5 U.S.C. § 8114 — Computation of pay

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 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