5 U.S.C. § 8116 — Limitations on right to receive compensa-

Page 940 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8115 neighboring location, other previous employ- ment of the employee, or other relevant fac- tors. However, the average annual earnings may not be less than 150 times the average daily wage the employee earned in the em- ployment during the days employed within 1 year immediately preceding his injury. (4) If the employee served without pay or at nominal pay, paragraphs (1), (2), and (3) of this subsection apply as far as practicable, but the average annual earnings of the employee may not exceed the minimum rate of basic pay for GS–15. If the average annual earnings cannot be determined reasonably and fairly in the manner otherwise provided by this section, the average annual earnings shall be determined at the reasonable value of the service per- formed but not in excess of $3,600 a year. (e) 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, and premium pay under section 5545(c)(1) of this title are included as part of the pay, but account is not taken of— (1) overtime pay; (2) additional pay or allowance authorized outside the United States because of differen- tial in cost of living or other special cir- cumstances; or (3) bonus or premium pay for extraordinary service including bonus or pay for particularly hazardous service in time of war. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 540; Pub. L. 89–737, § 1(1), Nov. 2, 1966, 80 Stat. 1164.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 762. Sept. 7, 1916, ch. 458, § 12, 39 Stat. 746. Oct. 14, 1949, ch. 691, § 203, 63 Stat. 862. In subsection (d)(4), the words ‘‘the minimum rate of basic pay for GS–15’’ are substituted for ‘‘the basic rate of annual compensation specified under the Classifica- tion Act of 1949, as amended, for positions in grade GS–15 at the bottom of such grade’’. In former section 762, the words ‘‘Classification Act of 1949’’ were sub- stituted for ‘‘Classification Act of 1923’’ on authority of § 1106(a) of the Act of Oct. 28, 1949, ch. 782, 63 Stat. 972. Administration of this subchapter was transferred to the Secretary of Labor by section 1 of 1950 Reorg. Plan No. 19, 64 Stat. 1271 (see section 8145). Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 1966—Subsec. (e). Pub. L. 89–737 inserted reference to premium pay under section 5545(c)(1) of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1966 AMENDMENT Pub. L. 89–737, § 4, Nov. 2, 1966, 80 Stat. 1164, which provided that the amendments made by this Act [amending this section and sections 8331 and 8704 of this title] apply with respect to premium pay payable from and after the first day of the first pay period which be- gins after the date of enactment of this Act [Nov. 2, 1966], was repealed by Pub. L. 90–83, § 10(b), Sept. 11, 1967, 81 Stat. 223. § 8115. Determination of wage-earning capacity (a) In determining compensation for partial disability, except permanent partial disability compensable under sections 8107–8109 of this title, the wage-earning capacity of an employee is determined by his actual earnings if his ac- tual earnings fairly and reasonably represent his wage-earning capacity. If the actual earnings of the employee do not fairly and reasonably rep- resent his wage-earning capacity or if the em- ployee has no actual earnings, his wage-earning capacity as appears reasonable under the cir- cumstances is determined with due regard to— (1) the nature of his injury; (2) the degree of physical impairment; (3) his usual employment; (4) his age; (5) his qualifications for other employment; (6) the availability of suitable employment; and (7) other factors or circumstances which may affect his wage-earning capacity in his disabled condition. (b) Section 8114(d) of this title is applicable in determining the wage-earning capacity of an employee after the beginning of partial dis- ability. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 542.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 763. Sept. 7, 1916, ch. 458, § 13, 39 Stat. 746. Oct. 14, 1949, ch. 691, § 204, 63 Stat. 864. Sept. 13, 1960, Pub. L. 86–767, § 204, 74 Stat. 908. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. § 8116. Limitations on right to receive compensa- tion (a) While an employee is receiving compensa- tion under this subchapter, or if he has been paid a lump sum in commutation of installment payments until the expiration of the period dur- ing which the installment payments would have continued, he may not receive salary, pay, or re- muneration of any type from the United States, except— (1) in return for service actually performed; (2) pension for service in the Army, Navy, or Air Force; (3) other benefits administered by the De- partment of Veterans Affairs unless such bene- fits are payable for the same injury or the same death; and (4) retired pay, retirement pay, retainer pay, or equivalent pay for service in the Armed Forces or other uniformed services. However, eligibility for or receipt of benefits under subchapter III of chapter 83 of this title, or another retirement system for employees of the Government, does not impair the right of Page 941 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8116 the employee to compensation for scheduled dis- abilities specified by section 8107(c) of this title. (b) An individual entitled to benefits under this subchapter because of his injury, or because of the death of an employee, who also is entitled to receive from the United States under a provi- sion of statute other than this subchapter pay- ments or benefits for that injury or death (ex- cept proceeds of an insurance policy), because of service by him (or in the case of death, by the deceased) as an employee or in the armed forces, shall elect which benefits he will receive. The individual shall make the election within 1 year after the injury or death or within a further time allowed for good cause by the Secretary of Labor. The election when made is irrevocable, except as otherwise provided by statute. (c) The liability of the United States or an in- strumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal rep- resentative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instru- mentality because of the injury or death in a di- rect judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen’s compensation statute or under a Federal tort liability statute. However, this subsection does not apply to a master or a member of a crew of a vessel. (d) Notwithstanding the other provisions of this section, an individual receiving benefits for disability or death under this subchapter who is also receiving benefits under subchapter III of chapter 84 of this title or benefits under title II of the Social Security Act shall be entitled to all such benefits, except that— (1) benefits received under section 223 of the Social Security Act (on account of disability) shall be subject to reduction on account of benefits paid under this subchapter pursuant to the provisions of section 224 of the Social Security Act; and (2) in the case of benefits received on ac- count of age or death under title II of the So- cial Security Act, compensation payable under this subchapter based on the Federal service of an employee shall be reduced by the amount of any such social security benefits payable that are attributable to Federal service of that em- ployee covered by chapter 84 of this title. How- ever, eligibility for or receipt of benefits under chapter 84 of this title, or benefits under title II of the Social Security Act by virtue of serv- ice covered by chapter 84 of this title, does not affect the right of the employee to compensa- tion for scheduled disabilities specified by sec- tion 8107(c) of this title. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 542; Pub. L. 90–83, § 1(56), Sept. 11, 1967, 81 Stat. 210; Pub. L. 93–416, § 9(a), Sept. 7, 1974, 88 Stat. 1145; Pub. L. 99–335, title II, § 207(e), June 6, 1986, 100 Stat. 595; Pub. L. 102–54, § 13(b)(1), June 13, 1991, 105 Stat. 274; Pub. L. 106–398, § 1 [[div. A], title X, § 1087(f)(3)], Oct. 30, 2000, 114 Stat. 1654, 1654A–293.) HISTORICAL AND REVISION NOTES 1966 ACT Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 757. Sept. 7, 1916, ch. 458, § 7, 39 Stat. 743. July 1, 1944, ch. 373, § 605(a), 58 Stat. 712. Aug. 13, 1946, ch. 958, § 5, 60 Stat. 1049. Oct. 14, 1949, ch. 691, § 201, 63 Stat. 861. July 30, 1956, ch. 779, § 3(b), 70 Stat. 721. Sept. 13, 1960, Pub. L. 86–767, § 202, 74 Stat. 907. Sept. 4, 1964, Pub. L. 88–581, § 4(b), 78 Stat. 919. In subsection (a)(2), ‘‘Air Force’’ is added on author- ity of the Act of July 26, 1947, ch. 343, § 207(a), (f), 61 Stat. 502, and sections 8010—8013 of title 10, United States Code. This does not affect the operation of this subsection insofar as it concerns members of the Coast Guard whose pension is based in whole or in part on service with the Coast Guard when it operated as a part of the Navy. In subsection (b), the reference to the definition of ‘‘employee’’ in former section 790 is omitted as unnec- essary as the definition is included in section 8101 for the entire subchapter. Administration of this subchapter was transferred to the Secretary of Labor by section 1 of 1950 Reorg. Plan No. 19, 64 Stat. 1271 (see section 8145). Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. 1967 ACT Section of title 5 Source (U.S.Code) Source (Statutes at Large) 8116(a) ....... 5 App.: 757(a). July 4, 1966, Pub. L. 89–488, § 5(a), 80 Stat. 253. The words ‘‘another retirement system for employees of the Government’’ are substituted for ‘‘any other Federal Act or program providing retirement benefits for employees’’. Editorial Notes REFERENCES IN TEXT The Social Security Act, referred to in subsec. (d), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Title II of the So- cial Security Act is classified generally to subchapter II (§ 401 et seq.) of chapter 7 of Title 42, The Public Health and Welfare. Sections 223 and 224 are classified to sections 423 and 424a, respectively, of Title 42. For complete classification of this Act to the Code, see sec- tion 1305 of Title 42 and Tables. AMENDMENTS 2000—Subsec. (a)(4). Pub. L. 106–398 struck out ‘‘, subject to the reduction of such pay in accordance with section 5532(b) of title 5, United States Code’’ after ‘‘uniformed services’’. 1991—Subsec. (a)(3). Pub. L. 102–54 substituted ‘‘De- partment of Veterans Affairs’’ for ‘‘Veterans’ Adminis- tration’’. 1986—Subsec. (d). Pub. L. 99–335 added subsec. (d). 1974—Subsec. (a). Pub. L. 93–416 struck out ‘‘and’’ in cl. (1), substituted a semicolon for a period in cl. (2), and added cls. (3) and (4). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–335 effective Jan. 1, 1987, see section 702(a) of Pub. L. 99–335, set out as an Effec- tive Date note under section 8401 of this title. Page 942 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8117 EFFECTIVE DATE OF 1974 AMENDMENT Pub. L. 93–416, § 9(b), Sept. 7, 1974, 88 Stat. 1145, pro- vided that: ‘‘The amendment made by this section [amending this section] shall be effective with respect to disability or death occurring before or after the date of enactment of this Act [Sept. 7, 1974] and without re- gard to any election under section 8116(b) of the Act [subsec. (b) of this section]; but no payment shall be made by reason of such amendment for any period prior to the date of enactment of this Act.’’ PERSONNEL NOT AFFECTED BY 1967 INCREASE Increases authorized under amendment by section 1(56) of Pub. L. 90–83 not applicable to specified per- sonnel, see section 7 of Pub. L. 90–83, set out as a note under section 8103 of this title. § 8117. Time of accrual of right (a) An employee other than a Postal Service employee is not entitled to compensation for the first 3 days of temporary disability, except— (1) when the disability exceeds 14 days; (2) when the disability is followed by perma- nent disability; or (3) as provided by sections 8103 and 8104 of this title. (b) A Postal Service employee is not entitled to compensation or continuation of pay for the first 3 days of temporary disability, except as provided under paragraph (3) of subsection (a). A Postal Service employee may use annual leave, sick leave, or leave without pay during that 3- day period, except that if the disability exceeds 14 days or is followed by permanent disability, the employee may have their sick leave or an- nual leave reinstated or receive pay for the time spent on leave without pay under this section. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 543; Pub. L. 93–416, § 10, Sept. 7, 1974, 88 Stat. 1145; Pub. L. 109–435, title IX, § 901(a), Dec. 20, 2006, 120 Stat. 3253.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 752. Sept. 7, 1916, ch. 458, § 2, 39 Stat. 743. Oct. 14, 1949, ch. 691, § 101(a), 63 Stat. 854. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 2006—Pub. L. 109–435 designated existing provisions as subsec. (a), substituted ‘‘An employee other than a Postal Service employee’’ for ‘‘An employee’’, and added subsec. (b). 1974—Pub. L. 93–416 substituted ‘‘14 days’’ for ‘‘21 days’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93–416 effective Sept. 7, 1974, and applicable to any injury or death occurring on or after Sept. 7, 1974, see section 28(a) of Pub. L. 93–416, set out as a note under section 8101 of this title. § 8118. Continuation of pay; election to use an- nual or sick leave (a) The United States shall authorize the con- tinuation of pay of an employee, as defined in section 8101(1) of this title (other than those re- ferred to in clause (B) or (E)), who has filed a claim for a period of wage loss due to a trau- matic injury with his immediate superior on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of this title. (b) Continuation of pay under this subchapter shall be furnished— (1) without a break in time, except as pro- vided under section 8117(b), unless con- troverted under regulations of the Secretary; (2) for a period not to exceed 45 days; and (3) under accounting procedures and such other regulations as the Secretary may re- quire. (c) An employee may use annual or sick leave to his credit at the time the disability begins, but his compensation for disability does not begin, and the time periods specified by section 8117 of this title do not begin to run, until termi- nation of pay as set forth in subsections (a) and (b) or the use of annual or sick leave ends. (d) If a claim under subsection (a) is denied by the Secretary, payments under this section shall, at the option of the employee, be charged to sick or annual leave or shall be deemed over- payments of pay within the meaning of section 5584 of title 5, United States Code. (e) Payments under this section shall not be considered as compensation as defined by sec- tion 8101(12) of this title. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 543; Pub. L. 93–416, § 11, Sept. 7, 1974, 88 Stat. 1145; Pub. L. 109–435, title IX, § 901(b), Dec. 20, 2006, 120 Stat. 3254.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 758. Sept. 7, 1916, ch. 458, § 8, 39 Stat. 743. Oct. 14, 1949, ch. 691, § 101(b), 63 Stat. 854. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 2006—Subsec. (b)(1). Pub. L. 109–435 amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘without a break in time unless controverted under regulations of the Secretary;’’. 1974—Pub. L. 93–416 inserted in section catchline the reference to continuation of pay, added subsecs. (a), (b), (d) and (e), designated existing provisions as subsec. (c), and in subsec. (c) as so designated, substituted ‘‘until termination of pay as set forth in subsections (a) and (b) or the use of annual or sick leave ends’’ for ‘‘until the use of the annual or sick leave ends’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1974 AMENDMENT Pub. L. 93–416, § 28(b), Sept. 7, 1974, 88 Stat. 1151, pro- vided that: ‘‘Section 11 of this Act [amending this sec-