United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.C., Appellant 

and 

U.S. POSTAL SERVICE, NASHUA PRIORITY 

MAIL PROCESSING CENTER, Nashua, NH, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1931 

Issued: September 15, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 3, 2014 appellant, through counsel, filed a timely appeal from a July 30, 

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. 

On appeal counsel contends that OWCP’s decision is contrary to fact and law. 

 

 1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board.2 In a June 18, 2012 decision, the Board 

reversed an August 24, 2011 OWCP decision finding that appellant’s actual earnings as a 

receptionist fairly and reasonably represented her wage-earning capacity. The Board determined 

that OWCP had not fully considered all criteria for making a retroactive loss of wage-earning 

capacity determination and reversed the wage-earning capacity decision. 

The relevant facts are set forth below. 

OWCP accepted that on May 3, 2001 appellant, then a 35-year-old casual label clerk, 

sustained a lumbar subluxation as a result of lifting tubs of labels at work. It paid her wage-loss 

compensation for total disability from June 26 through October 26, 2001.3

 Effective October 27, 

2001, OWCP placed appellant on the periodic rolls and she began to receive compensation every 

28 days in the amount of $562.00, based on an hourly rate of $14.05 and a 40-hour workweek.

On August 15, 2001 the employing establishment clarified that appellant was not a fulltime employee, but rather a casual employee who worked an average of 29.02 hours a week at a 

pay rate of $14.05 per hour. No further action was taken by OWCP regarding the pay rate. 

Appellant moved to Nevada in 2005. 

During the next few years, OWCP developed the medical record as to appellant’s work 

capacity. Appellant was formally referred to vocational rehabilitation in February 2009. In 

July 2009, OWCP proposed to reduce her wage loss compensation to reflect her ability to earn 

wages as a reservation clerk or receptionist. Appellant had accepted various nonfederal positions 

during this time and on March 3, 2011 OWCP found her actual position as a receptionist fairly 

and reasonably represented her wage-earning capacity and reduced her wage-loss compensation 

to zero retroactive to April 19, 2010 the day she had begun work as a receptionist. This decision 

was reversed by the Board on June 18, 2012. On September 18, 2012 appellant’s wage-loss 

benefits were reinstated to April 19, 2010. 

It was during the vocational rehabilitation process that OWCP discovered the pay rate 

error. The employing establishment had reminded OWCP on July 13, 2010 that on the date of 

injury (May 3, 2001) appellant worked an average of 29.29 hours earning $411.66 a week as a 

casual employee. 

In a September 30, 2010 decision, OWCP corrected appellant’s pay rate. Based on 

payroll reports, it found that she was a casual employee who earned $14.05 an hour and averaged 

5.8 hours a day and that she had not worked in the position 11 months prior to her injury. This 

rate was multiplied by 150 and divided by 52 to equal $235.07 per week. This pay rate was 

determined effective as of September 30, 2010. OWCP further found that an overpayment of 

compensation in the amount of $93,884.63 had been created from June 26, 2001 to April 18, 

 2

 Docket No. 12-76 (issued June 18, 2012). 

3

 In an August 14, 2001 letter, the employing establishment stated that appellant was terminated for being absent 

without leave as she failed to report to work as scheduled effective June 25, 2001. 
3

2010 because her compensation had been based on the incorrect pay rate of $562.00 for a 40-

hour work week.4

Through correspondence between appellant and OWCP over the next few years, 

appellant disputed the overpayment decision and the pay rate, but the correspondence regarding 

the pay rate was never adjudicated as a formal request for reconsideration, despite several 

requests by counsel. By letter dated October 28, 2013 counsel again requested a final, 

appealable decision on the issue of the pay rate. 

On November 15, 2013 OWCP finally issued an appealable decision on the pay rate. It 

found that the proper pay rate was $235.07 a week effective September 30, 2010. OWCP 

determined that 5 U.S.C. § 8114(d)(3) was applicable in this case, as appellant had not been 

employed in the date-of-injury job for 11 months in the year preceding her May 3, 2001 

employment injury. Applying 5 U.S.C. § 8114(d)(3), it found that she had worked 580.32 hours 

during a 20-week period averaging 5.8 hours a day. OWCP multiplied the hourly pay rate on the 

date of injury (May 3, 2001) of $14.05 times 5.8 hours per day times 150 (minimum average 

annual earnings) divided by 52 weeks (number of weeks in a year), which yielded a weekly pay 

rate of $235.07. 

OWCP explained that under 5 U.S.C. § 8114 an employee who works substantially the 

whole year prior to injury, or who would have done so but for the injury, may receive 

compensation based on the annual pay rate for the job held, if an annual rate was fixed (that is if 

the employee was a full-time worker). Eleven months is considered to be “substantially the 

whole year.” However, as appellant did not work in her federal position for 11 months, it 

calculated the weekly pay rate based on the 150 formula. The 150 formula comes from 5 U.S.C. 

§ 8114(d)(3) which states, “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 1 year immediately preceding his or her injury.” Based on that formula, OWCP found 

that the correct weekly pay rate was $235.07.5

By letter dated November 26, 2013, appellant, through her attorney, requested a 

telephone hearing with an OWCP hearing representative. During the June 11, 2014 telephone 

hearing, appellant stated that she was a full-time employee who worked 40 hours a week. She 

contended that OWCP had incorrectly interpreted her pay records in determining that she was 

not a full-time employee. Appellant claimed that the job she held a year prior to her injury was 

similar to her employing establishment job. She stated that she worked as a contractor for the 

employing establishment and that she did the same work as postal employees. 

In a June 30, 2014 letter, Louise A. Cote, an employing establishment health and resource 

management manager, submitted payroll records to OWCP and explained that they clearly 

indicated that appellant had not worked 40 hours a week. Ms. Cote stated that the records were 

 4

 In a January 4, 2011 decision, the overpayment was finalized following a telephone conference. The hearing 

representative waived recovery of the overpayment as appellant’s monthly expenses exceeded her monthly income. 

5

 OWCP noted in its November 15, 2013 decision that OWCP should have revised the pay rate when first advised 

of the error in 2001 and declared an overpayment. However, that action had not been taken. 
4

used to calculate appellant’s average weekly hours of 29.02 for the period she worked prior to 

her injury. 

In a July 30, 2014 decision, an OWCP hearing representative affirmed the November 15, 

2013 decision. He found that, although appellant testified that she was a full-time employee, the 

employing establishment had submitted pay records which established that she was not a fulltime employee. The hearing representative further found that appellant had submitted no 

evidence to corroborate her insistence that she was a full-time employee and her testimony alone 

was insufficient to overcome the factual evidence in the record. 

LEGAL PRECEDENT 

 

Under 5 U.S.C. § 8101(2) of FECA, 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. 

Further, with respect to the calculation of pay rate for compensation purposes, FECA provides at 

section 8114(d) that average annual earnings are determined as follows: 

“(1) If the employee worked in the employment in which he [or she] was 

employed at the time of 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 rate of pay; or 

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

by multiplying his [or her] daily wage for the particular employment or the 

average thereof if the daily wage has fluctuated, by 300 if he [or she] 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 the 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 earning 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 class working in the 
5

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 

OWCP paid appellant disability compensation on the periodic rolls effective 

November 4, 2001 based on a 40-hour workweek at a weekly pay rate of $562.00. It later 

discovered that she was not a full-time employee and had only worked an average of 29.02 hours 

a week at an hourly rate of $14.05. The record establishes that on the date of injury appellant 

was employed as a casual employee who worked an average of 29.02 hours a week or 5.8 hours 

a day at an hourly rate of $14.05 which included night differential or other special pay 

increments.6

 The record also establishes that she did not work in the position in which she was 

injured substantially for the entire year immediately preceding the injury. The Board finds that 

OWCP properly calculated appellant’s compensation pay by following 5 U.S.C. § 8114(d)(3) 

because she had not been employed during substantially the whole year immediately preceding 

the injury and it was not a full-time position. OWCP properly followed the formula in 

§ 8114(d)(3) by multiplying the hourly rate of $14.05 times the average of 5.8 hours a day times 

150 which was then divided by 52, yielding a weekly pay rate of $235.07. There is no evidence 

of record that she was entitled to a higher rate of pay. 

At the hearing appellant argued that she had in fact been a full-time employee and 

asserted that the employing establishment had misinterpreted her pay records. Appellant offered, 

however, no documentary evidence to corroborate this assertion. The Board finds OWCP 

properly relied on the payroll records submitted by the employing establishment and properly 

calculated the pay rate pursuant to 5 U.S.C. § 8114(d)(3) to find the weekly pay rate for 

disability compensation purposes. 

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 calculated appellant’s pay rate for compensation 

purposes. 

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

(March 2011). 
6

ORDER 

IT IS HEREBY ORDERED THAT the July 30, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 15, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board