H.E. and Department of Commerce, National Oceanic and Atmospheric Administration, Seattle, WA (Board decision, April 8, 2011)

ECAB remand decision and order. The Board set aside OWCP's January 28, 2010 wage-loss pay rate decision and returned the case to determine the value of shipboard meals and quarters. The final compensation pay rate remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

H.E., an engineer on a NOAA vessel, received meals and quarters while working at sea. OWCP calculated his wage-loss compensation for an accepted respiratory condition without adding the value of those benefits, saying the file lacked a dollar figure. The Board held that FECA requires the value of in-kind remuneration to be included when it can be estimated in money. It set aside the pay rate decision and directed OWCP to develop a reasonable estimate for shipboard meals and, if possible, quarters. OWCP must then issue a new pay rate decision.

Decision snapshot

• Authority: In-kind remuneration in FECA pay calculations, 5 U.S.C. § 8114(e).
• Outcome: January 28, 2010 pay rate decision set aside; case remanded for valuation and new decision.
• Key point: The lack of a ready dollar figure did not end OWCP's duty to estimate the value of provided meals and quarters.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
H.E., Appellant
)
)
and ) Docket No. 10-1124
) Issued: April 8, 2011
DEPARTMENT OF COMMERCE,
)
NATIONAL OCEANIC ATMOSPHERIC
)
ADMINISTRATION, Seattle, WA, Employer
)
__________ )

Appearances: Oral Argument March 1, 2011
John Eiler Goodwin, Esq., for the appellant
No appearance, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

On March 18, 2010 appellant, through his representative, filed a timely appeal from the January 28, 2010 merit decision of the Office of Workers’ Compensation Programs, which affirmed the pay rate used to calculate his compensation for wage loss.1

The Board has duly considered the matter and finds that the Office’s January 28, 2010 decision must be set aside. Section 8114(e) of the Federal Employees’ Compensation Act provides that, in computing monetary compensation for disability, the value of subsistence and quarters, and of any other form of remuneration in kind for services if its value can be estimated in money, is included as part of the pay.2 To be clear, this does not direct an employing establishment to pay for subsistence and quarters. It simply directs the Office to include in the

1
The Office accepted that appellant, an engineer aboard the McArthur II, developed an aggravation of chronic obstructive pulmonary disease in the performance of duty.
2
5 U.S.C. § 8114(e). calculation of compensation for disability the value of any subsistence and quarters the employing establishment provided in kind for services, if that value can be estimated in money.3

In this case, the Office found that the value of subsistence and quarters “cannot be included” in the calculation of appellant’s compensation because the file contained no information from the employing establishment or appellant showing such value, but when it is not disputed that appellant received subsistence and quarters while at sea,4 the Office has a statutory obligation to include the value of that remuneration in kind if its value can be estimated in money.5

The Board will set aside the Office’s January 28, 2010 decision and remand the case for further development of the value of subsistence and quarters provided to appellant while aboard the McArthur II for the period in question. The Office shall follow up on the employing establishment’s offer to estimate, as best it can from meals cost data, the value of subsistence provided to appellant while aboard ship if the cash allowance for onshore meals is not an acceptable reflection of that value. If the employing establishment is unable to provide further useful information, the Office must estimate a value for subsistence from other agencies and sources as appears reasonable under the circumstances and for quarters if there is a reasonable way to estimate its value in money. The Office shall then issue an appropriate final decision on appellant’s pay rate for compensation purposes.

3
See Robert J. Lima, 55 ECAB 546 (2004) (finding that living quarters provided to the employee, rather than a direct payment of money, was the type of “in kind” remuneration Congress intended to include in the pay rate for compensation purposes); see also Helen S. Forman (Lawrence T. Forman), 39 ECAB 212, 216 (1987) (finding that the payment of school fees in money, as opposed to free tuition at a school operated by the employer, did not constitute remuneration “in kind”). Consistent with Lima and Forman, a cash allowance for food or lodging, such as appellant received when unable to eat or sleep aboard ship, is not remuneration in kind under section 8114(e). 4 Appellant stated that he averaged 280 sea days per year.
5
When the ship was ashore and meals were not provided onboard, appellant received a subsistence allowance of $6.00 for breakfast, $12.00 for lunch and $20.00 for dinner, according to the employing establishment’s David C. North, but Mr. North did not believe $38.00 a day should be used for appellant’s time at sea. He offered to estimate the value of subsistence at sea from meals cost data, if that was what the Office required. The Office never took him up on his offer.

The employing establishment’s Cecilia Collins was at a loss to calculate the value of appellant’s quarters at sea. She advised that the employing establishment owned the research vessel, so there was no cost to the employing establishment if an employee bunked aboard or not. She allowed, however, that it might be possible to make a rough estimate of the value of subsistence based on meals cost data.

2
 IT IS HEREBY ORDERED THAT the January 28, 2010 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action consistent with this order of the Board.

Issued: April 8, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

3