United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.S., Appellant 

and 

FEDERAL AVIATION ADMINISTRATION, 

CHARLOTTE/DOUGLAS INTERNATIONAL 

AIRPORT, Charlotte, NC, Employer 

__________________________________________ 

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Docket No. 16-0881 

Issued: July 27, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 23, 2016 appellant filed a timely appeal from a March 10, 2016 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case. 

ISSUE 

The issue is whether OWCP properly determined appellant’s pay rate for compensation 

purposes. 

FACTUAL HISTORY 

On May 22, 2013 appellant, then a 31-year-old air traffic controller, filed a traumatic 

injury claim (Form CA-1) alleging that on March 15, 2013 he sustained an injury in the 

 1

 5 U.S.C. § 8101 et seq. 
2

performance of duty. He reported that he received a loud tone on the line and suffered a right ear 

injury. The reverse of the claim form indicated that appellant stopped work on the date of injury 

and received continuation of pay (COP) from May 16 through 22, 2013. He did briefly return to 

light-duty work from May 23 to June 9, 2013, received COP from June 10 to July 17, 2013 and 

then claimed wage-loss compensation for total disability thereafter. OWCP accepted the claim 

for right ear tinnitus, sudden hearing loss in the right ear, vertigo, and headache and began 

paying compensation for wage loss on the periodic rolls. 

With respect to the pay rate on which compensation was based, the employing 

establishment submitted an August 2, 2013 memorandum, certified by Dennis Rowland, that 

appellant’s base salary on March 15, 2013 was $105,736.00. The memorandum reported the 

following premium pay for the year prior to March 15, 2013: $4,080.00 in holiday pay, 

$3,468.00 in overtime, $2,970.75 in Sunday premium pay, and $2,932.50 in night differential 

pay. 

OWCP accepted the information provided by the employing establishment and 

determined that appellant’s pay rate on March 15, 2013, the date of injury, was $119,187.25, or 

$2,292.06 per week. The wage-loss compensation appellant received was based on a pay rate of 

$2,292.06 per week. 

Appellant submitted a letter dated June 5, 2015, arguing that he felt that OWCP should 

adjust his pay rate. According to appellant, under employing establishment guidelines, he was 

considered a Certified Professional Controller-In-Training (CPC-IT) when he transferred to the 

Charlotte worksite. Appellant had completed one half of his required training at the time of 

injury, and he contended that he would have completed training if not for the work injury. He 

believed that his pay was to have increased upon completion of training. Appellant argued that 

he should be considered as in a “learner’s capacity” under 5 U.S.C. § 8113, and should be 

entitled to a pay rate corresponding to an increased wage-earning capacity. 

The record contains a February 8, 2012 memorandum from the employing establishment 

noting that appellant’s transfer to the Charlotte facility would be effective April 8, 2012. The 

memorandum indicated that the transfer was to a “higher level facility” and, if appellant failed to 

fully certify at the new facility, he could be subject to adverse action. In a memorandum dated 

July 6, 2015, an employing establishment manager reported that at the time of injury appellant 

would have been designated as a CPC-IT, and would need to complete training and become fully 

certified before he would be eligible for a pay increase. 

OWCP requested that the employing establishment complete a questionnaire with respect 

to appellant’s employment at the time of injury. The employing establishment was asked 

whether appellant was in a formal training program with a specific date of completion, and if he 

would have automatically received a pay raise on completion of any training, to provide the pay 

rate. In a response dated November 2, 2015, an employing establishment acting air traffic 

manager responded “no” with respect to whether there was a formal training program with a 

specific date of completion. The manager reported that completion of training was dependent on 

performance and there was no specified date of completion. He indicated that each controller’s 

performance determined certification. No pay information was provided. 
3

By decision dated November 17, 2015, OWCP found that appellant was not entitled to an 

increased pay rate for compensation purposes as his pay rate was the date of injury “until you 

become eligible for a recurrent pay rate.” It noted the November 2, 2015 response from the 

employing establishment and found appellant was not in a learner’s capacity. 

Appellant requested reconsideration on December 15, 2015. He submitted a 

December 10, 2015 letter from Prostell Thomas, who indicated that he was an air traffic 

manager. Mr. Thomas asserted that appellant was in a formal training program. He indicated 

there was no set time, “just hours allocated for the position he was training on.” Mr. Thomas 

wrote that “[a]lthough when I arrived at Charlotte Airport there was no reason to think 

[appellant] would not be successful in training. [Appellant] was allocated 120 hours on each of 

the two Departure positions and 100 hours for three satellite positions.” He reported this was not 

an indefinite program and upon completion appellant would have been promoted. The manager 

contended that previous experience had nothing to do with advancement, as it was based on 

completion of training. Mr. Thomas reported that appellant’s base pay in 2013, with locality 

pay, would have been $118,349.00 (base $103,669.00 and locality $14,680.00). In addition, he 

indicated that he had discussed the prior answer given by an air traffic manager as to formal 

training, and the manager had misunderstood what was being interpreted as formal. 

By letter dated January 5, 2016, OWCP requested that the employing establishment 

provide comments. On March 9, 2016 appellant received updated pay rate information with 

respect to appellant’s earnings in the year prior to May 15, 2013. Mr. Rowland now indicated 

that appellant had earned $1,963.08 in holiday pay, $1,834.88 in night differential, and $1,216.32 

in Sunday premium pay. No overtime pay was reported for the period. A memorandum of 

telephone call dated March 9, 2016 indicated that the prior figures reported were mistakenly 

based on another employee. 

In a decision dated March 10, 2016, OWCP found that appellant’s pay rate was 

$110,750.28, or $2,129.81 per week, based on the updated information provided by the 

employing establishment. It found that he had not established that he was in a learner’s capacity. 

OWCP determined that the employing establishment “has clearly stated that an air traffic 

controller in training must merit the training completion. The change in designation as a CPC, 

upon completion of training, would not be automatic.” In addition, OWCP found the evidence of 

record indicated that appellant’s status was not any different from any employee that had an 

opportunity for advancement depending on ability and merit. 

LEGAL PRECEDENT 

An employee’s pay rate for compensation purposes is determined under 5 U.S.C. § 8114, 

at the time of injury, the time disability begins or the time disability recurs if the recurrence 

begins more than six months after the injured employee returns to regular full-time employment 

with the United States, whichever is greater, except as otherwise determined under 5 U.S.C. 

§ 8113.2

 2

 20 C.F.R. § 10.5(s). 
4

5 U.S.C. § 8113(a) provides: 

“If an individual: (1) was a minor or employed in a learner’s capacity at the time 

of injury; and (2) was not physically or mentally handicapped 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 payable for 

disability on the basis of an assumed monthly pay corresponding to the probable 

increased wage-earning capacity.” 

In interpreting this section of FECA, the Board has held that “[FECA] contemplates but 

one increase in wage-earning capacity upon the learner’s completion of training or the minor’s 

reaching the age of majority; but it does not contemplate such factors as future promotions, 

increases in salary or advancements, as these rest upon a number of indefinite and uncertain 

contingencies which place the happening of an event in the realm of possibility, not 

probability.”3

 The Board has long held that 5 U.S.C. § 8113 provides that a claimant is only 

entitled to compensation at the pay rate he or she would have received upon completion of 

training.4 OWCP issued FECA Program Memorandum No. 122 (issued May 19, 1970) which 

states: “In effect, the compensation rate of a learner should be adjusted if the pay rate increased 

as a result of a change in his learner’s status which would have brought him either: (1) to a new 

level within; or (2) to completion of his learner’s program.” 

The Board has delineated the circumstances under which an employee will be considered 

to be employed in a learner’s capacity at the time of his or her injury. These include whether the 

job classification described an “in-training” or learning position, whether the position held was 

one in which the employee could have remained for the rest of his or her life and whether any 

advancement would have been contingent upon ability, past experience or other qualifications.5 

ANALYSIS 

The initial question presented in this case with respect to pay rate is whether appellant 

was in a “learner’s capacity” at the time of injury such that OWCP should recompute his pay rate 

for compensation purposes. Appellant argues that but for his injury he would have completed 

training and received a higher pay rate. 

The issue of whether a claimant was in a learner’s capacity under 5 U.S.C. § 8113(a) 

involves an assessment of several factors regarding employment at the time of injury. The above 

legal precedent indicates there are essentially three requirements that must be satisfied: (1) the 

claimant was in a training program at the time of injury, (2) upon completion of training would 

 3 Hayden C. Ross, 55 ECAB 455 (2004); Mary K. Rietz, 49 ECAB 613 (1998); Robert H. Merritt, 11 ECAB 

64 (1959). 

4 Hayden C. Ross, id. 

5 Henry M. Van Sant, 49 ECAB 593 (1998); Deborah D. Jones, 37 ECAB 609 (1986); Raymond W. Goodale, 25 

ECAB 350 (1974); James L. Parkes, 13 ECAB 515 (1962). 
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have received a pay increase, and (3) the occurrence of (2) must be within the realm of 

probability, not possibility. 

With respect to the initial requirement, in this case appellant’s job title was a CPC-IT. 

Mr. Thomas of the employing establishment indicated that appellant was considered to be in 

training at the time of injury. 

As to the second factor, OWCP made a finding in the March 10, 2016 decision that upon 

completion of training appellant would not automatically become a CPC-IT. It is not clear what 

specific evidence on which OWCP based this finding. Mr. Thomas had indicated in his 

December 10, 2015 letter that appellant would have been promoted upon completion of training 

and indicated that he would receive a pay raise. OWCP does not refer to the December 5, 2015 

letter from Mr. Thomas or the information provided. The November 2, 2015 response from 

another manager indicated that appellant would not automatically have been promoted, although 

little detail was provided. To the extent that OWCP finds appellant would not have received a 

pay increase upon completion of training, it did not make adequate findings based on the 

evidence. 

Moreover, OWCP did not make adequate findings with respect to the likelihood of 

completing training. To properly adjudicate the question, the employing establishment should 

have been asked to clarify the issue. Relevant information would include the number of hours 

appellant still needed to complete training, whether his training position would continue 

indefinitely or whether at some point he must complete training, and how much the completion 

of training depended on his future performance and demonstrated ability. Mr. Thomas made a 

brief reference to seeing no reason why appellant would not be successful in training, without 

providing further explanation. He referred to completing a number of hours of training, while 

the November 2, 2015 manager response indicated that certification was dependent on 

performance. The evidence of record is simply not sufficient for the Board to make a proper 

determination as to whether an increase in pay was simply a possibility or a likely probability. 

The case will accordingly be remanded to OWCP for further development. The 

employing establishment should provide appropriate responses to the relevant issues discussed 

above. Once the determination as to learner’s capacity is made, OWCP can properly determine 

appellant’s pay rate for compensation purposes. After such further development as OWCP 

deems necessary, it should issue a de novo decision. 

CONCLUSION 

The Board finds the case is not in posture for decision and is remanded to OWCP for 

further development. 
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ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated March 10, 2016 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: July 27, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board