L.C., claiming as administratrix of the estate of J.C., and U.S. Postal Service, Post Office, New York, NY (Board decision, March 28, 2013)

ECAB final decision. The Board affirmed OWCP’s June 20, 2012 denial of a posthumous schedule award for J.C.’s estate. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

J.C., a postal letter carrier, had filed a claim for a schedule award for a left knee injury. His attorney formally withdrew that claim in March 2006 while J.C. pursued a recurrence claim, and J.C. died that June. L.C., his widow and estate administrator, requested a schedule award after his death. The Board held that the withdrawn claim was no longer pending when J.C. died and that a new claim could not be filed posthumously. It affirmed OWCP’s denial.

Decision snapshot

• Authority: Payment of unpaid schedule awards to survivors, 5 U.S.C. § 8109(a); end of the right to claim compensation at death, 20 C.F.R. § 10.105(d).
• Outcome: June 20, 2012 denial of a posthumous schedule award affirmed.
• Key point: A withdrawn schedule award claim cannot support a survivor’s later claim when no claim was pending at the employee’s death.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.C., claiming as administratrix of the estate of )
J.C., Appellant
)
) Docket No. 12-1924
and ) Issued: March 28, 2013
)
U.S. POSTAL SERVICE, POST OFFICE,
)
New York, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On September 19, 2012 appellant, through his attorney, filed a timely appeal from a June 20, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying a posthumous schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.

ISSUE

The issue is whether a valid claim for schedule award was filed within the employee’s lifetime for appellant to be entitled to a posthumous schedule award.

1
5 U.S.C. §8101 et seq.
FACTUAL HISTORY

On December 28, 1985 the employee, then a 31-year-old letter carrier, filed a traumatic injury claim alleging that he twisted his left knee when he slipped on ice while coming down a step. OWCP accepted the claim for internal derangement of the left knee.

On August 10, 2001 the employee filed a claim for a schedule award and submitted a December 24, 1998 impairment report from Dr. David Weiss, an osteopath. OWCP began development of the impairment issue and, in 2005, requested that the employee file a Form CA-7 claim for compensation indicating that he was seeking entitlement to a schedule award. On September 22, 2005 the employee again filed a claim for a schedule award.

On January 4, 2006 the employee filed a notice of recurrence alleging that his work stoppage as of December 12, 2005 was due to no work being available within his restrictions.2 In a March 2, 2006 letter, counsel advised that the employee’s schedule award claim must be withdrawn in light of the fact that he had filed a recurrence. He asked OWCP to confirm in writing that the schedule award has been withdrawn and that the recurrence claim would proceed. In a March 16, 2006 letter, OWCP acknowledged that the schedule award had been withdrawn per the employee’s request. It advised that he could submit his request for a schedule award again when his physician opined that maximum medical improvement has been reached. In a June 30, 2006 letter from counsel, OWCP was advised that the employee had passed away on June 25, 2006.

On April 12, 2010 appellant, the employee’s widow and administratrix of his estate, filed a claim for a schedule award. By decision dated May 4, 2010, OWCP denied entitlement to a schedule award as the medical evidence was insufficient to establish permanent impairment under the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment. On May 11, 2010 appellant requested a hearing before an OWCP hearing representative, which was held September 15, 2010. In a January 21, 2011 decision, OWCP’s hearing representative vacated the May 4, 2010 decision and remanded the case for further medical development.

By decision dated May 17, 2011, OWCP denied the claim for a schedule award as the evidence was not sufficient to establish that a valid claim for benefits was submitted within the employee’s lifetime. It specifically found that the employee, through counsel, withdrew the active August 1, 2001 schedule award claim on March 2, 2006, prior to adjudication. Although the claim was resubmitted and a new claim filed after the employee’s death on June 25, 2006, those claims cannot be considered to have been submitted during the employee’s lifetime.

In a May 23, 2011 letter, counsel requested an oral hearing, which was held via videoconference on April 23, 2012. He argued that the schedule award request made in August 2001 was a valid claim during the employee’s lifetime. Appellant indicated that, due to a recurrence, a request was made not to proceed with the schedule award on March 2, 2006.

2
By decision dated April 15, 2008, the Board set aside OWCP’s April 3, 2007 decision denying the employee’s recurrence claim and remanded the case to OWCP for further development. Docket No. 07-2367 (issued April 15, 2008). OWCP ultimately accepted the recurrence.

2
However, the recurrence was approved and the request for a schedule award was renewed after the employee’s death.

By decision dated June 20, 2012, OWCP’s hearing representative affirmed the May 17, 2011 decision finding that there was no valid or pending claim for a schedule award on record at the time of employee’s death on June 25, 2006.

LEGAL PRECEDENT

Section 8109 of FECA provides for the payment of compensation under schedule awards unpaid at death to beneficiaries and lists an order of precedence for identifying eligible beneficiaries. The statue provides that, if an individual has sustained disability compensable under section 8107(a), has filed a valid claim in his lifetime, and dies from a cause other than the injury before the end of the period specified by the schedule; the compensation specified by the schedule that is unpaid at his death, whether or not accrued or due at his death, shall be paid to designated surviving beneficiaries.3

The Board has held the intent of this statutory language is clear, for a beneficiary to be entitled to payment of a schedule award upon death of an injured employee, such claim must have been filed within the employee’s lifetime.4 If a claim has been filed during the employee’s lifetime and the claim was under development, the employee’s estate may be entitled to schedule award benefits if entitlement is established by the medical evidence.5

ANALYSIS

The record indicates that the employee requested a schedule award on August 10, 2001 and September 22, 2005. In a March 2, 2006 letter, counsel requested a formal withdrawal of the schedule award claim. OWCP acknowledged the formal withdrawal of the schedule award claim and sent the employee and counsel a letter indicating such on March 16, 2006. The employee passed away on June 25, 2006. Appellant requested a schedule award on his behalf on April 19, 2010.

There is no entitlement to a posthumous schedule award if the schedule award claim is not filed during the lifetime of the injured employee.6 The Board has held that a schedule award claim must be filed by an injured employee or someone acting on his behalf during his lifetime to establish a valid claim for compensation under section 8107.7 Additionally, OWCP’s implementing regulations provide that the right to claim compensation ceases and does not 3 5 U.S.C. § 8109(a). Carol T. Collins (Harold Turner), 54 ECAB 417 (2003); P.G. (T.G.), Docket No. 08-2183 (issued June 23, 2009).
4
Id.
5
See Cheryl R. Holloway (Wryland R. Holloway), 54 ECAB 443 (2003).
6
Carol T. Collins (Harold Turner), supra note 3; Mary Marie Young (David E. Young), 30 ECAB 94 (1978);
P.G. (T.G.) supra note 3.
7
Id.

3 survive the death of the employee.8 In the instant case, counsel requested a formal withdrawal of the employee’s schedule award claim on March 2, 2006, which OWCP accepted and acknowledged on March 16, 2006. While appellant’s attorney on appeal argued that the employee’s schedule award claim had to be interrupted during the period of recurrence, his March 2, 2006 letter used clear and definitive language that he wished to withdraw the employee’s schedule award. OWCP confirmed the withdrawal on March 16, 2006 and counsel did not communicate any desire to renew the claim prior to the employee’s death. Thus, there is no valid or pending schedule award claim on record at the time of the employee’s death on June 25, 2006. As no valid schedule award claim was filed within the employee’s lifetime, the Board finds that a posthumous claim for schedule award compensation may not be filed by appellant.9

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

8
See 20 C.F.R. § 10.105(d); see also P.G. (T.G.), supra note 3.
9
P.G. (T.G.), supra note 3. Neither the Board nor OWCP has the authority to enlarge the terms of FECA as specified in the statute. See, e.g., Mary C. Anderson-Paine (Robert O. Anderson), 47 ECAB 148, 152 (1995). C.f., F.D. (D.D.), Docket No. 10-229 (issued August 2, 2010) (appellant asserted that the employee filed a valid claim for a schedule award during his lifetime, the Board noted that, while he filed previous schedule award claims which had been paid, there remained no unpaid claim for a schedule award under the previous schedule award claim and no claim that was under development at the time of death). Here, as noted, the previous claim had been withdrawn by counsel and no such claim was under development at the time of the employee’s death.

4
CONCLUSION

The Board finds that appellant is not entitled to a posthumous schedule award on behalf of the employee.

ORDER

IT IS HEREBY ORDERED THAT the June 20, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 28, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5