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United States Department of Labor
Employees’ Compensation Appeals Board
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__________________________________________
MICHELLE L.
COLLINS, Appellant
and
U.S. POSTAL
SERVICE, POST OFFICE,
Kansas City,
MO, Employer
__________________________________________
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Docket No. 05-443
Issued: May 18, 2005
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Appearances: Case
Submitted on the Record
Michelle L. Collins, pro se
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
ALEC J. KOROMILAS,
Chairman
DAVID S. GERSON, Alternate
Member
MICHAEL E. GROOM,
Alternate Member
JURISDICTION
On December 14, 2004 appellant filed a timely appeal from the September 17, 2004 merit decision of the Office of Workers’ Compensation Programs, which denied
modification of an earlier schedule award. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction to review the schedule award issue.
ISSUE
The issue is whether appellant
has more than a 10 percent impairment of her left upper extremity.
FACTUAL HISTORY
On September 10, 2001 appellant, then a 44-year-old manual clerk, filed an occupational disease claim
alleging that she injured her wrists in the performance of duty while manually
casing letters. The Office accepted her claim for bilateral carpal tunnel
syndrome and authorized surgery. She underwent a left carpal tunnel release on
April 30, 2002 and a right carpal tunnel release on August 6, 2002.
The record indicates that
appellant requested a schedule award and on April 1, 2003 the Office medical adviser noted that she was eligible for an impairment rating. The
Office referred appellant, together with the medical record and a statement of
accepted facts, to Dr. George Varghese, a specialist in physical medicine
and rehabilitation, for an evaluation of permanent impairment.
On May 6, 2003 Dr. Varghese noted as follows:
“Today [appellant] reports that
her right upper extremity symptoms have improved the most. The tingling
sensation is gone and she no longer has the constant achy pain in her hand and
forearm. [Appellant] does still occasionally have pain with certain
activities, however, such as lifting heavy objects or pushing forcefully with
the palmar aspect of her hand. She also feels much weaker in both hands. In
addition to the weakness on the left, [appellant] notes persistent tingling at
all times over the scar region at her wrist. She also complains of a sensation
of numbness, primarily in the thumb, 4th and 5th digits
and across the proximal aspect of the palm on the left side. [Appellant] is
not currently taking any pain medications. She denies significant swelling in
her hands.”
“At work, the main activity which [appellant] is
still unable to perform is lifting a full tray of mail, which causes pain over
the proximal palms and thenar eminences. Instead, she carries only one half
tray at a time. At home, she is unable to lift heavy objects, such as a gallon
of milk, heavy pots and pans, groceries, buckets of water for cleaning or
laundry baskets. [Appellant] also occasionally drops even light-weight items.
[She] is able to complete her ADL’s [activities of daily living] independently,
though admits to some difficulty fastening her undergarments and curling her
hair now. [Appellant] is independent with mobility without an assistive device
and denies any problems with driving.”
On physical examination Dr. Varghese
noted mild weakness of the right abductor pollicis brevis (APB). Sensory
testing revealed two-point discrimination of seven millimeters on the left and
six millimeters on the right. Dr. Varghese concluded that appellant had
residual symptoms of pain and weakness that interfered with some activities:
“[Appellant] was treated for bilateral carpal tunnel
syndrome with bilateral carpal tunnel releases. She does not have any
significant residual impairment in range of motion. She does, however,
complain of weakness in both hands now. Clinical exam[ination] reveals mild
right thenar atrophy and weakness on the right APB. Additionally, [appellant]
does have mild residual pain in the right hand which interferes with some
activities. She is slightly more symptomatic in the left hand, with constant
tingling in the wrist and worsening numbness, primarily along the ulnar nerve
distribution. The residual symptoms of pain and weakness prevent [appellant]
from lifting heavy objects both at work and at home and also interferes with
several of her ADL’s.”
Finding that appellant had
reached maximum medical improvement, Dr. Varghese used the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th
ed. 2001) to determine that she had an 11 percent impairment of the right upper
extremity and a 16 percent impairment on the left. Using Table 16-10, page
482, he classified her sensory deficit or pain as Grade 3 bilaterally: “Distorted
superficial tactile sensibility (diminished two-point discrimination), with
some abnormal sensations or slight pain that interferes with some activities.”
From a range of 26 to 60 percent, Dr. Varghese rated the severity of appellant’s
deficit at 26 percent on the right and 40 percent on the left.
On May 14, 2003 Dr. Daniel D.
Zimmerman, the Office medical adviser, informed Dr. Varghese that the
grade he chose to classify appellant’s sensory deficit or pain was excessive
because, based to his two-point discrimination findings, it was obligatory to
classify her as Grade 4 with a deficit range of 1 to 25 percent. “I will leave
it to you to choose the grade,” he stated. “I would, however, anticipate that
the grades would be in the lower end of the spectrum since you found two-point
discrimination on the right to be six millimeters and on the left seven
millimeters in the distribution of the median nerve which is in the lower end
of the spectrum for Grade 4 from Table 16-10.”
On June 2, 2003 Dr. Varghese explained his rating:
“I received the inquiry from Dr. Zimmerman regarding
my impairment rating of [appellant]. I agree with [his] statement that two-point
discrimination is only mildly abnormal, so could possibly use lower end of
Grade 4. However, the reason I chose lower end of Grade 3 is because of the
detailed history obtained which talked about how it interferes with the
activity. According to Table 16-10, Grade 4 is when that is forgotten during
activity. Based on the history, I felt that it does interfere with some of the
activities so I decided to choose lower end for right upper extremity and
middle grade for left upper extremity.
“I hope Dr. Zimmerman will accept this
explanation why I used Grade 3 instead of lower Grade 4.”
On June 22, 2003 Dr. Zimmerman
reported that, in his opinion, Dr. Varghese excessively emphasized the
pain complaint using Table 16-10, page 482 and ignored column one of page 483, which
indicates that grades of sensory deficit or pain are predicated in part on
two-point discrimination. He stated that grading sensory deficit on the left
at 40 percent was not credible: “Using reasonable medical judgment, a grade
from Table 16-10 of 25 percent is the maximum that can be given and still
conform to the fact that two[-]point discrimination was reported to be seven [millimeters].”
Dr. Zimmerman addressed how a grade of 25 percent represented a 10 percent
impairment of the left upper extremity under the A.M.A., Guides.
On June 26, 2003 the Office issued a schedule award for an 11 percent impairment of the right upper
extremity and a 10 percent impairment of the left upper extremity.
Appellant requested
reconsideration, but in decisions dated January 16 and September 17, 2004, the Office denied modification of the June 26, 2003 schedule award. On appeal she contests only the schedule award she received for
her left upper extremity.
LEGAL PRECEDENT
Section 8107 of the Federal
Employees’ Compensation 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. The Office evaluates the degree of permanent impairment according
to the standards set forth in the specified edition of the A.M.A., Guides.
ANALYSIS
If, after an optimal recovery
time following surgical decompression, an individual continues to complain of
pain, paresthesias or difficulties performing certain activities and there are
positive clinical findings of median nerve dysfunction and electrical
conduction delays, the impairment due to residual carpal tunnel syndrome is
rated according to sensory or motor deficits.
Table 16-10, page 482, of the
A.M.A., Guides sets forth a grading scheme and procedure for determining
impairment of the upper extremity due to sensory deficits or pain resulting
from peripheral nerve disorders. Dr. Zimmerman, an Office medical
adviser, correctly noted that the accompanying text on page 483 offers
additional information to aid in the interpretation of the various grades of
severity:
“In interpretation of Table 16-10a, individuals in [G]rade
4 have diminished light touch, with fair (6-10 millimeters) to good two-point
discrimination, localization of sensory stimuli and good protective
sensibility. Abnormal sensations or pain, if present, is minimal and forgotten
during activity. Individuals in [G]rade 3 have diminished light touch and
two-point discrimination. There is mislocalization of sensory stimuli with
some abnormal or increased irritability sensations or pain that interferes with
activities. Protective sensibility is normal. Individuals in [G]rade 2 have
decreased protective sensibility, which is defined as a conscious appreciation
of pain, temperature or pressure before tissue damage results from the stimulus.
They have diminished hand function. The mislocalization and overresponse
(hyperesthesia or paresthesias, hyperpathia or allodynia) to sensory stimuli
result in decreased manipulative skills and gripping function and complaints of
hand weakness. It is possible to have gross appreciation of two-point
discrimination (11-15 millimeters) at this level.”
Dr. Zimmerman explained
that appellant’s 2-point discrimination of 7 millimeters fell within the range
of 6 to 10 millimeters associated with Grade 4 and, therefore, Dr. Varghese’s
Grade 3 classification did not conform to the A.M.A., Guides. The Board
notes, however, that while the text does associate a 2-point discrimination of
6 to 10 millimeters with Grade 4, it then associates a discrimination of 11 to
15 millimeters with Grade 2, leaving Grade 3 no apparent range of its own.
Using these ranges of
discrimination to draw a bright line between grades is not a workable application
of the A.M.A., Guides because it effectively precludes a Grade 3 classification.
Moreover, two-point discrimination is only one factor to consider when grading
sensory deficit or pain under Table 16-10. The grade descriptions and the text
on page 483 offer characterizations of tactile and protective sensibilities and
pain that are intended to be helpful, not necessarily determinative. One
cannot assume that all claimants will present with histories and complaints and
symptoms that neatly fit into only one category. Proper classification may,
therefore, require the examining physician’s clinical judgment.
The A.M.A., Guides
states that Table 16-10a classifies levels of “functional” sensibility.
It is the extent to which sensory deficit or pain affects activity that
primarily distinguishes the grades. In Grade 4, sensory deficit or pain is
forgotten during activity. In Grade 3, it interferes with some activities. In
Grade 2, it may prevent some activities. In Grade 1, it prevents most
activities. In Grade 0, it prevents all activity.
Dr. Varghese agreed that
appellant’s two-point discrimination was only mildly abnormal and that he could
possibly classify her at the end of Grade 4, but he explained that he chose Grade
3 because her detailed history established that sensory deficit or pain
interfered with some of appellant’s activities. He noted that residual
symptoms of pain and weakness prevented her from lifting heavy objects both at
work and at home and also interfered with
several of appellant’s activities of daily living. Dr. Varghese observed
that under Grade 4 sensory deficit or pain is forgotten during activity, which
did not reflect appellant’s history.
Having based the grade of
severity on the extent to which sensory deficit or pain affected appellant’s
activity, Dr. Varghese then estimated the appropriate percentage of
sensory deficit or pain within the range of values shown for Grade 3. Here,
the A.M.A., Guides makes clear that the examiner must use his or her clinical
judgment. Noting that appellant
was slightly more symptomatic in the left hand, with constant tingling in the
wrist and worsening numbness and taking into account only mildly abnormal
two-point discrimination, Dr. Varghese chose the lowest deficit possible
in Grade 3 for the right upper extremity and something short of the midpoint of
the range for the left.
The Board has held that the
opinion of an examining physician in the appropriate field of medicine takes
precedence over the opinion of an Office medical adviser when considering
subjective factors. Because Dr. Varghese
considered subjective factors and supported his opinion with sound rationale
consistent with a proper application of the A.M.A., Guides, the Board
finds that appellant is entitled to a greater schedule award for her left upper
extremity. According to Table 16-15, page 492, the maximum upper extremity
impairment due to unilateral sensory deficit of the median nerve below the
midforearm is 39 percent. Following the procedure set forth in Table 16-10b,
page 482, a 40 percent sensory deficit in Grade 3 multiplied by the 39 percent maximum
value of the affected nerve is a 15.6 percent impairment of the left upper extremity,
which rounds up to the 16 percent impairment determined by Dr. Varghese.
The Board will set aside the
Office’s September 17, 2004 decision, insofar as it awarded a schedule
award of 10 percent impairment for the left upper extremity. The Board will
remand the case to the Office to compensate appellant for 16 percent impairment
of the left upper extremity.
CONCLUSION
The Board finds that appellant
has a 16 percent impairment of her left upper extremity. Although the Office
medical adviser opined that Dr. Varghese placed too much emphasis on her
complaint of pain and that two-point discrimination required the selection of a
lesser grade, the well-reasoned opinion of the examining physician takes
precedence.
ORDER
IT
IS HEREBY ORDERED THAT the September 17, 2004 decision of the Office
of Workers’ Compensation Programs is set aside on the issue of the left upper
extremity and is otherwise affirmed. The case is remanded for further action
consistent with this opinion.
Issued: May 18, 2005
Washington, DC
Alec
J. Koromilas
Chairman
David
S. Gerson
Alternate
Member
Michael
E. Groom
Alternate
Member