United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

DEPARTMENT OF AGRICULTURE, 

NATIONAL FOREST SERVICE, 

Pollack Pines, CA, Employer

__________________________________________

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Docket No. 19-1226

Issued: December 23, 2019

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 13, 2019 appellant, through counsel, filed a timely appeal from a February 22, 

2019 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 this case.

ISSUE

The issue is whether appellant has met his burden of proof to establish entitlement to more 

than $300.00 for a disfigurement schedule award.

 

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

FACTUAL HISTORY

On July 28, 2006 appellant, then a 27-year-old firefighter, filed a traumatic injury claim 

(Form CA-1) alleging burns to his face, neck, extremities, and other body parts due to encountering 

radiant heat from a fire while in the performance of duty on July 25, 2006. He stopped work on 

July 26, 2006, but later returned to limited-duty work without wage loss. OWCP initially accepted 

appellant’s claim for second degree burns of his face, head, neck, and bilateral upper and lower 

extremities, and it later expanded the accepted conditions to include third degree burns in the same 

areas and post-traumatic stress disorder. 

In August 2006, appellant underwent OWCP-authorized surgery, which included skin 

debridement of his face, ears, arms, and legs, and application of skin grafts to his arms, legs, and 

feet.

On June 3, 2016 appellant filed a claim for a schedule award (Form CA-7) due to his 

accepted employment conditions.

In a July 25, 2016 development letter, OWCP advised appellant that FECA provided a 

schedule award, not to exceed $3,500.00, for serious disfigurement of the face, head, or neck if 

such disfigurement was likely to handicap an individual in securing or maintaining employment. 

It further provided instructions for submitting photographs of the claimed disfigurement. OWCP

requested that he complete and submit an attached disfigurement award application form, and that 

he arrange for an attending physician to complete and submit the form.

On August 24, 2016 Dr. Michael Hebrard, Board-certified in physical medicine and 

rehabilitation, completed the disfigurement report form provided by OWCP, noting that reference 

should be made to his August 24, 2016 narrative report.3 In that report, he advised that his physical 

examination revealed that appellant had mild skin graft scars behind his ears.

On September 19, 2016 appellant completed the disfigurement award application form in 

which he reported that he sustained third degree burns of his ears and nose that required skin 

grafting, as well as second degree burns of his cheeks and neck. He alleged that this disfigurement 

was likely to handicap him in securing or maintaining employment because it was difficult for him 

to perform outdoor work due to the fact that his ears and nose sunburned very easily with 

accompanying blistering, bleeding, and scabbing.4

On April 6, 2018 OWCP referred appellant’s case to Dr. David I. Krohn, a Board-certified 

internist and district medical adviser (DMA) for OWCP, and requested that he review the evidence 

of record and provide an opinion regarding appellant’s claim for a disfigurement schedule award. 

In an April 15, 2018 report, the DMA indicated that Dr. Hebrard had reported in his 

August 24, 2016 report that appellant had mild skin graft scars behind the ears, but that the black 

 

3 Dr. Hebrard attached black and white copies of two photographs of appellant’s head and neck.

4 By decision dated March 28, 2017, OWCP granted appellant a schedule award for 10 percent permanent 

impairment of each upper extremity and five percent permanent impairment of each lower extremity. The award was 

partially based on an August 30, 2016 report of Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, who 

served as an OWCP referral physician. OWCP only requested that Dr. Aubrey evaluate the permanent impairment of 

appellant’s upper and lower extremities, a matter which is not currently before the Board.
3

and white copies of photographs of his head and neck in the case record did not demonstrate 

sufficient detail illustrating scarring behind the ears or any other facial disfigurement secondary to 

burns. In an April 19, 2018 letter, OWCP requested that appellant submit two hard copies of color 

photographs depicting disfigurement of his face, head, or neck. On April 30, 2018 it received hard 

copies of two photographs from appellant.

On June 11, 2018 the case record, including the recently submitted color photographs, was 

referred back to the DMA for further review. In a July 2, 2018 report, the DMA indicated that, 

based on his review of the color photographs, there was hyperpigmented discoloration of the neck 

on both sides, extending from behind each ear to below the angle of the mandible bilaterally. He 

noted there was no scarring or disfigurement of the face itself and no apparent loss of facial hair 

that might be the result of a scar secondary to a burn. The DMA opined that the medical record 

did not document any significant effect on activities of daily living, including breathing or eating. 

He indicated that there was no evidence of distortion of the face or nasal distortion affecting 

physical appearance, and no evidence of loss of supporting structure of part of the face, such as 

depressed cheek, nasal, or frontal bones. The DMA noted that there was no evidence of 

involvement of a bony structure or cartilage. He referenced the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)

5

and 

indicated that, under Table 11-5 (Facial Disorder/Disfigurement) on page 262, appellant had 

permanent impairment which fell under class 1, grade C, and equaled three percent impairment of 

the whole person and seven percent impairment of the face.

OWCP requested that the DMA provide a supplemental report indicating when appellant 

reached maximum medical improvement (MMI). In a July 16, 2018 report, the DMA advised that 

appellant reached MMI on August 30, 2016. 

OWCP’s assistant district director then reviewed the evidence of record and, in a July 18, 

2018 memorandum, noted that the DMA had indicated that appellant had hyperpigmented 

discoloration on his neck, but did not have scarring on his face. He also indicated that appellant 

had reached MMI. The assistant district director concluded that appellant’s condition, including 

visible “scarring” of his neck, might impair his ability to obtain employment and that he should be 

granted a disfigurement schedule award in the amount of $300.00. 

By decision dated July 20, 2018, OWCP granted appellant a disfigurement schedule award 

in the amount of $300.00. It advised that the award was based on the medical evidence of record 

and that it provided proper and equitable compensation for his disfigurement.

On July 27, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review.6

During the December 11, 2018 hearing, counsel argued that there was no adequate 

explanation of how the sum of $300.00 for the schedule award was determined. He asserted that 

$300.00 was equitable given that appellant had his face burned, and that he had visible scars and 

abnormal pigmentation. Counsel noted that he recognized that the statute required that the injury 

 

5 A.M.A., Guides (6th ed. 2009).

6 Appellant submitted a chart entitled, “Facial Disfiguration Structural Impairment by Class Chart,” from an 

unknown source.
4

must result in permanent disfigurement of a character likely to handicap a claimant in securing or 

maintaining employment, but he felt that this standard was obtuse and unclear. Appellant testified 

that his burned skin was more sensitive and that it tore and blistered more easily than his unaffected 

skin.

By decision dated February 22, 2019, OWCP’s hearing representative affirmed the July 20, 

2018 decision. The hearing representative found that all relevant OWCP procedures were 

followed and that the disfigurement schedule award granted to appellant was reasonable given the 

nature of his medical condition.

LEGAL PRECEDENT

Section 8107(c)(21) of FECA provides that payment of compensation not to exceed 

$3,500.00 may be made for disfigurement of the face, head, or neck which is likely to handicap 

the claimant in securing or maintaining employment.7 OWCP procedures further provide that a 

DMA will be asked to review such claims and to evaluate the employee’s disfigurement. If the 

DMA finds that MMI has occurred, he or she will review the photographs submitted along with 

the medical evidence of record and place a memorandum in the file describing the disfigurement 

and stating whether MMI has occurred. If the DMA finds MMI has occurred, the concurrence of 

the district director or assistant district director must be obtained. Following the file review, the 

district director or assistant district director will also write a memorandum which contains a 

description of the disfigurement.8

In an appeal involving disfigurement, the question before the Board is whether the amount 

awarded by OWCP was based upon sound and considered judgment and was proper and equitable 

under the circumstances as provided by section 8107(c)(21) of FECA.9

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish entitlement to 

more than $300.00 for a disfigurement schedule award.

As noted above, section 8107(c)(21) of FECA provides that payment of compensation not 

to exceed $3,500.00 may be made for disfigurement of the face, head, or neck which is likely to 

handicap the claimant in securing or maintaining employment.10 The Board finds that OWCP 

properly followed its procedures in determining that appellant was entitled to $300.00 for facial 

disfigurement.11

 

7 5 U.S.C. § 8107(c)(21).

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.10 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010); see L.J., 

Docket No. 13-0104 (issued October 21, 2013).

9 A.M., Docket No. 14-0787 (issued July 15, 2014).

10 See supra note 7.

11 See supra note 8. 
5

In a July 2, 2018 report, the DMA indicated that, based on his review of the color 

photographs in the case record, there was hyperpigmented discoloration of appellant’s neck on 

both sides, extending from behind each ear to below the angle of the mandible bilaterally. He 

noted that there was no scarring or disfigurement of the face itself and no apparent loss of facial 

hair that might be the result of a scar secondary to a burn. Moreover, there was no evidence of 

distortion of the face or nasal distortion affecting physical appearance, or loss of supporting 

structure of part of the face, such as depressed cheek, nasal, or frontal bones. OWCP’s assistant 

district director then reviewed the evidence of record. In a July 18, 2018 memorandum, he 

discussed appellant’s medical condition and concluded that his condition might to some extent 

impair his ability to obtain employment and that he should be granted a disfigurement schedule 

award in the amount of $300.00. 

The Board finds that OWCP’s awarding $300.00 for permanent disfigurement was proper 

and equitable under the circumstances as provided by section 8107(c)(21) of FECA.12 Although 

appellant believes $300.00 is insufficient compensation for his disfigurement, he has not 

demonstrated that he is entitled to a greater award for permanent facial disfigurement. 

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish entitlement to 

more than $300.00 for a disfigurement schedule award.

 

12 See A.M., supra note 9.
6

ORDER

IT IS HEREBY ORDERED THAT the February 22, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board