United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________
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Docket No. 08-848
Issued: January 26, 2009
Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On January 29, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated November 6, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has employment-related permanent impairment of a
scheduled member entitling her to a schedule award.
FACTUAL HISTORY
On December 10, 1992 appellant, then a 46-year-old bulk mail clerk, filed a claim
alleging that she developed an incisional hernia due to lifting in the performance of duty. The
Office accepted appellant’s claim for ventral hernia repairs, incisional hernia without
obstruction, depression and chronic abdominal wall pain.
2
Appellant requested a schedule award. In support of her claim, she submitted a series of
reports from Dr. Jerry W. Goldberg, a Board-certified rheumatologist. He estimated that
appellant had 15 percent impairment to the whole person due to herniation.
By decision dated November 6, 2007, the Office denied appellant’s claim finding that her
accepted employment injuries did not involve a scheduled member.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1
and its
implementing regulations2
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, the Act 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 American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.3
Effective February 1, 2001, the Office
adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all awards issued
after that date.4
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations. As neither the Act nor the regulation
provide for the payment of a schedule award for a hernia or to the whole person, a claimant is not
entitled to such an award.5
ANALYSIS
Appellant submitted medical evidence from Dr. Goldberg, a Board-certified
rheumatologist, supporting that she sustained permanent impairment to the whole person due to
the accepted condition of ventral hernia.
However, a schedule award is not payable for any member, function or organ of the body
not specified in the Act or in the implementing regulations.6
The Act identifies members such as
the arm, leg, hand, foot, thumb and finger, functions such as loss of hearing and loss of vision
and organs to include the eye. Section 8107(c)(22) of the Act provides for the payment of
1
5 U.S.C. § 8107.
2
20 C.F.R. § 10.404.
3 Id.
4
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
5 George E. Williams, 44 ECAB 530, 533 (1993).
6 Leroy M. Terska, 53 ECAB 247 (2001).
3
compensation for permanent loss of any other important external or internal organ of the body as
determined by the Secretary of Labor.7
The Secretary of Labor made such a determination and,
pursuant to the authority granted under section 8107(c)(22), added the breast, kidney, larynx,
lung, penis, testicle, ovary, uterus and tongue to the schedule.8
The Act and its implementing
regulations provide no basis for payment of a schedule award for a hernia. The terms of the Act
are specific as to the method and amount of payment of compensation. Neither the Office nor
the Board has the authority to enlarge the terms of the Act or to make an award of benefits under
terms other than those specified in the statute. Unless a claimant’s contentions are in keeping
with the scope or intent of the Act, the Office’s denial must be affirmed.9 The Office properly
denied appellant’s claim for a schedule award for her hernia condition.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for impairment to the
whole person due to her accepted ventral hernia.
ORDER
IT IS HEREBY ORDERED THAT the November 6, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 26, 2009
Washington, DC
David S. Gerson, Judge
Employees’ Compensation Appeals Board
Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
7
5 U.S.C. § 8107(c)(22).
8
20 C.F.R. § 10.404; Henry B. Floyd, 52 ECAB 220 (2001).
9 See Richard Dale Kornas, 44 ECAB 1009 (1993).