Sec. 10.402 What is partial disability?

An injured employee who cannot return to the position held at the time of injury (or earn equivalent wages) due to the work-related injury, but who is not totally disabled for all gainful employment, is considered to be partially disabled.

Sec. 10.403 When and how is compensation for partial disability paid?

(a) 5 U.S.C. 8115 outlines how compensation for partial disability is determined. If the employee has actual earnings which fairly and reasonably represent his or her wage-earning capacity, those earnings may form the basis for payment of compensation for partial disability.

(See Secs. 10.500 through 10.520 concerning return to work.) If the employee's actual earnings do not fairly and reasonably represent his or her wage-earning capacity, or if the employee has no actual earnings, OWCP uses the factors stated in 5 U.S.C. 8115 to select a position which represents his or her wage-earning capacity. However, OWCP will not secure employment for the employee in the position selected for establishing a wage-earning capacity.

(b) Compensation for partial disability is payable as a percentage of the difference between the employee's pay rate for compensation purposes and the employee's wage-earning capacity. The percentage is 66\2/3\ percent of this difference if the employee has no dependents, or 75 percent of this difference if the employee has at least one dependent.

(c) The formula which OWCP uses to compute the compensation payable for partial disability employs the following terms: Pay rate for compensation purposes, which is defined in Sec. 10.5(s) of this part; current pay rate, which means the salary or wages for the job held at the time of injury at the time of the determination; and earnings, which means the employee's actual earnings, or the salary or pay rate of the position selected by OWCP as representing the employee's wage-earning capacity.

(d) The employee's wage-earning capacity in terms of percentage is computed by dividing the employee's earnings by the current pay rate. The comparison of earnings and ``current'' pay rate for the job held at the time of injury need not be made as of the beginning of partial disability. OWCP may use any convenient date for making the comparison as long as both wage rates are in effect on the date used for comparison.

(e) The employee's wage-earning capacity in terms of dollars is computed by first multiplying the pay rate for compensation purposes by the percentage of wage-earning capacity. The resulting dollar amount is then subtracted from the pay rate for compensation purposes to obtain the employee's loss of wage-earning capacity.

Total disability

With respect to the period of disability which must elapse before the claimant may be compensated for the first three days of wage loss, an agency asked that the method of counting the days be clarified. The word ``calendar'' is being inserted to make the meaning clear. The agency also inquired as to whether the 14 days may be intermittent, and in fact they may.

One agency suggested a cross-reference to Sec. 10.6. A specific reference to section 8110(a) would probably be more useful, and one is therefore being added.

Sec. 10.401 When and how is compensation for total disability paid?

(a) Compensation is payable when the employee starts to lose pay if the injury causes permanent disability or if pay loss continues for more than 14 calendar days. Otherwise, compensation is payable on the fourth day after pay stops. Compensation may not be paid while an injured employee is in a continuation of pay status or receives pay for leave.

(b) Compensation for total disability is payable at the rate of 66\2/3\ percent of the pay rate if the employee has no dependents, or 75 percent of the pay rate if the employee has at least one dependent. (``Dependentsg' are defined at 5 U.S.C. 8110(a).)

Verifying employees earnings

Section 10.527
One agency suggested strengthening the wording of this section by removing the words ``attempt to'' with respect to verifying employees earnings. Those two words have been removed. consistent with ECAB decisions

Computer matches

-this section is reworded so as not to limit the kinds of computer matches which may be performed with records of State agencies.

Sec. 10.527 Does OWCP verify reports of earnings?

To make proper determinations of an employee's entitlement to benefits, OWCP may verify the earnings reported by the employee through a variety of means, including but not limited to computer matches with the Office of Personnel Management and inquiries to the Social Security Administration. Also, OWCP may perform computer matches with records of State agencies, including but not limited to workers' compensation administrations, to determine whether private employers are paying workers' compensation insurance premiums for recipients of benefits under the FECA.

Wage-earning capacity determination

in this area, any position selected as representing an employee's wage-earning capacity must be actually available to the employee within his or her commuting area. However, this is an incorrect interpretation of the ECAB's rulings, which have consistently held that OWCP only needs to find that a position is being performed in sufficient numbers in the area in which the employee lives so as to be considered reasonably available before it can determine that the job represents the employee's wage-earning capacity [e.g., Kenneth H. Cummings, Sr., 28ECAB 284 (1977); James B. Stewart, 32 ECAB 36 (1980)]. Accordingly, since there is no requirement that the selected position actually be available to the employee,

Sec. 10.403 When and how is compensation for partial disability paid?

(a) 5 U.S.C. 8115 outlines how compensation for partial disability is determined. If the employee has actual earnings which fairly and reasonably represent his or her wage-earning capacity, those earnings may form the basis for payment of compensation for partial disability.(See Secs. 10.500 through 10.520 concerning return to work.) If theemployee's actual earnings do not fairly and reasonably represent his or her wage-earning capacity, or if the employee has no actual earnings, OWCP uses the factors stated in 5 U.S.C. 8115 to select a position which represents his or her wage-earning capacity. However,OWCP will not secure employment for the employee in the position selected for establishing a wage-earning capacity.

Wage loss

With respect to the period of disability which must elapse before the claimant may be compensated for the first three days of wage loss, an agency asked that the method of counting the days be clarified. The word ``calendar'' is being inserted to make the meaning clear. The agency also inquired as to whether the 14 days may be intermittent, and in fact they may.

One agency suggested a cross-reference to Sec. 10.6. A specific reference to section 8110(a) would probably be more useful, and one is therefore being added.

Sec. 10.401 When and how is compensation for total disability paid?

(a) Compensation is payable when the employee starts to lose pay if the injury causes permanent disability or if pay loss continues for more than 14 calendar days. Otherwise, compensation is payable on the fourth day after pay stops. Compensation may not be paid while an injured employee is in a continuation of pay status or receives pay for leave.

(b) Compensation for total disability is payable at the rate of 66\2/3\ percent of the pay rate if the employee has no dependents, or 75 percent of the pay rate if the employee has at least one dependent. (``Dependents'' are defined at 5 U.S.C. 8110(a).)