United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.W., Administrator of the Estate of J.W., 

Appellant 

and 

NATIONAL AERONAUTICS & SPACE 

ADMINISTRATION, GODDARD SPACE 

FLIGHT CENTER, Greenbelt, MD, Employer 

__________________________________________ 

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Docket No. 16-1728 

Issued: February 2, 2017 

Appearances: Case Submitted on the Record

Daniel M. Goodkin, 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 August 25, 2016 appellant, through counsel, filed a timely appeal from April 27 and 

August 19, 2016 merit decisions 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

ISSUE 

The issue is whether OWCP properly found that appellant was not entitled to wage-loss 

compensation for the period December 10, 2012 to February 1, 2015 because the employee did 

not file a claim for disability during his lifetime. 

FACTUAL HISTORY 

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the prior decision are hereby incorporated by reference. The facts relevant to the current 

appeal will be set forth. 

On September 11, 2012 the employee, then a 54-year-old satellite communications 

engineer, filed a traumatic injury claim (Form CA-1) alleging that on September 4, 2012 he 

broke his leg when he fell out of his wheelchair while exiting an employing establishment taxi.4 

He underwent an open reduction and internal fixation of a fractured right femur on 

September 10, 2012. 

By decision dated November 30, 2012, OWCP denied the employee’s claim after finding 

that he was not in the performance of duty at the time of the September 4, 2014 work incident. It 

determined that he had deviated from his employment by stopping at a building to return library 

books before reporting to work. 

On November 25, 2013 the employee, through counsel, requested reconsideration. He 

asserted that the incident occurred during work hours, and that the employee was on the premises 

of the employing establishment renewing technical manuals related to his employment. 

By decision dated February 21, 2014, OWCP denied the employee’s request to reopen his 

case for further review of the merits of his claim under 5 U.S.C. § 8128(a). It found that he had 

not raised an argument or submitted evidence sufficient to warrant reopening of his case for 

further merit review. 

The employee appealed to the Board. In a decision dated September 4, 2014, the Board 

set aside the February 21, 2014 decision.5

 The Board found that the employee had raised a new 

legal argument not previously considered and thus remanded the case for OWCP to reopen his 

case for further merit review under section 8128(a). 

The employee died in February 2015. 

On July 30, 2015 OWCP vacated its February 21, 2014 decision and accepted the claim 

for a closed fracture of the lower end of the right femur. 

 3

 Docket No. 14-0825 (issued September 4, 2014). 

4

 The employee suffered from muscular dystrophy. 

5 See supra note 3. 
3

Appellant filed a claim for compensation (Form CA-7) on October 23, 2015 on behalf of 

the employee from December 10, 2012 to February 1, 2015. 

The employing establishment, in an October 23, 2015 statement, controverted the claim 

for wage-loss compensation as it was not filed by the employee within his lifetime. 

By decision dated April 27, 2016, OWCP denied appellant’s claim for compensation for 

the period December 10, 2012 to February 1, 2015. It found that, according to its procedures, it 

could not accept a posthumous claim for disability. 

On May 24, 2016 appellant, through counsel, requested reconsideration. He maintained 

that the Board addressed the issue of a posthumous disability claim in Margie Smith (J.B. 

Smith),6 and determined that OWCP regulations did not prohibit a claim for disability 

posthumously. 

By decision dated August 19, 2016, OWCP denied modification of its April 27, 2016 

decision. 

On appeal counsel contends that 20 C.F.R. § 10.105(d) requires that the employee file a 

claim for a traumatic injury or an occupational disease claim before death but does not prohibit 

the posthumous filing of a claim for disability compensation, noting that the Board specifically 

addressed this matter in Margie Smith (J.B. Smith).

LEGAL PRECEDENT 

OWCP’s implementing regulations provides: “If an injured employee or someone acting 

on the employee’s behalf does not file a claim before the employee’s death, the right to claim 

compensation for disability other than medical expenses ceases and does not survive.”7

OWCP’s procedures regarding posthumous claims provide that “[s]uch a claim may be 

made by the estate or a survivor of a deceased employee for medical benefits only. A 

posthumous disability claim cannot be accepted.”8

ANALYSIS 

The employee filed a traumatic injury claim on September 11, 2012 alleging that he 

broke his leg on September 4, 2012 in the performance of duty. OWCP initially denied the claim 

but, following further development, on July 30, 2015 it accepted the claim for a closed fracture 

of the lower end of the right femur. 

The employee died in February 2015. On October 23, 2015 appellant, as administrator of 

the estate, filed a claim for wage-loss compensation on behalf of the employee for the period 

 6

 56 ECAB 349 (2005). 

7

 20 C.F.R. § 10.105(d). 

8

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.8 (March 1993). 
4

December 10, 2012 to February 1, 2015. OWCP denied the claim as the employee had not filed 

a claim for compensation prior to his death. It noted that its procedures provide that it could not 

accept a posthumous disability claim.9

The Board previously considered the issue of whether OWCP’s regulations allowed a 

posthumous claim for disability compensation. In Margie Smith (J.B. Smith),

10 the employee 

filed an occupational disease claim in January 2001. The employee died on April 18, 2002. 

Appellant, his executrix, requested compensation for wage loss from July 1, 1998 to 

April 18, 2002. OWCP denied the claim for disability compensation as it was not filed within 

the employee’s lifetime. The Board noted that section 10.105(d) of OWCP’s regulations 

provided that the right to claim disability ceases if a claim is not filed before the employee’s 

death. It further reviewed OWCP’s regulation defining a claim as “a written assertion of an 

individual’s entitlement to benefits under FECA, submitted in a manner authorized by this 

part.”11 The Board concluded that as the employee filed an occupational disease claim prior to 

his death, the right to claim disability compensation survived his death.12

The Board, consequently, finds that OWCP erred in failing to adjudicate appellant’s 

claim for disability compensation as it was not filed prior to the employee’s death. The 

employee timely filed a traumatic injury claim within his lifetime and thus the right to file a 

claim for disability compensation survived his death. The case will be remanded for OWCP to 

adjudicate whether appellant, on behalf of the employee’s estate, is entitled to compensation for 

wage loss from December 10, 2010 to February 1, 2015. 

CONCLUSION 

The Board finds that OWCP improperly interpreted 20 C.F.R. § 10.105(d) in finding that 

the right to disability compensation did not survive the employee’s death as he filed his traumatic 

injury claim prior to his death. The case will be remanded for OWCP to determine whether the 

employee’s estate is entitled to compensation for wage loss from December 10, 2010 to 

February 1, 2015. 

 9 Id. 

10 See supra note 6. 

11 20 C.F.R. § 10.5(c). 

12 The Board cited Ned C. Lofton (John D. Lofton), 33 ECAB 1497 at 1506 (1982) (finding a conflict in medical 

opinion in a case where the employee filed a claim for compensation prior to his death). 
5

ORDER 

IT IS HEREBY ORDERED THAT the August 19 and April 27, 2016 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

proceedings consistent with this opinion of the Board. 

Issued: February 2, 2017 

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