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United States Department of Labor
Employees’ Compensation Appeals Board
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P.G., claiming as
personal representative of the estate of T.G., Appellant
and
DEPARTMENT OF THE
NAVY, NAVAL AIR SYSTEMS COMMAND STATIONS, Jacksonville, FL, Employer
__________________________________________
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Docket No. 08-2183
Issued: June 23,
2009
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Appearances: Case
Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
DAVID S. GERSON,
Judge
COLLEEN DUFFY KIKO,
Judge
MICHAEL E. GROOM,
Alternate Judge
JURISDICTION
On August 5, 2008 appellant
filed a timely appeal from the Office of Workers’ Compensation Programs’ merit decision
dated July 15, 2008. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the employee’s
estate may file a posthumous schedule award claim in connection with the
employee’s accepted employment-related condition.
FACTUAL
HISTORY
On March 1, 2004 the
employee, then a 60-year-old aircraft sheet metal mechanic, filed an
occupational disease claim alleging that factors of his employment, including
exposure to noise from shooting rivets, saws and hammers, caused or contributed
to his hearing loss.
The record reflects the employee underwent a second opinion evaluation on
April 29, 2004 by Dr. Robert Loper, a Board-certified otolaryngologist.
An Office medical adviser reviewed the medical record on July 14, 2004.
The Office medical adviser calculated that the employee had 12 percent binaural
hearing loss based on audiometric findings obtained on behalf of Dr. Loper.
The employee died on
December 28, 2007. In a June 12, 2008 telephone memorandum, the
Office noted that the employing establishment called to report that the
employee had passed away and to inquire about how appellant, the employee’s
spouse, could file a claim for the schedule award. It advised that, because a
schedule award claim was never filed while the employee was living, appellant
could not claim a schedule award. The Office noted that it erred in not
issuing an acceptance letter prior to the employee’s death.
On June 12, 2008 the
Office accepted that the employee sustained employment-related bilateral
hearing loss. It noted that it had neglected to send out the acceptance letter
in the employee’s case.
On July 1, 2008 appellant
filed a claim for a schedule award (Form CA-7) on the employee’s behalf.
By decision dated July 15,
2008, the Office denied appellant’s claim for schedule award compensation. It
found that, since the schedule award claim was not filed during the employee’s
lifetime, payment of a schedule award on behalf of the employee could not be
made to the estate.
LEGAL PRECEDENT
Section 8109 of the Federal Employees’ Compensation Act provides for
the payment of compensation under schedule awards unpaid at death to
beneficiaries and lists an order of precedence for identifying eligible
beneficiaries. The statue provides, in pertinent part:
“(a) If an individual --
(1) has
sustained disability compensable under section 8107(a) [providing for schedule
awards] of this title;
(2) has filed
a valid claim in his lifetime; and
(3) dies from
a cause other than the injury before the end of the period specified by the
schedule;
“the compensation
specified by the schedule that is unpaid at his death, whether or not accrued
or due at his death, shall be paid -- [to specified beneficiaries].”
The Board has held the intent
of this statutory language is clear, for a beneficiary to be entitled to
payment of a schedule award upon death of an injured employee, such claim must
have been filed within the employee’s lifetime.
If a claim has been filed during the employee’s lifetime and the claim was
under development, the employee’s estate may be entitled to schedule award
benefits if entitlement is established by the medical evidence.
ANALYSIS
In the present case, the
employee filed a claim for compensation on March 1, 2004 and passed away
on December 28, 2007. Appellant filed the Form CA-7 for schedule
award benefits on July 1, 2008, after the Office accepted the claim on
June 12, 2008. The Office found that, since the Form CA-7 was not
filed during the employee’s lifetime, appellant was not entitled to payment of
a schedule award.
The Office noted that it erred
in delaying its acceptance of the employee’s occupational disease claim for
hearing loss. The record indicates that the medical evidence on which the
acceptance was based was developed in 2004. On appeal, appellant argues that,
had the employee been timely notified in 2004 that his claim was accepted, he
would have submitted the necessary paperwork to claim a schedule award. While
the Office’s delay in adjudicating the hearing loss claim is regrettable, there
is no entitlement to a posthumous schedule award if the schedule award claim is
not filed during the lifetime of the injured employee.
The Board has held that a schedule award claim must be filed by an injured
employee or someone acting on his or her behalf during the employee’s lifetime
to establish a valid claim for compensation under section 8107.
The statutory language of 5 U.S.C. § 8109(a) is clear in providing that
the employee must have filed a claim for a schedule award during his lifetime.
In turn, the Office’s implementing regulations provide that the right to claim
compensation for permanent impairment ceases and does not survive the death of
the employee.
It is well established that the Act is a remedial statute
and should be broadly and liberally construed in favor of the employee to
effectuate its purpose and not in derogation of the employee’s rights.
The primary rule of statutory construction, however, is to give effect to
legislative intent, and it is well settled that, in arriving at intent, the
words in a statute should be
construed according to their common usage.
In the instant case, neither the employee nor someone on his behalf filed a
schedule award claim before his death on December 28, 2007. As no
valid schedule award claim was filed within the employee’s lifetime, a
posthumous claim for schedule award compensation may not be filed by the
employee’s estate.
CONCLUSION
Appellant, on behalf of the
employee’s estate, is not entitled to a posthumous schedule award because neither
the employee nor someone on his behalf filed a schedule award claim during his
lifetime.
ORDER
IT
IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ decision
dated July 15, 2008 is affirmed.
Issued: June 23, 2009
Washington, DC
David S.
Gerson, Judge
Employees’
Compensation Appeals Board
Colleen
Duffy Kiko, Judge
Employees’
Compensation Appeals Board
Michael E.
Groom, Alternate Judge
Employees’
Compensation Appeals Board