Volumes could be written about the OWCP Schedule Award. The payment of schedule awards for head, neck, and back injuries is a very complex topic. I recently won a case before ECAB which illustrates the problem: S.W. and US Postal Service, docket number 22-0917.
The claimant had extensive low back damage. Some of the damage clearly pre-existed the injury, and some of the damage was clearly due to the injury. To make the case even more complicated, the origin of some of the damage was simply uncertain.
The claimant was examined by an excellent physician of our choice. He found the claimant had an 8% impairment of the right leg using the AMA Guides 6th Edition and following the requirements outlined in the July/August 2009 rating supplement.
The medical director disagreed and requested a second opinion. The second opinion doctor tried to apportion the award between the allowed conditions and the pre-existing condition. Not surprisingly he found that there was no impairment based on the allowed conditions. Again, not surprisingly, a new district medical advisor agreed with the second opinion doctor.
The claim was appealed to Branch of Hearings and Review. The BHR denied the appeal. I appealed that denial to ECAB. ECAB accepted my argument that a Schedule Award is permissible where a spine condition affects the upper and/or lower extremity. If there is evidence of radiculopathy, then there may be an award. Basically there should not be an apportionment. ECAB remanded the claim for a third opinion to resolve the conflict between the examining physician selected by the claimant and the second opinion doctor.
However the above case illustrates a very important fact. The award, if granted, will still be only 8% of the leg. This equals 23.04 weeks of compensation. A significant number of hours were spent on this case. The economics of litigation are relevant. The claimant needs to understand that while there is significant physical and emotional damage, the awards will not adequately compensate the injured worker.
Our office tries to have a frank and open conversation about these types of claims.