Federal Focus
A federal employee who suffered permanent anal impairment following a work-related sexual assault won a remand from ECAB after medical evidence raised unresolved questions about whether her condition could support a schedule award under FECA.
Case
S.K. and Department of Agriculture, Rural Housing Service, No. 25-0227 (ECAB 04/01/25)
What Happened?
A multi-family housing specialist for the U.S. Department of Agriculture filed a traumatic injury claim, alleging that she was drugged, followed to her room, and sexually assaulted while attending an employment-related conference at a hotel. The specialist reported that the assault resulted in bruising, bleeding, and post-traumatic stress disorder.
The Office of Workers’ Compensation Programs accepted the specialist’s claim for rectal tear, gonococcal infection, and contusion of the right upper arm, left upper arm, chest wall, right thigh, and left thigh.
About two months later, the specialist filed a claim for a schedule award, and OWCP expanded the acceptance of the specialist’s claim to include depression and PTSD.
Later, the specialist submitted additional evidence, including a doctor’s opinion that the specialist had reached maximum medical improvement and that she was having symptoms from a rectal tear where she developed a fissure requiring surgery and continued to have anal incontinence.
Using the AMA Guides, this doctor determined that the specialist had a Class 3 impairment due to frequent moderate and occasional severe symptoms of anal incontinence. He calculated that the specialist had a 16% whole person impairment.
Ultimately, OWCP denied the specialist’s schedule award claim based on evidence that assignment of impairment for the anus is not included among the organs by which the percentage of impairment of a particular organ is assigned.
The specialist appealed to the Employees’ Compensation Appeals Board. The dispute centered on whether the specialist’s impairment involved a scheduled organ or function under FECA.
Rule of Law
Under the Federal Employees’ Compensation Act, a schedule award can only be paid for a condition causally related to an employment injury. It is the claimant’s burden to establish permanent impairment of a scheduled member or function of the body as a result of an employment injury.
No schedule award is payable for a member, function, or organ of the body that is not specified in FECA or the implementing regulations. The list of scheduled members includes the eye, arm, hand, fingers, leg, foot, and toes. Additionally, FECA specifically provides for compensation for loss of hearing and loss of vision. By authority granted under FECA, the Secretary of Labor expanded the list of scheduled members to include the breast, kidney, larynx, lung, penis, testicle, tongue, ovary, uterus/cervix, vulva/vagina, and skin. There is no statutory basis for payment of a schedule award for impairment to the bladder, colon, or rectum under FECA or in the regulations.
What ECAB Said
ECAB found that the claim was not in posture for a decision. According to ECAB, a district medical advisor’s analysis was unclear. Although the DMA acknowledged that impairment of the anus is not a scheduled organ under FECA, he nevertheless applied the AMA Guides and calculated a 16% whole-person impairment rating. The report also referenced a 53% impairment of the affected organ. ECAB concluded that these findings created unresolved medical questions that required further development.
The DMA determined that the specialist had a Class 3 impairment, with a default value of 16 corresponding to 16% whole person impairment due to frequent moderate and occasionally severe symptoms of anal disease despite daily medication and other treatment. However, the DMA’s reports were internally inconsistent, as he found that the anus was not included in the schedule, but then subsequently calculated a rating of 16% whole person impairment.
ECAB found that the medical evidence obtained by OWCP was insufficient to permit a final decision and required further clarification.
Conclusion: ECAB sent the case back to OWCP for further proceedings.
Takeaway
While the employee has the burden of proof to establish entitlement to compensation under FECA, OWCP shares responsibility in the development of the evidence. Once OWCP undertook development of the evidence by referring the specialist’s case file to a DMA, it had an obligation to do a complete job and obtain a proper evaluation and report that would resolve the issue in this case. Even when a claimant bears the burden of proof, OWCP cannot rely on equivocal or contradictory medical evidence to resolve a disputed issue.
