United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.W., Appellant

and

DEPARTMENT OF THE NAVY, 

PORTSMOUTH NAVAL SHIPYARD,, 

Portsmouth, NH, Employer

__________________________________________

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Docket No. 19-0557

Issued: November 18, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 16, 2019 appellant, through counsel, filed a timely appeal from a December 26, 

2018 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 this case.3

 

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. 

3 The Board notes that, following the December 26, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provide: The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether OWCP properly determined appellant’s pay rate in calculating his

May 3, 2018 schedule award. 

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

as presented in the prior Board decisions are incorporated herein by reference. The relevant facts 

are as follows.

On January 26, 2004 appellant, then a 46-year-old pipefitter helper, filed a traumatic injury

claim (Form CA-1) alleging that he injured his back when carrying fire extinguishers on 

January 21, 2004 while in the performance of duty. He did not stop work at the time of the injury. 

OWCP assigned the claim OWCP File No. xxxxxx826 and accepted it for lumbar and thoracic 

strains. Following the injury, appellant performed limited-duty work. OWCP paid him wage-loss 

compensation for intermittent absences to attend medical appointments and physical therapy 

treatments.

On June 8, 2005 appellant filed a traumatic injury claim (Form CA-1) alleging that on 

June 7, 2005 he sat for a prolonged period in a classroom and reinjured his back while in the 

performance of duty. OWCP assigned the claim OWCP File No. xxxxxx794.

On June 25, 2008 appellant filed a schedule award claim (Form CA-7) based on partial loss 

of use of the left lower extremity under OWCP File No. xxxxxx826.

On January 2, 2010 appellant filed a notice of recurrence (Form CA-2a) requesting medical 

treatment alleging that the accepted lumbar and thoracic conditions remained active. He noted 

that he had remained on light duty following the January 21, 2004 employment injury. Appellant 

indicated that he had not lost time from work other than to attend medical appointments and 

physical therapy treatments.

By decision dated March 9, 2010, OWCP accepted appellant’s recurrence claim. Appellant 

subsequently filed claims for wage-loss compensation (Form CA-7) for work absences to attend 

 

4 Docket No. 11-1915 (issued August 21, 2012) (the Board affirmed an April 22, 2011 OWCP decision rescinding 

a June 24, 2010 schedule award for permanent impairment of the left lower extremity caused by accepted January 21, 

2004 lumbar and thoracic strains. The Board also affirmed a May 16, 2011 OWCP decision denying appellant’s 

request to issue compensation at a recurrent pay rate based on his January 7, 2010 date of recurrence as he had not 

returned to full duty following the January 21, 2004 employment injury. Additionally, the Board affirmed a July 28, 

2011 OWCP decision denying a May 30, 2011 reconsideration request); Docket No. 13-1429 (issued May 23, 2014) 

(in an Order Remanding Case, the Board set aside a May 15, 2013 overpayment determination for further development 

on the issue of waiver); Docket No. 14-0199 (issued September 16, 2015) (the Board affirmed a September 24, 2013 

OWCP decision which found that appellant had not sustained any permanent impairment causally related to his 

accepted January 21, 2004 thoracic and lumbar conditions); Docket No. 15-0190 (issued August 10, 2016) (the Board 

affirmed an October 7, 2014 OWCP decision finding an $11,587.25 overpayment of compensation representing the 

rescinded schedule award paid from September 4, 2009 to March 4, 2010 for permanent impairment of the left lower 

extremity); Docket No. 14-0199 (issued September 1, 2017) (the Board set aside OWCP’s September 24, 2013 

decision denying appellant’s schedule award claim for permanent impairment of the lower extremities and remanded 

the claim for additional medical development). 
3

physical therapy and medical appointments. OWCP paid compensation at the January 24, 2004 

date-of-injury pay rate.

On March 11, 2010 appellant filed an occupational disease claim (Form CA-2) alleging 

that on February 12, 2010 the accepted thoracic strain had progressed to thoracic disc bulges at 

T10-11. He stopped work on February 12, 2010. OWCP assigned the claim OWCP File No. 

xxxxxx310.5 

By decision dated June 24, 2010, OWCP granted appellant a schedule award for nine 

percent permanent impairment of the left lower extremity under OWCP File No. xxxxxx826.

Following additional medical development, by decision dated September 20, 2010, OWCP 

modified its June 24, 2010 decision to find that appellant had no ratable impairment of the left 

lower extremity. By decision dated April 22, 2011, it found that it should have rescinded the 

June 24, 2010 schedule award as he had no ratable impairment of the left lower extremity.

In letters dated October 30 and November 24, 2010, and February 20, 2011, appellant 

asserted his entitlement to a recurrent pay rate as OWCP had accepted his claim for a recurrence 

of disability commencing January 7, 2010.

By decision dated May 16, 2011, OWCP denied appellant’s request to be paid 

compensation based on his date of recurrence, January 7, 2010. It found that he was not eligible 

for a recurrent pay rate as he had not returned to full duty following the accepted January 21, 2004 

injuries. OWCP informed appellant that a recurrent pay rate only applied if a work stoppage began 

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

On May 23, 2011 appellant requested reconsideration. He provided a December 14, 2010 

duty status report (Form CA-17) noting restrictions against overtime work, shift changes, lifting 

more than 55 pounds, and lifting for more than three hours a day.

By decision dated July 28, 2011, OWCP denied modification of the May 16, 2011 decision. 

It found that appellant had not met his burden of proof to establish that he returned to regular, fulltime employment. Appellant then appealed to the Board.

On January 5, 2012 OWCP combined OWCP File Nos. xxxxxx826, xxxxxx301, and

xxxxxx794 under OWCP File No. xxxxxx826 as the master file number.

On February 15, 2012 OWCP expanded its acceptance of the claim to include a thoracic 

sprain, lumbar sprain, displacement of cervical intervertebral disc without myelopathy, 

displacement of lumbar intervertebral disc without myelopathy, thoracic or lumbosacral neuritis 

 

5 By decision dated June 8, 2010, OWCP denied the claim as fact of injury was not established. It denied 

modification by decision dated August 23, 2010. Appellant then appealed to the Board. By order issued 

November 25, 2011, Docket No. 11-0830, Order Remanding Case, (issued November 25, 2011), the Board remanded 

the claim to OWCP to combine OWCP File No. xxxxxx310 with OWCP File No. xxxxxx826. Following additional 

medical development, by decision dated February 7, 2012, OWCP accepted a recurrence of disability commencing 

February 12, 2010 with work absences for medical appointments and physical therapy treatments only. It did not 

accept that the recurrence had caused a period of disability for work.
4

or radiculitis not otherwise specified, and displacement of thoracic intervertebral disc without 

myelopathy.

By decision issued August 21, 2012, the Board affirmed OWCP’s July 28, 2011 decision, 

finding that appellant was not entitled to a recurrent pay rate as he never returned to regular fullduty work following the January 21, 2014 employment injuries.6

On August 25, 2012 appellant filed a claim for a schedule award (Form CA-7) based on 

permanent impairment of both lower extremities. Dr. Frank A. Graf, a Board-certified orthopedic 

surgeon, provided an October 2, 2012 impairment rating indicating 19 percent lower extremity 

impairment. Dr. Morley Slutsky, Board-certified in occupational medicine and an OWCP district 

medical adviser (DMA), opined in a December 6, 2012 report that Dr. Graf’s opinion lacked 

validity.

By decision dated April 2, 2013, OWCP denied appellant’s schedule award claim as

Dr. Graf’s opinion was insufficient to establish a ratable impairment of a scheduled member of the 

body.

On April 13, 2013 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review, held on August 6, 2013.

By decision dated September 24, 2013, an OWCP hearing representative affirmed the 

April 2, 2013 decision. She found that Dr. Graf’s reports lacked sufficient probative value to 

establish a ratable impairment. Appellant then appealed to the Board.

By decision dated September 16, 2015,7the Board affirmed the September 24, 2013 

decision, finding that Dr. Graf’s impairment ratings were insufficient to meet appellant’s burden 

of proof to establish a ratable impairment of a scheduled member of the body.

On October 13, 2015 appellant timely requested that the Board reconsider its 

September 16, 2015 decision.

By order issued September 1, 2017,8the Board granted appellant’s petition for 

reconsideration, finding that OWCP had not considered all accepted conditions in developing his 

schedule award claim.

By decision issued September 1, 2017,9the Board set aside the September 24, 2013 

decision and remanded the case to OWCP for additional medical development.

On remand OWCP obtained a second opinion on February 8, 2018 from Dr. Kenneth D. 

Polivy, a Board-certified orthopedic surgeon. It routed his report to Dr. Michael M. Katz, a Boardcertified orthopedic surgeon serving as an OWCP DMA. Dr. Katz reviewed Dr. Polivy’s report

 

6 Supra note 4.

7 Docket No. 14-0199 (issued September 16, 2015).

8 Order Granting Petition for Reconsideration, Docket No. 14-0199 (issued September 1, 2017).

9 Docket No. 14-0199 (issued September 1, 2017).
5

on March 30, 2018. He opined that appellant had one percent impairment of the left lower 

extremity. Dr. Katz affirmed that appellant had attained maximum medical improvement as of 

February 8, 2018.

By decision dated May 3, 2018, OWCP granted appellant a schedule award for one percent 

permanent impairment of the left lower extremity. The period of the award, equal to 2.88 weeks 

of compensation, ran from February 8 to 28, 2018. OWCP utilized January 21, 2004 as the pay 

rate date.10

On May 9, 2018 appellant, through counsel, requested a telephonic oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. At the hearing, held on October 16, 

2018, counsel contended that OWCP should have utilized March 9, 2010 as the schedule award 

pay rate date as OWCP had accepted a recurrence of disability commencing on that date.

By decision dated December 26, 2018, an OWCP hearing representative affirmed the 

May 3, 2018 decision. The hearing representative found that appellant did not qualify for a 

recurrent pay rate as his 2010 recurrence of disability was strictly for medical treatment and not a 

period of disability due to the accepted conditions. The hearing representative explained that a 

recurrent pay rate applied only if the total or partial disability for work began more than six months 

after the first return to full-time, full-duty employment. As appellant had not resumed full-duty 

work, he was not eligible for a recurrent pay rate.

LEGAL PRECEDENT

Section 8102 of FECA11 provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty. 

Under FECA, monetary compensation for disability or impairment due to an employment 

injury is paid as a percentage of the pay rate.12 Section 8101(4) provides that 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.13 OWCP procedures provide that, if the employee did not stop work on the 

date of injury or immediately afterwards, defined as the next day, the record should indicate the 

pay rate for the date of injury and the date disability began. The greater of the two should be used 

 

10 By a second decision dated May 3, 2018, OWCP denied appellant’s schedule award claim for permanent 

impairment of the right lower extremity, right upper extremity, and left upper extremity. Counsel’s argument on 

appeal pertained only to the pay rate of the May 3, 2018 schedule award. As he did not appeal the May 3, 2018 

decision denying appellant’s schedule award claim for permanent impairment of the right lower extremity and both 

upper extremities, the Board will not exercise its jurisdiction over that decision on the present appeal.

11 5 U.S.C. § 8102. 

12 See id. at §§ 8105-8107.

13 Supra note 11 at § 8101(4). J.S., Docket No. 17-1277 (issued April 20, 2018); K.B., Docket No. 13-0569 (issued 

June 17, 2013). 
6

in computing compensation, and if they are the same, the pay rate should be effective on the date 

disability began.14

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 pay at the time of 

this first recurrence of disability.15 The Board has defined regular employment as established and 

not fictitious, odd-lot, or sheltered and has contrasted it with a job that was created especially for 

the claimant. The duties of regular employment are covered by a specific job classification and 

such duties would have been performed by another employee if the claimant did not perform them. 

The test is not whether the tasks the claimant performed during his or her limited duty would have 

been done by someone else, but instead whether he or she occupied a regular position that would 

have been performed by another employee.16

In applying section 8101(4), the statute requires OWCP to determine monthly pay by 

determining the date of the greater pay rate, based on the date of injury, date of disability, or the 

date of recurrent disability. The Board has held that rate of pay for schedule award purposes is the 

highest rate which satisfies the terms of section 8101(4).17 Where an injury is sustained over a 

period of time, the date of injury is the date of last exposure to the employment factors causing the 

injury.18

ANALYSIS

The Board finds that OWCP properly computed appellant’s pay rate for compensation 

purposes. 

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

that was previously considered in its prior decisions. Findings made in prior Board decisions are 

res judicata, absent any further review by OWCP under section 8128 of FECA.19

OWCP accepted that appellant sustained thoracic and lumbar injuries in the performance 

of duty on January 21, 2004. Following the employment injuries, appellant remained in a lightduty status. He did not resume full duty in his date-of-injury pipefitter helper position. Appellant

claimed a schedule award for permanent impairment of the left lower extremity and asserted his 

entitlement to a recurrent pay rate.

In determining the appropriate rate of pay for schedule award purposes, OWCP must 

determine the greater pay rate based on the date of injury, date of disability, or the date on which 

 

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5(a)(3) 

(September 2011). 

15 Supra note 11 at § 8101(4); J.S., supra note 13; see Jon L. Hoagland, 57 ECAB 635 (2006). 

16 See Jeffrey T. Hunter, 52 ECAB 503 (2001). 

17 Robert A. Flint, 57 ECAB 369, 374 (2006).

18 See Barbara A. Dunnavant, 48 ECAB 517 (1997). 

19 K.S., Docket No. 19-0537 (issued August 23, 2019); T.B., Docket No. 19-0029 (issued June 21, 2019).
7

disability recurred.20 A recurrent pay rate applies only if the work stoppage began more than six 

months after a return to regular full-time employment.21 As appellant did not resume “regular fulltime employment with the United States” for the requisite six-month period, he is not entitled to a 

recurrent pay rate on that basis.

22

Additionally, appellant had no dates of disability that would entitle him to a recurrent pay 

rate. OWCP paid him wage-loss compensation for intermittent absences to attend medical 

appointments and physical therapy treatments. However, these absences do not qualify as a work 

stoppage due to disability under section 8101(4).

23

 Therefore, appellant suffered no qualifying 

dates of disability.24

As there is no evidence that appellant physically resumed regular full-time work with the 

employing establishment, as required under section 8104(4) of FECA,25 and had no recurrence of 

disability, OWCP properly calculated his pay rate for compensation purposes based on the date of 

injury, January 21, 2004.

26

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.

On appeal counsel contends that OWCP should have based the May 3, 2018 schedule 

award on appellant’s pay rate in 2010 rather than his January 21, 2004 date-of-injury pay rate. He 

does not contest the medical aspects of the claim or the percentage of permanent impairment 

awarded. However, for the reasons set forth above, appellant has not established that OWCP 

utilized an incorrect pay rate to calculate the May 3, 2018 schedule award.

CONCLUSION

The Board finds that OWCP properly determined appellant’s pay rate in calculating his 

May 3, 2018 schedule award. 

 

20 5 U.S.C. § 8101(4).

21 Id.; J.R., Docket No. 14-1728 (issued June 17, 2015); see C.M., Docket No. 08-1119 (issued May 13, 2009); 

supra note 13 at Chapter 2.900.5(a)(4) (September 2011).

22 Id.; J.S., supra note 13; see also Samuel C. Miller, 55 ECAB 119 (2003).

23 Supra note 11 at § 8101(4).

24 D.R., Docket No. 16-0378 (issued November 16, 2016).

25 Supra note 11 at § 8101(4).

26 J.S., supra note 13; see T.K., Docket No. 13-1833 (issued March 10, 2014).
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ORDER

IT IS HEREBY ORDERED THAT the December 26, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 18, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board