T.D. and Department of Defense, Defense Finance & Accounting Service, Columbus, OH (Board decision, December 27, 2017)

ECAB remand decision. The Board set aside OWCP’s April 18, 2016 decision and remanded for findings on the correct pay rate, followed by new overpayment and schedule award decisions. The amount of any overpayment remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

T.D. disputed the pay rate used for compensation after two accepted injuries. The Board had previously ordered OWCP to calculate the rate for the October 1995 injury under the statute. OWCP instead said a shorter workday meant that rate must be lower than the earlier $376.19 weekly rate. The Board found that OWCP had not made the required calculation or gathered enough employment evidence. It again ordered a step-by-step pay-rate finding and new decisions on the resulting overpayment and schedule award.

Decision snapshot

• Authority: 5 U.S.C. § 8114.
• Outcome: April 18, 2016 decision set aside; pay-rate and payment issues remanded.
• Key point: Working four hours a day did not by itself establish the statutory pay rate.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.D., Appellant
)
)
and ) Docket No. 16-1883
) Issued: December 27, 2017
DEPARTMENT OF DEFENSE, DEFENSE
)
FINANCE & ACCOUNTING SERVICE,
)
Columbus, OH, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge

On September 23, 2016 appellant timely filed an appeal from an April 18, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Board docket the appeal as No. 16-1883.

On a prior appeal the Board remanded the case to OWCP with respect to the pay rate issue and the underlying overpayment of compensation that was based on a finding of an incorrect pay rate.1 As the Board indicated, there were two injuries: April 23, 1993 (accepted for cervical, lumbosacral, left thumb, and ring finger strains, as well as metacarpophalangeal (MP) joint reconstruction surgery in 2004); and October 27, 1995 (accepted for contusions and sprains of the left third and fourth fingers and left MP surgery on April 23, 1996). The two claims have been administratively combined.

OWCP paid compensation from December 12, 1995 to January 4, 2010 based on a weekly pay rate of $416.73, which purported to be the pay rate on October 27, 1995, the date of the second injury, but it subsequently found this pay rate was incorrect as it represented full-time

1
Order Remanding Case, Docket No. 13-1547 (issued December 2, 2013); Docket No. 14-1305 (issued January 13, 2015); Order Denying Petition for Reconsideration, Docket No. 14-1305 (issued July 6, 2015). work, and appellant worked only part-time as of October 27, 1995. The correct pay rate was held to be the pay rate on April 23, 1993, the date of the first injury of $376.19. Therefore, it found that an overpayment of $11,630.61 had been created.

By decision dated January 13, 2015 the Board found that OWCP had not made sufficient findings to support the October 27, 1995 pay rate. It ordered OWCP to make a finding as to the proper pay rate on October 27, 1995 pursuant to 5 U.S.C. § 8114.2 If the pay rate was indeed found to be less than $376.19, then OWCP was instructed to make a finding that $376.19 was the correct weekly pay rate, and reissue the overpayment decision to protect appellant’s appeal rights.3

On April 18, 2016 OWCP issued a decision regarding appellant’s pay rate. The April 18, 2016 OWCP decision does not make the directed findings as ordered by the Board in its January 13, 2015 decision. After reviewing the history of the case, OWCP found that appellant was working four hours per day on October 27, 1995 and the pay rate “would invariably be lower” than the established rate for the April 23, 1993 date of injury.

The Board concludes that OWCP failed to make the necessary inquires and specific findings as to appellant’s pay rate on October 27, 1995 as ordered in the January 13, 2015 decision and by prior orders. The Board specifically noted in its prior decision that “even though appellant was working four hours a day, it was not clear what her pay rate would be under the statute.” It further noted that while “it may be that the pay rate was less” on October 27, 1995, “OWCP should still make a proper determination under 5 U.S.C. § 8114.” OWCP was directed to “secure relevant evidence from the employing establishment to make proper findings” including “whether appellant worked substantially the whole year prior in the position, and if not whether the position would have afforded employment for substantially a whole year, or whether 8114(d)(3) should be applied to determine an amount that reasonably represents the earning capacity as of October 27, 1995. Such findings require more than a determination that appellant worked only 4 hours per day between October 10 and 27, 1995.

On remand OWCP should further develop the record as set forth above and thereafter:
(1) determine, in step by step detail, the pay rate for the October 27, 1995 date of injury under 5 U.S.C. § 8114 making appropriate citation to the evidence considered; and (2) if it is less than
$376.19, make a finding that $376.19 is the correct pay rate, and also (3) reissue the overpayment and schedule award decisions to protect appellant’s appeal rights.

2
The Board also noted the need to make proper findings as to the October 27, 1995 pay rate in Docket No. 11- 1952 (issued September 10, 2012) and by Order Remanding Case in Docket No. 13-1597 (issued December 2, 2013). 3 The Board also noted that there was a November 16, 2012 schedule award decision that applied a pay rate of $376.19, and OWCP should properly issue a decision regarding the schedule award pay rate to protect appellant’s appeal rights on that issue.

2
 IT IS HEREBY ORDERED THAT the decision of April 18, 2016 is set aside and the case remanded for further action consistent with this order of the Board.4

Issued: December 27, 2017
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

4
Colleen Duffy Kiko, Judge, participated in preparation of the order, but was no longer a member of the Board effective December 11, 2017.

3