PDF Version
U. S. DEPARTMENT OF
LABOR
Employees’ Compensation Appeals Board
____________
In the Matter of
LINDA J. PYGMAN and DEPARTMENT OF THE INTERIOR,
NATIONAL PARK
SERVICE, GRAND TETON NATIONAL PARK,
Moose, WY
Docket No.
01-1604; Submitted on the Record;
Issued December
26, 2002
____________
DECISION and ORDER
Before ALEC J.
KOROMILAS, WILLIE T.C. THOMAS,
A. PETER KANJORSKI
The issue is whether appellant has greater than a six
percent impairment of her left lower extremity, for which she received a schedule
award.
On October 30, 1997 the Office of Workers’
Compensation Programs accepted that appellant sustained a left ankle sprain
while in the performance of duty on June 9, 1997.
On June 28, 1999 the Office referred appellant to
Dr. Adrian J. Wolbrink, a second opinion physician and a
Board-certified orthopedic surgeon, for an impairment evaluation.
In a report dated July 20, 1999, Dr. Wolbrink
noted that he had examined appellant and provided a seven percent impairment
rating for her left lower extremity. He noted that appellant’s left ankle had
25 degrees dorsiflexion, 40 degrees plantar flexion, normal subtalar motion and
mild laxity of 2 to 3 millimeters on the left ankle as opposed to the right.
Dr. Wolbrink further noted that her left calf atrophy of 36½ centimeters
versus, 38 centimeters on the right, that she had good circulation in her
foot and no significant neurological deficit. He stated that appellant had a
seven percent impairment of the left lower extremity due to measurable atrophy
based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).
In a report dated December 12, 1999, Dr. David
Smink, the Office medical adviser and an orthopedic surgeon, reviewed
appellant’s record and provided an impairment rating of six percent for her
left lower extremity.
By decision dated February 22, 2001, the Office
awarded appellant a six percent impairment for her left lower extremity.
The Board finds that appellant has established entitlement
to a seven percent permanent impairment of his left lower extremity.
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 A.M.A., Guides has
been adopted by the implementing regulation as the appropriate standard for
evaluating schedule losses.
In the instant case, Dr. Wolbrink, appellant’s
treating physician, in his July 20, 1999 report, expressed his opinion
regarding appellant’s impairment as follows:
“Strength testing is quite
good throughout although [appellant] has definite calf atrophy with the left
calf measuring 36-1/2 centimeters circumference of the largest point compared
to 38 centimeters on the right. [Appellant] has good circulation in her foot
and no significant neurological deficit.”
* * *
“In my opinion, [she]
does continue to have significant pain and disability due to her fairly severe
ankle sprain. She has a permanent impairment of [seven] percent of the lower
extremity or [two] percent of the whole person due to measurable atrophy. This
is based upon the ‘Guides to Evaluation of Permanent Impairment’ by the
American Medical Association, [f]ourth [e]dition.”
The
Office medical adviser in a report dated December 12, 1999, reviewed
Dr. Wolbrink’s report and stated:
“Extrapolating from
Table 37 (p. 3/77) of the A.M.A., Guides, the claimant deserves an award
of 6 percent permanent impairment of the lower extremity for moderate (1.5
centimeters) calf atrophy on the left.”
Table 37 is entitled impairment from leg muscle atrophy.
Under (b), calf atrophy, a difference in circumference of 1 to 1.9 centimeter
yields a mild impairment and a two percent whole person impairment or a three
to eight percent impairment of the lower extremity. Although Dr. Wolbrink
did not identify the Table number as Table 37, he indicated that he was basing
his impairment rating of 7 percent based on “measurable atrophy” of the lower
extremity of the left calf.
The Office medical adviser, a nonexamining physician, used
Dr. Wolbrink’s measurements and the only chart in the A.M.A., Guides
for measuring leg muscle atrophy and arrived at a six percent impairment
without explaining why or how he arrived at one percentage point less when the
range of impairment under the A.M.A., Guides was from three to eight
percent.
The Board finds that the nonexamining Office medical
adviser’s decision is arbitrary and without any rationale for arriving at six
percent impairment using the same identical table as the examining physician
and thus reverses the Office’s decision awarding appellant’s a six percent
impairment. The Board awards appellant a seven percent impairment based on the
opinion of the examining physician, Dr. Wolbrink, who clearly used the
identical table of the A.M.A., Guides as did the Office medical adviser.
The February 22, 2001 decision of the Office of
Workers’ Compensation Programs is reversed and the case record returned to the
Office for an award of a seven percent impairment in accordance with the rating
of appellant’s treating orthopedic surgeon.
Dated, Washington, DC
December 26, 2002
Alec
J. Koromilas
Member
Willie
T.C. Thomas
Alternate
Member
A.
Peter Kanjorski
Alternate
Member