United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.P., claiming as Administratrix of the Estate of 

DP., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 21-0609

Issued: October 7, 2021

Appearances: Case Submitted on the Record

Howard L. Graham, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On March 2, 2021 appellant, through counsel, filed a timely appeal from a September 25, 

2020 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 to consider the merits of this case.3

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. 

3 The Board notes that, following the September 25, 2020 decision, appellant submitted additional evidence to 

OWCP. 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.
2

ISSUE

The issue is whether appellant has established that she is entitled to an increased schedule 

award for permanent impairment of the employee’s lungs due to his employment-related 

asbestosis.

FACTUAL HISTORY

On July 9, 2004 the employee, then a 60-year-old retired welder, filed an occupational 

disease claim (Form CA-2) alleging that he sustained pulmonary asbestosis due to occupational 

exposure to asbestos, chemicals, particles, and dusts in the performance of duty on or before 

May 15, 2001. On November 19, 2001he underwent left anterolateral thoracotomy with left upper 

lobe wedge resection of a pulmonary mass. The employee remained exposed to the identified 

substances through his retirement from the employing establishment effective February 27, 2004. 

On September 7, 2005 OWCP accepted the claim for asbestosis. 

The employee subsequently filed a claim for compensation (Form CA-7) for a schedule 

award. 

By decision dated November 3, 2006, OWCP granted the employee a schedule award for 

15 percent permanent impairment of the right lung and 15 percent permanent impairment of the 

left lung. The award ran for 46.8 weeks from January 3 through November 26, 2005. 

The employee subsequently filed a claim for an increased schedule award. Following 

additional development, by decision dated August 28, 2007, OWCP granted the employee an 

additional 23 percent permanent impairment of each lung for a total of 38 percent permanent 

impairment of each lung. The period of the award ran from November 27, 2005 through 

April 12, 2007. 

On July 10, 2018 the employee filed a claim for an increased schedule award (Form CA-7). 

He submitted additional medical evidence. 

In a June 11, 2018 report, Dr. David E. Corley, Board-certified in pulmonology and sleep 

medicine, noted the employee’s history of pneumoconiosis due to asbestosis. He diagnosed 

mycobacterium avium complex pneumonia, chronic obstructive pulmonary disease (COPD), 

asbestosis, hypoxemia, obstructive sleep apnea, and osteopenia due to prolonged use of steroids 

prescribed for the employee’s pulmonary conditions. 

OWCP, in a development letter dated July 30, 2018, notified the employeeof the additional 

evidence needed to establish his claim for an increased schedule award. It afforded him 30 days 

to submit such evidence. OWCP subsequently received March 15, 2018 laboratory test results and 

a May 14, 2018 bone density scan. 

By decision dated September 4, 2018, OWCP denied the employee’s claim for an increased 

schedule award. 

On July 9, 2019 the employee again requested an increased schedule award (Form CA-7). 

OWCP, in a development letter dated July 22, 2019, notified the employeeof the additional 

evidence needed to establish his claim for an increased schedule award. It afforded him 30 days 

to submit such evidence. In response, the employee submitted laboratory and diagnostic test 
3

results. He also provided September 7 and 18, 2018 reports by Beth Ann Turney, a nurse 

practitioner, noting that the employee was receiving palliative care due to respiratory failure. 

By decision dated October 4, 2019, OWCP denied the employee’s increased schedule 

award claim as the medical evidence submitted did not establish a percentage of permanent 

impairment greater than that previously awarded. 

In an April 27, 2020 report, Dr. Corley opined that the employee had attained maximum 

medical improvement (MMI) on April 5, 2019. He opined that the employee had a Class IV 

impairment of both lungs, equaling a 45 to 65 percent impairment, with a diffusing capacity of 36 

percent predicted value on June 2011 pulmonary function testing. Dr. Corley noted that the 

employee’s “20-pack-year” history of tobacco use caused mild COPD, unrelated to the severe 

decrease in diffusing capacity attributable to asbestos-related lung disease. 

By letter dated May 4, 2020, counsel informed OWCP that the employee passed away on 

May 3, 2020 due to lung disease. 

OWCP subsequently received a state health department certificate of death dated May 6, 

2020, wherein Dr. Corley noted the employee’s cause of death was asbestosis, with COPD as a 

contributing condition. 

On May 21, 2020 appellant, through counsel, requested reconsideration of the October 4, 

2019 schedule award determination. 

In a September 14, 2020 report, Dr. AmandaC. Trimpey, Board-certified in occupational 

medicine and serving as an OWCP district medical adviser (DMA), reviewed the medical record 

and a statement of accepted facts. She opined that the employee’s employment-related asbestosis 

“contributed to [the employee’s] respiratory failure and ultimate death on May 3, 2020.”

By decision dated September 25, 2020, OWCP denied modification of the October 4, 2019 

schedule award determination. It found that appellant was not entitled to an increased schedule 

award as the employee’s death was caused by the accepted employment condition. 

LEGAL PRECEDENT

It is the claimant’s burden of proof to establish that he or she sustained a permanent 

impairment of a scheduled member or function of the body as a result of an employment injury.4

The schedule award provisions of FECA,5 and its implementing federal regulations,6 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss, or loss of use, of scheduled members or functions of the bo dy. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

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

4

See R.B.,Docket No. 17-1995 (issued August 13, 2018); Tammy L. Meehan, 53 ECAB 229 (2001).

5

5 U.S.C § 8107.

6

20 C.F.R. § 10.404.
4

as the uniform standard applicable to all claimants.7 As of May 1, 2009, the sixth edition of the 

A.M.A., Guides is used to calculate schedule awards.8

OWCP’s procedures provide that, to support a schedule award, the file must contain 

competent medical evidence, which shows that the impairment has reached a permanent and fixed 

state and indicates the date on which this occurred (date of MMI), describes the impa irment in 

sufficient detail so that it can be visualized on review, and computes the percentage of impairment 

in accordance with the A.M.A., Guides.

9

Section 8109(a)(3) of FECA10 provides that, if an individual with an accepted injury files 

a valid schedule award claim during life and dies from a cause other than the employment-related 

injury before the end of the period specified by the schedule found in section 8107, the 

compensation specified by the schedule that is unpaid at death, whether or not accru ed or due at 

death shall be paid under an award made before or after death for the period specified by the 

schedule to and for the benefit of persons specified.11

OWCP’s procedures further provide that, if a claimant dies during the course of a schedule 

award from a cause other than the injury, payment for the remainder of the award may be made to 

his or her dependents as specified in section 8109 of FECA. If no eligible dependents remain, the 

balance of the award may not be paid to the estate. If at the time of the claimant’s death a schedule 

award claim is being developed, but has not yet been paid, the claimant’s dependent(s) would be 

entitled to the entire payment of the award.12

ANALYSIS

The Board finds that appellant has not established that she is entitled to an increased 

schedule award for permanent impairment of the employee’s lungs due to his employment-related 

asbestosis.

On May 21, 2020 appellant, through counsel, requested reconsideration of the October 4, 

2019 denial of the employee’s increased schedule award claim. 

As noted above, section 8109(a)(3) provides that, if an individual with an accepted injury 

files a valid schedule award claim during life and dies from a cause other than the employmentrelated injury before the end of the period specified by the schedule found in section 8107, the 

compensation specified by the schedule that is unpaid at death, whether or not accrued or due at 

7

Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see alsoid. atChapter 3.700.2 and Exhibit 1 (March 2017).

9

Id. at Chapter 2.808.5(b) (March 2017).

10 Supra note 2.

11 5 U.S.C. § 8109(a). See also T.D. (S.B.), Docket No. 18-1071 (issued January 16, 2019); F.D., (D.D.), Docket 

No. 10-229 (issued August 2, 2010); P.G. (T.G.), Docket No. 08-2183 (issued June 23, 2009).

12 Supra note 8 atChapter 2.808.7.a(7) (February 2013).
5

death shall be paid under an award made before or after death for the period specified by the 

schedule to and for the benefit of persons specified.13

In the present case, however, the medical evidence of record establishes that the employee 

died from asbestosis, an occupational condition accepted by OWCP. Section 8109(a)(3) provides

that the injured employee must have succumbed from a “cause other than” the accepted injury.14 

The employee’s physician, Dr. Corley, diagnosed asbestosis in a June 11, 2018 report. He 

opined in an April 27, 2020 report that the accepted asbestosis caused a severe decrease in the 

employee’s diffusing capacity. On the employee’s death certificate Dr. Corley noted the 

employee’s cause of death was asbestosis, with COPD as a contributing condition. Dr. Trimpey, 

an OWCP DMA, concurred in a September 16, 2020 report that the accepted asbestosis 

contributed to the employee’s death. The Board finds that these opinions relative to the cause of 

death establishes that the employee’s employment-related asbestosis caused or contributed to his 

death.

As the employee died due to an accepted occupational condition, appellant is not entitled 

to an increased schedule award under section 8109(a)(3) of FECA.15

CONCLUSION

The Board finds that appellant has not established that she is entitled to an increased 

schedule award for permanent impairment of the employee’s lungs due to his employment-related 

asbestosis.

13 Supra note 11

14 5 U.S.C. § 8109(a)(3).

15 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the September 25, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 7, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board