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United States Department of Labor

Employees’ Compensation Appeals Board

 

 

__________________________________________   JANET D. MEYERS, Appellant   and   U.S. POSTAL SERVICE, POST OFFICE, Santa Ana, CA, Employer   __________________________________________

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Docket No. 04-413 Issued: July 2, 2004

Appearances:                                                                         Case Submitted on the Record

Janet D. Meyers, pro se                                             

Office of the Solicitor, for the Director            

 

 

DECISION AND ORDER

 

Before:

DAVID S. GERSON, Alternate Member

MICHAEL E. GROOM, Alternate Member

A. PETER KANJORSKI, Alternate Member

 

 

JURISDICTION

 

On December 4, 2003 appellant filed a timely appeal from an Office of Workers’ Compensation Programs’ schedule award dated September 11, 2003.  Pursuant to 20 C.F.R §§ 501(c) and 501.3, the Board has jurisdiction over the schedule award in this case.

ISSUE

 

The issue is whether appellant has more than a four percent permanent impairment of her right upper extremity and a four percent permanent impairment of her left upper extremity, for which she received schedule awards.

FACTUAL HISTORY

 

Appellant, a 43-year-old retail clerk, injured her left elbow on April 22, 2002 when she struck it against a door frame.  She filed a claim for benefits on April 23, 2003, which the Office accepted for left elbow strain and left lateral epicondylitis.  The claim was subsequently expanded to include right elbow strain and right lateral epicondylitis.

On May 7, 2003 appellant filed a Form CA-7 claim for a schedule award for loss of use of her left and right upper extremities.  On June 5, 2003 the Office referred appellant and a statement of accepted facts to Dr. Bunsri T. Sophon, a Board-certified orthopedic surgeon, for an impairment evaluation.  In a report dated June 23, 2003, Dr. Sophon found that appellant had normal flexion based on 150 degrees range of motion,[1] normal extension based on 0 degrees,[2] normal forearm pronation based on 80 degrees and normal supination based on 80 degrees.[3]  He found no evidence of ankylosis.

Dr. Sophon stated that appellant began experiencing pain in her left elbow due to the April 22, 2003 work injury and began favoring her left elbow, resulting in an onset of right elbow pain approximately two months after the work injury.  He related that appellant felt constant, sharp, throbbing, burning right elbow pain, as well as frequent, sharp, throbbing, burning left elbow pain, aggravated by bending of the joints and lifting.  Dr. Sophon found that appellant’s elbow pathology resulted in weakness in grip strength of 20 degrees in the right grip and 25 degrees in the left grip; however, he did not make any percentage of impairment from loss of grip strength.

In a memorandum dated August 3, 2003, an Office medical adviser reviewed Dr. Sophon’s findings regarding bilateral elbow pain and determined that she had a four percent permanent impairment for loss of use of the right lower extremity and a four percent permanent impairment for loss of use of the left lower extremity pursuant to the fifth edition of the A.M.A., Guides.  The Office medical adviser derived the impairment rating for bilateral sensory deficit or pain of the ulnar nerve based on a Grade 3 impairment level, which accorded with a 60 percent sensory deficit of the upper extremities at Table 16-10, page 482.  The Office medical adviser noted that, pursuant to Table 16-15, page 492, the maximum impairment based on pain associated with the ulnar elbow nerve was 7 percent, which when multiplied by 60 percent on both sides amounted to a total 4 percent impairment of the right and left upper extremities.  He found that appellant reached maximum medical improvement on June 23, 2003.

 

On September 11, 2003 the Office granted appellant a schedule award for a four percent permanent impairment of the right upper extremity and a four percent permanent impairment of the left upper extremity for the period June 23 to December 14, 2003, a total of 24.96 weeks of compensation.

LEGAL PRECEDENT

 

The schedule award provision of the Federal Employees’ Compensation Act[4] set forth the number of weeks of compensation to be paid for permanent loss, or loss of use of the members of the body listed in the schedule.  Where the loss of use is less than 100 percent, the amount of compensation is paid in proportion to the percentage loss of use.[5]  However, the Act does not specify the manner in which the percentage of loss of use of a member is to be determined.  For consistent results and to ensure equal justice under the law to all claimants, the Office has adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule losses.[6]

ANALYSIS

 

            In this case, the Office medical adviser determined that appellant had a four percent permanent impairment of the right upper extremity and a four percent permanent impairment of the left upper extremity by applying Dr. Sophon’s findings regarding bilateral elbow pain to the relevant tables of the A.M.A., Guides.  The Office medical adviser derived his impairment rating by calculating a 60 percent sensory deficit pursuant to Table 16-10, page 482, and multiplying this times the maximum seven percent impairment of the ulnar nerve pursuant to Table 16-15, page 492.  The Office medical adviser multiplied these percentages to total a four percent impairment of the right upper extremity and left upper extremity.  Although Dr. Sophon calculated a moderate loss of grip strength, the Office medical adviser correctly found that appellant was not entitled to any impairment rating based on this calculation.  The Board notes that the A.M.A., Guides provide for limited circumstances where grip strength can be the basis for rating strength loss; none of these circumstances exist in this case.[7]  In addition, Dr. Sophon found that appellant had normal ranges of motion under the A.M.A., Guides guidelines for measuring flexion, extension, pronation and supination.  Thus, the Office medical adviser correctly found that appellant had no impairment due to loss of range of motion.

The Board finds that the Office medical adviser correctly applied the A.M.A., Guides in determining that appellant has no more than a four percent permanent impairment of the right upper extremity and a four percent permanent impairment of the left upper extremity.  Appellant has failed to provide probative medical evidence that she has greater than the four percent permanent impairment of the right upper extremity and a four percent permanent impairment of the left upper extremity awarded.

CONCLUSION

 

The Board finds that appellant has no more than a four percent permanent impairment of the right upper extremity and a four percent permanent impairment of the left upper extremity, for which she received a schedule award.

ORDER

 

IT IS HEREBY ORDERED THAT the September 11, 2003 decision of the Office of Workers’ Compensation Programs be affirmed.

Issued: July 2, 2004

Washington, DC

 

 

 

                                                                                                            David S. Gerson

                                                                                                            Alternate Member

 

 

 

                                                                                                            Michael E. Groom

                                                                                                            Alternate Member

 

 

 

                                                                                                            A. Peter Kanjorski

                                                                                                            Alternate Member