United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 15-1291 

Issued: September 21, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 19, 2015 appellant, through counsel, filed a timely appeal from March 26 

and 27, 2015 merit decisions of the Office of Workers’ Compensation Programs (OWCP). 

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 OWCP properly determined appellant’s rate of pay with respect to a 

December 12, 2014 schedule award decision. 

                                                             1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 

20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. 

Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, 

subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of 

fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 22, 1987 appellant, then a 36-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his low back in the performance of duty on 

June 9, 1987. He indicated on the claim form that he was bending and felt pain in the low back. 

In a June 18, 1987 statement, appellant clarified that he had been working permanent light duty 

because of a chronic back problem when he was asked to work on the M-36 machines. It was on 

that assignment where he was allegedly injured. According to a statement of accepted facts 

(SOAF) dated November 30, 1987, the claim was accepted for lumbosacral sprain/strain and he 

returned to part-time (20 hours per week) light duty on July 25, 1987. 

The record indicates that appellant began receiving compensation for wage loss on 

July 25, 1987 (20 hours per week) with a pay rate of $477.56 per week, representing his date-ofinjury pay rate. Appellant remained on part-time light duty. 

In an October 11, 1989 EN1032 report regarding employment activity, appellant 

indicated that he continued to work part-time light duty through September 18, 1989 after which 

he filed a claim for recurrence of disability.3 He began receiving compensation for total 

disability on September 19, 1989, but returned to part-time light-duty work on January 3, 1990. 

The record indicates that appellant continued to receive compensation for hours not worked. 

To determine appellant’s capacity for work, he was referred for a second opinion 

examination with Dr. Barbara Frieman, a Board-certified orthopedic surgeon. In a report dated 

February 5, 1990, Dr. Frieman provided results on examination and stated that appellant was 

working 20 hours per week. She further noted that he should complete a work hardening 

program and try to expand his work hours to closer to 40 per week. By letter dated May 2, 1990, 

the employing establishment offered appellant a light-duty job at six hours per day. 

In a report dated June 29, 1990, however, appellant’s treating physician, Dr. Jamilo 

de’Moura, an orthopedic surgeon, provided results of a June 18, 1990 examination and stated 

that appellant should continue to work only 20 hours per week. By report dated August 21, 

1990, he provided results of an August 20, 1990 examination and placed appellant off work for 

two weeks. The case was referred to an OWCP medical adviser. 

On August 30, 1990 the employing establishment stated that it was offering appellant a 

permanent light-duty position, since the evidence indicated that he was permanently disabled for 

his date-of-injury position. The offer stated that appellant would initially work six hours per day. 

There is no indication as to whether he accepted that offer. Appellant returned to work on 

September 8, 1990 at four hours per day. 

In a report dated September 12, 1990, an OWCP medical adviser opined that appellant’s 

disability was causally related to the employment injury.4

 

                                                             3

 Appellant had also filed a claim for a recurrence of disability (Form CA-2a) as of May 30, 1989. 

4

 The medical adviser’s memorandum to OWCP referred to an August 18, 1990 examination, but the report from 

Dr. de’Moura indicated that the examination was August 20, 1990. 
3

Appellant received compensation for total disability from August 20 to 

September 7, 1990. As of December 16, 1990, his compensation was based on a pay rate date of 

August 19, 1990 at $585.71 per week. 

In a report dated December 27, 2012, Dr. David Weiss, an osteopath, opined that 

appellant had a 12 percent permanent impairment to the left leg under the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment. An OWCP 

medical adviser concurred that appellant had a 12 percent left leg impairment in a May 19, 2014 

report. 

By decision dated December 12, 2014, OWCP issued a schedule award for a 12 percent 

permanent impairment of his left leg. The period of the award was 34.56 weeks commencing 

December 27, 2012. The pay rate for compensation purposes was $536.64, representing the date 

of injury on June 9, 1987. 

Appellant requested reconsideration and argued that he was entitled to a pay rate based 

on a September 18, 1990 recurrence of disability. He submitted a compensation payment report 

for wage-loss compensation from February 14 to March 13, 2010, showing a pay rate of 

$585.71, with a pay rate date of September 19, 1990 based on a recurrence of disability.5

By decisions dated March 26 and 27, 2015, OWCP found that the pay rate based on the 

date of injury was correct and appellant was not entitled to a recurrence of disability pay rate.6 

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....” For a 

schedule award, the rate of pay is the highest rate which satisfies the terms of 5 U.S.C. 

§ 8101(4).7

Where an employee has a recurrence of disability more than six months after resuming 

regular, full-time employment with the employing establishment, under section 8101(4) of 

FECA, the employee is entitled to have his or her compensation increased based on his or her 

pay at the time of this first recurrence of disability.8

 The Board has defined regular employment 

as established and not fictitious, odd-lot, or sheltered job that was created especially for the 

claimant.9

 

                                                             5

 This date appears to be a typographical error as appellant’s recurrence claim (Form CA-2a) notes September 18, 

1989 as the date of recurrence. 

6

 The record contains identical decisions dated March 26 and 27, 2015. 

7 D.D., Docket No. 15-193 (issued May 11, 2015). 

8 J.R., Docket No. 14-1728 (issued June 17, 2015). 

9 Jeffrey T. Hunter, 52 ECAB 503 (2001). 
4

ANALYSIS 

Appellant has not contested the degree of permanent impairment found in the 

December 12, 2014 schedule award decision. He has disputed the use of the date of injury, 

June 9, 1987, as the pay rate date. According to appellant, there was a recurrence of disability as 

of September 19, 1990 and the pay rate on that date should be used for his schedule award. 

Although OWCP has used a date of September 19, 1990 as a date of recurrence of 

disability for compensation payments, there was no work stoppage on that date. The Board notes 

that the actual work stoppages in this case were May 30 and September 18, 1989 and 

August 20, 1990. On the date-of-injury appellant had been working full-time in a modified mail 

handler position. Under 5 U.S.C. § 8101(4), he would not be entitled to the pay rate on May 30 

and September 18, 1989 or August 20, 1990 unless the date represented a recurrence of disability 

more than six months after return to regular full-time employment. 

In this regard the Board finds that the record does not establish that appellant ever 

returned to full-time employment. Appellant reported in his October 11, 1989 EN1032 form that 

he had worked part time until September 18, 1989. He returned to work on January 3, 1990, but 

again the evidence indicated that he was working part time. Dr. Frieman reported that appellant 

was working 20 hours per week in her February 5, 1990 report. The record contains a job offer 

dated May 2, 1990 for six hours per day, although there is no indication that appellant accepted 

the position. The attending physician, Dr. de’Moura, reported on June 29, 1990 that appellant 

should continue working 20 hours per week. Appellant continued to receive compensation for 

partial disability through August 20, 1990, when he stopped work. On September 8, 1990 he 

resumed working four hours per day. 

The Board accordingly finds that the evidence does not establish that appellant returned 

to full-time work. Since he did not return to full-time work, appellant did not have a recurrence 

of disability six months after he resumed “regular full-time employment” under 5 U.S.C. 

§ 8101(4). The probative evidence of record indicates that the proper pay rate is the date of 

injury in this case. 

On appeal, appellant’s representative states that appellant believes that he returned to 

full-time work, although he acknowledges that appellant “does not have a firm recollection of the 

factual circumstances surrounding the recurrence.” Based on the evidence of record, there was 

no indication that appellant ever returned to full-time work after June 9, 1987 his date of injury. 

He is therefore not entitled to a pay rate based on a recurrence of disability date. 

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 OWCP properly determined the pay rate for compensation purposes 

with respect to appellant’s schedule award. 
5

ORDER 

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

Compensation Programs dated March 27 and 26, 2015 are affirmed.10

Issued: September 21, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

                                                             10 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.