United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Los Angeles, CA, Employer

__________________________________________

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Docket No. 17-1404

Issued: March 20, 2018

Appearances: Case Submitted on the Record

Sally F. LaMacchia, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 13, 2017 appellant filed a timely appeal from a December 19, 2016 merit decision 

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 to 

consider the merits of the case.

 

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

ISSUE

The issue is whether appellant met his burden of proof to establish entitlement to on-call 

premium pay as of June 1, 2008.

On appeal appellant, through counsel, contends that appellant is entitled to standby 

premium pay as of June 1, 2008 because he could not work on-call shifts due to his accepted injury.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts of the case as presented in the 

prior decision are incorporated herein by reference. The relevant facts are as follows. 

On May 14, 2007 appellant, then a 52-year-old biomedical engineering technician, filed a 

traumatic injury claim (Form CA-1) alleging that on February 28, 2007 he sustained neck and 

shoulder injuries when he fell backwards over a utility box while in the performance of duty.

OWCP accepted this claim for neck sprain, left shoulder and upper arm sprain, displacement of 

cervical intervertebral disc without myopathy, and brachial neuritis or radiculitis. Appellant 

stopped work on August 6, 2007 and underwent an OWCP-authorized cervical fusion on 

September 27, 2007. He received wage-loss compensation until February 19, 2008, at which time 

he was released to regular duty without restrictions. Appellant’s pay rate during this time included 

standby premium pay as the employing establishment confirmed that he had worked 18 on-call 

shifts during the previous year.4

On December 23, 2008 OWCP expanded acceptance of the claim to include the conditions 

of dysphagia and esophageal reflux.

On May 22, 2012 appellant filed claims for compensation for wage loss (CA-7 forms). He

requested compensation for on-call wage loss from May 10, 2008 through May 15, 2012.

5

 A

May 31, 2012 telephone call memorandum reflects that appellant corrected the date provided on 

his CA-7 forms and indicated that his on-call wage loss began on June 1, 2008.

In a January 9, 2009 e-mail, received by OWCP on June 12, 2012, appellant advised that 

he was no longer available for on-call duty due to the stress involved in being on call every three 

weeks. Emails between appellant and the employing establishment in March 2009 indicated that 

the employing establishment acknowledged that appellant was unable to perform night work 

because of medication, and stated that appellant would only be assigned to on-call work from 8:00 

a.m. to 6:00 p.m. on weekends and holidays. Appellant argued that he was being discriminated 

against due to his medical condition and refused to be on call every weekend and holiday. The 

 

3 Docket No. 16-0381 (issued September 14, 2016). 

4 A memorandum of record dated August 28, 2007 noted the computation of appellant’s pay rate as of August 8, 

2007 based upon a base pay of $73,800.00, Administratively Uncontrollable Overtime (AUO) pay of $11,495.70 and 

other pay of $14,760.00.

5 Appellant also requested additional compensation for loss of retention pay, however, that issue is not before the 

Board. 
3

employing establishment indicated that appellant would not be on call for every weekend and 

holiday and that the work would be evenly distributed. Appellant then advised by e-mail dated 

March 4, 2009 that he would not be available for on-call duty until he ceased taking medication.

By decision dated July 17, 2012, OWCP denied appellant’s claim for additional wage-loss 

compensation. It acknowledged that medical evidence of record indicated that he was unable to 

work at night. However, OWCP noted that the employing establishment was able to accommodate 

this restriction and offered appellant on-call shifts during the day.

On January 8, 2013 appellant requested reconsideration. By decision dated April 8, 2013, 

OWCP denied appellant’s request for reconsideration without conducting a merit review.

On June 25, 2013 appellant again requested reconsideration and submitted additional 

medical evidence. By decision dated September 13, 2013, OWCP denied modification of its prior 

decision. 

OWCP accepted a recurrence of total disability beginning May 8, 2014 based on worsening 

of appellant’s accepted conditions. Appellant received disability compensation on the 

supplemental compensation rolls beginning May 8, 2014 and was placed on the periodic 

compensation rolls for total disability as of November 25, 2014.

In an August 25, 2014 pleading, OWCP received appellant’s request for reconsideration.

Counsel argued that appellant was entitled to on-call pay.

OWCP noted in a memorandum to the file dated September 29, 2014 that appellant would 

continue to be paid at the weekly pay rate of $1,925.85, effective August 6, 2007, the date disability 

began, as this pay rate was higher than his date of recurrence pay rate, effective April 29, 2014 of 

$1,614.62. It found that on the date disability began appellant was entitled to an annual base pay 

of $73,800.00, retention pay of $14,760.00 and standby shift pay of $11,495.70 for the year prior. 

However, after he returned to full duty on February 19, 2008, his base pay increased to $83,960.00, 

but he was no longer on call and he was no longer entitled to premium pay. 

By decision dated November 20, 2014, OWCP denied modification of its prior decision. 

It found that appellant was not entitled to loss of on-call pay as he had voluntarily removed himself 

from the on-call duty list.

Appellant, through counsel, requested reconsideration on March 31, 2015. By decision 

dated April 16, 2015, OWCP denied appellant’s request for reconsideration without conducting a 

merit review. 

On April 15, 2015 appellant, through counsel, again requested reconsideration. In addition 

to reiterating prior arguments, appellant submitted a December 17, 2014 report wherein Dr. Santini 

advised that appellant began taking medicine for anxiety and depression secondary to his chronic 

pain after undergoing neck surgery in 2008. He noted that appellant was unable to work or drive 

after taking lorazepam. By decision dated July 27, 2015, OWCP denied modification of its prior 

decision.
4

On December 23, 2015 appellant filed an appeal with the Board. By decision dated 

September 14, 2016, the Board found that the medical evidence of record failed to establish that 

appellant’s accepted conditions prevented him from working daytime on-call shifts as of 

June 1, 2008. The Board also found that appellant was not entitled to on-call premium pay as of 

January 29, 2009 as he had voluntarily removed himself from the on-call duty list.6

By letter dated September 16, 2016, counsel for appellant asked Dr. Santini to submit a 

supplemental report. In a September 19, 2016 response, Dr. Santini listed appellant’s diagnoses 

as cervical degenerative disc disease and cervical fusion syndrome. He noted that appellant had 

restrictions after his cervical surgery, but that it was not until April 29, 2014 that he was unable to 

work due to chronic neck pain and the medications he required to control the pain.

In an October 10, 2016 report, Dr. Santini diagnosed cervical fusion syndrome, chronic 

pain, and cervical degenerative disc disease. In a November 10, 2016 report, he indicated that 

appellant was unable to go back to work secondary to neck and shoulder pain and was unable to 

drive or be on call while on pain medications. Dr. Santini diagnosed anxiety, uncomplicated 

opioid dependence, benzodiazepine dependence, cervical fusion syndrome, and unspecified rotator 

cuff tear or rupture of unspecified shoulder not specified as traumatic. He opined that appellant 

should remain off work for 12 weeks.7

On December 19, 2016 OWCP determined that the evidence was insufficient to modify its 

prior decision because the evidence submitted was vague and inconsistent with contemporaneous

evidence. It also noted that the evidence did not address the fact that appellant voluntarily declined

on-call duty.

LEGAL PRECEDENT

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.”

8 Compensation is 

payable for loss of premium pay due to an employment-related condition.9

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 

 

6

Id.

7 OWCP also received a November 30, 2016 report from a nurse practitioner. On December 15, 2016 it expanded 

acceptance of appellant’s claim to include periodontal disease, dental caries, chronic periodontitis, and dry mouth. 

OWCP noted that these conditions developed consequential to the medications prescribed to treat his orthopedic work 

injury.

8 20 C.F.R. § 10.5(f).

9 Obie R. Hale, Docket No. 97-0330 (issued December 2, 1998); Dempsey Jackson, Jr., 40 ECAB 942 (1989); 

Thomas Donaghue, 39 ECAB 336 (1988).
5

begins more than six months after the injured employee resumes regular full-time employment 

with the United States, whichever is greater....”

10

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

received. OWCP has administratively determined, however, that premium pay for 

Administratively Uncontrollable Overtime under 5 U.S.C. § 5545(c)(2), is to be included in pay 

rate calculations.11

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 --

(2) 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.”

12

ANALYSIS

OWCP accepted that on February 28, 2007 appellant sustained injuries when he fell 

backwards at work over a utility box. Appellant stopped work on August 6, 2007 and received 

standby premium pay as part of his FECA wage-loss compensation. He returned to full-duty work 

without restrictions on February 19, 2008, but he claimed that as of June 1, 2008 he was no longer 

receiving on-call premium pay as part of his wages and that his inability to work on-call shifts was 

due to the accepted injury. 

The Board found in its prior decision that the medical evidence was insufficient to establish 

that the accepted conditions caused appellant’s inability to work on-call daytime shifts until he 

took himself off the on-call duty list by e-mails dated January 29 and March 24, 2009. The Board’s 

 

10 5 U.S.C. § 8101(4).

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 administratively uncontrollable overtime in computing compensation).

12 5 U.S.C. § 5545(c)(2).
6

review of the previously submitted medical evidence of record is res judicata and, therefore, need 

not be addressed again in this decision.13 

In its prior decision, the Board also found that the evidence of record did not establish that 

the employing establishment withdrew appellant’s entitlement to on-call premium pay. The Board 

found that the record established that appellant voluntarily withdrew himself from on-call shifts in 

2009. 

Following the Board’s prior decision, OWCP received new reports from Dr. Santini. In a 

September 19, 2016 report, Dr. Santini explained that it was not until April 29, 2014 that appellant 

was unable to work. In his November 10, 2016 report, Dr. Santini indicated that appellant was 

unable to go back to work secondary to neck and shoulder pain and was unable to drive or be on 

call with pain medications. He advised that appellant should be off work for 12 weeks. Dr. Santini 

addressed appellant’s ability to work as of April 29, 2014 and then as of November 10, 2016, but 

he failed to provide a well-rationalized opinion explaining why appellant could not be on call 

during the day from June 1, 2008 until January 29, 2009. The Board will not require OWCP to 

pay compensation disability wage loss in the absence of medical evidence directly addressing the 

specific dates of disability for which compensation is claimed. For each period of disability 

claimed, the employee has the burden of establishing that he was disabled for work as a result of 

the accepted employment injury.14 Accordingly, Dr. Santini’s reports are insufficient to establish 

appellant’s claim as he does not provide a well-rationalized opinion indicating that appellant was 

unable to work on-call shifts during the daytime between the claimed dates of June 1, 2008, when 

he stopped receiving on-call pay, until January 29, 2009, when he voluntarily removed himself 

from the on-call list.

15

Appellant’s disability status changed as of May 8, 2014, when OWCP accepted a 

recurrence of total disability and appellant again received FECA wage-loss compensation for 

temporary total disability. OWCP explained in its September 29, 2014 memorandum that 

appellant would continue to receive wage-loss compensation based upon his August 6, 2007 date 

of disability pay rate because it was higher than his April 29, 2014 recurrence pay rate. This 

memorandum noted that the August 6, 2007 pay rate was higher because it incorporated retention 

pay, and standby shift pay. However, appellant was no longer entitled to premium pay on the date 

of recurrence. 

 

13 See M.A., Docket No. 17-0352 (issued June 16, 2017).

14 Sandra D. Pruitt, 57 ECAB 126 (2005). 

15 OWCP also received a report from a nurse practitioner. The opinion of the nurse practitioner is insufficient to 

establish entitlement to benefits, as she is not considered a physician under FECA and therefore her report has no 

probative value. Section 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, 

clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as 

defined by State law. See Merton J. Sills, 39 ECAB 572, 575 (1988). Healthcare providers such as licensed clinical 

social workers, nurses, acupuncturists, physician assistants, and physical therapists are not considered physicians 

under FECA. See D.F., Docket No. 17-0135 (issued June 5, 2017).
7

As previously noted, appellant was no longer entitled to on-call, standby premium pay as 

of June 1, 2008 because he did not establish that he was disabled from on-call work and because,

as of January 29, 2009, he voluntarily removed himself from the on-call duty list. 

The Board finds that OWCP properly determined appellant’s greater pay rate under 5 

U.S.C. § 8101(4) to be his pay rate as of the date disability began. The evidence of record does 

not establish entitlement to a greater pay rate as of the date of injury, or date of recurrence of 

disability. 

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 appellant did not meet his burden of proof to establish entitlement to 

on-call premium pay beginning June 1, 2008.

ORDER

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

Programs dated December 19, 2016 is affirmed.

Issued: March 20, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board