129.1 If the disability is total, subject to the limitations in Section 2306 a, the employee's monthly monetary compensation shall be sixty-six and two-thirds percent (6 6 2/3%) of the employee's monthly pay.
129.2 The employee's monthly pay shall be calculated based on the employee's Average Annual Earning (AAE) as follows:
(a) One-twelfth (1/12) of the employee's AAE at the time of injury (or recurrence, if the employee returned to regular, full-time employment for six months or more prior to recurrence).129.3 Average Annual Earnings (AAE) are determined based on the nature and duration of the employment in accordance with the Act as follows:
(a) Section 2314(d)(1) is used if the employee worked substantially the whole year prior to the injury.(b) Section 2314(d)(2) is used if the employee did not work substantially the whole year prior to the injury, but would have been employed for substantially a whole year had it not been for the injury.(c) Section 2314(d)(3) is used if the employee was not employed for substantially the whole year and the employment would not have lasted for substantially the whole of the year.(d) Section 2314(d)(4) is used when an employee works without pay or nominal pay.129.4 When determining a pay rate, the criteria listed at § 129.3 should be considered in the order listed, so that only if the method prescribed in Section 2314(d)(1) of the Act cannot be reasonably and fairly applied, should consideration be given to the method stated in Section 2314(d)(2), and so forth.
129.5 Substantially the Whole-Year Employment - Section 2314(d)(1) of the Act - If the claimant worked substantially the whole year prior to the injury and:
(a) Has a fixed Annual Rate of Pay, then the claimant's Average Annual Earnings (AAE) is their Annual Rate of Pay (ARP).(b) Does not have a fixed ARP, then the claimant's AAE, shall be calculated as follows: (1) Daily Wage multiplied by three hundred (300), if the employee regularly worked six (6) days per work week;(2) Daily Wage multiplied by two hundred-eighty (280), if the employee regularly worked five and one-half (5½) days per work week;(3) Daily Wage multiplied by two hundred-sixty (260), if the employee regularly worked five (5) days per work week;(4) Daily Wage multiplied by two hundred (200), if the employee regularly worked four (4) days per work week; or(5) Daily Wage multiplied by one hundred-fifty (150), if the employee regularly worked three (3) or fewer days per work week.129.6 "Substantially the whole year" under Section 2314 of the Act means the employee worked in the position in which he was employed at the time of the injury for at least eleven (11) out of the immediate twelve (12) months prior to the injury, unless the employee worked in one of the following positions:
(a) Career seasonal employment - This is an arrangement where the employee regularly works just part of a calendar year, usually for the same general period each year and at the same type of job. The employee must have a prior written agreement with the employer to continue seasonal employment from year to year to be considered a career seasonal employee. Such an employee is entitled to receive compensation on the same basis as an employee with the same grade and step who has worked the whole year. An employee should not be considered career seasonal without explicit written documentation by the agency of his or her status.(b) School year employment - Employees whose employment is limited to school years (i.e., teachers, bus drivers) are not considered to fall under the provisions of career seasonal employment as set forth above, but they are considered whole- year employment by nature of the position. Although "substantially the whole year" is normally defined as at least eleven (11) months, in order to determine the average annual earnings for an employee whose employment by nature is governed by school years, consideration must be given to whether the claimant worked substantially the whole actual school year, i.e., eleven-twelfths (11/12) of the school year, and whether he or she would have been employed for substantially a whole school year had it not been for the injury.129.7 Concurrent employment can be included in monthly pay determinations made under Sections 2314(d)(1) and (2) of the Act only to the extent that it establishes the ability to work full time, meaning forty (40) hours per week. When a claimant has been employed for forty (40) or more hours per week for substantially the whole year prior to injury, but not all of these hours are with the District government, he or she has demonstrated the ability to work full time and is entitled to compensation at the rate of a regular full-time employee in the same position as follows:
(a) Similar Employment - If a claimant's concurrent employment was similar to his or her District employment, the Program shall combine the actual earnings from District employment with the actual earnings for the similar employment to obtain the average annual pay the employee earned. (The combination of District and non-District employment hours shall not exceed forty (40) hours per week of employment.) District employment hours shall take precedence in this calculation. This total would be divided by twelve (12) to obtain the monthly pay.(b) Dissimilar Employment - If a claimant's concurrent employment was dissimilar to his or her District employment and the claimant worked part-time for the District government, the Program shall treat the hours worked at the concurrent employment as a demonstrated ability to work more than part-time. The Program shall compute the claimant's weekly hours worked by adding the total number of hours worked at the District and non-District employment. The total hours worked, not to exceed forty (40) hours per week, would be multiplied by the hourly rate of pay the claimant received for his or her District employment to compute the claimants weekly pay. The weekly pay would be multiplied by fifty-two (52) and divided by twelve (12) to obtain the monthly pay.(c) For the purpose of concurrent employment, attending school and sporadic employment does not demonstrate the ability to work more than part time.(d) Pay rates based on full-time 40- hour per week employment may not be expanded to include pay earned in any other concurrent employment, even if that employment is similar to the District duties. Pay rate based on fulltime career seasonal or school year employment may not be expanded to include the pay earned "off season" or "off school year."129.8 Anticipated Whole-Year Employment - Section 2314(d)(2) of the Act - If the claimant did not work substantially the whole year, but the position was one which would have afforded employment for substantially a whole year, the claimant's average annual earnings are determined as described at § 129.5 and § 129.7 shall also apply.
129.9 Irregular Employment - Section 2314(d)(3) of the Act - If the claimant did not work substantially the whole year and the position was not one which would have afforded employment for substantially the whole year (for example - intermittent, non-career seasonal, on-call, and discontinuous work), the claimant's AAE are determined as follows:
(a) If the claimant is entitled to compensation for wage loss and further investigation is required to determine the claimant's AAE, the Program shall use the "150 Formula" as a provisional pay rate to calculate compensation. Compensation under the "150 Formula" pay rate shall remain in effect until the investigation is completed.(b) In order to compute the claimant's AAE for the immediate twelve (12) months preceding the injury, the Program shall add the claimant's total earnings per position(s) worked within that period. To do so, the Program shall pro-rate the claimant's earnings by the period worked for each position employed, in the following order: (1) If the claimant was employed by the District in more than one (1) position within the immediate twelve (12) months preceding the injury:(A) Calculate the claimant's total base earnings and number of weeks worked for the entire period that the claimant was employed with the District government at his or her position at the time of injury; and(B) Calculate the claimant's total base earnings at any other District employment, not to exceed the immediate twelve(12) months prior to the date of injury. This information should be obtained from the Employing Agency or other District agency, where the claimant worked. This information shall be obtained through People Soft. (2) If the claimant was collectively employed with the District government for less than twelve (12) months, immediately preceding the injury, include one (1) or more of the following categories, if applicable, to complete the calculation such that the total wage accounts for one (1 ) full year of employment prior to the injury: (A) Similarly-employed worker - The Program should determine the earnings of another District employee working the greatest number of hours during the year prior to the injury in the same or most similar class, in the same agency.(i) "Same or most similar class" refers both to the kind of work performed and the kind of appointment held. A similarly situated employee would most likely hold the same type of appointment and the same pay grade and step as the claimant. For example, a seasonal life guard should not be compared to a career full-time life guard, as these are different types of appointments. If the claimant's job was temporary and seasonal in nature, it should be compared to that of another temporary and seasonal employee.(ii) If the "same or most similar class" contains more than one employee, the employing agency should be asked to state the earnings of the employee who worked the greatest number of hours and therefore had the highest earnings. If the claimant's term of employment is less than a year, the earnings of the similar employee should be pro-rated to match the same term of employment as the claimant's.(iii) The selected employee's grade and step should also be provided for reference so that it will be on file for wage-earning capacity purposes.(iv) If there are no other "same or most similar class" employees at the employing agency, the Program need not consider the "Similarly-employed worker" factor. (B) Claimant's prior-year non-District employment - Only earnings in employment which is the same as, or similar to, the work the employee was doing when injured may be considered. (i) To make this determination, the Program shall explore the claimant's full employment history for the twelve (12) months preceding the injury to determine the nature of the prior-year non-District employment.(ii) The annual earnings should be pro-rated such that it reflects the period of time worked, not to exceed twelve (12) months preceding the date of injury.(iii) Any other relevant factors which may pertain to the employee's AAE in the employment in which he or she was working at the time of the injury may be considered.(C) The pay rate determined by the "150 Formula" - The "150 Formula," provided at Section 2314(d)(3) of the Act provides that a claimant's AAE may not be less than one hundred- fifty (150) times the average daily wage that the employee earned in the employment during the year just before the injury.129.10 The "rate of pay" for District employment under Section 2314 of the Act shall be determined by referring to the employee's official personnel folder.
129.11 Daily wage under Section 2314 of the Act shall be computed by dividing the employee's total earnings for the immediate twelve (12) months prior to the injury by the total number of days worked in that period.
129.12 To convert the monthly monetary compensation into bi-weekly installments, the monthly compensation rate shall be multiplied by twelve (12) and divided by twenty-six (26).
129.13 To calculate monetary compensation due between pay periods, the total number of hours that the employee was absent due to the work related injury that was not otherwise covered by COP shall be divided by the total number of hours in which the employee was scheduled to work, then multiplied by the bi-weekly compensation rate as follows:
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Final Rulemaking published at 59 DCR 8766, 8802 (July 27, 2012); amended by Final Rulemaking published at 64 DCR 6325 (7/7/2017)Authority: Chief Risk Officer of the Office of Risk Management (ORM), Executive Office of the Mayor, pursuant to the authority set forth in section 2344 of the District of Columbia Government Merit Personnel Act of 1978 (CMPA), effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-623.44 (2012 Supp.)); section 7 of Reorganization Plan No. 1 of 2003 for the Office of Risk Management, effective December 15, 2003; and Mayor's Order 2004-198, effective December 14, 2004