United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.G., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

MACDILL AIR FORCE BASE, 

Hillsborough, FL, Employer 

__________________________________________ 

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Docket No. 15-1531 

Issued: August 10, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 9, 2015 appellant filed a timely appeal from a January 21, 2015 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ 

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to 

review the merits of this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether appellant has more than 60 percent permanent impairment of his 

right testicle after it was surgically removed. 

FACTUAL HISTORY 

On December 10, 2012 appellant, a 62-year-old materials handler, sustained a traumatic 

injury in the performance of duty while delivering refrigerators, scrap metal, and furniture to the 

base recycling center. After delivering the items, he felt like he had pulled something. 

(RD12.21.12) Appellant sought medical treatment the next day and it was discovered that the 

injury he received was a hernia that required surgery. 

Two days later, appellant underwent an open repair of a right inguinal hernia. OWCP 

accepted his claim for right inguinal hernia. It expanded its acceptance to include postoperative 

atrophy of the right testicle. On January 15, 2014 OWCP issued a schedule award for 60 percent 

permanent impairment of appellant’s right testicle, or a total of 31.2 weeks of compensation, for 

the period of August 26, 2013 to April 1, 2014. 

On May 28, 2014 appellant underwent a right orchiectomy, or surgical removal of his 

atrophic right testicle. An OWCP medical adviser noted that the surgical removal of the testicle 

did not increase or decrease appellant’s impairment because the testicle was atrophic and 

nonfunctional prior to the surgery. 

In a decision dated August 26, 2014, OWCP denied appellants claim for an additional 

schedule award. By letter dated October 31, 2014 received on November 13, 2014 appellant 

requested reconsideration. On January 21, 2015 OWCP reviewed the merits of appellant’s case, 

but denied modification of its prior decision. 

On appeal, appellant argues that the OWCP medical adviser did not understand that the 

January 15, 2014 schedule award was not for the loss of his testicle. The testicle was surgically 

removed only after the first schedule award was paid. 

LEGAL PRECEDENT 

The schedule award provisions of FECA3

 and the implementing regulations4 set forth the 

compensation payable for permanent impairment from the loss, or loss of use, of scheduled 

members, organs, or functions of the body. For the complete loss of one testicle, a claimant is 

entitled to 52 weeks of compensation.5

 3 Supra note 2. 

4

 20 C.F.R. § 10.404. 

5 Id. at § 10.404(a). 
3

ANALYSIS 

The Board finds that appellant has more than 60 percent permanent impairment of his 

right testicle, following its surgical removal. 

In the present case, appellant underwent surgery on May 28, 2014 to remove the accepted 

atrophic right testicle, constituting a complete and total surgical loss of that organ. OWCP, 

however, has awarded compensation for only 60 percent partial loss of use of that organ. 

OWCP denied additional compensation based on the medical adviser’s opinion that the 

surgical removal of the testicle did not increase or decrease appellant’s permanent impairment. 

The medical adviser, however, found that the surgery did not increase impairment because the 

testicle was atrophic and nonfunctional prior to the surgery. In other words, appellant had 

suffered a 100 percent functional loss of the organ prior to the surgery. 

In the case of N.D.,

6

 the employee sustained left flank abdominal injuries in a workrelated motor vehicle accident which led to the authorized removal of several body parts among 

which was his left kidney. As a result of the nephrectomy, OWCP converted the whole person 

impairment to an impairment rating for a lost organ and granted appellant 15 percent due to the 

loss of kidney function. The medical adviser noted that the impairment was based on function, 

reasoning that although there is a 100 percent loss of function, the remaining kidney can 

compensate for the functional loss of the other. The Board found that the record clearly 

established that the appellant lost his kidney due to his employment injury. As such, the formula 

which OWCP used, converting the whole person impairment to an impairment of a scheduled 

member was inapplicable.7

 The Board remanded the case for amendment to reflect a total loss of 

the kidney at 100 percent.8

It does not matter whether appellant completely lost the functional use of his right testicle 

prior to surgery or upon its surgical removal. It cannot be argued that he retains any use of that 

organ. Accordingly, the Board finds that appellant is entitled to 20.8 weeks of additional 

schedule award compensation (52 weeks maximum compensation minus 31.2 weeks previously 

awarded). The Board will set aside OWCP’s January 21, 2015 decision and will remand the case 

for an additional schedule award of 40 percent permanent impairment. 

CONCLUSION 

The Board finds that appellant has 100 percent loss of his right testicle, which was 

surgically removed. Appellant is entitled to 20.8 weeks of additional schedule award 

compensation. 

 6 N.D., 59 ECAB 344 (2008). 

7 Marilyn S. Freeland, Docket No. 06-563 (issued June 7, 2006). 

8 See also M.E., Docket No. 08-52 (issued March 24, 2008); D.J., Docket No. 08-725 (issued July 9, 2008). 
4

ORDER 

IT IS HEREBY ORDERED THAT the January 21, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further action. 

Issued: August 10, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board