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United States Department of Labor
Employees’ Compensation Appeals Board
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__________________________________________
J.B., Appellant
and
U.S. POSTAL
SERVICE, POST OFFICE, Denver, CO, Employer
__________________________________________
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Docket No. 08-1178
Issued: December
22, 2008
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Appearances: Case
Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
ALEC J. KOROMILAS,
Chief Judge
DAVID S. GERSON,
Judge
JAMES A. HAYNES, Alternate
Judge
JURISDICTION
On March 13,
2008 appellant filed a timely appeal from the February 26, 2008 merit
decision of the Office of Workers’ Compensation Programs which denied
compensation for wage-loss compensation during the period of a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this decision.
ISSUE
The issue is whether the
Office properly denied compensation for wage loss for a period in which appellant
was in receipt of a schedule award under a different Office claim.
FACTUAL HISTORY
On October 18, 2007
appellant, then a 51-year-old rural carrier, alleged that she injured her left
shoulder during the performance of her duties on October 17, 2007.
The Office assigned the claim, file number xxxxxx327, and accepted her claim
for left biceps subluxation and left rotator cuff strain. On January 22,
2008 appellant underwent surgery for her left biceps tendinosis. She filed
claims for wage loss from December 29, 2007 through February 1, 2008
under file number xxxxxx327.
In a decision dated
February 26, 2008, the Office denied appellant’s claim for wage loss in file
number xxxxxx327 on the grounds that she was currently receiving a schedule
award involving the same part of the body under her other case file and,
therefore, she was not entitled to concurrent payments for wage loss.
Relevant to the Office’s February 26,
2008 adjudication in file number xxxxxx327, the record reflects that appellant
has three prior claims with the Office. Under file number xxxxxx710,
the Office accepted that as of January 1, 1998 appellant developed
bilateral carpal tunnel syndrome and right shoulder impingement syndrome due to
work activities. In June 2001, appellant underwent an authorized right carpal
tunnel release. In August 2007, the Office accepted a recurrence of
appellant’s left carpal tunnel syndrome and authorized left carpal tunnel
release. On March 12, 2001 a schedule award was awarded for 11 percent
right arm impairment for the period December 15, 2000 through
August 12, 2001.
Under file number xxxxxx665,
the Office accepted that appellant sustained a left superior glenoid labrum
lesion, right knee contusion and aggravation of right knee osteoarthritis on February 6, 2004.
Appellant received two schedule awards in conjunction with this claim. On
January 4, 2005 she received a schedule award for 11 percent left arm
impairment for the period November 27, 2004 to July 25, 2005. On
August 8, 2005 appellant received a schedule award for 16 percent right leg
impairment for the period July 26, 2005 through June 13, 2006.
Under file number xxxxxx853,
the Office accepted that, as of August 1, 2006, appellant sustained other
affections of left shoulder and adhesive capsulitis of left shoulder. On
July 16, 2007 appellant received a schedule award for an additional 24
percent impairment of the left arm for the period April 3, 2007 through
September 8, 2008. The Office noted that appellant had a 35 percent
total permanent impairment of the left arm, which was comprised of the previously
awarded 11 percent permanent impairment of the left arm under file number xxxxxx565
and the current 24 percent permanent impairment of the left arm. By letter
dated August 1, 2007, the Office offered appellant a lump-sum payment for
her remaining schedule award in the amount of $35,504.84 as of
September 2, 2007. It advised:
“Any lump-sum
payment will represent full and final compensation payment for the period of
the award even if you suffer a recurrence of total disability. If you elect to
receive your schedule award in this form, please sign the attached agreement
and return it to this Office as soon as possible.”
On August 7, 2007
appellant agreed to accept $35,504.84 in payment of compensation for the
commuted value of further installments of compensation for the remainder of the
schedule award to her left arm payable from September 2, 2007 through
September 8, 2008. On August 14, 2007 the Office paid appellant
$35,504.84 as a lump-sum payment for the remainder of the schedule award for
September 2, 2007 through September 8, 2008.
LEGAL PRECEDENT
As used in the Federal
Employees’ Compensation Act,
the term disability means incapacity, because of employment injury, to earn the
wages that the employee was receiving at the time of injury.
Section 8107 of the Act
authorizes the payment of schedule awards for the loss or loss of use, of
specified members, organs or functions of the body. Such loss or loss of use
is known as permanent impairment.
Disability is not synonymous
with physical impairment, which may or may not cause incapacity to earn wages.
An employee who has a physical impairment causally related to her federal
employment, but who nonetheless has the capacity to earn the wages she was
receiving at the time of injury, has no disability as that term is used in the
Act and is not entitled to compensation for loss of wage-earning capacity.
When, however, the medical evidence establishes that the residuals of an
employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in her employment, she is entitled to compensation for
any loss of wage-earning capacity resulting from such incapacity.
Compensation for loss of wage-earning capacity is based upon loss of the
capacity to earn, not upon actual wages lost.
A schedule award is payable
consecutively but not concurrently with an award for wage loss for the same
injury.
A schedule award for one injury may be paid concurrently with compensation for
wage loss paid for another injury, as long as the two injuries do not involve
the same part of the body.
ANALYSIS
After the Office accepted
appellant’s October 17, 2007 claim for left shoulder injuries, appellant
claimed for compensation alleging disability for work from December 29,
2007 through February 1, 2008. The record indicates, however, that
she was receiving a schedule award covering this period in file number xxxxxx853.
On August 14, 2007 the Office paid appellant $35,504.84 as the lump sum of
the remainder of the schedule award for September 2, 2007 through
September 8, 2008. In its letter dated August 1, 2007, it
explicitly informed appellant that, because she was receiving a lump-sum
payment, she would not be entitled to further compensation.
As both injuries involved the left upper extremity, the Board finds that the
Office may not pay compensation for wage loss resulting from appellant’s October 17,
2007 injury concurrently with the schedule award for her August 1, 2006
injury, which covered the period September 2, 2007 through
September 8, 2008.
CONCLUSION
The Board finds that the
Office properly denied compensation for wage loss while appellant was in
receipt of a schedule award under a different claim number.
ORDER
IT
IS HEREBY ORDERED THAT the February 26, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2008
Washington, DC
Alec J.
Koromilas, Chief Judge
Employees’
Compensation Appeals Board
David S.
Gerson, Judge
Employees’
Compensation Appeals Board
James A.
Haynes, Alternate Judge
Employees’
Compensation Appeals Board