United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Raleigh, NC, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-149 

Issued: March 9, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 27, 2014 appellant filed a timely appeal from an October 23, 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. 

ISSUES 

The issues are: (1) whether OWCP properly found an overpayment of $12,345.00 was 

created; and (2) whether it properly denied waiver of the overpayment. 

FACTUAL HISTORY 

On September 17, 2013 appellant, then a 54-year-old letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on September 7, 2013 he sustained injuries in the 

performance of duty. He alleged on the claim form that he slipped on wet grass and injured his 

left ankle. OWCP accepted the claim for a left ankle sprain. 

 1

 5 U.S.C. § 8101 et seq. 
2

Appellant submitted claims for compensation (Form CA-7) commencing 

October 19, 2013. He began receiving compensation for wage loss based on a pay rate of 

$742.87 per week. 

In a note dated September 3, 2014, the employing establishment stated that appellant had 

been hired on August 24, 2013, at an hourly rate of $15.00. It stated that he worked nine days 

and earned $845.55 in 56.37 hours of work. An SF-50 personnel form indicated that appellant 

was hired as a city carrier assistant (CCA). The form stated that the appointment expiration date 

was August 15, 2015. A CA-110 telephone call memorandum dated September 3, 2014 reported 

that, although the employing establishment originally provided a pay rate for the year prior, this 

was for “an old position of Letter Carrier and not a similar CCA.” 

By letter dated September 3, 2014, OWCP requested that the employing establishment 

provide information as to appellant’s employment, including whether the position would have 

afforded employment for 11 months but for the injury. It also requested earnings as to a similar 

employee as to the kind of work and appointment held by appellant. 

In a letter also dated September 3, 2014, OWCP advised appellant that it had made a 

preliminary finding that an overpayment of $12,345.00 had occurred due to an incorrect pay rate 

for compensation purposes. It found that, for the period October 26, 2013 to August 23, 2014, he 

should have been paid $11,692.15. The calculation was based on a daily wage of $93.95 

multiplied by 150, or $271.01 per week. OWCP found that appellant had been paid $24,037.15 

for the period, based on a pay rate of $742.87 at 37 hours per week. In addition, it found that he 

was not at fault in creating the overpayment and advised him of the actions he may take with 

respect to the preliminary findings. 

On September 8, 2014 OWCP received a copy of the September 3, 2014 note from the 

employing establishment. There is also a document that refers to a comparison of earnings one 

year prior to September 7, 2013. There are two columns listing earnings -- one column shows 

earnings of $38,629.25, or $742.87 per week. Another column has earnings of $1,947.25, or 

$37.45 per week. No additional explanation is provided. 

Appellant requested waiver of an overpayment and submitted an OWCP-20 questionnaire 

on September 18, 2014. 

By decision dated October 23, 2014, OWCP denied waiver of an overpayment of 

$12,345.00. It found that appellant did not submit supporting financial documents sufficient to 

establish waiver of the overpayment. 

LEGAL PRECEDENT -- ISSUE 1 

An employee is paid compensation for total disability equal to a percentage of his or her 

monthly pay.2

 To calculate monthly pay, the initial issue is the determination of the specific time 

when the employee’s monthly pay will be calculated. Under 5 U.S.C. § 8101(4), the monthly 

pay is determined at the time of injury, the time disability begins, or the time compensable 

 2

 5 U.S.C. § 8106(a). 
3

disability recurs, if the recurrence begins more than six months after a return to regular full-time 

employment. 

Once the proper time period is determined, the pay rate is determined under 5 U.S.C. 

§ 8114(d). This section provides a specific methodology for determining pay rate: 

“(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.” 

ANALYSIS -- ISSUE 1 

In the present case, OWCP found that an overpayment of $12,345.00 occurred from 

October 26, 2013 to August 23, 2014. It had paid compensation based on a pay rate of $742.87 

at the time of injury, and found the correct pay rate was $271.01 per week at the time of injury. 

The Board finds that OWCP did not make adequate findings in this regard. 

The evidence from the employing establishment confirmed that appellant did not work in 

the CCA position for substantially one whole year prior to the date of injury on 
4

September 7, 2013. Therefore the next step under 5 U.S.C. § 8114(d) is to determine “if the 

position was one which would have afforded employment for substantially a whole year.” As 

noted above, if the position would have afforded employment for substantially the whole year, 

then the pay rate is the 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.” 

OWCP requested that the employing establishment provide relevant evidence on the 

issue in a September 3, 2014 letter. Yet on the same date, it issued a preliminary determination 

of an overpayment, with no indication in the record that any relevant response had been received. 

The preliminary determination briefly stated that the employing establishment “advised that 

[appellant] was not expected to work over 11 month[s]” without providing any further 

explanation. The September 3, 2014 note from the employing establishment did not indicate that 

the position was temporary or make any statement as to whether the position would have 

afforded employment for substantially a whole year. The SF-50 form indicated only that the 

appointment would expire on August 15, 2015, or approximately two years after appellant was 

hired. 

The Board accordingly finds that OWCP did not make adequate findings as to why 

applying 5 U.S.C. § 8114(d)(2) was not appropriate in this case. OWCP applied 5 U.S.C. 

§ 8114(d)(3), which requires that the pay rate will be no less than 150 times the average daily 

wage. This section is only to be used if 5 U.S.C. § 8114(d)(2) cannot be applied reasonably and 

fairly. OWCP did not properly find that 5 U.S.C. § 8114(d)(2) was inappropriate based on the 

evidence of record. 

Moreover, even if it were determined that 5 U.S.C. § 8114(d)(3) was applicable, a proper 

application of this section requires more than a simple calculation of 150 times an average daily 

wage. As the Board noted in A.D., the employing establishment still needs to provide 

information regarding earnings of similar employees, and OWCP needs to make proper findings 

in accord with factors enumerated in 5 U.S.C. § 8114(d)(3).3

The case will accordingly be remanded to OWCP for proper findings as to an 

overpayment of compensation. Since OWCP has not properly made findings with respect to the 

correct pay rate, the fact and amount of overpayment are not in posture for decision.4

 The case 

will be remanded to OWCP for further development and a proper decision on the overpayment 

issues presented. In view of the Board’s holding, the issue of waiver will not be addressed at this 

time. 

CONCLUSION 

The Board finds the case must be remanded to OWCP for proper findings with respect to 

an overpayment of compensation based on an incorrect pay rate for compensation purposes. 

 3

 Docket No. 07-883 (issued September 5, 2007).

4 See K.S., Docket No. 11-2085 (issued May 10, 2012). 
5

ORDER 

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

Compensation Programs dated October 23, 2014 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: March 9, 2015 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board