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United States Department of Labor

Employees’ Compensation Appeals Board

 

 

___________________________________________   GOONAWANTE WILLIAMS, Appellant   and   U. S. POSTAL SERVICE, POST OFFICE, Bellmawr, NJ, Employer ___________________________________________

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Docket No. 03-2287 Issued: June 24, 2004

Appearances:                                                                          Case Submitted on the Record

Thomas R. Uliase, for the appellant,

Office of Solicitor, for the Director

 

 

 

DECISION AND ORDER

 

Before:

COLLEEN DUFFY KIKO, Member

WILLIE T.C. THOMAS, Alternate Member

A. PETER KANJORSKI, Alternate Member

 

 

JURISDICTION

 

On September 16, 2003 appellant filed a timely appeal from the Office of Workers’ Compensation Programs’ schedule award decision dated June 30, 2003.  Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination.

 

ISSUE

 

The issue is whether appellant met her burden of proof to establish that she sustained more than a five percent permanent impairment of her right upper extremity and a seven percent permanent impairment of her left upper extremity, for which she received a schedule award.

FACTUAL HISTORY

 

On September 18, 1989 appellant, then a 44-year-old clerk, filed an occupational disease claim alleging that she sustained carpal tunnel syndrome in the performance of duty.  Appellant indicated that she first became aware of the disease on August 9, 1989 and realized that it was caused or aggravated by her employment on September 15, 1999.  She did not stop work.  In a separate statement dated September 29, 1989, appellant indicated that her position involved many repetitive activities including keying and labeling.[1]  The Office accepted appellant’s claim for bilateral carpal tunnel syndrome and left trigger finger.[2]  Appellant received compensation benefits.

 

In a January 27, 1998 report, Dr. Todd M. Lipschultz, a Board-certified orthopedic surgeon, indicated that appellant came in with bilateral hand pain and numbness.  He noted that he had treated appellant seven or eight years previously and, at that time, she was diagnosed with moderate right carpal tunnel and early left carpal tunnel syndrome (CTS).  Dr. Lipschultz reported that appellant had a progression of her symptoms and a positive Tinel’s bilaterally, and multiple trigger digits particularly in the right hand, index, long and ring fingers.  He injected both carpal tunnels and provided appellant splints for both hands.  In a report dated February 23, 1998, Dr. Lipschultz noted that appellant was also complaining of intermittent triggering from other digits, particularly her right hand.  He opined that there was a good chance that this could be related to her chronic repetitive activity.

 

Appellant filed a notice of recurrence on March 24, 1998.  The Office subsequently doubled appellant’s claim on July 27, 1998, merging the old claim with her recurrence claim.

In a September 14, 1998 report, Dr. Lipschultz reported that appellant was actively triggering and that catching was occurring on her long and ring fingers on the left.  In a follow-up report dated October 12, 1998, Dr. Lipschultz indicated an electromyelogram (EMG) study revealed a mild to moderate right CTS and early left CTS,[3] advising that appellant’s major complaint was the locking and triggering of her left hand, long and ring fingers and that she was a candidate for a trigger digit release.[4]  In a May 25, 1999 report, Dr. Lipschultz indicated that appellant would benefit from an endoscopic carpal tunnel release with a left trigger finger release.[5]  In a July 6, 1999 report, the physician stated appellant’s trigger finger condition stemmed from overuse resulting in tendon swelling and related the condition to the repetitive aspects of her employment and requested additional authorization for a trigger finger release. The Office authorized trigger finger release on August 13, 1999 and Dr. Lipschultz performed the surgery on September 15, 1999.[6]  On January 31, 2000 he stated that appellant had reached maximum medical improvement and provided permanent restrictions on February 14, 2000.

On February 14, 2000 appellant filed a notice of recurrence for February 8, 2000, and on August 30, 2000, the Office accepted appellant’s recurrence claim.  On September 19, 2000 appellant completed a Form CA-7 for compensation for a schedule award.

 

In an August 3, 2000 report, Dr. David Weiss, an osteopath,[7] referred to the American Medical Association, Guides to the Evaluation of Permanent Impairment (4^th ed. 1993) (A.M.A., Guides) and found that appellant had an 11 percent impairment of the left upper extremity and a 36 percent impairment to the right upper extremity.[8]  He indicated that appellant reached maximum medical improvement on July 25, 2000.

 

In a report dated December 1, 2000, Dr. Donald F. Leatherwood, a Board-certified orthopedic surgeon and employing establishment physician, opined that appellant required permanent restrictions and placed her on permanent light duty.  In a January 4, 2001 report, Dr. Leatherwood utilized the fifth edition of the A.M.A., Guides and found that appellant had a left upper extremity impairment of 18 percent and a right upper extremity impairment of 32 percent.[9]

In a June 27, 2001 report, an Office medical adviser determined that appellant was entitled to a 6 percent impairment of her left upper extremity and a 26 percent impairment of her right upper extremity.[10]

By letter dated September 15, 2001, the Office advised appellant that a conflict existed between the reports of Dr. Weiss and the Office medical adviser regarding the degree of impairment and referred her for an impartial medical examination with Dr. Howard Zeidman, a Board-certified orthopedic surgeon.  The Office disqualified Dr. Zeidman’s opinion and report when he informed the Office that he had previously treated appellant in 1989 and 1990.[11]  By letter dated November 15, 2001, the Office advised appellant of his disqualification and by letter dated February 7, 2002, the Office scheduled appellant for a new impartial medical examination with Dr. Stanley Askin, a Board-certified orthopedic surgeon.

 

In a March  2, 2002 report, Dr. Askin utilized the fifth edition of the A.M.A., Guides, and found that appellant suffered from degenerative processes affecting both hands, to include her diabetes, history of left CTS, and triggering diathesis of bilateral index through small digits and objective findings of trigger digit phenomena.  He noted that appellant had full motion of the neck, shoulders, elbows, forearms and wrists, with full extension and flexion of the index, long, ring and small digits. The physician found that thumb motion was full for abduction and opposition, but adduction to the fifth metacarpal head was not full by 3 cm. on the right, and 5 cm on the left, noting that this was under appellant’s control.  Dr. Askin indicated muscle function was intact and forearm measurements were 28.5 and 28 cm.  He conducted grip strength measurements and found that the Adson’s and Wright’s were negative, with Allen’s testing revealing the radial and ulnar arteries to be patent.  Watson’s and Shuck’s tests for carpal instability were negative. The physician noted the distal and radiolunar joints and pistriquetral joints were benign, and sensation to touch was intact in all 10 digits.  Subjective abnormalities were noted as a positive Phalen’s on the right and a negative on the left, with Tinel’s negative bilaterally.  Percussion at the Guyon’s canals on the right caused radiation to the palm, and on the left radiation to the hypothenar eminence, with a tender right abductor pollicis longus muscle belly.  He advised that appellant appeared to be posturing regarding her left long finger and noted objective findings of flexor tendon nodules without triggering of the right index, long, ring and small digits and for the left hand he noted nodules and triggering.  Dr. Askin reported that appellant had objective findings of trigger digit phenomena, and referred to Table 16-29, page 507 of the A.M.A., Guides.  For the right hand, he noted a mild category of a 20 percent digit impairment for the 4 fingers and a moderate category for the left of a 40 percent digit impairment, stating there was no objective evidence of any other impairment.  He subsequently utilized the digit impairment factors and referred to Table 16-18 on page 499 of the A.M.A., Guides and determined that each index and long digit equated to 11 percent of the whole person and for the right hand, 20 percent of 11 percent times 2 equated to 4.4 percent of the whole person and for the ring and small fingers, it equated to 20 percent of 5 times 2 or 2 percent.  Dr. Askin also reported that appellant had a 6.4 percent whole person impairment for the triggering of the right hand.  For the left hand, he stated the multiplier was 40 percent, and the calculation was 40 percent of 11 percent times 2, or 8.8 percent of the whole person for the index and long, and 40 percent of 5 percent times two for the ring and small fingers, for a total whole person impairment of the left ring and small digits of 4 percent, concluding that appellant had a left hand whole person impairment of 12.8 percent, and a total whole person impairment of 19 percent.  Dr. Askin noted that, according to page 493 of the A.M.A., Guides, “only individuals with an objectively verifiable diagnosis should qualify for permanent impairment rating” with respect to compression neuropathy such as carpal tunnel syndrome and there were presently no objective features.  He noted that, on page 495, for residua of CTS, an “impairment rating not to exceed 5 percent of the upper extremity may be justified” and indicated that per Table 16-3 on page 439, 5 percent of the upper extremity would equal 3 percent of the whole person. Consequently, Dr. Askin indicated that, if residua of appellant’s carpal tunnel syndrome for one extremity would be accepted as a work-related impairment, then her total impairment would be 3 plus 19, or 22 percent whole person impairment.

 

In a June 20, 2002 report, the Office medical adviser referred to page 495 of the A.M.A., Guides, and noted that for the left hand, residuals of CTS were 5 percent, with no objective findings to justify anything higher.  He reported that a left trigger finger with a “moderate triggering effect” but nothing really objective on examination equated to 6 percent of the hand at page 499 and multiplied by 40 percent per Table 16-29, page 507, which equated to 2 percent of the hand for a total of 7 percent of the left hand.  For the right hand, he referred to page 495 and indicated it was the same as the left hand, since no trigger finger on the right side had been accepted as employment related and opined that appellant had a 5 percent impairment to the right hand.  The Office medical adviser concluded that appellant had a 7 percent impairment of the left hand and a 5 percent impairment of the right hand.

Accordingly, on July 23, 2002 the Office granted appellant a schedule award for seven percent permanent impairment of the left upper extremity and five percent permanent impairment of the right upper extremity.  The award covered a period of 37.44 weeks from July 25, 2000 to April 13, 2001.

By letter dated July 26, 2002, appellant, through her attorney, requested a hearing, which was held on March 11, 2003.[12]  In a June 30, 2003 decision, the Office hearing representative affirmed the July 23, 2002 decision.

LEGAL PRECEDENT

 

            Section 8107 of the Federal Employees’ Compensation Act[13] sets forth the number of weeks of compensation to be paid for the permanent loss of use of specified members, functions and organs of the body.[14]  The Act, however, does not specify the manner by which the percentage loss of a member, function or organ shall be determined.  To ensure consistent results and equal justice for all claimants under the law, good administrative practice requires the use of uniform standards applicable to all claimants.[15]  The A.M.A., Guides has been adopted by the implementing regulation as the appropriate standard for evaluating schedule losses.[16]

 

            The fifth edition of the A.M.A., Guides, regarding carpal tunnel syndrome, provides that if, after an optimal recovery time following surgical decompression, an individual continues to complain of pain, paresthesias and/or difficulties in performing certain activities, three possible scenarios can be present:  (1) positive clinical findings of median nerve dysfunction and electrical conduction delay(s):  the impairment due to residual CTS is rated according to the sensory and/or motor deficits; (2) normal sensibility and opposition strength with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar muscles:  a residual CTS is still present and an impairment rating not to exceed five percent of the upper extremity may be justified; and (3) normal sensibility (two-point discrimination and Semmes-Weinstein monofilament testing), opposition strength and nerve conduction studies, in which case there is no objective basis for an impairment rating.[17]

            The impairment percent due to constrictive tenosynovitis is multiplied by the relative hand value of the digit to derive its hand impairment.  This impairment may be combined with other impairments of the digit (Combined Values Chart, p. 604) but not with decreased motion.[18]

The standards for evaluating the percentage of impairment of extremities under the A.M.A., Guides are based primarily on loss of range of motion.  In determining the extent of loss of motion, the specific functional impairments, such as loss of flexion or extension, should be itemized and stated in terms of percentage loss of use of the member in accordance with the tables in the A.M.A., Guides.[19]  However, all factors that prevent a limb from functioning normally should be considered, together with the loss of motion, in evaluating the degree of permanent impairment.

Section 8123(a) of the Act provides, in pertinent part:  “If there is disagreement between the physician making the examination for the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make an examination.”[20]  Where a case is referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper factual and medical background, must be given special weight.[21]

 

ANALYSIS

 

            In this case, Dr Weiss, an attending osteopath, determined that appellant had an 11 percent permanent impairment of the left upper extremity and a 36 percent permanent impairment of the right upper extremity.  An Office medical adviser reviewed Dr. Weiss’ report and determined that appellant had a 6 percent impairment of the left upper extremity and a 26 percent impairment of the right upper extremity.  As a conflict existed in the medical opinion evidence between Dr. Weiss[22] and the Office medical adviser, the Office properly referred appellant to Dr. Askin for an impartial medical examination.

            The Board finds that the thorough and well-documented report of Dr. Askin, the impartial medical specialist selected to resolve the conflict in the medical opinion evidence, is based upon correct application of the A.M.A., Guides and is entitled to special weight. Dr. Askin took measurements, referred to pages and tables in the A.M.A., Guides and explained his calculations.  In his report, Dr. Askin noted objective findings of trigger digit phenomena and found that appellant had 2 percent for the right hand and 4 percent for the left hand and a total whole person impairment of 19 percent.  Further, he indicated that appellant had residua of her carpal tunnel syndrome and opined that, if this were accepted as work related, then her impairment would be 5 percent of the upper extremity which equated to  3 percent of the whole percent  plus the 19 percent for a 22 percent whole person impairment.  The Board notes that, although Dr. Askin provided ratings for the right finger triggering, which was not an accepted condition, this does not invalidate the report, as it merely indicates the physician conducted a thorough examination.  The Board further notes that Dr. Askin provided the maximum rating for appellant’s carpal tunnel syndrome, which as previously indicated, may not exceed five percent of the upper extremity.[23]

Upon receipt of Dr. Askin’s report, a subsequent Office medical adviser, in a June 20, 2002 memorandum, utilized Dr. Askin’s findings and advised that, although the impartial medical specialist provided ratings related to right finger triggering, the Office had not accepted this condition, therefore, those calculations were not related to the accepted employment injury. Therefore, the Office medical adviser correctly determined that appellant was not entitled to a rating for the right finger triggering condition.  The Office medical adviser also noted that the deficits related to triggering of the left long finger, would entitle appellant to an additional two percent impairment to the left hand.  When combining the five percent rating for the presence of carpal tunnel syndrome, the Office medical adviser properly concluded appellant had a five percent and seven percent impairment for the right and left upper extremities respectively.

 

CONCLUSION

 

The Board finds that appellant has not met her burden of proof to establish that she sustained more than a five percent permanent impairment of her right upper extremity and a seven percent permanent impairment of her left upper extremity, for which she received a schedule award.

ORDER

 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated June 30, 2003 is hereby affirmed.

Issued: June 24, 2004

Washington, DC

 

 

                                                                                                            Colleen Duffy Kiko

                                                                                                            Member

 

 

 

 

                                                                                                            Willie T.C. Thomas

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            A. Peter Kanjorski

                                                                                                            Alternate Member