United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Syracuse, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0832

Issued: September 24, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 11, 2019 appellant, through counsel, filed a timely appeal from a January 17, 

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.

 

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 has met her burden of proof to establish that her June 6, 

2018 schedule award should have been paid at an augmented compensation rate.

FACTUAL HISTORY

On August 7, 2014 appellant, then a 31-year-old casual mail handler, filed a traumatic 

injury claim (Form CA-1) alleging when processing mail she fractured her right ring finger while 

in the performance of duty. She stopped work that day. Appellant listed no dependents on her 

claim form. On August 12, 2014 Dr. Daniel J. Murphy, a Board-certified orthopedic surgeon, 

diagnosed proximal phalanx fracture of the right fourth finger. He performed closed reduction of 

the fracture and applied splints and taping. Appellant returned to work on August 14, 2014. 

OWCP accepted the claim for closed fracture of ring finger, right. 

On March 6, 2017 appellant filed a schedule award claim (Form CA-7). She listed no 

dependents on her claim form. The employing establishment indicated that she had resigned on 

February 2, 2015. 

In support of her schedule award claim, appellant submitted a March 16, 2017 report in 

which Dr. Kevin Scott, a Board-certified orthopedic surgeon, noted full range of motion (ROM)

of all finger joints. He diagnosed status post pathological fracture of the proximal phalanx of the 

right fourth finger and advised that she had reached maximum medical improvement (MMI). 

Dr. Scott advised that, in accordance with the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3appellant had a Class 1 

impairment under Table 15-2, Digit Regional Grid. He applied grade modifiers and concluded 

that she had six percent permanent impairment due to her right finger fracture. 

OWCP referred the record, including Dr. Scott’s report, to Dr. Michael M. Katz, a Boardcertified orthopedic surgeon, acting as OWCP’s district medical adviser (DMA). In an August 5, 

2017 report, Dr. Katz agreed with Dr. Scott’s application of the A.M.A., Guides, concluding that 

appellant had six percent right ring finger impairment, and that the date of MMI was March 16, 

2017, the date of Dr. Scott’s examination on which the impairment rating was based.4 

By decision dated June 6, 2018, OWCP granted appellant a schedule award for six percent 

impairment of the right ring finger, fourth digit. The date of MMI was noted as March 16, 2017. 

The award ran for 0.9 weeks, from March 16, to 22, 2017 and appellant was compensated at the 

662⁄3 basic rate, based on her date-of-injury pay rate. 

On June 12, 2018 appellant, through counsel, requested a hearing before an OWCP hearing 

representative. She submitted a New York State certificate of marriage registration, noting that 

she was married on September 3, 2017. 

 

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

4 The DMA noted that Dr. Scott described full ROM of all finger joints. 
3

At the hearing, held on November 14, 2018, counsel advised that appellant was not 

objecting to the percentage of the schedule award, but that she should have been compensated at 

the augmented, 75 percent, rate. He maintained that, since appellant married in 2017 and the 

schedule award was issued in 2018, the augmented rate should apply. 

By decision dated January 17, 2019, an OWCP hearing representative noted that appellant 

did not disagree with the percentage of the schedule award, but asserted that she was entitled to be 

compensated at the augmented rate. The hearing representative noted that the period of the 

schedule award was March 16 to 22, 2017 and appellant married on September 3, 2017. The 

hearing representative therefore affirmed the June 6, 2018 decision as appellant was not entitled 

to augmented compensation during the period of the schedule award. 

LEGAL PRECEDENT

FECA provides that the United States shall pay compensation for the disability or death of 

an employee resulting from personal injury sustained while in the performance of his duty.5 If the 

disability is total, the United States shall pay the employee during the disability monthly monetary 

compensation equal to 662⁄3 percent of his or her monthly pay, which is known as basic 

compensation for total disability.6 Under section 8110 of FECA, an employee is entitled to 

compensation at the augmented rate of three-quarters of his or her weekly pay if he or she has one 

or more dependents.7 Section 10.405 of OWCP’s regulations provides that dependents include a 

wife or husband.

8

 

OWCP’s regulations at 20 C.F.R. § 10.404(c) provide that compensation for schedule 

awards is payable at 662⁄3 percent of the employee’s pay, or 75 percent of the pay when the 

employee has at least one dependent.9 It is well established that the period during which a schedule 

award is payable commences on the date that the employee reaches MMI from the residuals of the 

accepted employment injury.10 

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that her June 6, 

2018 schedule award should have been paid at an augmented compensation rate.

Appellant did not challenge OWCP’s finding of six percent permanent impairment of the 

right ring finger. Rather, she disagreed with the compensation rate, asserting that she was entitled 

 

5 5 U.S.C. § 8102(a).

6

Id. at § 8105(a).

7

Id. at § 8110.

8 20 C.F.R. § 10.405.

9

Id. at § 10.404(c).

10 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.100(2)(c) (January 2010); see 

also R.M., Docket No. 18-1313 (issued April 11, 2019); C.J., Docket No. 08-2429 (issued August 3, 2009).
4

to an augmented compensation rate based on a qualified dependent because she was married at the 

time the schedule award was issued on June 6, 2018.

The record indicates that appellant married on September 3, 2017. However, the schedule 

award was payable as of the date of MMI. The date of MMI was March 16, 2017 and the period 

of the award ran from March 16 to 22, 2017. OWCP’s hearing representative correctly concluded 

that compensation rate for augmented compensation was determined as of the date of MMI.

11

 

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 her burden of proof to establish that her June 6, 

2018 schedule award should have been paid at an augmented compensation rate.

ORDER

IT IS HEREBY ORDERED THAT the January 17, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 24, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

11 Id.