be less than 150 times the average daily wage the employee earned in the employment during the days employed within 1 year immediately preceding his injury."

The Bureau took the position that because appellant worked at the employing establishment for the entire year preceding the injury, his pay rate had to be determined under § 8114 (d) (1), and included only his earnings in part-time government employment. Appellant argues that his earnings should have been computed under § 8114(d) (3) and should have included his earnings in private employment.

Subsection 1 of § 8114(d) is ordinarily followed in determining average annual earnings where an employee worked in the employment in which he was employed at the time of the injury during substantially the whole year immediately preceding the injury. Appellant did work at the employing establishment the entire year prior to his injury. Subsection 3 provides an alternate method if the first method of determining average annual earnings "cannot be applied reasonably and fairly." This case, involving a man who worked part-time at the employing establishment but was clearly a full-time worker because of his additional employment elsewhere, is one, in the opinion of the Board, where the application of subsection 1 would not be fair or reasonable. Such application would not be realistically related to appellant's true earning capacity, but would relegate him "to the grossly inadequate benefits of a part-time worker." 1

The provisions relating to computation of pay were added to the Federal Employees' Compensation Act by the 1949 amendments. The report of the Senate Committee on Labor and Public Welfare contained the following explanation of the changes:

"Included in the revised section is a complete formula for determining the monthly pay of an employee, which consists of an adaptation of similar provisions which may be found in section 10 of the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 910.) These provisions are also similar to comparable provisions in the New York workmen's compensation law which have operated effectively for many years. A general formula of this kind will be found in most workmen's compensation laws. Such formula is time tested and as nearly accurate as a formula can be made for the just and proper determination of an employee's monthly pay for computation purposes." 2

1 Larson, Workmen's Compensation Law, §60.33.

2 S. Rept. 836, 81st Cong., 1st sess., p. 24.

The report of the House Committee on Education and Labor contains identical language.3

4

The Longshoremen's and Harbor Workers' Compensation Act had been amended in 1948 with respect to the method for determining pay rate. The Senate report accompanying the 1948 amendments to that act clearly showed the Congressional intention that an injured employee's entire earnings during the year preceding the injury should be considered under that statute, regardless of whether they arose from the same employment or not:

"Thus the present law is deficient in that if the employee had been employed in unrelated employment prior to his last employment, or in self-employment, such earnings could not be considered in ascertaining his true earning capacity. The proposed amendment to subdivision (c) would permit consideration not only of the earnings in the particular employment in which the employee was engaged at the time of injury but also of his other earnings during the year preceding the injury regardless of whether it was in the same industry or not." &

The Court of Appeals for the District of Columbia considered this amendment to the Longshoremen's and Harbor Workers' Compensa

H. Rept. 729, 81st Cong., 1st sess., p. 16.

433 U.S.C. §901.

The applicable section, as amended, provides as follows:

"§910. Determination of pay

Except as otherwise provided in this chapter, the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows:

(a) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed.

(b) If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings, if a six-day worker shall consist of three hundred times the average daily wage or salary, and, if a five-day worker, two hundred and sixty times the average daily wage or salary, which an employee of the same class working substantially the whole of such immediately preceding year in the same or in similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.

(c) If either of the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such average annual earnings shall be such sum as, having regard to the previous earnings of the injured employee in the employment in which he was working at the time of the injury, and of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, or other employment of such employee, including the reasonable value of the services of the employee if engaged in self-employment, shall reasonably represent the annual earning capacity of the injured employee."

H. Rept. 2095, 80th Cong., 2d sess.. p. 15.

tion Act in the case of Liberty Mutual Insurance Co. v. Britton. The employee was injured while working for the Westinghouse Electric Corporation as a mechanic helper. During the same period, he was working part-time for Giant Food Stores. The Court held that in computing the employee's compensation his earnings from Giant Food Stores were properly added to his earnings from Westinghouse in fixing his pay rate.

The New York workmen's compensation law, which has been stated to be the model both for the Longshoremen's and Harbor Workers' Compensation Act and the Federal Employees' Compensation Act, has been interpreted by the New York courts as allowing earnings from concurrent employments to be combined in determining the pay rate for compensation purposes only if the concurrent employments were related. This rule has been followed by the Board in interpreting the Federal Employees' Compensation Act. In its decisions, the Board pointed to the language in the Federal Employees' Compensation Act, which is not included in the Longshoremen's Act, that the average earnings are the sum which reasonably represents the earning capacity of the injured employee "in the employment in which he was working at the time of the injury." The 1949 amendment to the Federal Employees' Compensation Act was "an adaptation of similar provisions" 10 in the Longshoremen's Act and was not intended to duplicate it. Following the precedents of the New York courts and of the Board, earnings from appellant's dissimilar private employment cannot be considered evidence of a capacity to earn wages in the employment in which he worked at the time of his injury, namely as a postal clerk.

As Larson 11 points out, in determining the pay rate for compensation purposes in the case of concurrent employments, there are three possible approaches: One is to use only the actual wage of the employment in which the employee was injured even though it was part-time work. A second approach would be to round out the wage in the injury-related employment to a normal full time average for that employment. A third possibility is to combine the earnings in the two jobs. As pointed out above, the first approach is not fair or reasonable, and the third approach is not consistent with the statutory language of the Federal Employees' Compensation Act or

7 233 F. 2d 699 (D.C. Cir. 1956).

8 McDowell v. Flatbush Congregational Church, 277 N. Y. 536, 13 N.E. 2d 462; Brandfon v. Beacon Theater Corp., 300 N.Y. 111, 89 N.E. 2d 617; Birch v. Budd, 256 App. Div. 53, 8 N.Y.S. 2d 781.

Leo Clouser, 5 ECAB 366; R. William Barnett, 10 ECAB 245.

10 S. Rept. 836, 81st Cong., 1st sess., p. 24.

11 Larson, Workmen's Compensation Law, supra.

the precedent decisions. To fairly and reasonably determine appellant's average earnings, the Board finds that it must have regard to the relevant factors as provided in subsection (3) of sec. 8114(d), such as the earnings of other employees of the United States in similar employment, and particularly the fact that the employee here was a full-time worker and therefore had the capacity to earn wages as a full-time postal clerk. His earning capacity in the employment in which he was working at the time of the injury was that of a full-time postal clerk. Therefore, the Board finds that his pay rate for compensation purposes should be that of a full-time postal clerk. This holding is in accord with decisions of the New York Courts which have "rounded out" the earnings in the employment in which the injury occurred.12

In the case before us, during part of the time in which appellant was totally disabled from his government job, he was able to work part time at his job in private industry. However, his earnings during this period may not be considered in determining his wage-earning capacity since such earnings could not be considered in determining his pay rate.13

The decision of the Bureau of Employees' Compensation, dated November 19, 1970, which became final December 18, 1970, is reversed and the case is remanded for a redetermination of appellant's compensation benefits in the light of the foregoing decision.

Theodore M. Schwartz, Chairman, concurred in the decision but did not participate in the preparation of the opinion.

12 Marlin v. Y & N. Cab Corp., 17 A.D. 2d 876, 233 N.Y.S. 2d 304; Goldsmith v. Terminal Systems Inc., 19 A.D. 2d 678, 241 N.Y.S. 2d 812.

13 See R. William Barnett, supra; Brandfon v. Beacon Theater Corp., supra.

In the Matter of HAROLD E. MARKS and DEPARTMENT OF THE NAVY, NAVY ORDNANCE SYSTEMS COMMAND, COLTS NECK, N. J.

Schedule awards, leg

Evidence established that appellant's employment injury caused no more than a 15 percent permanent loss of use of one leg and that therefore he was entitled to a schedule award only for such loss, where there was no medical evidence showing that he had a greater loss of use of his leg and no basis for paying additional compensation.

Docket No. 71-119; Submitted on the Record; Issued August 10, 1971

Before E. GERALD LAMBOLEY AND JAMES A. BRODERICK

The issue is whether appellant has more than a 15 percent employment-related loss of use of his right leg, for which he has received a schedule award.

On November 25, 1968, appellant, a locomotive engineman, struck his right knee at work. He continued working, but subsequently it was determined that he had a torn medial meniscus. He was hospitalized on July 30, 1969 and a medial meniscectomy was performed. Appellant returned to work on September 2, 1969. His absence from work was covered by sick leave.

The Bureau of Employees' Compensation requested that the United States Public Health Service Hospital, Staten Island, N. Y. have appellant examined to determine the extent and nature of the permanent residuals of the employment injury. On December 1, 1970, Dr. Robert V. Holman, a Board-certified orthopedic surgeon and consultant to the hospital, reported that he had examined appellant's right knee condition. X-rays showed that the joint space was well maintained with no arthritic changes. The joint was stable but there was evidence of loss of tone in the right quadriceps. Extension of the knee was complete but there was a defect of 10 degrees in flexion of the knee. The operative scar was healed; however, appellant had a sensory loss distal to the scar. Tenderness was present over the medial joint line. Dr. Holman concluded that appellant had a 15 percent permanent loss of use of the right leg.

On March 10, 1971, the Bureau issued a compensation order finding that the November 25, 1968 injury resulted in a 15 percent permanent loss of use of the right leg for which appellant was entitled to a schedule award of 43.2 weeks of compensation. Appellant contends that he is entitled to additional compensation.

The Board finds that the evidence establishes that the November 25, 1968 employment injury caused no more than a 15 percent permanent loss of use of appellant's right leg and therefore he is entitled to a schedule award only for such loss as provided by 5 U.S.C. § 8101. There is no medical evidence showing that he has a greater loss of use of his leg and no basis for paying additional compensation.

The compensation order of the Bureau of Employees' Compensation, dated March 10, 1971, is affirmed.

In the Matter of LEE R. SIRES and POST OFFICE DEPARTMENT U. S. POST OFFICE, MILWAUKEE, WIS.

Wage-earning capacity, loss of, actual earnings

Generally, wages actually earned are the best measure of a wageearning capacity, and in the absence of evidence showing that they do