United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

O.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Woodbridge, NJ, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 13-2081 

Issued: March 7, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On September 11, 2013 appellant, through his attorney, filed a timely appeal from a 

June 20, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act1

 (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 OWCP properly determined appellant’s pay rate for compensation 

purposes. 

FACTUAL HISTORY 

This case was previously before the Board. In a decision dated November 21, 2008, the 

Board noted that OWCP accepted that appellant sustained a right ankle and foot sprains in the 

 1

 5 U.S.C. § 8101 et seq. 
2

performance of duty on January 9, 1999.2 OWCP issued a July 20, 2005 schedule award 

decision for a 53 percent right leg permanent impairment. The pay rate for compensation 

purposes was $340.25 a week, based on an hourly wage of $13.61 at 25 hours per week. 

Appellant argued that his pay rate was incorrectly determined. The Board remanded the case for 

further development, noting that OWCP had not explained how it had applied 5 U.S.C. § 8114(d) 

in determining his pay rate. 

By order dated December 22, 2010, the Board remanded the case for further development 

on the pay rate issue.3 The evidence required clarification as to appellant’s pay. The employing 

establishment stated that appellant was a probationary employee who worked only 35 days and 

averaged 25 hours a week. Appellant contended that he worked more than 35 days and generally 

worked 40 hours per week. The history of the case as provided in the Board’s prior decision and 

order are incorporated herein by reference. 

In a letter dated April 18, 2011, OWCP requested additional information from the 

employing establishment as to appellant’s rate of pay on January 9, 1999. An employing 

establishment human resources employee completed a form dated April 21, 2011, stating that 

appellant was a part-time flexible employee that worked 35 days and averaged 25 hours a week. 

By decision dated August 24, 2011, OWCP denied appellant’s claim for an increased pay 

rate. 

Appellant requested a hearing before an OWCP hearing representative, which was held 

on January 4, 2012. By decision dated March 28, 2012, the hearing representative vacated the 

August 24, 2011 decision. The hearing representative found that the evidence remained 

insufficient to properly determine the pay rate and the employing establishment was requested to 

provide additional information. 

In a letter dated October 17, 2012, an employing establishment human resources 

specialist stated that appellant had been hired on December 19, 1998 as a part-time flexible 

carrier at $13.61 per hour. From December 19, 1998 to January 8, 1999, appellant had worked 

75.16 hours at an average of 25 hours per week. According to the employing establishment, he 

was hired as a 90-day probationary employee and his employment was terminated during the 

probationary period. In addition, the employing establishment noted that appellant had worked 

462.71 hours from August 15 to November 6, 1998 as a part-time flexible carrier, averaging 

37.73 hours per week. It stated that this probationary employment was terminated on 

November 6, 1998. 

By decision dated January 3, 2013, OWCP denied appellant’s claim for an increased pay 

rate. It found that the employing establishment had previously indicated that it did not have 

information regarding any similarly situated employees from 10 years earlier. 

 2

 Docket No. 08-1296 (issued November 21, 2008). 

3

 Docket No. 10-547 (issued December 22, 2010). 
3

Appellant requested a review of the written record. On April 9, 2013 OWCP received a 

W2 form (wage and tax statement) for 1998 from the employing establishment showing 

appellant’s earnings of $7,642.32. 

By decision dated June 20, 2013, an OWCP hearing representative found that the 

evidence did not support a higher pay rate. He determined that 5 U.S.C. § 8114(d)(3) was 

applicable in this case, as appellant was not employed in the date-of-injury job for substantially 

the year preceding the January 9, 1999 injury, nor would the position have afforded employment 

for substantially the whole year. Applying 5 U.S.C. § 8114(d)(3), the hearing representative 

found that the total earnings for the year prior to January 9, 1999 was $7,982.57 ($7,642.35 + 

$340.25) in 104 days of work, for an average daily wage of $76.76. This represented a pay rate 

of $221.42 per week using the 150 times the daily wage calculation. 

LEGAL PRECEDENT 

Section 8114(d) of FECA provides: 

Average annual earnings are determined as follows: 

“(1) If the employee worked in the employment in which he was employed at the 

time of his injury during substantially the whole year immediately preceding the 

injury and the employment was in a position for which an annual rate of pay-- 

 (A) was fixed, the average annual earnings are the annual rate of pay; or 

(B) was not fixed, the average annual earnings are the product obtained by 

multiplying his daily wage for particular employment, or the average 

thereof if the daily wage has fluctuated, by 300 if he was employed on the 

basis of a 6-day workweek, 280 if employed on the basis of a 5 1/2-day 

week, and 260 if employed on the basis of a 5-day week. 

“(2) If the employee did not work in employment in which he was employed at 

the time of his injury during substantially the whole year immediately preceding 

the injury, but the position was one which would have afforded employment for 

substantially a whole year, the average annual earnings are a sum equal to the 

average annual earnings of an employee of the same class working substantially 

the whole immediately preceding year in the same or similar employment by the 

United States in the same or neighboring place, as determined under paragraph 

(1) of this subsection. 

“(3) If either of the foregoing methods of determining the average annual earnings 

cannot be applied reasonably and fairly, the average annual earnings are a sum 

that reasonably represents the annual earning capacity of the injured employee in 

the employment in which he was working at the time of the injury having regard 

to the previous earnings of the employee in federal employment, and of other 

employees of the United States in the same or most similar employment in the 

same or neighboring location, other previous employment of the employee, or 
4

other relevant factors. However, the average annual earnings may not be less than 

150 times the average daily wage the employee earned in the employment during 

the days employed within one year immediately preceding his injury.” 

ANALYSIS 

The case has undergone development with respect to the pay rate issue. OWCP has 

secured additional evidence on the issue, and the hearing representative of the provisions of 5 

U.S.C. § 8114(d) in the June 20, 2013 decision. There remains an additional issue with respect 

to pay rate that requires additional findings. 

The record supports that the date-of-injury job did not provide employment for 

substantially the whole year prior to January 9, 1999. It is well established that an employee 

must work at least 11 months before the injury to establish “substantially the whole year” 

preceding the injury.4 As to whether the job would have provided employment for substantially 

the whole year, the Board noted in its November 21, 2008 decision that the employing 

establishment had indicated the job would not meet this requirement. There was no evidence 

then of record that the job would have afforded employment for substantially the whole year 

prior to the injury. Therefore the evidence indicates that 5 U.S.C. § 8114(d)(3) would be 

appropriate to determine appellant’s pay rate, as neither of the prior methods are applicable. As 

noted, this section provides that average annual earnings is based on a review of any relevant 

factors regarding employment, including previous employment or employment of other similarly 

situated employees. Average annual earnings cannot be less than 150 times the average daily 

wage during the year preceding the injury. Appellant was a part-time flexible employee who 

was hired on a probationary basis. 

The hearing representative attempted to use the available evidence as to appellant’s 

earnings from the employing establishment and his 1998 tax form. He calculated that appellant 

earned $7,982.57 in the year prior to January 9, 1999. The hearing representative found that 

appellant worked 104 days, which represented 83 days for the period August 15 to November 6, 

1998, and 21 days from December 19 to January 8, 1999. This appears to represent the total 

number of calendar days for the periods worked, not the actual days worked. The “average daily 

wage” is the daily wage for employment “during the days employed,” not the total calendar days 

of employment.5

 There is no evidence presented that appellant worked seven days per week. 

The period August 15 to November 6, 1998 is approximately 12 weeks and from December 19 to 

January 8, 1999 approximately 3 weeks. If appellant worked 5 days a week, this would result in 

only 75 days (60 + 15) of work. If he worked 4 days a week, this is only 60 days of work, and 

consequently a higher daily wage. The evidence of record is not clear on this point. The CA-1 

claim form listed the work schedule as flexible and work hours from two to four hours a day. 

 4 See S.H., Docket No. 10-106 (issued July 8, 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Determining Pay Rates, Chapter 2.900.4 (August 2012). 

5 See, e.g., Eric B. Petersen, 57 ECAB 680 (2006) (OWCP must determine average daily wage for the actual days 

worked). 
5

The case will be remanded to OWCP for proper clarification of its findings as to the 

average daily wage. After such further development as OWCP deems necessary, it should issue 

an appropriate decision. 

CONCLUSION 

The Board finds the case requires additional development and proper findings on the pay 

rate issue. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 20, 2013 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: March 7, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board