.

ORDER

 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation Programs dated July 17 and April 2, 2003 are affirmed.

 

Issued: July 26, 2004

Washington, DC

 

 

                                                                                                            Colleen Duffy Kiko

                                                                                                            Member

 

 

 

 

                                                                                                            David S. Gerson

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Willie T.C. Thomas

                                                                                                            Alternate Member