United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.K., Appellant

and

FEDERAL JUDICIARY, U.S. SUPREME 

COURT, Washington, DC, Employer

__________________________________________

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Docket No. 20-0422

Issued: December 2, 2020

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On December 13, 2019 appellant, through counsel, filed a timely appeal from October 29 

and 31, 2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP).2 

Pursuant to the Federal Employees’ Compensation Act3(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 The Board notes that, following the October 31, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id. 

3 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP properly determined that appellant was not entitled to 

consumer price index (CPI) adjustments from 1999 to 2017 in calculating the pay rate for his lower 

extremity schedule awards.

FACTUAL HISTORY

On July 29, 1998 appellant, then a 45-year-old assistant clerk/mail messenger, filed an 

occupational disease claim (Form CA-2) alleging that he sustained a left knee condition causally 

related to factors of his federal employment. OWCP accepted the claim for an aggravation of a 

medial meniscal tear and an aggravation of osteoarthrosis of the left lower leg. It subsequently 

expanded acceptance of the claim to include an aggravation of arthritis of the right ankle. 

On August 21, 1998 appellant underwent a high tibial osteotomy. 

A November 9, 1999 notification of personnel action (Form SF-50) indicated that appellant 

had resigned from the employing establishment effective October 23, 1999 to take a position at 

another federal agency. 

On September 26, 2000 appellant underwent a left total knee replacement.4 In

December 2009, he underwent a total replacement of the right ankle. On June 23, 2014 appellant 

underwent a revision of the right ankle replacement. 

In a report dated June 28, 2017, Dr. David E. Eichten, an osteopath, opined that appellant 

had 43 percent permanent impairment of the left knee according to the sixth edition of the 

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

Guides).

5

 He advised that appellant had reached maximum medical improvement (MMI) by the 

time of appellant’s March 27, 2017 examination.

On September 27, 2017 Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving 

as a district medical adviser (DMA), reviewed Dr. Eichten’s findings and opined that appellant 

had 34 percent permanent impairment of the left lower extremity. He advised that he had obtained 

MMI on June 28, 2017.

 

4 By decision dated January 15, 2015, OWCP found that appellant had not established a recurrence of the need for 

medical treatment beginning December 11, 2013 causally related to his July 8, 1998 employment injury. By decision 

dated October 22, 2015, an OWCP hearing representative affirmed the January 15, 2015 decision. By decision dated 

November 7, 2016, OWCP denied modification of the October 22, 2015 decision. By decision dated January 31, 

2018, it vacated the November 7, 2016 decision and found that appellant had established a recurrence of the need for 

medical treatment. OWCP further expanded acceptance of his claim to include an aggravation of arthritis of the right 

ankle as a consequential condition. 

5 A.M.A., Guides (6th ed. 2009).
3

On March 9, 2018 OWCP requested that Dr. Eichten review the DMA’s findings and 

address whether appellant had more than 34 percent permanent impairment of the left lower 

extremity.6 

In an April 13, 2018 report, Dr. Eichten opined that appellant had 37 percent permanent 

impairment of the left lower extremity. He indicated that appellant had reached MMI on 

March 27, 2017. On August 21, 2018 Dr. Hammel concurred with his impairment rating. 

In a September 25, 2018 schedule award memorandum, OWCP found that appellant’s 

weekly pay rate for compensation purposes was $478.92 based on a pay rate date of November 9, 

1999, the date of last exposure. It indicated that he had reached MMI on June 28, 2017 which was 

also the start date for CPI adjustments.

By decision dated September 25, 2018, OWCP granted appellant a schedule award for 37 

percent permanent impairment of the left lower extremity. The period of the award ran for 106.56 

weeks from June 28, 2017, the date of MMI, to July 13, 2019. OWCP found that the effective pay 

rate date was November 9, 1999, which yielded a weekly pay rate of $478.92. It multiplied 

$478.92 by the augmented rate of three-quarters of appellant’s weekly pay for a claimant with 

dependents to find a weekly pay rate $359.19. OWCP indicated that this amount remained 

unchanged after applying cost-of-living adjustments (COLAs).

On June 26, 2019 appellant filed a claim for a schedule award (Form CA-7) for the right 

lower extremity. 

In a report dated July 25, 2019, Dr. Brian Doerr, a podiatrist, determined that appellant had 

59 percent permanent impairment of the right lower extremity due to his right ankle condition. He 

discussed appellant’s history of a total ankle replacement on December 16, 2009 and revision on 

June 23, 2014. Dr. Doerr advised that on February 20, 2017 appellant had undergone an 

osteoplasty of the talus and tibia. He opined that the initial right ankle replacement was unrelated 

to the accepted employment injury, but the latter two surgeries were causally related to the 

accepted employment injury as OWCP had accepted an aggravation of appellant’s right ankle 

condition. Dr. Doerr opined that appellant had obtained MMI on March 11, 2019.

On August 7, 2019 appellant, through counsel, requested reconsideration of the 

September 25, 2018 schedule award decision. Counsel indicated that appellant’s pay rate on the 

date of injury (DOI) was $478.92, for a weekly compensation rate for claimants with dependents 

of $359.19. He observed that OWCP had specified the pay rate date as November 8, 1999 

apparently based on appellant’s SF-50. Counsel did not dispute the DOI pay rate date or that 

appellant had reached MMI on June 28, 2017. He contended, however, that appellant was entitled 

to CPI adjustments from 1999 to 2017. Counsel indicated that he had provided an affidavit that 

appellant was disabled and also received disability benefits from the Social Security 

Administration (SSA). 

 

6 On March 29, 2018 a DMA found that the proposed surgical reversal/replacement of appellant’s left knee joint 

was causally related to the accepted condition and medically necessary. In a letter dated May 11, 2018, appellant’s 

representative advised that he had decided against having the proposed revision of the total knee replacement. 
4

In an April 2, 2019 affidavit, appellant advised that he had not resumed his usual 

employment with the employing establishment after his August 21, 1998 surgery. He stopped 

work on October 18, 1999 because the employing establishment could not accommodate his 

physician’s finding that he should work part time. 

On October 17, 2019 Dr. Hammel concurred with Dr. Doerr’s finding that appellant had 

59 percent permanent impairment of the right lower extremity. He opined that appellant had 

reached MMI on March 23, 2017.

By decision dated October 29, 2019, OWCP denied modification of its September 25, 2018 

schedule award decision. It found that appellant had not sustained prior periods of disability and 

thus he was only entitled to CPI increases during the period of the schedule award.

By decision dated October 31, 2019, OWCP granted appellant a schedule award for 59 

percent permanent impairment of the right lower extremity. The period of the award ran from 

July 14, 2019 to a fraction of a day on October 15, 2022. OWCP found that appellant had reached 

MMI on March 23, 2017 and that his weekly pay rate for compensation purposes was $478.92, 

which when multiplied by the augmented rate for the claimant with dependents yielded a weekly 

pay rate of $359.19. It found that this amount was unchanged after application of COLAs.7

LEGAL PRECEDENT

Under FECA, monetary compensation for disability or impairment due to an employment 

injury is paid as a percentage of monthly rate.8 Section 8101(4) provides that “monthly pay”

means the monthly pay at the time of injury or the monthly pay at the time disability begins or the 

monthly pay at the time compensable disability recurs, if the recurrence begins more than six 

months after the injured employee resumes regular full-time employment with the United States, 

whichever is greater.9 The compensation rate for schedule awards is the same as compensation 

for wage loss.10

Section 8146(a) of FECA provides that compensation payable on account of disability or 

death which occurred more than one year before the effective date of a cost-of-living increase 

(determined in accordance with the provisions of the section) shall be increased by the percent of 

the increase.11 Legislative history shows that this phrase means compensation payable for an 

 

7 OWCP indicated that appellant’s weekly compensation after COLAs was $478.92, his pay rate before multiplying 

by the rate for a claimant with a dependent. This appears to be a typographical error, as the four-week payment is 

$1,436.76 based on a weekly pay rate of $359.19.

8 See 5 U.S.C. §§ 8105-8107.

9

Id. at § 8101(4).

10 See 20 C.F.R. § 10.404(b); K.H., 59 ECAB 495 (2008).

11 5 U.S.C. § 8146(a).
5

employment-related condition where the entitlement to such compensation occurred more than 

one year before the effective date of the cost-of-living increase.12

In cases of disability, a beneficiary is eligible for COLAs under section 8146(a) where 

injury-related disability began more than one year prior to the date the COLA took effect. The 

employee’s use of continuation of pay, as provided by section 8118, or of sick or annual leave 

during any part of the period of disability does not affect the computation of the one-year period.13 

The disability need not have been continuous for the whole year before the increase.14

When an injury does not result in disability, but compensation is payable for permanent 

impairment, a beneficiary is eligible for COLAs under section 8146(a) of FECA where the award 

for such impairment began more than one year prior to the date the COLA took effect.15

OWCP procedures provide that, in determining the pay rate for schedule awards in 

occupational disease claims, the DOI is the date of last exposure to the employment factors that 

caused the condition.16 When there is prior injury-related disability, OWCP procedures indicate 

that the CPI start date for the schedule award is the effective date of the applicable pay rate.17 

When there is no prior injury-related disability, the CPI start date is the date of MMI.18 The 

schedule award start date is also the date of MMI.19

OWCP’s procedures further provide, regarding CPIs, that “[w]here the schedule awards 

represents the first payment for compensable disability, the claimant’s entitlement to CPIs does 

not begin until one year after the award begins.”

20

 Its procedures additionally indicate that when 

a claimant has no disability for work before the date of MMI, “the one-year waiting period begins 

on the starting date of the award. This date represents the claimant’s first entitlement to 

compensation, even though the effective date of the pay rate DOI is earlier.”

21

The period covered by a schedule award typically commences on the date that the employee 

reaches MMI from the residuals of the employment injury. MMI means that the physical condition 

 

12 Franklin L. Armfield, 29 ECAB 500 (1978) (claimant not eligible for a cost-of-living increase, as provided by 

section 8146(a), unless the date of his entitlement to compensation occurred more than a year before the effective date 

of the cost-of-living increase).

13 20 C.F.R. § 10.420(a).

14 Id.

15 Id. at § 10.420(b).

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900 Exhibit 

(September 2011).

17 Id. See also D.G., Docket No. 16-1855 (issued August 28, 2017).

18 Id.

19 Id.

20 Supra note 16 at Chapter 2.808.7(h) (February 2013).

21 Id. note 16 at Chapter 2.901.16(a)(5) (February 2013).
6

of the injured member of the body has stabilized and will not improve further.22 The determination 

of the date of MMI is factual in nature and depends primarily on the medical evidence.23 The date 

of MMI is usually considered to be the date of the evaluation accepted as definitive by OWCP.24 

OWCP procedures provide that a schedule award “begin[s] on the date of MMI, unless 

circumstances show a later date should be used.”

25

ANALYSIS

The Board finds that OWCP properly determined that appellant was not entitled to CPI 

adjustments from 1999 to 2017 in calculating the pay rate for his left lower extremity schedule 

award.

OWCP’s procedures provide that, a schedule award based on an occupational disease 

should have a pay rate date based on the DOI, the date disability begins, or the date of recurrence 

of disability, whichever is greater.26 Appellant has not received wage-loss compensation from 

OWCP for any period of disability due to his accepted employment injury. Consequently, his pay 

rate for schedule award purposes is his DOI pay rate. In an occupational disease, where the 

claimant remains exposed to the employment factors claimed, the DOI is the date of last exposure 

to the employment factors that resulted in appellant’s condition.27 Appellant resigned from the 

employing establishment effective October 23, 1999, which is the DOI for pay rate purposes. 

While OWCP found that the DOI was November 9, 1999, the date of the Form SF-50 advising of 

his retirement instead of the date of last exposure, there is no evidence that his salary changed from 

October 23 to November 9, 1999. 

As discussed, section 8146(a) of FECA provides that compensation payable on account of 

disability or death which occurred more than one year before the effective date of a COLA shall 

be increased by the percentage of the increase.28 Counsel alleged that OWCP should have applied 

CPI adjustments to the DOI pay rate beginning in 1999 in calculating appellant’s pay rate for 

schedule award purposes. However, the CPI adjustment start date for a claimant without prior

disability in calculating the pay rate for a schedule award is the date of MMI.29 OWCP properly 

determined that appellant had obtained MMI for the left lower extremity on June 28, 2017 the date 

of the impairment evaluation accepted by OWCP for schedule award purposes.30 Appellant has 

 

22 S.B., Docket No. 17-1665 (issued January 28, 2019); Adela Hernandez-Piris, 35 ECAB 839 (1984).

23 J.B., Docket No. 11-1469 (issued February 14, 2012); Franklin L. Armfield, 28 ECAB 445 (1977).

24 Supra note 16 at Chapter 3.700.3(a)(1)(c) (January 2010).

25 Id. at Chapter 2.808.7(b) (February 2013).

26 Id.

27 Id. at Chapter 2.900.5(a) (September 2011); Patricia K. Cummings, 53 ECAB 623 (2002).

28 Supra note 11.

29 Supra note 15; see also David M. Chillemi, Docket No. 95-2546 (issued August 14, 1997).

30 Supra note 23.
7

not demonstrated that he had injury-related disability and thus is entitled to a CPI adjustment start 

date as of the date of MMI, June 28, 2017.31 While he contended that SSA found that he was 

disabled, the findings of other government agencies are not dispositive with regard to questions 

arising under FECA.32 As appellant lost no time from work due to his accepted employment injury, 

his CPI adjustment start date is the date of MMI.33 

FECA’s implementing regulations at section 10.420(b), regarding application of COLAs, 

provides that a schedule award “[w]here an injury does not result in disability, but compensation 

is payable for permanent impairment of a covered member, organ, or function of the body, a 

beneficiary is eligible for COLAs under 5 U.S.C. § 8146 where the award for such impairment 

began more than one year prior to the date the cost-of-living adjustment took effect.”

34

 OWCP’s 

procedures and Board precedent incorporate the regulations’ principle that, where a “schedule 

award represents the first payment for compensable disability, the claimant’s entitlement to [CPIs] 

does not35 begin until one year after the award begins.” Appellant was thus not entitled to CPI 

adjustments from 1999 to 2017 in calculating his pay rate for schedule award purposes for his left 

lower extremity schedule award.

The Board further finds, however, that the case is not in posture for decision regarding 

whether OWCP properly found that appellant was not entitled to CPI adjustments in calculating 

his pay rate for schedule award purposes for the right lower extremity schedule award as further 

development is needed to determine the date of MMI.

As discussed, OWCP properly found that the applicable pay rate for schedule award 

purposes was the DOI. It determined that appellant had reached MMI for the right lower extremity 

on March 23, 2017 and that the period of the award ran from July 14, 2019 to a fraction of a date 

on October 15, 2022. The impairment evaluation upon which OWCP based the award, however, 

was the July 25, 2019 report from Dr. Doerr, who found that he had reached MMI on 

March 11, 2019. Dr. Doerr noted that appellant had undergone surgery on his right ankle on 

February 20, 2017. The DMA determined that he had retroactively reached MMI for the right 

lower extremity on March 23, 2017, but provided no rationale for his conclusion. As discussed, 

the date of MMI is usually considered to be the date of the evaluation accepted as definitive by 

OWCP.36 The Board has noted a reluctance of find a date of MMI which is retroactive to the 

award, as retroactive awards often result in payment of less compensation benefits. The Board, 

 

31 See F.P., Docket No. 07-2315 (issued April 18, 2008). See also Thomas Donaghue, 39 ECAB 336 (1988) the 

legislative history of section 8146(a) makes it clear that the intent was to have cost-of-living increases apply only in 

situations where an employee has already been receiving compensation for more than one year prior to the effective 

date of the increase). 

32 See A.M., Docket No. 17-1192 (issued September 19, 2018).

33 Supra note 15; see also N.F., Docket No. 08-2117 (issued April 21, 2009).

34 20 C.F.R. § 10.420(b).

35 Moe I. Friedman, 98-0468 (issued December 27, 1999); David M. Chillemi, Docket No. 95-2546 (issued 

August 14, 1997); Franklini J. Armfield, supra note 12; supra note 16 at Chapter 2.808.7(h) (February 2013).

36 Supra note 23.
8

therefore, requires persuasive proof of MMI in the selection of a retroactive date of MMI.37 The 

DMA’s selection of March 23, 2017, a date retroactive to the start of the schedule award, is 

unexplained. Consequently, the case will be remanded for OWCP to have the DMA provide 

rationale for his selection of March 23, 2017 as the date of MMI. OWCP should then provide a 

clear explanation of how it calculated appellant’s pay rate for compensation purposes, including 

the application of any CPI adjustments.38 Following this and any subsequent development deemed 

necessary, it should issue a de novo decision.

CONCLUSION

The Board finds that OWCP properly determined that appellant was not entitled to CPI 

adjustments from 1999 to 2017 in calculating the pay rate for his left lower extremity schedule 

award. The Board further finds that the case is not in posture for decision regarding whether 

OWCP properly found that he was not entitled to CPI adjustments in calculating the pay rate for 

the right lower extremity schedule award.

ORDER

IT IS HEREBY ORDERED THAT the October 31, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded 

for further proceedings consistent with this decision of the Board. The October 29, 2019 decision 

is affirmed.

Issued: December 2, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

37 C.H., Docket No. 19-1639 (issued April 3, 2020); R.M., Docket No. 18-1313 (issued April 11, 2019).

38 See K.G., Docket No. 15-1476 (issued May 6, 2016).