United States Department of Labor

Employees’ Compensation Appeals Board

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P.M., Appellant

and

DEPARTMENT OF COMMERCE, BUREAU 

OF THE CENSUS, Washington, DC, Employer

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Docket No. 19-1150

Issued: January 9, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

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 April 22, 2019 appellant filed a timely appeal from a November 26, 2018 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.2

ISSUES

The issues are: (1) whether OWCP properly determined appellant’s pay rate for 

compensation purposes; (2) whether she received a $3,562.97 overpayment of wage-loss 

compensation for the period January 27 through November 11, 2017 for which she was not at fault; 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal to OWCP following the November 26, 

2018 decision. However, the Board’s Rules of Procedure provides: “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

(3) whether OWCP properly denied waiver of recovery of the overpayment; and (4) whether it 

properly required recovery of the overpayment by deducting $706.00 every 28 days from 

appellant’s continuing compensation payments. 

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision and orders are incorporated herein by reference. The relevant facts 

are as follows.

On September 13, 1983 appellant, then a 36-year-old editor, filed an occupational disease 

claim (Form CA-2) alleging that she sustained allergic contact dermatitis causally related to factors 

of her federal employment. OWCP accepted the claim for allergic contact dermatitis and resolved 

vaginitis.

Appellant lost intermittent time from work beginning July 19, 1983. She stopped work on 

January 10, 1986 and utilized sick leave and annual leave until March 14, 1986. OWCP placed 

appellant on the periodic rolls on March 20, 1986 using a recurrent pay rate date of 

October 13, 1985.4 Appellant returned to modified work as a clerk on March 16, 1987, but stopped 

work on March 20, 1987. OWCP paid her wage-loss compensation beginning March 20, 1987

using a recurrent pay rate date of October 13, 1985.

By decision dated October 12, 1987, OWCP reduced appellant’s wage-loss compensation,

effective March 16, 1987, based on its finding that her actual earnings as a clerk fairly and 

reasonably represented her wage-earning capacity.5

By decision dated February 11, 1999, OWCP found that appellant was not entitled to 

compensation at a higher pay rate due to a promotion that others in her position had received after 

she stopped work due to disability. It noted that she had lost intermittent time from work from 

July 19, 1983 until April 13, 1986, when it paid her wage-loss compensation on the periodic rolls. 

OWCP indicated that appellant resumed work on March 16, 1987 in a limited-duty position as a 

 

3 Order Dismissing Appeal, Docket No. 88-0561 (issued April 19, 1988); Order Dismissing Appeal, Docket No. 

01-1710 (issued November 29, 2001); Order Remanding Case, Docket No. 03-0318 (issued June 4, 2004); Docket 

No. 05-0536 (issued October 24, 2006), petition for recon. denied, Docket No. 05-0536 (issued April 17, 2007).

4 On February 21, 1986 OWCP found that appellant was entitled to 78 hours of leave buy back for intermittent time 

lost from work for the period June 19, 1983 to January 9, 1984 using July 15, 1983, the date of injury, as the pay rate. 

It determined that she was entitled to leave buy back for intermittent time lost from work for the period February 7 to 

April 13, 1984 using a recurrent pay rate date of February 7, 1984, from August 22 to September 9, 1985 using a 

recurrent pay rate date of January 1985, and from October 23 to November 11, 1985 using a recurrent pay rate date 

of October 1985.

5 By decision dated October 13, 1987, OWCP denied appellant’s claim for disability compensation after 

March 20, 1987. Appellant appealed to the Board. By order dated April 19, 1988, the Board dismissed her appeal in 

response to the Director’s motion to dismiss. Supra note 3. By decisions dated August 30, 1988 and February 13, 

1989, OWCP denied modification of its October 13, 1987 decision. By decision dated June 28, 1989, it vacated its 

October 13, 1987 decision and reinstated wage-loss compensation retroactive to March 20, 1987. 
3

secretary, but had stopped work on March 20, 1987 and received wage-loss compensation due to 

her recurrence of disability.6 

By decision dated January 8, 2002, OWCP denied appellant’s request for leave buy back 

for 377 hours of leave used from January 18, 1983 to March 5, 1986. It further determined that 

appellant was not entitled to an increased pay rate or interest on back pay. OWCP additionally 

found that the medical evidence was insufficient to show that she sustained a cinnamic alcohol 

allergy causally related to her employment.

By decision dated September 9, 2002, an OWCP hearing representative affirmed the 

January 8, 2002 decision. Appellant appealed to the Board. By order dated June 4, 2004, the 

Board remanded the case for reconstruction of the case record followed by an appropriate decision 

to protect her appeal rights.7

By decision dated November 24, 2004, OWCP reissued the September 9, 2002 decision. 

Appellant appealed to the Board. By decision dated October 24, 2006, the Board affirmed 

in part and set aside in part the November 24, 2004 decision.8 The Board found that appellant was 

not entitled to additional compensation for intermittent time off work from July 18, 1983 to 

March 14, 1986 or interest on retroactive compensation. The Board further determined that the 

case was not in posture for decision regarding whether her allergic reaction to cinnamic alcohol 

was causally related to her employment. Regarding the pay rate issue, the Board noted that OWCP 

had paid appellant wage-loss compensation beginning March 20, 1986 using a recurrent pay rate 

date of October 13, 1985. The Board advised that once an employee had sustained a recurrence

of total disability meeting the requirements of 5 U.S.C. § 8101(4), any subsequent recurrence of 

disability would also meet such requirements and would entitle the employee to a new recurrent 

pay rate. The Board indicated that appellant would be entitled to receive compensation based on 

her pay rate at the time of her March 20, 1987 recurrence of disability and remanded the case for 

OWCP to recalculate her pay rate for compensation purposes.

OWCP continued to pay appellant wage-loss compensation using an effective pay rate date 

of October 13, 1985.

On August 14, 2018 OWCP advised appellant of its preliminary determination that she had 

received a $3,562.97 overpayment of compensation because her spouse died on January 26, 2017,

but she continued to receive wage-loss compensation at the augmented rate (75 percent) through 

November 11, 2017. It further advised her of its preliminary determination that she was at fault in 

the creation of the overpayment. OWCP requested that appellant complete the enclosed 

 

6 By decision dated August 5, 1999, an OWCP hearing representative affirmed the February 11, 1999 decision. By

decision dated May 4, 2001, OWCP denied appellant’s request for reconsideration of the August 5, 1999 decision as 

it was untimely filed and failed to demonstrate clear evidence of error. Appellant appealed to the Board. By decision 

dated November 29, 2001, the Board dismissed her appeal of the May 4, 2001 decision in response to the Director’s 

motion to dismiss as all of the evidence was not contained in the case record. Supra note 3.

7 Supra note 3.

8

Id.
4

overpayment recovery questionnaire and submit supporting financial documents. Additionally, it 

notified her that, within 30 days of the date of the letter, she could request a telephone conference, 

a final decision based on the written evidence, or a prerecoupment hearing. 

Thereafter, appellant submitted a February 28, 2017 letter to OWCP advising of her 

husband’s death. She maintained that her wage-loss compensation should have been based on her 

salary in April 1986 rather than July 1983. Appellant indicated that she was submitting copies of 

personnel actions and earnings and leave statements from January 4 through March 29, 1986.

In a letter dated August 21, 2018, appellant maintained that she had informed OWCP in 

correspondence dated February 28, 2017 of her husband’s passing. She asserted that it had 

incorrectly found that her pay rate date was October 13, 1985 as she had not stopped work until 

January 13, 1986. Appellant advised that she ultimately stopped work on March 13, 1987 at a 

higher pay rate. She submitted a notification of personnel action (SF-50) indicating her pay rate 

effective March 16, 1987.

In a September 5, 2018 overpayment action request form, appellant requested a decision 

based on the written evidence. She contended that she was entitled to waiver of recovery of the 

overpayment as she had notified OWCP on February 28, 2017 of the change in her dependent 

status. Appellant further asserted that she had not received the appropriate compensation for step 

increases that she had received before stopping work.

On September 12, 2018 appellant provided earnings and leave statements dated March 15, 

1986 and maintained that she was entitled to a pay rate based on her work stoppage in 1986. A 

notification of personnel action (SF-50) indicated that she had received a within-grade increase 

effective August 3, 1986, and that she had been in a nonpay status beginning January 13, 1986.

By decision dated November 26, 2018, OWCP found that appellant had received an 

overpayment of compensation in the amount of $3,562.97 because it paid her wage-loss 

compensation from January 27 through November 11, 2017 at an augmented rate when she had no 

dependents. It determined that she was not at fault in the creation of the overpayment as she had 

provided proof that she had advised OWCP on March 1, 2017 of her husband’s death on 

January 26, 2017. OWCP denied waiver of recovery of the overpayment of compensation based 

on its finding that appellant’s income exceeded her expenses by more than the allowed amount. It 

found that she had requested leave buy back in 1985, and that consequently the appropriate pay 

rate date was October 13, 1985. OWCP noted that appellant subsequently had returned to work as 

a secretary and received compensation based on a loss of wage-earning capacity beginning 

March 16, 1987.

LEGAL PRECEDENT -- ISSUE 1 

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.”

9

 Section 8101(4) of 

 

9 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).
5

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, whichever is 

greater....”

10

 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.”

11

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 recurrent pay rate.12

OWCP procedures provide that a recurrent pay rate may be lower than the pay rate in effect 

on the date of injury, date disability began, or previous date of recurrence. This can happen when 

the claimant is originally injured in full-time employment, and the recurrence occurs when the 

claimant is working part time or has been rated for loss of wage-earning capacity. Even if the 

employing establishment reports a higher hourly pay rate for a date of recurrence, the recurrent 

pay rate should be considered the actual weekly amount the claimant earned. In such cases, the 

pay rate on the date of injury, date disability began, or previous date of recurrence, with the 

applicable effective date, would be used because it was higher.13

ANALYSIS -- ISSUE 1

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

properly determined appellant’s pay rate for compensation purposes.

On prior appeal, by decision dated October 24, 2006, the Board instructed OWCP to 

recalculate appellant’s pay rate for compensation purposes. The Board noted that OWCP had paid 

her wage-loss compensation beginning March 20, 1986 using a recurrent pay rate date of 

October 13, 1985. The Board advised that after an employee had sustained a recurrence of total 

disability meeting the requirements of 5 U.S.C. § 8101(4), any subsequent recurrence of disability 

would also meet such requirements and entitle the employee to a new recurrent pay rate. The 

Board thus remanded the case for OWCP to recalculate appellant’s pay rate for compensation 

purposes. OWCP, however, failed to take any further action in developing appellant’s pay rate for 

compensation purposes as instructed by the Board.

In its November 26, 2018 decision, OWCP found that appellant was entitled to a pay rate 

date of October 13, 1985 based on her request for leave buy back in 1985. As discussed, however, 

an employee is entitled to compensation at a recurrent pay rate if he/she resumed regular full-time 

 

10 Id. at § 8101(4).

11 20 C.F.R. § 10.5(f).

12 See G.L., Docket No. 16-0744, n.8 (issued September 16, 2016); Carolyn E. Sellers, 50 ECAB 393 (1999).

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, 2.900.5a (6) (September 2011).
6

employment with the United States for six months after returning to full-time work.14 The case 

will, therefore, be remanded to OWCP for further development to determine appellant’s pay rate 

for compensation purposes. On remand, OWCP should obtain information from the employing 

establishment regarding whether she resumed her regular full-time employment for six months 

following her injury and the dates of any subsequent recurrences of disability. After such further 

development as deemed necessary, it shall issue a de novo decision.

In view of the Board’s disposition of the pay rate issue, it is premature to address the issues 

of whether appellant received an overpayment of wage-loss compensation, whether OWCP 

properly denied waiver of recovery of the overpayment, and whether it properly determined the 

rate of recovery.

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.

ORDER

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

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

consistent with this decision of the Board.

Issued: January 9, 2020

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

 

14 Supra note 12; see also N.C., Docket No. 16-0441 (issued October 21, 2016).