United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.A., Appellant 

and 

U.S. POSTAL SERVICE, NETWORK 

DISTRIBUTION CENTER, Jersey City, NJ, 

Employer 

__________________________________________ 

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Docket No. 17-1182 

Issued: September 12, 2017 

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 8, 2017 appellant, through counsel, filed a timely appeal from a March 21, 2017 

merit decision and an April 5, 2017 nonmerit 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 over 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

ISSUES 

 The issues are: (1) whether appellant has more than seven percent permanent impairment 

of his right testicle, for which he received a schedule award; and (2) whether OWCP properly 

denied appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. 

§ 8128(a). 

FACTUAL HISTORY 

On August 16, 2014 appellant, then a 23-year-old mail handler assistant, filed a traumatic 

injury claim (Form CA-1) for a right groin strain that allegedly occurred earlier that same day 

while pulling an all-purpose container at work. On August 16, 2014 he was diagnosed with 

testicular torsion and he underwent a right simple orchiectomy and left orchiopexy. On 

January 22, 2015 OWCP accepted appellant’s traumatic injury claim for right testicular torsion. 

It also retroactively authorized his August 16, 2014 surgery. 

Appellant submitted medical reports relating to his August 16, 2014 surgery and on 

April 29, 2015 he filed a claim for compensation (Form CA-7) claiming a schedule award due to 

his accepted employment injury. 

In a March 10, 2016 decision, OWCP denied appellant’s schedule award claim because 

he had not submitted sufficient medical evidence to establish permanent impairment under the 

standards of the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (6th ed. 2009) (A.M.A., Guides). 

Appellant requested a telephonic hearing with a representative of OWCP’s Branch of 

Hearings and Review. Prior to the hearing, OWCP’s hearing representative set aside OWCP’s 

March 10, 2016 decision and remanded the case to OWCP for further development, to be 

followed by issuance of an appropriate decision. He indicated that, despite the acceptance of 

appellant’s claim, further development was needed regarding whether the right testicular torsion 

and the need for the August 16, 2014 orchiectomy were related to the August 16, 2014 

employment incident. The hearing representative noted that the case should be referred to an 

appropriate medical specialist to consider whether appellant’s testicle condition and surgery were 

work related and, if so, to provide an impairment rating under the sixth edition of the A.M.A., 

Guides.

3

In November 2016 OWCP referred appellant to Dr. Mark Ehrenpreis, a Board-certified 

urologist, for a second opinion examination and opinion on appellant’s work-related conditions 

and permanent impairment under the standards of the sixth edition of the A.M.A., Guides. 

 3

 The hearing representative indicated that, if the referral physician finds that the testicle condition and surgery 

were not work related, OWCP should issue a proposed notice of rescission for the accepted condition of right 

testicular torsion. He further noted that, if the physician finds a work-related connection and produces an 

impairment rating calculation, the case should be referred to an OWCP medical adviser for review of the impairment 

rating calculation. 
3

In a November 30, 2016 report, Dr. Ehrenpreis indicated that his physical examination 

showed an absent right testicle and a palpably normal left testicle. There was no hernia and the 

abdomen was soft with no palpable hepatosplenimegaly or masses. Dr. Ehrenpreis found that 

appellant’s right testicular torsion and the need for the August 16, 2014 orchiectomy were related 

to the August 16, 2014 employment incident. He noted that appellant was back to baseline status 

without any disability from work and advised that he did not require treatment. Dr. Ehrenpreis 

opined that, due to the absence of the right testicle, appellant had 15 percent whole person 

impairment (class 3) based on Table 7-8 (Criteria for Rating Impairment due to Testicular, 

Epididymal, and Spermatic Cord Disease) on page 147 of the sixth edition of the A.M.A., 

Guides.

In January 2017 OWCP referred the case to Dr. David I. Krohn, a Board-certified 

internist serving as an OWCP medical adviser, and requested that he review the evidence of 

record and provide an opinion regarding appellant’s permanent impairment under the sixth 

edition of the A.M.A., Guides.

In an undated report received on February 7, 2017, Dr. Krohn determined that appellant 

had seven percent whole person permanent impairment with regard to his accepted right testicle 

injury. He indicated that, under Table 7-8, appellant’s absent right testicle fell under a class 2 

impairment for “[p]ersistent anatomic alteration or physical signs referable to testes....” which 

correlated with the default value of nine percent whole person impairment. Dr. Krohn noted that, 

given the absence of symptoms relative to the testes, the grade modifier for history under 

Table 7-8 fell was class 1, and that this finding required movement one space to the left of the 

class 2 default value, i.e., to seven percent whole person impairment. He advised that 

Dr. Ehrenpreis assigned a class 3 or 15 percent whole person impairment “due to the absence of 

the right testicle,” but noted that he felt that a class 3 impairment required bilateral anatomic loss 

of the testes. However, appellant had only one absent testicle and, therefore, class 2 impairment 

was indicated. Dr. Krohn advised that appellant reached maximum medical improvement on 

November 30, 2016. 

In a March 21, 2017 decision, OWCP granted appellant a schedule award for seven 

percent permanent impairment of his right testicle. The award ran for 3.64 weeks (7 percent of 

52 weeks) and was based on the opinion of Dr. Krohn who reviewed the findings of 

Dr. Ehrenpreis. 

On March 30, 2017 counsel, on behalf of appellant, requested reconsideration of 

OWCP’s March 21, 2017 decision. He argued that Dr. Ehrenpreis properly applied the A.M.A., 

Guides to find that appellant had 15 percent permanent impairment of his whole person, but that 

Dr. Krohn improperly lowered the rating to 7 percent permanent impairment of his whole person. 

He asserted the correct decision would be to give appellant a schedule award for 100 percent 

permanent impairment of his right testicle, which would provide for payment of 52 weeks of 

compensation. 

With respect to the pay rate of the schedule award, counsel generally noted that appellant 

was making $566.87 per week as a mail handler assistant, but he asserted that OWCP should set 

a pay rate of $1,000.00 per week since he would have received that amount when he became a 
4

mail handler.4

 He argued his belief that such a young person as appellant should not be punished 

after suffering a catastrophic accident. 

 In an April 5, 2017 decision, OWCP denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that he failed to submit any new and 

relevant evidence or legal argument. 

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provisions of the FECA5

 and its implementing regulation6 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, FECA 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 regulations as the 

appropriate standard for evaluating schedule losses. The effective date of the sixth edition of the 

A.M.A., Guides is May 1, 2009.7

Section 10.404(b) of OWCP’s regulations provides that, for the complete loss of one 

testicle, a claimant is entitled to 52 weeks of compensation.8

OWCP’s procedures note that, in addition to the loss of use, the statute compensates for 

loss of an organ.9 The procedures provide that, if there is total loss of a single paired organ (such 

as a kidney, breast, testicle, or ovary), the schedule award is generally based on the loss of the 

organ. In this situation, it is immaterial whether the remaining organ compensates functionally 

for the loss.10

 4

 Counsel provided no citation to support his claim for a pay rate of $1,000.00 per week. The Board finds the 

assertion fully without merit. 

5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 

7 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 

8

 20 C.F.R. § 10.404(b). See also S.G., Docket No. 15-1531 (issued August 10, 2016). In S.G., OWCP initially 

granted the claimant a schedule award for 60 percent permanent impairment of his right testicle due to an accepted 

work-related condition, but it did not grant him additional compensation after his right testicle was surgically 

removed due to the same condition. The Board found that, due to the claimant’s complete and total surgical loss of 

his right testicle, he was entitled to schedule award compensation for 100 percent loss of his right testicle. 

9 See supra note 7, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4d(2)(c) (January 2010). 

10 Id. 
5

ANALYSIS -- ISSUE 1 

The Board finds that appellant has 100 percent permanent impairment of his right testicle. 

He is entitled to 48.36 weeks of additional schedule award compensation. 

OWCP accepted appellant’s claim for right testicular torsion. On August 16, 2014 

appellant underwent a right simple orchiectomy and left orchiopexy, a procedure which included 

a complete and total removal of the right testicle.11 By decision dated March 21, 2017, OWCP 

granted him a schedule award for seven percent permanent impairment of his right testicle based 

on the opinion of Dr. Krohn, an OWCP medical adviser. The award ran for 3.64 weeks (7 

percent of 52 weeks). 

Dr. Krohn had reviewed the November 30, 2016 report of Dr. Ehrenpreis, an OWCP 

referral physician. Applying the findings from Dr. Ehrenpreis’ November 30, 2016 report to the 

standards of Table 7-8, page 147 of the A.M.A., Guides, he determined that appellant had seven 

percent permanent impairment of the whole person with regard to his accepted right testicle 

injury.12

The Board notes that appellant’s right testicle was surgically removed due to a workrelated condition and it cannot be argued that he retains any use of that organ. As noted above, 

OWCP’s regulations provide that, for the complete loss of one testicle, a claimant is entitled to 

100 percent loss of 52 weeks of compensation.13 In addition, OWCP’s procedures provide that, 

if there is total loss of a single paired organ (such as a testicle), the schedule award is generally 

based on the loss of the organ and, in this situation, it is immaterial whether the remaining organ 

compensates functionally for the loss.14 Therefore, it was inappropriate to apply a provision of 

the A.M.A., Guides, Table 7-8 in the present case,15 which evaluates partial loss of function of 

the testicles.16

For these reasons, appellant’s complete loss of his right testicle due to a work-related 

condition entitles him to receive 52 weeks of compensation. Accordingly, the Board finds that 

appellant is entitled to 48.36 weeks of additional schedule award compensation (52 weeks 

 11 The procedure was later approved by OWCP as necessitated by the accepted condition. 

12 Dr. Ehrenpreis had calculated 15 percent whole person impairment under Table 7-8. OWCP medical adviser’s 

lower impairment rating was attributable to his finding that appellant’s testicular condition fell under class 2 on 

Table 7-8, rather than class 3 as determined by Dr. Ehrenpreis. See A.M.A., Guides 147, Table 7-8. 

13 See supra note 8. 

14 See supra notes 9 and 10. 

15 A.M.A., Guides 147, Table 7-8. When there is partial loss of testicular, epididymal, or spermatic cord function 

and it is appropriate to apply Table 7-8, the whole person impairment derived from this table is converted to a rating 

for permanent impairment of the testicle under a formula found in OWCP’s procedures. See supra note 7, Part 3 -- 

Medical, Schedule Awards, Chapter 3.700.4d(2)(a), (b) (January 2010). See also A.H., Docket No. 16-1537 (issued 

February 7, 2017). 

16 See generally S.G., supra note 8. 
6

maximum compensation minus 3.64 weeks previously awarded). The Board will set aside 

OWCP’s March 21, 2017 decision and remand the case for an additional schedule award of 93 

percent permanent impairment of the right testicle.17 

CONCLUSION 

The Board finds that appellant has 100 percent permanent impairment of his right testicle. 

Appellant is entitled to 48.36 weeks of additional schedule award compensation. 

ORDER 

IT IS HEREBY ORDERED THAT the March 21, 2017 decision of the Office of 

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

consistent with this decision. 

Issued: September 12, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 Given the Board’s finding regarding the merit issue of the present case, it is not necessary to consider the 

nonmerit issue of the case.