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U. S. DEPARTMENT OF
LABOR
Employees’ Compensation Appeals Board
____________
In the Matter of
CHARLES HAWKINS, JR. and DEPARTMENT OF VETERANS AFFAIRS,
EDWARD HINES, JR.
VETERANS ADMINISTRATION HOSPITAL, Hines, IL
Docket No.
03-1232; Submitted on the Record;
Issued January 6, 2004
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DECISION and ORDER
Before COLLEEN
DUFFY KIKO, DAVID S. GERSON,
WILLIE T.C. THOMAS
The issue is whether appellant has more than a 12 percent
permanent impairment of his right upper extremity for which he received a
schedule award.
On August 7, 1993 appellant, then a 49-year-old
housekeeping aide, filed a traumatic injury claim alleging that on that date he
hurt his right shoulder and the right side of his neck while pulling an auto
scrubber. Appellant stopped work on August 23, 1993 and he returned to
full-time light-duty work on March 7, 1994.
The Office of Workers’ Compensation Programs accepted
appellant’s claim for a right rotator cuff sprain. The Office approved surgery
which was performed on November 30, 1993 and October 3, 1995.
On April 18, 1996 appellant filed a claim for a
schedule award.
On May 28, 2001 an Office medical adviser reviewed
appellant’s medical records and determined that appellant had a 12 percent
permanent impairment of the right upper extremity. He also determined that
appellant reached maximum medical improvement on October 3, 1996, approximately one year from the date of his most recent surgery.
By decision dated January 8, 2003, the Office granted
appellant a schedule award for a 12 percent permanent impairment of his right
upper extremity for 37.44 weeks covering the period August 10 through September 30, 2001 with no continuing payments.
The Board finds that appellant has no more
than a 12 percent permanent impairment of his right upper extremity for which
he is entitled to a schedule award.
The schedule award provisions of the Federal Employees’
Compensation Act
and its implementing regulation
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. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice
under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable
to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing
regulation as the appropriate standard for evaluating schedule losses.
In this case, the Office previously
granted appellant a schedule award for a 12 percent permanent impairment of his
right upper extremity due to the August 7,
1993 employment-related right shoulder
injury. The Office received a January 28,
1997 report of Dr. Charles Carroll,
IV, a Board-certified orthopedic surgeon and appellant’s treating physician.
In this report, Dr. Carroll noted appellant’s complaints of intermittent
pain in his shoulder. He provided his findings on physical and objective
examination, and opined that appellant had reached maximum medical
improvement. Dr. Carroll discharged appellant from his care. He
determined that appellant had a 15 percent permanent impairment of his right
upper extremity and noted his physical restrictions. Dr. Carroll did not
indicate which tables of the A.M.A., Guides he used to calculate his
impairment rating. Board precedent is well settled, however, that when an
attending physician’s report gives an estimate of permanent impairment but does
not indicate that the estimate is based upon the application of the A.M.A., Guides,
the Office is correct to follow the advice of its medical adviser or consultant
where he or she has properly utilized the A.M.A., Guides.
Board cases are clear that, if the attending physician does not utilize the
A.M.A., Guides, his or her opinion is of diminished probative value in
establishing the degree of any permanent impairment.
As Dr. Carroll did not demonstrate
that he applied the A.M.A., Guides in assessing appellant’s permanent
impairment due to a right rotator cuff sprain and repair, his report is of
diminished probative value. On the other hand, the Office medical adviser
reviewed appellant’s medical records, including Dr. Carroll’s January 28, 1997
report, and applied the fifth edition of the A.M.A., Guides. He noted
that appellant complained of continued pain which accounted for a two percent
permanent impairment for Grade 3 pain in the distribution of the suprascapular
nerve based on Table 16-15, page 492 and Table 16-11, page 484. He further
noted that a physical examination demonstrated full range of motion, no
evidence of impingement and intact rotator cuff function in appellant’s right
shoulder. He stated that the remainder of appellant’s extremity was within
normal limits. The Office medical adviser determined that appellant had an
additional 10 percent permanent impairment for the distal clavicle resection
based on Table 16-27 page 506. Utilizing the Combined Values Chart on page 604,
the Office medical adviser determined that appellant had a 12 percent permanent
impairment of the right upper extremity. The Board finds that the Office
medical adviser properly applied the tables in the A.M.A., Guides and
his report constitutes the weight of the medical evidence. Therefore, the
Board finds that appellant has no more than a 12 percent impairment of his
right upper extremity.
As previously noted, the Office’s January 8, 2003 decision granted appellant a schedule award for a 12 percent permanent impairment
of his right upper extremity for 37.44 weeks covering the period August 10
through September 30, 2001. With respect to schedule awards for the right
upper extremity, the Act provides that, for a total or 100 percent loss of use
of the right upper extremity, an employee shall receive 312 weeks of
compensation.
As appellant has no more than a 12 percent loss of use of his right upper
extremity, he is entitled to 12 percent of the 312 weeks of compensation, which
is 37.44 weeks. The Office, therefore, properly determined the number of weeks
for which appellant is entitled to compensation under the schedule award
provisions of the Act.
On appeal, appellant states that he only received a
schedule award payment for the period August 10 through September 30, 2001, but that he was placed back on the Office’s roll starting October 1, 2001.
Appellant contends that he never received compensation for 37.44 weeks pursuant
to his schedule award. The record reveals that appellant was terminated by the
employing establishment on January 17, 1997. He received a disability retirement
annuity from the Office of Personnel Management (OPM) through September 30, 2001. On September 13, 2001 appellant elected to receive
compensation benefits under the Act in lieu of benefits provided by OPM
effective October 1, 2001. By letter dated October 11, 2001, the Office advised OPM about appellant’s election. On November 16, 2001 the Office issued a compensation check to appellant for the period October 1
through November 3, 2001. The Board has held that a claimant cannot concurrently
receive compensation under a schedule award and compensation for total disability
for work.
Therefore, the Board finds that appellant is not entitled to receive payments
pursuant to his schedule award concurrently with his disability compensation.
The January 8, 2003 decision of the Office of Workers’
Compensation Programs is hereby affirmed.
Dated, Washington, DC
January 6, 2004
Colleen
Duffy Kiko
Member
David
S. Gerson
Alternate
Member
Willie
T.C. Thomas
Alternate
Member