United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Banning, CA, Employer

__________________________________________

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Docket No. 21-0650

Issued: July 14, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 17, 2021 appellant filed a timely appeal from a December 9, 2020 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 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 her burden of proof to establish that her wage-loss 

compensation should have been paid at an augmented rate.

1 The Board notes that following the December 9, 2020 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.

2

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On March 16, 2020 appellant, then a 55-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that she sustained a left knee injury due to factors of her 

federal employment, including getting in and out of her vehicle, walking across lawns, bending 

down to pick up parcels, walking up and down stairs, and standing while casing mail. She did not 

stop work. On April 24, 2020 OWCP accepted appellant’s claim for other tear of the medial 

meniscus, left knee, and a sprain of the medial collateral ligament of the left knee. 

On April 29, 2020 appellant filed a claim for compensation (Form CA-7) for leave without 

pay (LWOP) for intermittent disability during the period November 27, 2019 through 

April 29, 2020. She also submitted time analysis forms (Form CA-7a) dated April 30 and May 6, 

2020, claiming 21.09 hours of LWOP for the period November 27, 2019 through April 29, 2020 

and 20 hours of LWOP for the period April 15 through 29, 2020.

In a development letter dated May 11, 2020, OWCP advised appellant that it required 

additional information to determine eligibility for compensation for her claimed dependent child. 

It asked her to provide a statement, indicating the names, Social Security numbers and dates of 

birth for any claimed dependents, and certification of school enrollment using attached forms to 

verify their student status. OWCP afforded appellant 30 days to submit the additional evidence. 

Appellant thereafter contacted OWCP on May 15, 2020, indicating that the requested 

information for her nephew, E.S., could be obtained from her other active claims.3 OWCP advised 

her that a court order under OWCP File No. xxxxxx124 documented that she was the legal 

guardian for her nephew. It noted, however, that further development was necessary because

guardianship was not a legal adoption. 

On May 15, 2020 OWCP authorized payment of LWOP compensation for the period 

December 10, 2019 through April 27, 2020 for a total of 35.99 hours. The attached calculation 

sheet noted that she was compensated at the 66 2/3 percent compensation rate for employees 

without an eligible dependent.

On May 18, 2020 appellant filed a Form CA-7 for LWOP for the period May 6 through 

13, 2020. She also submitted a Form CA-7a of even date claiming 16 hours of LWOP, listing 

therapy as the reason for her use of leave.

On June 1, 2020 appellant submitted a letter of guardianship from the Superior Court of 

California, County of Riverside, executed on June 8, 2016 and filed on July 14, 2016, appointing 

her as the legal guardian of her nephew, E.S. The letters of guardianship indicated that her nephew 

was born on December 28, 2002. 

3 Appellant has previously accepted claims for a complete right rotator cuff rupture and right carpal tunnel syndrome 

under OWCP File No. xxxxxx042, and impingement syndrome of the right and left shoulders, bursitis of the right and 

left shoulders and primary osteoarthritis of the right and left shoulders under OWCP File No. xxxxxx124. OWCP has 

not administratively combined these claims with the instant claim.
3

In a statement received by OWCP on June 2, 2020, appellant requested that her 

compensation rate be adjusted to 75 percent and claimed E.S. as her dependent.

By decision dated July 15, 2020, OWCP denied appellant’s request for compensation at 

the augmented compensation rate, finding that her nephew could not be considered a “child” under 

section 8101(9) of FECA (5 U.S.C. § 8101(9)), and was thus not a dependent for purposes of 

augmented compensation under section 8110 of FECA (5 U.S.C. § 8110). 

On August 16, 2020 appellant filed a Form CA-7 for LWOP for the period November 27, 

2019 through August 15, 2020. She also submitted an August 21, 2020 Form CA-7a in which she 

claimed 5.1 hours of LWOP for therapy appointments she attended on November 27, December 2, 

6, and 16, 2019.

On October 27, 2020 appellant requested reconsideration of OWCP’s July 15, 2020 

decision. In an attached statement, she reasoned that she should be compensated at the augmented 

compensation rate because she had full custody of her nephew. Appellant asserted that he was 

placed in her foster care, and advised that he was disabled. 

Appellant submitted a July 24, 2020 letter from the County of Riverside, California

explaining that she was the legal guardian of E.S. and that he had been under her court-ordered 

legal authority since October 24, 2016. The letter indicated that E.S. lived at the certified foster 

home of appellant. 

In an August 18, 2020 letter, the Inland Regional Center confirmed that appellant’s nephew 

was an active member at its facilities where he received treatment for developmental disabilities. 

By decision dated December 9, 2020, OWCP denied modification of its July 15, 2020 

decision. 

LEGAL PRECEDENT

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

an employee resulting from a personal injury sustained while in the performance of duty. 4 If the 

disability is total, the United States shall pay the employee during the period of total disability the 

basic compensation rate of 66 2/3 percent of his or her monthly pay. A disabled employee is 

entitled to an augmented compensation rate of 75 percent if he or she has one or more dependents.5

Section 8110(a) of FECA provides that a dependent includes an unmarried child who, 

while living with the employee or receiving regular contributions from the employee towards his 

or her support, is either under 18 years old or over 18 years old and incapable of self-support due 

to physical or mental disability.6 A child is also considered a dependent if he or she is an unmarried 

4

5 U.S.C. § 8102(a).

5 R.G., Docket No. 18-1251 (issued November 26, 2019); O.R., 59 ECAB 432, 436 (2008); id. at §§ 8105(a) and 

8110(b).

6

5 U.S.C. § 8110(a).
4

student under 23 years of age who has not completed four years of education beyond the high 

school level and is currently pursuing a full-time course of study at a qualifying college, university, 

or training program.7

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that her wageloss compensation should have been paid at an augmented rate.

Appellant received compensation payments at the statutory rate of 66 2/3 percent. She 

thereafter requested that her compensation be adjusted to the augmented rate of 75 percent. 

Appellant submitted a June 8, 2016 letter of guardianship from the Superior Court of California, 

County of Riverside, that listed her as the legal guardian of her nephew, E.S., and other 

documentation regarding E.S. OWCP denied her claim, finding that legal guardianship of a 

nephew did not establish entitlement to the augmented compensation rate of 75 percent pursuant 

to 5 U.S.C. § 8101(9).

The Board notes that a nephew is not recognized as an eligible dependent for purposes of 

augmented compensation. 20 C.F.R. § 8101(9) of FECA provided for three specific relationships

in addition to the biological relationship to establish a child: stepchildren, adopted children, and 

posthumous children.8 The Board has specifically held that when a claimant has legal guardianship 

over a nephew, this does not qualify the child as a dependent if the recipient of compensation has 

not adopted the child.9 Although appellant’s nephew may be living with her and she may be his 

legal guardian, appellant has not legally adopted her nephew. Therefore, he does not qualify as an 

eligible dependent. Thus, the Board finds that OWCP properly denied appellant’s claim for 

augmented compensation.10

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 has not met her burden of proof to establish that her wageloss compensation should have been paid at an augmented rate. 

7 G.E., Docket No. 21-0515 (issued August 24, 2021); R.G.,supra note 5; see also E.G., 59 ECAB 599, 603 

n.10 (2008).

8

See 20 C.F.R. § 8101(9).

9

See C.V., Docket No. 13-2108 (issued June 17, 2014) finding that appellant was erroneously paid compensation 

based on the augmented rate of 75 percent for a person with a dependent as legal guardianship of a nephew did not 

qualify the child as a dependent; see also Aretha Hudson, 28 ECAB 423 (1988).

10 G.E., supra note 7.
5

ORDER

IT IS HEREBY ORDERED THAT the December 9, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 14, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board