award for a 5 percent permanent loss of use of his left hand, covering the period from December 1, 1967, to February 24, 1968. He claims additional compensation for a loss of wage-earning capacity which he contends that he sustained as a result of the employment injury. He alleges that he has been unable to hold a job because of the left hand impairment caused by the accident. He believes that he is totally disabled for employment as an electrician in private industry, but he stated that he could perform the work of an electrician for the Government because he would be allowed to work at a slower pace. In support of his claim, appellant submitted a report from Dr. Joseph A. Leonard, dated July 1, 1968, in which the doctor stated that appellant was unable to do skilled work with his left hand due to clumsiness resulting from the employment injury; that he was able to do any work which did not require fine, delicate manipulation with the left hand, but was totally disabled for his usual work. On January 20, 1969, the Bureau medical adviser reviewed Dr. Leonard's report and expressed the opinion that the findings and conclusions of Dr. Anderson, based on his examination of appellant on December 1, 1967, were still valid and appropriate. On September 2, 1969, Dr. Herbert R. Markheim, an orthopedist, examined appellant and described minimal findings with respect to the middle and index fingers of the left hand. The doctor stated that appellant could not close his left hand as he could his right hand and that, in the doctor's opinion, he could not hold a job as an electrician. The Bureau determined that appellant did not have any employment-related loss of wage-earning capacity subsequent to February 24, 1968, when his schedule award expired, and it denied his claim for additional compensation. Appellant contends that this was error. As has been noted, appellant was 67 years old at the time of the employment injury on May 23, 1967. The record shows that prior to the injury he had a tremor of both hands. The private employers for whom appellant worked in 1967 and 1968 indicated that he was not laid off because of an impairment of the left hand. It was noted that he was right-handed. They reported that he was discharged because of factors relating to his age: slowness, unsteadiness on his feet which made it hazardous for him to work on ladders or scaffolding, and tremors of both hands and attendant difficulty in handling tools and performing the duties of an electrician. Appellant's union representative confirmed that no one would hire appellant because of his age and the shaking of his hands and unsteadi ness of gait, and he stated that the union would not refer appellant for any more jobs for these reasons. The Board finds that the weight of the evidence establishes that by February 24, 1968, when appellant's schedule award expired, he had recovered from the effects of the employment injury except for the impairment of the left hand for which he received the award; that such left hand impairment did not cause any loss of wage-earning capacity subsequent to that date, and that appellant's disability for work thereafter was due to his age and related factors which were unrelated to his employment injury. The decision of the Bureau of Employees' Compensation, dated December 23, 1969, is affirmed. In the Matter of CLAIR F. VINCENT and DEPARTMENT OF DEFENSE, DEFENSE SUPPLY DEPOT, OGDEN, UTAH Schedule awards, hand-Wage-earning capacity, loss of, in general Evidence established that appellant had no more than a 20 percent permanent impairment of his hand where there was no medical evidence that he had a greater impairment. Should there be an increase in the injury-related impairment or should appellant, because of the residuals of the injury, be unable to do the work of a laborer or earn comparable wages, he may apply to the Bureau for a determination as to his entitlement to additional compensation. Docket No. 70-111; Submitted on the Record; Issued July 15, 1970 Before THEODORE M. SCHWARTZ, E. GERALD LAMBOLEY, The issue is whether appellant has more than a 20 percent permanent loss of use of the right hand for which he received a schedule award. On September 20, 1966, appellant, a 20-year old laborer, caught his right hand in a punch press and sustained lacerations over the thumb, the index finger and 5th metacarpal, and fractures of the 4th and 5th metacarpals. Dr. Noall Z. Tanner, a Board-certified surgeon, sutured the lacerations and performed an open reduction and wiring of the fractures. The cast and the wires in the fractured bones were removed on December 17, 1966. Physiotherapy was given until March 21, 1967. On October 6, 1966, appellant returned to the job he held when injured without reduction in pay; he received total disability compensation for the time lost on account of the injury. On June 20, 1968, Dr. Tanner evaluated the permanent effects of the injury. He reported that the fractures were well healed and in good alignment. There were slight deformities of the right index and middle fingers, and a loss of sensation in the right hand. Appellant was unable to completely flex the fingers at the terminal joints and had difficulty in bringing the fingers in apposition to the thumb and in making a tight fist. The condition of the hand was unchanged when appellant was reexamined on December 18, 1968. The doctor estimated the permanent partial loss of use of the right hand at 10 to 20 percent. A medical adviser of the Bureau of Employees' Compensation reviewed the case record and stated that appellant had a 20 percent permanent impairment of the right hand. Pursuant to the schedule provisions of 5 U.S.C. §8107, the Bureau made a schedule award of 48.8 weeks' compensation for a 20 percent permanent loss of use of the right hand, beginning June 18, 1968, and ending May 25, 1969. Appellant contends that the award is inadequate and that his hand condition is likely to get worse in the years to come. The Board finds that the evidence establishes that appellant has no more than a 20 percent permanent impairment of the right hand as a result of the September 20, 1966 injury. There is no medical evidence that he has a greater impairment. Should there be an increase in the injury-related impairment or should appellant, because of the residuals of the injury, be unable to do the work of a laborer or earn comparable wages, he may apply to the Bureau for a determination as to his entitlement to additional compensation. The award of compensation of the Bureau of Employees' Compensation, dated March 7, 1969, is hereby affirmed. In the Matter of THERESA K. DALY and TREASURY DEPARTMENT, INTERNAL REVENUE SERVICE, BROOKLYN, N. Y. Pain and suffering, compensation for-Schedule awards, thumb— In cases involving a schedule award for loss of use of a member, it is proper to consider elements such as pain and swelling which limit the use or functioning of the member. However, the degree of injury in such a case is essentially a medical question, and the evaluation of the degree of such impairment lies peculiarly within the province of a physician. Where the most recent reports of appellant's two physicians respecting the extent of her thumb impairment were not reviewed and evaluated by a Bureau medical adviser prior to its final decision, case was remanded for examination and evaluation of appellant by a specialist not previously involved in the case. Docket No. 70-118; Submitted on the Record; Issued July 17, 1970 Before THEODORE M. SCHWARTZ, E. GERALD LAMBOLEY, The issue is whether the schedule award which appellant received for a 20 percent loss of use of her left thumb was adequate. This is the second appeal. On the prior appeal, the Board held that appellant had a permanent impairment of the left thumb as a result of using a typewriter in her work as a clerk-typist, and it remanded the case for payment of a schedule award.1 Accordingly, on April 18, 1967, Dr. John J. Kennedy, a medical adviser of the Bureau of Employees' Compensation, examined appellant for the purpose of evaluating the degree of functional impairment of her thumb. Dr. Kennedy noted that the employment injury had resulted in a stenosing tenosynovitis of the flexor pollicis longus tendon of the left thumb, for which surgery was performed in 1963. Currently, appellant complained of pain and soreness primarily on the flexor surface of the metacarpophalangeal joint of the left thumb. Dr. Kennedy stated that appellant had weakness of abduction of the thumb and in flexion of the thumb over the palm of the hand; she had difficulty in locking the fist with the thumb. There was no involvement of any of the other digits. Dr. Kennedy expressed the opinion that appellant had obtained maximum improvement in the condition of her left thumb, and that according to the American Medical Association standards,2 and "acknowledging all of the patient's symptoms," she had a permanent functional impairment of the left thumb not in excess of 15 percent. On May 2, 1967, on the basis of Dr. Kennedy's opinion, the Bureau granted appellant a schedule award for a 15 percent permanent loss of use of the left thumb. Appellant protested that the award was inadequate. In support of her contention, she submitted a report of an examination on June 12, 1967, by Dr. Max S. Rabinowitz, a Board-certified orthopedic surgeon who had previously examined her in May 1966. Dr. Rabinowitz stated that appellant's current complaints of pain and 1 18 ECAB 398, issued March 31, 1967 2 See A Guide to the Evaluation of Permanent Impairment of the Extremities and Back, The Journal of the American Medical Association, Special Edition, February 15, limited ability to use her left thumb "are compatible with a persistent residual tenosynovitis flexor tendon of the left thumb which would account for the continuing partial disability of mild degree amounting to about 80% loss of use of the thumb." Dr. Rabinowitz did not state the objective findings upon which he based this estimate. A Bureau medical adviser requested Dr. Ernest S. Barash, a Board-certified orthopedic surgeon, to examine appellant and the record and evaluate the degree of residual impairment of her left thumb. Dr. Barash examined appellant on June 27, 1968. He took X-rays of both hands, and stated that they showed osteoarthritis, particularly in the joints of both index fingers. He concluded that appellant had regained the normal use of the flexor pollicis longus tendon of the left thumb, and that she did not have any residual difficulties with respect to the thumb. He stated that her complaints of swelling and stiffness were primarily attributable to the development of degenerative osteoarthritis, which was of about the normal level of a person of her age of 62, and were not attributable to the tenosynovitis which she had had. Dr. Barash expressed the opinion that, considering all the circumstances, the award for a 15 percent permanent loss of use of the left thumb which appellant had received was "justifiable" and "sufficient." The Bureau medical advisor concurred with Dr. Barash's opinion. Appellant denied that she had regained the normal use of her left thumb. She complained that it became painful and swollen when she used it. She submitted statements by Dr. Rabinowitz and Dr. Dennis J. Fiorentino, a Board-certified surgeon. Dr. Fiorentino reported that he had previously examined appellant in 1965 and 1966. He stated that the current examination, on January 17, 1969, revealed an inability to fully abduct the left thumb, and attempts at passive abduction were painful. He stated that the objective and subjective complaints were essentially unchanged since appellant was last seen in 1966. Dr. Rabinowitz reported that he reexamined appellant on January 27, 1969; that there was still tenderness of the left thumb in the region of the metacarpal phalangeal joint, in the line of the long flexor tendon; that active motion was slightly restricted; passive motion was free, and there was some residual thickening in the surgical scar. Dr. Rabinowitz concluded, "It is still felt that the patient has a partial disability of the left thumb consistent with the postoperative situation associated with a stenosing tenosynovitis of the long flexor tendon." On October 17, 1969, a claims examiner requested a Bureau medical adviser to evaluate these reports, but this was not done. |