United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Napierville, IL, Employer

__________________________________________

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Docket No. 21-0236

Issued: January 24, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On December 9, 2020 appellant, through his representative, filed a timely appeal from an

October 22, 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 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 was properly paid schedule award compensation from 

May 25 through September 22, 2012 for permanent impairment of his right upper extremity.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances set forth in 

the Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal 

are as follows.

On September 24, 2011 appellant, then a 39-year-old laborer-custodian, filed a traumatic 

injury claim (Form CA-1) alleging that on September 17, 2011 he sustained a right wrist injury 

when mowing grass while in the performance of duty. OWCP accepted the claim for right wrist 

osteoarthritis. 

The record indicates that appellant underwent right wrist scaphoid excision and fusion 

surgery on December 20, 2011. Appellant stopped working and began receiving wage-loss 

compensation on the supplemental rolls. 

On May 29, 2012 appellant submitted a claim for compensation (Form CA-7) requesting a 

schedule award. 

By decision dated September 18, 2012, OWCP issued a schedule award for 11 percent

permanent impairment of the right upper extremity. The period of the award was 34.32 weeks 

from May 25, 2012 to January 20, 2013. It noted that wage-loss compensation had already been

paid through September 22, 2012 and that a claimant could not receive both wage-loss 

compensation and a schedule award concurrently. In addition, OWCP stated that “compensation 

for total disability will offset compensation payable for your schedule award through the ending 

date of the award [January 20, 2013].” 

The record indicates that, during the period May 25, 2012 to January 20, 2013, appellant

continued to receive compensation for total disability designated as wage-loss disability

compensation. As of July 1, 2012, compensation was paid every 28 days on the periodic rolls.

On November 11, 2013 appellant submitted a November 1, 2013 report from Dr. Eugene 

Lopez, a Board-certified orthopedic surgeon. Dr. Lopez provided a history and results on 

examination. He opined that appellant had 11 percent permanent impairment to the right arm 

under the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment(A.M.A., Guides).4 Dr. Lopez identified Table 15-3of the A.M.A., Guides

3 Docket No. 15-1827 (issued February 1, 2016), denying petition for recon., Docket No. 15-1827 (issued 

November 13, 2016). 

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

and found that appellant had a class 1 grade D impairment under the diagnosis of arthrodesis, 

intercarpal fusion of the wrist.5 

OWCP referred the evidence to Dr. David H. Garelick, a Board-certified orthopedic 

surgeon and OWCP district medical adviser (DMA), for review. In a November 25, 2013 report, 

he opined that Dr. Lopez had accurately applied the A.M.A., Guides. The DMA opined that the 

date of maximum medical improvement (MMI) remained May 25, 2012. 

On September 30, 2013 appellant, through counsel, resubmitted a copy of a July 22, 2012 

report from Dr. Brian A Murphy, an orthopedic surgeon specializing in hand surgery. By decision 

dated December 11, 2013, OWCP determined that appellant was not entitled to an increased 

schedule award. It acknowledged that he had previously been awarded an 11 percent right upper 

extremity permanent impairment. 

On December 17, 2013 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. A hearing was held on June 10, 2014. 

Appellant argued that he had not properly been paid his schedule award because he had been paid 

wage-loss compensation, not schedule award compensation. He argued that OWCP “should hold 

the schedule award in abeyance” until the claimant was no longer receiving wage-loss 

compensation. 

By decision dated August 26, 2014, an Office hearing representative vacated the 

December 11, 2013 decision. The hearing representative found that the decision was “confusing”

and remanded the case to clarify whether wage-loss benefits should have been interrupted for the 

schedule award payment. 

In a decision dated November 18, 2014, OWCP again found that appellant had failed to 

establish increased permanent impairment. It found that, due to a computer error, however, his 

compensation code had not been changed from the periodic rolls to a schedule award. OWCP 

noted that, nonetheless, appellant could not receive wage-loss compensation and a schedule award 

concurrently. 

On November 24, 2014 appellant, through counsel, again requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. At the hearing held on January 26, 

2015, counsel argued that appellant could not be at MMI while he was receiving wage-loss 

compensation for total disability. 

By decision dated March 10, 2015, an Office hearing representative affirmed the 

November 18, 2014 decision. 

On September 3, 2015 appellant, through counsel, appealed the March 10, 2015 decision 

to the Board. By decision dated February 1, 2016,

6

the Board affirmed the March 10, 2015

decision, finding that appellant had not established greater than 11 percent permanent impairment 

5

Id. at 397.

6

Supra note 3. 
4

of hisright upper extremity, and that his date of MMI was May 25, 2012. The Board further found 

that, although OWCP did not change the payment code, he continued to receive the same amount 

of compensation he would have been paid; appellant had been properly paid compensation from 

the date of MMI, May 25, 2012 to January 15, 2013; and appellant continued to receive wage-loss 

compensation after that date. 

On January 23, 2017 appellant, through counsel, requested reconsideration, asserting that 

appellant lost months of his schedule award as OWCP did not convert his wage-loss compensation 

to a schedule award payment. He asserted that appellant lost four months of the schedule award 

he was entitled to and, thus, had been adversely impacted by OWCP’s failure to convert appellant’s 

wage-loss compensation to a schedule award payment. The record contains a number of letters 

from counsel inquiring into the status of his reconsideration request, which had been filed on 

January 23, 2017. 

By decision dated October 22, 2020, OWCP denied modification. 

LEGAL PRECEDENT

Section 8107 of FECA7 authorizes the payment of schedule awards for the loss or loss of 

use, of specified members, organs or functions of the body. Such loss or loss of use is known as 

permanent impairment.8 

A schedule award is payable consecutively, but not concurrently, with an award for wage 

loss for the same injury.9 The period covered by a schedule award commences on the date that the 

employee reaches MMI from the residuals of the injury.10 The question of when MMI has been 

reached is a factual one that depends upon the medical findings in the record. The determination 

of such date is to be made in each case upon the basis of the medical evidence in that case.11 The 

date of MMI is usually considered to be the date of the medical examination that determined the 

extent of the permanent impairment.

12

 OWCP’s procedures provide that a retroactive 

determination of the date of MMI is not per se erroneous. When the medical evidence establishes 

that the employee did, in fact, reach MMI by such date, the determination is proper.13

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

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

2.808.4(a)(3) (February 2013).; see also J.D., Docket No. 19-1363 (issued April10, 2020); L.D., Docket No. 18-1317 

(issued April 17, 2019); E.S., Docket No. 16-1248 (issued May 15, 2017); M.B., Docket No. 12-1344 (issued 

December 21, 2012).

10 Id. at Chapter 2.808.7(b)(February2013).

11 Id.; S.M.,Docket No. 18-0837 (issued January 11, 2019); see D.S.,Docket No. 15-1244 (issued August 24, 2015)

12 Supra note 10; see A.D., Docket No. 17-1996 (issued March 5, 2016); W.S., Docket No. 16-0344 (issued 

April 4, 2016).

13 Supra note 9 at Chapter 2.808.7(b)(3).
5

ANALYSIS

The Board finds that appellant was properly paid compensation for his 11 percent 

permanent impairment of the right upper extremity from May 25 through September 22, 2012.

Preliminary, the Board notes that it is unnecessary for the Board to consider the evidence 

that was previously considered in its February 1, 2016 decision. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.14

On January 23, 2017 counsel submitted a request for reconsideration asserting that

appellant did not receive four months of the schedule award to which he was entitled, during a 

period in which he received wage-loss compensation for total disability. By decision dated 

October 22, 2020, OWCP denied appellant’s request for reconsideration. It noted it was wellestablished that a claimant may not concurrently receive compensation under a schedule award 

and wage loss for disability.

15

 While the payments appellant received during the period in question 

were designated as wage-loss disability payments instead of schedule award payments, OWCP 

found the record devoid of any evidence establishing entitlement to any additional compensation.

As noted in the prior Board decision, OWCP’s September 18, 2012 decision indicated that

appellant had been paid temporary total disability from May 25 through September 22, 2012. 

OWCP acknowledged in a November 18, 2014 decision that normally the continuing disability

payments would be interrupted and the payment code changed to a schedule award. 16 A review of 

the record shows that OWCP did not change the code in this case to a schedule award instead of 

periodic rolls disability payment. However, appellant continued to receive the same amount of

compensation he would have been paid had the payments been properly coded as schedule award 

payments instead of as periodic rolls disability payments through January 15, 2013.

The Board finds that appellant failed to establish any adverse result from OWCP’s failure 

to properly code the payments in the compensation system at the time of the determination. It is 

well established that a claimantmay not concurrently receivecompensationunder a schedule award

and wage loss for disability.17 Whether the payments were designated as wage-loss disability

payments or schedule award payments, appellant has submitted no evidence showing entitlement 

to any additional compensation.18 Thus, contrary to counsel’s contention, appellant received the 

proper compensation for his schedule award for which he was entitled covering the period May 25 

to September 22, 2012. He did not establish a loss of any benefits in this case.

14 T.B., Docket No. 20-1413 (issued July 1, 2021); M.D., Docket No. 20-0007 (issued May 13, 2020); D.B., Docket 

No. 17-1444 (issued January 11, 2018); ClintonE. Anthony, Jr., 49 ECAB 476 (1998).

15 Supra note 13.

16 See D.C., Docket No. 10-1046 (issued January 19, 2011).

17 Supra note 9 at Chapter 2.808.4(a)(3).

18 Id. See also J.S., Docket No. 19-1363 (issued April10, 2020); L.D., Docket No. 18-1317 (issued April17, 

2019); E.S., Docket No. 16-1248 (issued May15, 2017); M.B., Docket No. 12-1344 (issued December 21, 2012).
6

The Board finds that appellant was properly paid compensation for his 11 percent 

permanent impairment of the right upper extremity from May 25 through September 22, 2012.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant was properly paid compensation for his permanent 

impairment of his right upper extremity from May 25 through September 22, 2012.

ORDER

IT IS HEREBY ORDERED THAT the October 22, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 24, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board