United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.D., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

FINANCE & ACCOUNTING SERVICE, 

Columbus, OH, Employer 

__________________________________________ 

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Docket No. 14-1305 

Issued: January 13, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On May 20, 2014 appellant filed a timely appeal from an April 1, 2014 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 

The case has been before the Board on prior appeals. On the initial appeal to the Board, 

the issues included a termination of compensation effective January 4, 2010, an overpayment of 

 1

 5 U.S.C. § 8101 et seq. 
2

$11,630.61 based on an incorrect pay rate, denial of waiver of the overpayment, and a schedule 

award for a 15 percent left arm permanent impairment.2

 Appellant had filed a claim for injury on 

April 23, 1993, that was accepted for cervical, lumbosacral, left thumb, and ring finger strains, as 

well as metacarpophalangeal (MP) joint reconstruction surgery on May 2, 2004. 

In addition, appellant filed a claim for injury on October 27, 1995, alleging that she 

injured her fingers on her left hand when she slammed her fingers in a door. OWCP accepted 

this claim for contusions and sprains of the left third and fourth fingers and left MP joint surgery 

on April 23, 1996. The two cases have been administratively combined. 

With respect to the pay rate for compensation purposes, the Board noted that on 

October 27, 1995 appellant was working four hours a day. OWCP had initially paid 

compensation based on a weekly pay rate of $416.73, which it found represented full-time 

employment on October 27, 1995. It then found that the correct pay rate should be based on the 

original date of injury, April 23, 1993, of $376.19 and found an overpayment of compensation 

had been created. 

As the Board explained, October 27, 1995 did represent a date of injury. The correct pay 

rate for that date would be determined by application of 5 U.S.C. § 8114. Even though appellant 

was working four hours a day, it was not clear what her correct pay rate would be under this 

statute. OWCP was directed to make a proper determination and if the pay rate on October 27, 

1995 was higher than on April 23, 1993, then this would represent the correct pay rate. 

By order dated December 21, 2013, the Board remanded the case to OWCP to properly 

resolve the pay rate issue.3

 The Board also noted that it had issued a November 16, 2012 

schedule award decision using the pay rate of $376.19 based on an April 23, 1993 date of injury, 

without making findings as to pay rate. 

In a decision dated April 1, 2014, OWCP found that there was no basis to change the pay 

rate from April 23, 1993. It stated that appellant did not return to full-time employment or 

sustain a recurrence. According to OWCP, “we paid you based on your ‘left thumb’ condition, 

which was accepted under case File No. xxxxxx359 and not for the conditions (sprain and 

contusion), which was accepted under case File No xxxxxx404 and since the job would have 

continued had you not sustained a new injury, there is no justification to pursue a higher pay-rate 

in 1995.” 

LEGAL PRECEDENT 

Under 5 U.S.C. § 8101(4), “‘monthly pay’ means the monthly pay at the time of injury or 

the monthly pay at the time disability begins or the monthly pay at the time compensable 

disability recurs, if the recurrence begins more than [six] months after the injured employee 

resumes regular full-time employment with the United States, whichever is greater....” OWCP 

 2

 Docket No. 11-1952 (issued September 10, 2012). 

3

 Docket No. 13-1597 (issued December 21, 2013). 
3

regulations stated that “pay rate for compensation purposes” means the employee’s pay as 

determined under 5 U.S.C. § 8114.4

5 U.S.C. § 8114 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 51/2-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 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.” 

 4

 20 C.F.R. § 10.5(s). 
4

ANALYSIS 

As the history of the case indicates, OWCP found an overpayment of compensation had 

been created because appellant was paid wage-loss compensation based on an incorrect pay rate. 

Appellant was paid compensation based on a pay rate for compensation purposes of $416.73, 

which it found represented pay for full-time work on October 27, 1995. The April 1, 2014 

OWCP decision finds that a weekly pay rate of $376.19 is correct without actually addressing the 

specific pay rate issues that are present in this case. It appears to find that October 27, 1995 

would not represent a date of injury. OWCP refers to appellant not returning to full-time 

employment or sustaining a recurrence after return to full-time work. It also refers to the 

existence of two claims and then states “the job would have continued” without explaining how 

this resolves the pay rate issue. 

When OWCP initially used a pay rate on October 27, 1995 of $416.73 a week, it had not 

properly applied 5 U.S.C. § 8114 in determining the specific pay rate on October 27, 1995. As 

noted above, there are specific and well-established provisions under 5 U.S.C. § 8114 for 

determining the pay rate on that date. The issues include whether appellant worked substantially 

the whole year prior in the position, and if not whether the position would have afforded 

employment for substantially a whole year, or whether 8114(d)(3) should be applied to 

determine an amount that reasonably represents the earning capacity as of October 27, 1995. 

OWCP must secure relevant evidence from the employing establishment to make proper 

findings. As the record indicated that appellant was working part-time, it may be that the pay 

rate on October 27, 1995 is less than $376.19, the pay rate on April 23, 1993. If so, OWCP can 

make a proper finding that the April 23, 1993 pay rate is correct under FECA. 

Once the issue of the correct pay rate for compensation purposes is resolved, then OWCP 

can make a proper determination as to an overpayment of compensation. Since the overpayment 

was based on a finding of an incorrect pay rate, it is necessary to properly resolve the underlying 

pay rate issue. The record indicates that appellant also received a schedule award on 

November 16, 2012, with compensation paid based on a pay rate for compensation purposes of 

$376.19. The pay rate issue would also affect the compensation issued pursuant to the schedule 

award. After properly resolving the pay rate issue, OWCP should issue proper decisions 

regarding the overpayment and schedule award issues to protect appellant’s appeal rights. 

The Board had directed OWCP to make a determination as to the pay rate on October 27, 

1995 and determine whether it was greater than the pay rate on April 23, 1993. It is necessary 

that OWCP act in accord with the Board’s determinations as otherwise there would be no finality 

of decisions and the appeals procedure would be nullified.5

 The case will again be remanded to 

OWCP for proper findings on the issues presented. 

On appeal, appellant refers to an April 23, 2014 decision from OWCP. However, it 

appears that the document she is referring to is an informational letter dated April 23, 2014 

noting the accepted left hand conditions from the October 27, 1995 claim and stating that it was 

 5 See E.C., Docket No. 14-588 (issued July 1, 2004); Anthony Greco, 3 ECAB 84 (1949). 
5

in a denied status. This was not a final decision with appeal rights,6 but an informational letter 

responding to a telephone call. The Board’s jurisdiction is limited to final decisions of OWCP 

arising under FECA.7

 Appellant may pursue compensation issues regarding the 1995 injury with 

OWCP and receive an appropriate final decision, but on this appeal the Board is limited to 

review of the April 1, 2014 final decision. 

CONCLUSION 

The Board finds that OWCP did not properly determine appellant’s pay rate for 

compensation purposes and the case is remanded to OWCP for further development. 

ORDER 

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

Compensation Programs dated April 1, 2014 is set aside and the case remanded for further action 

consistent with this decision of the Board. 

Issued: January 13, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 6 See 20 C.F.R. § 10.126, providing that a decision contains findings of fact, statement of reasons, and 

information about appeal rights. 

7 Id. at § 501.2(c).