United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.B., claiming as representative of the estate of 

T.B., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1548 

Issued: April 7, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 27, 2016 appellant, through counsel, filed a timely appeal from a May 26, 2016 

merit 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 the claim. 

 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 appellant may make a posthumous claim for a schedule award. 

FACTUAL HISTORY 

This case was previously before the Board. The facts of the case as set forth in the 

Board’s prior order are incorporated herein by reference. 

On April 27, 2009 the employee, a 61-year-old mechanical engineering technician, filed 

an occupational disease claim (Form CA-2) alleging that he sustained renal cancer due to 

exposures to acetone, asbestos, asbestos, cadmium, dusts, epoxy paint fumes, Freon, silver 

brazing flux, and weld smoke while in the performance of duty. The employee explained that his 

exposures to these substances was most acute when he worked as a pipefitter at the employing 

establishment from October 1, 1974 to March 24, 1978, but that they continued for years 

afterward. 

A position description confirmed that the employee’s duties exposed him to radiation, 

chemicals, dusts, and fumes. A December 18, 1989 industrial hygiene survey confirmed that the 

employee was exposed to airborne asbestos fibers. 

Dr. Thomas R. Hefty, an attending Board-certified urologist, diagnosed a cancerous 

tumor of the left kidney on April 8, 2009. On May 5, 2009 Dr. Hefty performed a left radical 

nephrectomy with left adrenalectomy and major periaortic and intra-aortocaval lymph node 

dissection. 

By decision dated July 1, 2009, OWCP accepted that the employee was exposed to 

hazardous substances as alleged, but denied the claim as the medical evidence of record did not 

establish causal relationship. 

The employee disagreed, and requested an oral hearing, held before an OWCP hearing 

representative on October 29, 2009. He submitted a July 10, 2009 report from Dr. Diana 

Velikova, an attending physician Board-certified in internal medicine, opining that toxic 

exposures while working as a pipefitter contributed to the development of the employee’s renal 

cancer. 

By decision dated January 14, 2010, an OWCP hearing representative vacated OWCP’s 

July 1, 2009 decision and remanded the case to obtain a second opinion regarding the etiology of 

the employee’s renal cancer. On remand of the case the employing establishment verified that 

the employee was exposed to cadmium in the course of his federal employment. Instead of 

obtaining a second opinion, OWCP referred the case to an OWCP medical adviser, who opined 

that the medical evidence submitted was insufficient to establish causal relationship. The 

employee passed away on April 4, 2010. 

By decision dated April 29, 2010, OWCP denied the claim, finding that the medical 

evidence of record was insufficient to establish causal relationship. Appellant subsequently 

appealed to the Board. 
3

By order dated May 12, 2011,3

 the Board set aside OWCP’s April 29, 2010 decision and 

remanded the case to obtain a second opinion as directed by OWCP’s hearing representative in 

the January 14, 2010 decision. On remand of the case OWCP obtained a second opinion review 

of the medical record from Dr. Paul L. Weiden, a Board-certified internist and oncologist, who 

provided an October 27, 2014 report supporting that the employee’s hazardous exposures in the 

course of his federal employment accelerated his renal cancer. 

On October 30, 2014 OWCP accepted that the employee sustained an acceleration of a 

malignant neoplasm of the left kidney due to toxic exposures at work. Appellant received 

survivor benefits.4

On May 20, 2015 appellant, the employee’s widow, claimed a schedule award (Form 

CA-7). In a June 2, 2015 letter, OWCP advised appellant of the additional evidence needed to 

establish her claim. In response, counsel provided a June 15, 2015 letter, contending that 

appellant was entitled to a schedule award for 100 percent loss of the employee’s left kidney. 

By decision dated July 24, 2015, OWCP denied appellant’s schedule award claim, 

finding that the employee had not claimed a schedule award during his lifetime. 

Appellant disagreed, and on July 31, 2015 requested an oral hearing, held on 

March 16, 2016. At the hearing, counsel contended that appellant’s continuation of the 

employee’s occupational disease claim after his death should be construed as a valid schedule 

award claim. 

By decision dated May 26, 2016, an OWCP hearing representative affirmed OWCP’s 

July 24, 2015 decision, finding that, as the employee did not claim a schedule award during his 

lifetime, appellant did not have the right to claim a schedule award after his death. 

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, in pertinent part: 

“(a) If an individual -- 

(1) has sustained disability compensable under section 8107(a) [providing 

for schedule awards] of this title; 

(2) has filed a valid claim in his lifetime; and 

 3

 Docket No. 10-1555, Order Remanding Case, (issued May 12, 2011). 

4

 By notice dated July 23, 2015 and finalized September 18, 2015, OWCP found a $24,822.73 overpayment of 

compensation as appellant had received concurrent Federal Employees’ Retirement System (FERS) benefits and 

FECA compensation beginning March 1, 2013. Appellant was not at fault in the creation of the overpayment. The 

overpayment issue is not before the Board on the present appeal. 
4

(3) 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 specified beneficiaries].”5

 

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.6

 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.7

 

ANALYSIS 

The employee filed a claim for compensation on April 27, 2009. He died on 

April 4, 2010. OWCP accepted the claim on October 20, 2014. The record does not contain a 

Form CA-7 requesting a schedule award, or other written request for a schedule award, executed 

during the employee’s life. Counsel has acknowledged that the employee did not file a schedule 

award as OWCP did not accept the occupational disease claim until after the employee’s death 

on April 4, 2010. Appellant requested a schedule award on May 20, 2015, after the employee’s 

death. 

There is no entitlement to a posthumous schedule award if the schedule award claim is 

not filed during the lifetime of the injured employee.8 The Board has held that a schedule award 

claim must be filed by an injured employee or someone acting on his or her behalf during the 

employee’s lifetime to establish a valid claim for compensation under section 8107.9 

Additionally, OWCP’s implementing regulations provide that “the right to claim compensation 

for disability other than medical expenses ceases and does not survive [the death of the 

employee].”10 

In the instant case, neither appellant, on the employee’s behalf, nor the employee filed a 

schedule award claim before the employee’s death on April 4, 2010. There is no writing from 

the employee of record regarding a schedule award claim. 

 5

 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). 

6 Id. 

7 See Cheryl R. Holloway (Wryland R. Holloway), 54 ECAB 443 (2003). 

8 V.M. (M.M.), Docket No. 10-1732 (issued April 11, 2011); Carol T. Collins (Harold Turner), supra note 5;

Mary Marie Young (David E. Young), 30 ECAB 94 (1978); P.G., (T.G.) supra note 5. 

9 Id. 

10 See 20 C.F.R. § 10.105(d); see also V.M. (M.M.), supra note 8. 
5

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 on 

behalf of the employee’s estate.11 Therefore, OWCP’s May 26, 2016 decision is proper under 

the law and facts of this case. 

On appeal counsel contends that appellant should not be denied a schedule award due to 

OWCP’s delay in accepting the occupational disease claim. As set forth above, as the employee 

did not claim a schedule award during his lifetime, appellant is not entitled to one after the 

employee’s death. 

CONCLUSION 

The Board finds that appellant may not make a posthumous claim for a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the May 26, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 7, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 11 V.M. (M.M.), supra note 8; P.G. (T.G.), supra note 5. See also Sandra J. Henley, Docket No. 00-1619 (issued 

April 4, 2002). 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).