United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.J., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVY 

INSTALLATIONS COMMAND, San Diego, CA, 

Employer 

__________________________________________ 

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Docket No. 16-0089 

Issued: July 1, 2016 

Appearances: Case Submitted on the Record

John E. Goodwin, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 21, 2015 appellant, through counsel, filed a timely appeal from an April 29, 

2015 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 

On July 27, 2012 appellant, then a 46-year-old police officer, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained an injury at work on July 12, 2012 due to placing a 

 1

 5 U.S.C. § 8101 et seq. 
2

hold on a coworker’s right arm during a training exercise. OWCP accepted that he sustained a 

sprain of his right elbow (radial collateral ligament) and forearm, right carpal tunnel syndrome, 

and lesion of the right radial nerve. On the same form, appellant’s immediate supervisor 

indicated that his regular schedule involved working from 9:30 p.m. to 6:00 a.m. on Sunday, 

Monday, Tuesday, Friday, and Saturday for 40 hours per week.2

On November 29, 2012 appellant filed a claim for compensation (Form CA-7) alleging 

wage-loss compensation for total disability beginning November 18, 2012 and continuing 

through December 1, 2012. On the Form CA-7, a human resources official for the employing 

establishment indicated that appellant was sent home on November 18, 2012 because no work 

was available within his medical restrictions.3 Appellant received disability compensation on the 

daily rolls beginning November 18, 2012. He later filed several claims for disability after 

December 1, 2012 and continuing.4

 

In a July 3, 2014 e-mail to OWCP, an employing establishment official noted: 

“When an employee has two separate basic tours of duty on Sunday, he or she is 

entitled to Sunday premium pay for performing work during each tour of duty. 

For example, if an employee works 8 hours during a basic tour of duty that begins 

on Saturday and ends on Sunday, and also works 8 hours during a basic tour of 

duty that begins on the same Sunday and ends on Monday, the employee is 

entitled to 16 hours of Sunday premium pay.” 

In an undated letter received on September 26, 2014, appellant requested a formal 

decision with appeal rights on the issue of his pay rate for compensation purposes. 

On October 17, 2014 appellant filed a Form CA-7 claiming a schedule award due to his 

accepted work injuries. 

In a December 9, 2014 decision, OWCP granted appellant a schedule award for 14 

percent permanent impairment of his right upper extremity. The award ran from November 16, 

2014 to September 17, 2015 for 43.68 weeks. It was based on an impairment rating conducted 

on December 2, 2014 by an OWCP medical adviser using the October 31, 2014 examination 

findings of Dr. Michael S. McManus, an attending Board-certified occupational medicine 

physician. 

 2

 The record reflects that appellant had a base salary (including locality adjustment) of $47,333.16 per year at the 

time of his July 12, 2012 work injury. 

3

 The human resources official indicated on the form that, on and about November 18, 2012, appellant had a base 

salary of $22.68 per hour (GS-6/Step 7), night differential pay of $2.27 per hour, and Sunday premium pay of $5.67 

per hour. 

4

 In a Form CA-7 dated February 25, 2014, appellant claimed that his wage-loss compensation should include 

five hours of “gun up” pay for each two-week pay period between August 30, 2012 and February 25, 2014. 
3

In a March 30, 2015 letter, counsel argued that appellant received “gun up” pay that 

constituted administratively uncontrollable overtime (AUO) which should be included in 

appellant’s pay rate calculations. 

By decision dated April 29, 2015, OWCP determined that appellant had a weekly pay 

rate of $1,046.87. It noted that the initial period of compensation claimed was November 18 to 

December 1, 2012, as reported on the initial Form CA-7 received on November 29, 2012. 

OWCP pointed out that the effective pay rate date was determined to be the date that appellant’s 

disability began, i.e., November 18, 2012. Per the initial Form CA-7, appellant’s hourly rate on 

November 18, 2012 was $22.68 per hour, night differential pay was $2.27 per hour, and Sunday 

premium pay was $5.67 per hour. Appellant’s schedule was noted to be a fixed 40 hour per 

week schedule, with shifts from 9:30 p.m. to 6:00 a.m. on Sunday, Monday, Tuesday, Friday, 

and Saturday. OWCP explained that the weekly base rate was calculated as follows: $22.68 per 

hour times 2,087 hours per year equaled $47,333.16 in base wages per year. It noted that 

$47,333.16 base wages per year divided by 52 weeks per year equaled a weekly base pay rate of 

$910.25. 

In its April 29, 2015 decision, OWCP then calculated the weekly premium pay. Night 

differential pay of $2.27 per hour times 2,087 hours per year equaled $4,737.49 night differential 

pay per year and this figure divided by 52 weeks per year equaled $91.11 weekly night 

differential pay. OWCP indicated that Sunday premium pay of $5.67 per hour times the product 

of 8 hours per week divided by 40 hours per week was then multiplied by 2,087 hours per year to 

derive $2,366.67 in Sunday premium pay per year. The $2,366.67 figure for Sunday premium 

pay per year was divided by 52 weeks to equal $45.51 in weekly Sunday premium pay. The total 

pay rate was derived by adding the weekly base pay rate, night differential pay, and Sunday 

premium pay: $910.25 per week, $91.11 per week, and $45.51 per week equaled a $1,046.87 

weekly pay rate. 

LEGAL PRECEDENT 

Section 8105(a) of FECA provides: “If the disability is total, the United States shall pay 

the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his 

monthly pay, which is known as his basic compensation for total disability.”5

 Section 8101(4) of 

FECA defines “monthly pay” for purposes of computing compensation benefits as follows: 

“[T]he 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, 

 5

 5 U.S.C. § 8105(a). Section 8110(b) of FECA provides that total disability compensation will equal three 

fourths of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b). 
4

whichever is greater....”6

 OWCP’s regulations define “disability” as “the incapacity, because of 

an employment injury, to earn the wages the employee was receiving at the time of injury.”7

 

In computing pay rate, section 8114(e) provides for the inclusion of certain premium pay 

received and, where the evidence indicates additional amounts received in Sunday premium or 

night differential pay fluctuated or may have fluctuated, OWCP determines the amount of 

additional pay received during the one-year period prior to injury.8

 Section 8114(e)(1) provides 

that, in computing an employee’s monthly pay for compensation purposes, overtime pay is not 

included.9

 OWCP has administratively determined, however, that premium pay for AUO under 

5 U.S.C. § 5545(c)(2), is to be included in pay rate calculations.10 

The relevant part of section 5545(c)(2) provides: 

“The head of an agency, with the approval of the [Office of Personnel 

Management (OPM)] may provide that -- an employee in a position in which the 

hours of duty cannot be controlled administratively, and which requires 

substantial amounts of irregular, unscheduled, overtime duty with the employee 

generally being responsible for recognizing, without supervision, circumstances 

which require the employee to remain on duty, shall receive premium pay for this 

duty on an annual basis instead of premium pay provided by other provisions of 

this subchapter, except for regularly scheduled overtime, night, and Sunday duty, 

and for holiday duty. Premium pay under this paragraph is an appropriate 

percentage, not less than 10 percent nor more than 25 percent, of the rate of basic 

pay for the position, as determined by taking into consideration the frequency and 

duration of irregular, unscheduled overtime duty required in the position.”11

ANALYSIS 

On July 12, 2012 appellant sustained a work-related injury and OWCP accepted sprain of 

his right elbow (radial collateral ligament) and forearm, right carpal tunnel syndrome, and lesion 

 6

 5 U.S.C. § 8101(4). In an occupational disease claim, the date of injury is the date of last exposure to the 

employment factors which caused or aggravated the claimed condition. Patricia K. Cummings, 53 ECAB 623, 

626 (2002). The Board has held that if an employee has one recurrence of disability which meets the requirements 

of 8101(4), any subsequent recurrence would also meet such requirements and would entitle the employee to a new 

recurrence pay rate. Carolyn E. Sellers, 50 ECAB 393 (1999). 

7

 20 C.F.R. § 10.5(f). 

8

 5 U.S.C. § 8114(e); Lottie M. Williams, 56 ECAB 302 (2005). 

9 Id. at § 8114(e)(1); Calvin E. King, 51 ECAB 394 (2000). 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.6(b)(7) 

(March 2011). 

11 5 U.S.C. § 5545(c)(2); see also FECA Program Memorandum No. 106 (issued October 30, 1969) (provides for 

inclusion of premium pay in pay rate for compensation purposes under section 5545(c)(2)); FECA Bulletin No. 89-

26 (issued September 29, 1989) (by administrative determination, pursuant to section 5545(c)(2), OWCP includes 

premium pay for AUO in computing compensation). 
5

of the right radial nerve. He received disability compensation on the daily rolls beginning 

November 18, 2012. In September 2014, appellant requested a formal decision with appeal 

rights on the issue of his pay rate for compensation purposes. By decision dated April 29, 2015, 

OWCP determined that appellant had a weekly pay rate of $1,046.87. 

The Board finds that OWCP’s calculation of appellant’s pay rate for compensation 

purposes is in need of further development. In order to explain which aspects of OWCP’s pay 

rate calculation need development, the Board will discuss the various components of its 

calculation. 

The Board finds that OWCP properly determined that appellant’s base salary should be 

calculated with respect to its amount on the date disability began, November 18, 2012.12 The 

Board notes that the record contains a Form CA-7 completed on November 29, 2012 by human 

resources official for the employing establishment showing that, at or about the time disability 

began November 18, 2012, appellant had a salary at the GS-6/step 7 level which equaled an 

hourly base wage of $22.68. OWCP multiplied this figure times 2,087 work hours per year to 

derive an annual base salary of $47,333.16 per year.13 However, there is no document in the 

record precisely identifying appellant’s annual base salary on November 18, 2012. 

On appeal, counsel argued that appellant received “gun up” pay for the 30 minutes he 

“armed up” prior to starting work each day and that such pay should be included in the 

calculation of his pay rate as AUO. 

The Board finds that the record presently does not contain evidence that appellant 

received additional pay for AUO of the type described in 5 U.S.C. § 5545(c)(2), in the form of 

“gun up” pay or any other form of pay. The type of AUO contemplated by section 5545(c)(2) is 

premium pay that is paid on an annual basis as a percentage of an employee’s base pay, 

regardless of the actual hours worked.14 The record does not currently show that appellant 

received this type pay such that he received AUO pay within the meaning of FECA. As noted 

above, any wages appellant might have received for working overtime are to be excluded from 

OWCP’s pay rate for compensation purposes determination.15 The Board also notes, however, 

that it remains unclear from the record whether OWCP asked the employing establishment if 

appellant received AUO in the year prior to his injury. 

 12 See supra note 6 regarding the pay rate standards of 5 U.S.C. § 8101(4). In the present case, there is no basis 

for use of a recurrent pay rate as there was no recurrence beginning “more than six months after the injured 

employee resumes regular full-time employment with the United States.” Moreover, there is no indication that 

appellant earned more on the date of injury, July 12, 2012, than on the date disability began, November 18, 2012. 

See id. 

13 The General Accountability Office has determined that the average work year has 2,087 work hours. The 

record also contains a Standard Form 50 showing that appellant went from the GS-6/step 6 level to the GS-6/step 7 

level on August 14, 2011 and thus had an annual salary of $47,331.00 on that date. 

14 See supra notes 10 and 11. 

15 See supra note 9; see also M.W., Docket No. 11-0759 (issued September 15, 2011). 
6

The Board further finds that the matter of appellant’s Sunday premium and night 

differential pay, and its inclusion in the calculation of appellant’s pay rate, is also in need of 

further development. The Board notes that when there is fluctuation of premium pay, such as 

Sunday premium and night differential pay, OWCP determines the amount of additional pay 

received during the one-year period prior to injury.16 A human resources official for the 

employing establishment indicated on the Form CA-7 appellant completed on November 29, 

2012 that appellant had night differential pay of $2.27 per hour and Sunday premium pay of 

$5.67 per hour. However, there is no indication in the record whether appellant’s Sunday 

premium and night differential pay fluctuated and, if so, how much additional pay in these 

categories he received during the one-year period prior to injury. OWCP appears to have based 

its calculations on a determination that, in the year prior to the injury, appellant had eight hours of 

Sunday premium pay each week and 2,087 hours of night differential pay in total, but it did not 

identify the source for these figures. It is not clear from the record that these calculations are 

accurate. For example, with regard to the calculation of Sunday premium pay, there is some 

suggestion in the record that appellant might have received 16 hours of Sunday premium pay for 

each Sunday worked. 

Under FECA, although it is the burden of an employee to establish his or her claim, 

OWCP also has a responsibility in the development of the factual evidence, particularly when 

such evidence is of the character normally obtained from the employing establishment or other 

government source.17 Therefore, the case shall be remanded to OWCP for further development 

of appellant’s pay rate for compensation purposes in accordance with this decision of the Board. 

After carrying out this development, OWCP shall issue a de novo decision regarding appellant’s 

pay rate. 

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether OWCP 

properly determined appellant’s pay rate for compensation purposes. 

 16 See supra note 8. 

17 Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie James Clark, 39 ECAB 1311, 1318-19 (1988). 
7

ORDER 

IT IS HEREBY ORDERED THAT the April 29, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded to OWCP for further 

proceedings consistent with this decision of the Board. 

Issued: July 1, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board