DECISION AND ORDER

Before MICHAEL J. WALSH, GEORGE E. RIVERS, MICHAEL E. GROOM

The issue is whether appellant can concurrently receive compensation pursuant to a schedule award and compensation for partial disability for loss of wage-earning capacity.

This case has previously been on appeal before the Board. By decision and order dated July 8, 1988, the Board found that appellant met his burden of proof establishing that his disability beginning January 13, 1987 was causally related to his January 10, 1987 employment injury; the Board remanded the case to the Office of Workers' Compensation Programs for payment of appropriate compensation beginning January 13, 1987.1

By letter dated October 7, 1988 the Office advised appellant that compensation was authorized for only four hours per day for the period from March 3 to April 27, 1987 since his physician released him to work four hours per day effective February 15, 1987, that compensation was authorized for only two hours per day for the period from April 28 to December 2, 1987 since he was released to work six hours per day and was offered light duty on April 28, 1987; that no compensation was payable from December 3, 1987 to June 6, 1988 since he was released to work eight hours per day effective December 3, 1987; that compensation was authorized for only four hours per day from June 7 to 11, 1988 since he was offered light duty for four hours per day effective June 7, 1988, and that no compensation was payable after June 14, 1988 since he was offered light duty eight hours per day effective June 14, 1988. The Office also authorized continuation of pay from January 13 to February 26, 1987.

In a report dated August 31, 1988, Dr. Bennett I. Machanic, a Board-certified neurologist, who, has been appellant's attending physician since January 15, 1987, stated that appellant could continue to work eight hours a day with infrequent lifting of 20 to 25

1 Orlando Vivens, 39 ECAB 1079 (1988). The factual background of the case, as set forth in the Board's prior decision, is herein incorporated by reference.

pounds and more frequent lifting of 10 to 15 pounds, and that these restrictions were permanent. In a report dated October 6, 1988, Dr. Machanic indicated appellant could work only four to six hours per day. Beginning October 8, 1988 appellant worked less than eight hours per day, and the Office paid compensation for partial disability, based on the hours he missed.

In reports dated November 3, 1988, December 8, 1988, and January 12, 1989, Dr. Machanic indicated appellant could work four hours per day. Appellant continued to work approximately four hours per day, and the Office continued to pay him compensation for partial disability, based on the hours he missed.

By letter dated May 9, 1989, the Office referred appellant, a statement of accepted facts, and prior medical records to Dr. James O'Donnell, a Board-certified orthopedic surgeon, for an evaluation of his condition and its relation to his employment, for work tolerance limitations, and for a description of any permanent impairment causally related to his employment injury. In a report dated May 25, 1989, Dr. O'Donnell concluded:

"On the basis of the physical examination and history which I have obtained it is my opinion that the patient has a chronic lumbosacral sprain with some elements of sciatica and is not totally diagnostic for disc disease. The diagnosed condition was apparently caused by, and does appear to be causally related to, the episode of injury described as occurring on or about January 10, 1987. I feel that he is disabled from returning to the job of a mail handler due to the residuals of his work injury. He does not appear to be able to return to limited duty for a period of eight hours per day due to the residuals of his work injury. It appears that there has been no significant change in his condition or his complaints for a considerable period of time and, accordingly, I would be of the impression that he has reached maximum medical improvement and he has sustained permanent impairment as a result of his back injury. Utilizing the A.M.A. Guides to the Evaluation of Permanent Impairment, Third Edition, page 73, table 49, subtitle II, vertebral disc or other soft tissue lesions paragraph B when operated with medically documented injury and a minimum of six months of medically documented pain, recurrent muscle spasm or rigidity associated with none to minimum degenerative changes on structural tests, physical impairment of the whole person is rated at five percent."

In a report dated May 22, 1989 Dr. Machanic stated "certainly he does have a herniated disk, but he is compensating with the exercise program .... I do not believe that he will be capable of doing full-time work tasks, nor do I think we should change his weight lifting limitations. He will certainly have some permanent partial impairment."

By letter dated June 14, 1989, the Office advised Dr. O'Donnell that the Federal Employees' Compensation Act did not provide for payment of schedule awards for impairment of the back in terms of the whole person. The Office requested Dr. O'Donnell's evaluation, in accordance with the A.M.A. Guides, of any permanent impairment of appellant's legs due to his back injury. In a report dated June 23, 1989, Dr. O'Donnell stated:

"From the history, and his complaint, his problems do involve both lower extremities. Unfortunately, I am not able to use the guidelines that you suggest, since he does not have any apparent sensory or demonstrable motor involvement. I would estimate that his leg impairment, due to his work-related back condition, would be approximately 20 percent of the lower extremities."

In a report dated July 13, 1989, Dr. O'Donnell stated, "His condition has reached maximum medical improvement and, as indicated, he sustained permanent injury of his leg as a result of his back injury and I have estimated his leg impairment due to his work-related back condition would be approximately 20 percent of the lower extremities."

In a report dated July 28, 1989, Dr. Machanic noted that appellant had "a great deal of pain today" and that diagnostic studies had "clearly shown presence of a frank herniation of the L5-S1 disc." The doctor then stated:

"Physical examination today shows the following:

"His reflexes in the knees and ankles are intact. He has some 4 to 4+/5 weakness of the left extensor hallucis longus muscle; but otherwise, shows rather significant strength throughout. There are no sensory deficits.

"Formal testing shows the following: The patient can flex forward to 40 degrees, can extend backwards to 27 degrees, can laterally rotate his pelvis to 35 degrees to the right and laterally to the left 27 degrees.

"CONCLUSIONS:

"Today, the permanent partial impairment rating is calculated. The rating is based on the following considerations. He should receive a rating for chronic pain. In my estimation, this is approximately four percent. He should have a rating for weakness on today's examination. The weakness in the left extensor hallucis longus is 10 percent of the left lower extremity which translates to four percent of the whole person. His limitation on flexion is a four percent whole person impairment rating. There are no impairment ratings appropriate for extension or lateral rotation based on the angles discovered today. Therefore this man has a total partial impairment rating of 12 percent of the whole person."

By letter dated August 16, 1989 the Office advised Dr. Machanic that the Act precluded payment of a schedule award for an impairment of the back or the whole person, and requested an evaluation of any permanent impairment of his legs in accordance with the tables of the A.M.A. Guides. In a report dated August 17, 1989, Dr. Machanic stated:

"Since the Federal Employees' Compensation Act precludes scheduling for impairment of the back in terms of the whole person I am going to calculate the impairment rating based on leg problems. He has weakness over the left leg in an L5 distribution. This is classified as a 4 to 4+ out of 5 weakness on my exam[ination] and would roughly represent a 12 percent loss of function due to loss of strength of the left lower extremity. There are no reflex abnormalities. There are no sensory abnormalities. Therefore, this would calculate out as a 12 percent impairment of the lower extremity. This calculation was based on Table 45 of page 69 of the A.M.A. Guides Third Edition."

An Office medical adviser reviewed Dr. Machanic's report on August 30, 1989 and stated that he agreed that appellant had a 12 percent permanent impairment of the left leg. In a report of appellant's work tolerance limitations dated August 30, 1989 Dr. Machanic indicated appellant could perform light duty four to six hours per day.

By letter dated August 31, 1989, the Office advised appellant that the evidence established that he was entitled to a schedule award, and that "compensation for a schedule award and compensation for leave without pay cannot be paid at the same time. During the period of the schedule award you should not submit

CA-3 forms as I cannot pay disability compensation for leave without pay for the same dates paid on the schedule award."

On September 5, 1989 the Office issued appellant a schedule award for a 12 percent permanent loss of use of the left leg. The period of the award was listed as August 12, 1989 to April 10, 1990.

By letter dated November 9, 1989, appellant, through his attorney, requested reconsideration, contending that, pursuant to the Act and the Office's regulations, appellant was entitled to receive concurrent payments under the schedule award and for partial disability on the basis that his back and leg conditions were different injuries.

By compensation order dated December 22, 1989, the Office found that the evidence in support of the request for reconsideration was irrelevant and immaterial and not sufficient to warrant review of its prior decision. By letter dated February 29, 1990, the Office advised appellant that compensation for partial disability for four hours per day was authorized until August 11, 1989.

By compensation order dated March 8, 1990, the Office found "wage loss compensation is not payable for the same period in which compensation for a schedule award has been paid, which in this case extended from August 12, 1989 to April 10, 1990. Concurrent compensation for the same condition is not payable under the provisions of the FECA." The Office reinstated appellant's compensation for partial disability for four hours per day effective April 11, 1990.

On appeal, appellant, through his attorney, states that appellant did not dispute the finding that he has a 12 percent permanent impairment of the left leg, but contends that appellant may receive concurrent payment of compensation for both partial disability and the schedule award.

The Board finds that the Office properly determined that appellant may not concurrently receive compensation pursuant to a schedule award and compensation for partial disability for loss of wage-earning capacity.

Section 8107 of the Federal Employees' Compensation Act,2 which provides for schedule awards for permanent loss or loss of use of enumerated members and functions of the body, provides that schedule awards are "in addition to compensation for temporary total or temporary partial disability." Section 10.304 of the Office's regulations 3 states, at subsection (a), "Compensation for

2 5 USC § 8107.

3 20 CFR § 10.304.

loss of wage-earning capacity may be paid after the schedule expires," and at subsection (c)(3) that compensation for schedule awards is "Payable in addition to but . . . not concurrently with compensation for temporary total or temporary partial disability."

In Marie J. Born, the Board stated:

"[I]t is well settled that a claimant is not entitled to dual workers' compensation benefits for the same injury. He may not receive compensation for temporary total disability and under a schedule award covering the same period of time. This is true generally under workers' compensation law and specifically under the Federal Employees' Compensation Act.

"As Larson points out, generally 'the schedule award is added to the allowance for temporary total disability.' However, he makes clear that both benefits are not to be paid concurrently. In comparing schedule benefits with other benefits provided under workers' compensation laws for an injury, he notes, 'It goes without saying that, when the statute provides parallel remedies for the same injury, it is not intended that claimant should have both.'" 4

In a more recent case, the Board found that a claimant could not receive benefits for a loss of wage-earning capacity during a period covered by a schedule award that he received for a permanent impairment of the leg resulting from the same injury. 5

In the present case, appellant sustained an injury to his low back on January 10, 1987. This injury resulted in both appellant's inability to work more than four hours per day, for which he received compensation for loss of wage-earning capacity, and in a permanent impairment of his left leg, for which he received a schedule award. Although two parts of appellant's body were affected, it is clear that appellant sustained only one injury on January 10, 1987. The Office's regulations define injury as "a wound or condition of the body induced by accident or trauma, and includes a disease or illness proximately caused by the employment for which benefits are provided under the Act." 6

A schedule award is not payable until maximum improvement of the claimant's condition has been reached. Maximum improvement means that the physical condition of the injured member of the body has stabilized and will not improve further. 7 In the present

4 27 ECAB 623 at 628 (1976).

5 David R. Broge, 40 ECAB 1098 (1989).

6 20 CFR § 10.5(a)(14).

7 Robert L. Mitchell, Jr., 34 ECAB 8 (1982).

case, Dr. Machanic, appellant's attending physician, rated appellant's permanent impairment in a July 28, 1989 report. Dr. O'Donnell, a Board-certified orthopedic surgeon to whom the Office referred appellant, concluded in a May 25, 1989 report that appellant had reached maximum improvement. The evidence establishes that appellant reached maximum improvement by August 12, 1989, the date the Office began payment of his schedule award. As his partial disability resulted from the same injury, the Office properly determined that appellant could not receive compensation for partial disability from August 12, 1989 until the schedule award ended on April 10, 1990.

The decision of the Office of Workers' Compensation Programs dated March 8, 1990 is affirmed.