5 U.S.C. § 8113 — Increase or decrease of basic compensa-

Page 938 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8112 is necessary constantly because the employee is totally blind, or has lost the use of both hands or both feet, or is paralyzed and unable to walk, or because of other disability resulting from the injury making him so helpless as to require con- stant attendance. (b) The Secretary may pay an individual un- dergoing vocational rehabilitation under section 8104 of this title additional compensation nec- essary for his maintenance, but not to exceed $200 a month. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 539; Pub. L. 90–83, § 1(54), Sept. 11, 1967, 81 Stat. 210; Pub. L. 93–416, § 7, Sept. 7, 1974, 88 Stat. 1145; Pub. L. 101–534, § 2, Nov. 7, 1990, 104 Stat. 2352.) HISTORICAL AND REVISION NOTES 1966 ACT Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 756(b). Oct. 14, 1949, ch. 691, § 105 ‘‘Sec. 6(b)’’, 63 Stat. 858. Sept. 13, 1960, Pub. L. 86–767, § 101 (less last 13 words), 74 Stat. 906. In subsection (a), the words ‘‘In addition to the monthly compensation otherwise specified in sections 751–756, 757–871, 783–791, and 793 of this title’’ are omit- ted as surplusage. In subsection (b), the words ‘‘pursuant to the Sec- retary’s direction’’ are omitted as unnecessary. 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) 8111(a) ....... 5 App.: 756(b)(1). July 4, 1966, Pub. L. 89–488, § 4(a), 80 Stat. 253. Editorial Notes AMENDMENTS 1990—Subsec. (a). Pub. L. 101–534 substituted ‘‘$1,500’’ for ‘‘$500’’. 1974—Subsec. (a). Pub. L. 93–416, § 7(a), substituted ‘‘$500’’ for ‘‘$300’’. Subsec. (b). Pub. L. 93–416, § 7(b), substituted ‘‘$200’’ for ‘‘$100’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–534, § 3, Nov. 7, 1990, 104 Stat. 2352, pro- vided that: ‘‘The amendment made by section 2 [amending this section] shall take effect October 1, 1990.’’ EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93–416 applicable to cases where injury or death occurred prior to Sept. 7, 1974, but only to a period beginning 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. PERSONNEL NOT AFFECTED BY 1967 INCREASE Increases authorized under amendment by section 1(54) 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. § 8112. Maximum and minimum monthly pay- ments (a) Except as provided by section 8138 of this title, the monthly rate of compensation for dis- ability, including augmented compensation under section 8110 of this title but not including additional compensation under section 8111 of this title, may not be more than 75 percent of the monthly pay of the maximum rate of basic pay for GS–15, and in case of total disability may not be less than 75 percent of the monthly pay of the minimum rate of basic pay for GS–2 or the amount of the monthly pay of the em- ployee, whichever is less. (b) The provisions of subsection (a) shall not apply to any employee whose disability is a re- sult of an assault which occurs during an assas- sination or attempted assassination of a Federal official described under section 351(a) or 1751(a) of title 18, and was sustained in the performance of duty. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 540; Pub. L. 90–83, § 1(55), Sept. 11, 1967, 81 Stat. 210; Pub. L. 100–566, § 5, Oct. 31, 1988, 102 Stat. 2845.) HISTORICAL AND REVISION NOTES 1966 ACT Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 756(c). Oct. 14, 1949, ch. 691, § 105 ‘‘Sec. 6(c)’’, 63 Stat. 859. Sept. 13, 1960, Pub. L. 86–767, § 101 (last 13 words), 74 Stat. 906. 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) 8112 ........... 5 App.: 756(c). July 4, 1966, Pub. L. 89–488, § 3(b), 80 Stat. 252. The words ‘‘maximum rate of basic pay for GS–15’’ and ‘‘minimum rate of basic pay for GS–2’’ are sub- stituted for ‘‘highest rate of basic compensation pro- vided for grade 15 of the General Schedule of the Classi- fication Act of 1949’’ and ‘‘lowest rate of basic com- pensation provided for grade 2 by such General Sched- ule’’, respectively, for consistency of style within title 5 and to reflect the codification of the Classification Act of 1949 in title 5. Editorial Notes AMENDMENTS 1988—Pub. L. 100–566 designated existing provisions as subsec. (a) and added subsec. (b). Statutory Notes and Related Subsidiaries PERSONNEL NOT AFFECTED BY 1967 INCREASE Increases authorized under amendment by section 1(55) 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. § 8113. Increase or decrease of basic compensa- tion (a) If an individual— Page 939 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8114 (1) was a minor or employed in a learner’s capacity at the time of injury; and (2) was not physically or mentally handi- capped before the injury; the Secretary of Labor, on review under section 8128 of this title after the time the wage-earning capacity of the individual would probably have increased but for the injury, shall recompute prospectively the monetary compensation pay- able for disability on the basis of an assumed monthly pay corresponding to the probable in- creased wage-earning capacity. (b) If an individual without good cause fails to apply for and undergo vocational rehabilitation when so directed under section 8104 of this title, the Secretary, on review under section 8128 of this title and after finding that in the absence of the failure the wage-earning capacity of the in- dividual would probably have substantially in- creased, may reduce prospectively the monetary compensation of the individual in accordance with what would probably have been his wage- earning capacity in the absence of the failure, until the individual in good faith complies with the direction of the Secretary. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 540; Pub. L. 90–83, § 1(100), Sept. 11, 1967, 81 Stat. 220; Pub. L. 93–416, § 8(a), Sept. 7, 1974, 88 Stat. 1145.) HISTORICAL AND REVISION NOTES 1966 ACT Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 756(d). Oct. 14, 1949, ch. 691, § 105 ‘‘Sec. 6(d)’’, 63 Stat. 859. 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 This section amends section 8113(b) of title 5, United States Code, to conform to the source statute (sec. 6(d)(1) of the Federal Employees’ Compensation Act, as amended (63 Stat. 859)). Editorial Notes AMENDMENTS 1974—Subsecs. (b), (c). Pub. L. 93–416 struck out sub- sec. (b) which authorized the Secretary to prospec- tively recompute compensation because of decreased wage earning power after age 70, aside from injury, and redesignated subsec. (c) as (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93–416 applicable to case where injury or death occurred prior to Sept. 7, 1974, but only to a period beginning 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. EFFECTIVE DATE OF 1967 AMENDMENT Amendment by Pub. L. 90–83 effective as of Sept. 6, 1966, for all purposes, see section 9(h) of Pub. L. 90–83, set out as a note under section 5102 of this title. § 8114. Computation of pay (a) For the purpose of this section— (1) ‘‘overtime pay’’ means pay for hours of service in excess of a statutory or other basic workweek or other basic unit of worktime, as observed by the employing establishment; and (2) ‘‘year’’ means a period of 12 calendar months, or the equivalent thereof as specified by regulations prescribed by the Secretary of Labor. (b) In computing monetary compensation for disability or death on the basis of monthly pay, that pay is determined under this section. (c) The monthly pay at the time of injury is deemed one-twelfth of the average annual earn- ings of the employee at that time. When com- pensation is paid on a weekly basis, the weekly equivalent of the monthly pay is deemed one- fifty-second of the average annual earnings. However, for so much of a period of total dis- ability as does not exceed 90 calendar days from the date of the beginning of compensable dis- ability, the compensation, in the discretion of the Secretary of Labor, may be computed on the basis of the actual daily wage of the employee at the time of injury in which event he may be paid compensation for the days he would have worked but for the injury. (d) Average annual earnings are determined as follows: (1) If the employee worked in the employ- ment in which he was employed at the time of his injury during substantially the whole year immediately preceding the injury and the em- ployment was in a position for which an an- nual rate of pay— (A) was fixed, the average annual earnings are the annual rate of pay; or (B) was not fixed, the average annual earn- ings are the product obtained by multiplying his daily wage for the particular employ- ment, or the average thereof if the daily wage has fluctuated, by 300 if he was em- ployed on the basis of a 6-day workweek, 280 if employed on the basis of a 51⁄2-day week, and 260 if employed on the basis of a 5-day week. (2) If the employee did not work in employ- ment in which he was employed at the time of his injury during substantially the whole year immediately preceding the injury, but the po- sition was one which would have afforded em- ployment for substantially a whole year, the average annual earnings are a sum equal to the average annual earnings of an employee of the same class working substantially the whole immediately preceding year in the same or similar employment by the United States in the same or neighboring place, as deter- mined under paragraph (1) of this subsection. (3) If either of the foregoing methods of de- termining the average annual earnings cannot be applied reasonably and fairly, the average annual earnings are a sum that reasonably represents the annual earning capacity of the injured employee in the employment in which he was working at the time of the injury hav- ing regard to the previous earnings of the em- ployee in Federal employment, and of other employees of the United States in the same or most similar class working in the same or most similar employment in the same or