United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.D., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

St. Petersburg, FL, Employer

__________________________________________

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Docket No. 17-0233

Issued: December 20, 2017

Appearances: Case Submitted on the Record

Stephanie M. Leet, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 10, 2016 appellant, through counsel, filed a timely appeal from a May 16, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.
2

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $59,807.99 because OWCP used an incorrect pay rate for the period March 1, 2001 

through April 2, 2016; (2) whether appellant is entitled to waiver of the overpayment; and 

(3) whether OWCP properly determined that it would recover $500.00 every 28 days from 

continuing compensation as repayment of the overpayment.

FACTUAL HISTORY

On December 21, 1998 appellant, then a 49-year-old air traffic controller, filed a 

traumatic injury claim (Form CA-1) alleging that on November 15, 1998 he injured his low back 

and groin when he slipped on a wet floor. OWCP accepted the claim, assigned OWCP File No. 

xxxxxx744, for cervical and lumbosacral strain, cervical and lumbar disc displacement, sciatica, 

lumbar neuritis, an aggravation of brachial neuritis, and chronic pain syndrome. 

OWCP had previously accepted on July 4, 1977 thoracic, lumbar, and cervical strain and 

cervical radiculitis under File No. xxxxxx162. It combined the cases under File No. xxxxxx744.

Appellant stopped work following his November 15, 1998 work injury and received 

compensation for total disability beginning January 31, 1999. He resumed his regular full-time 

employment on June 15, 1999. 

By letter dated January 13, 2001, the employing establishment advised that appellant had 

not worked active duty “since January 24, 2000 duty to an unrelated [employing establishment] 

issue. [Appellant] has been certified in a variety of pay and nonpay statuses since his last day of 

duty on January 24, 2001.” It indicated that he was medically disqualified from work “due to an 

unrelated medical issue.” 

Appellant, on February 5, 2001, filed a claim for recurrence of disability (Form CA-2a) 

on January 11, 2001 causally related to his July 4, 1977 employment injury under File No.

xxxxxx162. 

By decision dated July 10, 2001, OWCP found that appellant had not established a 

recurrence of disability beginning January 11, 2001 due to his work injury. It found that the 

employing establishment had terminated his employment because he no longer met the medical 

certifications for his position due to a nonwork-related psychological condition. 

Appellant requested a hearing and by decision dated March 19, 2002, an OWCP hearing 

representative affirmed the July 10, 2001 decision. The hearing representative noted that 

appellant had not been working since January 2000 due to a personnel issue not related to work 

injury, but was continued on the rolls of the employing establishment after that time. Appellant 

initially sought medical treatment for the alleged recurrence of disability on January 23, 2001. 

The hearing representative determined that the medical evidence then of record was insufficient 

to establish a recurrence of disability beginning January 2001.

On March 13, 2001 the employing establishment noted that appellant had been off active 

duty work since January 24, 2000, but had “been carried in a variety of pay and nonpay status 
3

since his last day of work in January 24, 2000.” It noted that he was permanently disqualified 

from work as a result of the nonwork-related medical issue. 

The employing establishment, in a letter dated October 23, 2002, advised the Office of 

Personnel Management (OPM) that, based on a decision of the Merit Systems Protection Board 

(MSPB), appellant was retroactively restored to his positon as an air traffic control specialist 

effective January 25, 2000, the date he began receiving leave without pay, until his removal on 

July 7, 2001. The decision required the employing establishment to pay back pay from 

January 2000 to July 7, 2001. 

On November 6, 2002 OPM indicated that appellant had received disability retirement 

beginning March 1, 2001. 

Appellant, on July 14, 2004, filed a claim for compensation (Form CA-7) requesting 

wage-loss benefits from March 1, 2001 to July 9, 2003 due to his November 15, 1998 

employment injury. 

On May 4, 2005 OWCP found that appellant was entitled to compensation for total 

disability beginning March 1, 2001 and requested that he elect between OPM benefits and 

workers’ compensation. Appellant elected to receive FECA benefits effective March 1, 2001. 

OWCP paid him compensation using an effective pay rate date of November 15, 1998, the date 

of injury. 

In a November 18, 2005 report of telephone call, appellant maintained that he was being 

paid at an inaccurate pay rate. On December 15, 2005 the employing establishment advised 

OWCP by telephone that he had stopped work on January 24, 2001 at a pay rate of $36.24 per 

hour.

In a February 21, 2006 internal memorandum, OWCP found that appellant was entitled to 

a weekly base pay rate of $1,454.44 based on a recurrent pay rate date of January 11, 2001. It

paid compensation for total disability from March 1, 2001 to August 31, 2005 using an effective 

pay rate date of January 11, 2001. 

Appellant, on April 26, 2006, again telephoned OWCP and asserted that it was paying 

him compensation at an inaccurate pay rate. 

By letter dated August 25, 2006, OWCP requested that the employing establishment 

provide the date that appellant last worked and his rate of pay at that time. It noted that it had 

received conflicting information regarding whether he stopped work in January 2000 or 

January 2001. 

On October 25, 2006 the employing establishment advised that appellant “last day of 

actual work was on January 24, 2000” with a pay rate at that time of $67,099.00 a year. It 

related, “Although [appellant] did not return to duty, [he] continued to be carried in a 

combination of annual, sick and administrative leave until the following year, through 

January 24, 2001.” Appellant used leave without pay beginning February 11, 2001. The 

employing establishment advised that he earned $67,099.00 per year on January 24, 2001.
4

By letter dated December 21, 2006, OWCP advised that it was using a pay rate of 

$75,631.00 per year with a pay rate date of January 21, 2001 based on earnings and leave 

statements.3 On January 16, 2007 it paid appellant supplemental net compensation in the amount 

of $9,961.37 as a pay rate adjustment. 

Appellant, on August 26, 2015, maintained that OWCP should pay him premium pay “for 

the last 14 years.” 

On October 22, 2015 the employing establishment provided earnings and leave 

statements for appellant. 

OWCP, on November 19, 2015, notified appellant of its preliminary determination that 

he received an overpayment of compensation in the amount of $226,825.46 because it paid 

compensation at an inaccurate pay rate from March 1, 2001 to November 14, 2015. It found that 

it had paid compensation using a recurrent pay rate date of January 11, 2001. OWCP 

subsequently received information that appellant last worked on January 24, 2000, but received 

sick, annual, and administrative leave through January 24, 2001. It concluded that he was not 

entitled to a recurrent pay rate and calculated the overpayment using his date-of-injury pay rate. 

OWCP further preliminarily determined that appellant was not at fault in creating the 

overpayment.

In a December 9, 2015 response, appellant related that he returned to his usual 

employment after his injury on May 10, 1999 rather than October 11, 1999. He maintained that 

his last day at work was not January 24, 2000. Appellant submitted a claim for compensation 

(Form CA-7) dated June 21, 1999 indicating that he resumed work on May 10, 1999. On the 

form he requested compensation from May 9 to June 3, 1999. 

On January 4, 2016 OWCP telephoned the employing establishment to determine the 

date that appellant resumed work after his November 15, 1998 work injury. By letter dated 

January 4, 2016, it advised him that it had voided the November 19, 2015 preliminary 

determination of overpayment pending a determination of whether he was entitled to a recurrent 

pay rate. 

On January 8, 2016 OWCP received time and attendance reports showing that appellant 

returned to work full time beginning June 10, 1999. 

By letter dated February 10, 2016, OWCP advised that after his work injury appellant 

returned to part-time work on May 10, 1999 and to his usual employment on June 10, 1999. 

Appellant last worked on January 24, 2000. OWCP found that it should have paid him based on 

a pay rate of $1,307.67 per week and effective recurrent pay rate date of January 24, 2000 rather 

than at a rate of $1,454.44 and a recurrent pay rate date of January 11, 2001. It indicated that it 

had included premium pay in the January 24, 2000 pay rate. In a pay rate calculation form, 

 

3

In another letter dated December 21, 2006, OWCP informed the employing establishment that while it had 

advised that appellant earned $67,099.00 per year effective January 24, 2001, earnings and leave statements 

reflected a pay rate of $75,631.00 per year. 
5

OWCP determined that appellant earned $94.36 per week in holiday, Sunday premium, and night 

differential pay, which it added to his base pay of $1,307.67 to find a pay rate of $1,402.03. 

In a memorandum dated February 12, 2016, OWCP found that appellant returned to his 

regular employment from June 10, 1999 to January 24, 2000. On July 9, 2003 appellant 

requested disability compensation beginning March 1, 2001. OWCP determined that he should 

have been paid based on a yearly pay rate of $67,099.00 effective January 24, 2000 rather than a 

yearly pay rate of $75,631.00 and weekly pay rate of $1,454.55 effective January 11, 2001. It 

concluded that it should have paid appellant based on a recurrent pay rate of January 24, 2000 

and a weekly pay rate of $1,402.03 per week with premium pay. 

On April 8, 2016 OWCP received premium pay rate information from the employing 

establishment. 

OWCP, by letter dated April 12, 2016, notified appellant of its preliminary determination 

that he received an overpayment of compensation in the amount of $59,807.99 because it 

incorrectly calculated his compensation pay rate from March 1, 2001 through April 2, 2016. It 

found that he last worked on January 24, 2000 and thus was entitled to a recurrent pay rate date 

of January 25, 2000. OWCP calculated the pay rate, with holiday and premium pay, as a base 

rate of $1,290.37 per week plus $9.28 in Sunday pay, $2.61 in night differential, $5.73 in holiday 

pay, and $5.41 in controller-in-charge pay. It determined that appellant received a greater 

amount using the date of recurrence pay rate than his date-of-injury pay rate. OWCP found that 

it paid him compensation of $952,965.95 from March 1, 2001 through April 2, 2016 when it 

should have paid him compensation of $892,887.96, which created an overpayment of 

$59,807.99. It advised appellant of its preliminary determination that he was not at fault in 

creating the overpayment. OWCP requested that he complete the enclosed overpayment 

recovery questionnaire and submit supporting financial documents. Additionally, it notified 

appellant that, within 30 days of the date of the letter, he could request a telephone conference, a 

final decision based on the written evidence, or a prerecoupment hearing. 

In a May 9, 2016 response, appellant argued that he sustained a recurrence of disability 

on January 23, 2001 and that he filed his notice of recurrence of disability under File No.

xxxxxx162, which was separate from the current case. He advised that OWCP paid him 

compensation at a date-of-injury pay rate, which it subsequently adjusted on February 21, 2006 

to reflect a recurrent pay rate of $1,454.55 per week or $75,631.00 per year. Appellant advised 

that he was not in a leave without pay status until February 26, 2001, and that an MSPB decision 

restored him to his position until July 7, 2001.

Appellant submitted a December 21, 2006 letter from the employing establishment 

acknowledging that the MSPB had instructed it to retroactively restore him to his positon as air 

traffic controller from January 25, 2000 until the date of his removal on July 7, 2001. The 

employing establishment advised that it was reviewing his leave usage during that period to 

determine the amount of back pay owed.

By decision dated May 16, 2016, OWCP found that appellant received a $59,807.99 

overpayment of compensation because it paid him using an inaccurate compensation pay rate 

from March 1, 2001 through April 2, 2016. It determined that he was without fault in creating 
6

the overpayment, but was not entitled to waiver, noting that he had not submitted the 

overpayment recovery questionnaire. OWCP found that it would recover the overpayment by 

deducting $500.00 from continuing compensation payments.

On appeal counsel argues that appellant is entitled to a recurrent pay rate based on the 

date that his physician found that he was unable to work, January 23, 2001. He further maintains

that the overpayment should be waived.

LEGAL PRECEDENT -- ISSUE 1

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.4 Pay rate for compensation purposes is defined in section 8101(4) as the monthly pay at 

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

more than six months after returning to full-time work, whichever is greater.5

OWCP’s procedures provide: “The dates when compensable ‘disability began’ or 

‘disability recurred’ are the dates the employee stopped work due to the injury, not the dates pay 

stopped.”

6

When an overpayment has been made to an individual under FECA, because of an error 

of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor 

by decreasing later payments to which an individual is entitled.7

ANALYSIS -- ISSUE 1

OWCP accepted that appellant sustained cervical and lumbosacral strain and disc 

displacement, sciatica, lumbar neuritis, an aggravation of brachial neuritis, and chronic pain 

syndrome due to a November 15, 1998 employment injury. Appellant had a prior accepted claim 

for cervical radiculitis and thoracic, lumbar, and cervical strain due to a July 4, 1977 work injury, 

assigned File No. xxxxxx162.

OWCP paid appellant disability compensation for total disability from January 31 until

June 15, 1999, when he returned to his regular full-time employment. On January 24, 2000 the 

employing establishment placed him in an off-work status due to an administrative issue 

unrelated to his work injury. It advised OWCP that appellant was medically disqualified from 

employment due to a medical condition unrelated to his employment. Appellant used a 

combination of sick, annual, and administrative leave until January 24, 2001.

 

4

5 U.S.C. § 8102.

5

Id. at §§ 8101(4); 8114; see also 20 C.F.R. § 10.5(s).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5(a)(1) 

(September 2011).

7

5 U.S.C. § 8129; see also Ricky Greenwood, 57 ECAB 462 (2006).
7

Appellant alleged that he experienced a recurrence of disability beginning January 11, 

2001 due to his July 4, 1977 work injury under File No. xxxxxx162. OWCP found, however, 

that the medical evidence of record was insufficient to support that he was unable to work due to 

his accepted employment injury.

The MSPB retroactively restored appellant to his positon of air traffic control specialist 

from January 25, 2000 until the date of his removal on July 7, 2001. 

On July 14, 2004 appellant requested compensation for total disability beginning 

March 1, 2001. OWCP, by letter dated May 4, 2005, found that he was entitled to disability 

compensation beginning March 1, 2001. It initially found that appellant was entitled to 

compensation based on a date-of-injury pay rate of November 15, 1998, but subsequently 

determined that he was entitled to compensation using a recurrent pay rate date of 

January 11, 2001.

Appellant, on August 26, 2015, maintained that his pay rate was inaccurate because it 

failed to include premium pay. In February 2016, OWCP found that it should have paid him 

based on a recurrent pay rate date of January 24, 2000, the date he last worked, instead of 

January 11, 2001. It calculated that it should have paid appellant based on a yearly pay rate in 

effect on January 24, 2000 of $67,099.00, rather than the pay rate of $75,631.00 in effect on

January 11, 2001. 

The Board finds that the case is not in posture for decision. As noted, the pay rate for 

compensation purposes is the monthly pay at the time of injury, the time disability begins, or the 

time disability recurs, if the recurrence is more than six months after returning to full-time work, 

whichever is greater.8 After his November 15, 1998 employment injury, appellant resumed his 

usual full-time employment on June 15, 1999. He worked until January 24, 2000, when the 

employing establishment placed him in a nonpay status for administrative reasons unrelated to 

his work injury. As appellant returned to his regular employment for more than six months, he is 

entitled to a recurrent pay rate for any recurrence of disability.9 He did not, however, stop work 

on January 24, 2000 as a result of disability due to his employment injury and thus did not 

sustain a recurrence of disability on that date. Consequently, OWCP erred in finding January 24, 

2000 as the applicable pay rate date.

OWCP determined that appellant was entitled to disability compensation beginning 

March 1, 2001. In finding an overpayment of compensation, it used January 24, 2000 as the pay 

rate date as it was the last day that he performed work for the employing establishment. A work 

stoppage, however, is unnecessary for a claimant to be entitled to a recurrent pay rate if he 

sustains a new period of total disability due to the accepted employment injury.10 In D.W.,

11

 

8

Supra note 5.

9

See Johnny A. Muro, 19 ECAB 104 (1967).

10 See D.W., Docket No. 14-0912 (issued September 29, 2014); R.N., Docket No. 10-0470 (issued 

September 9, 2010).

11 See D.W., id.
8

OWCP had determined that the claimant was not entitled to a recurrent pay rate date of April 19, 

2008 because he stopped work in January 2008 under another file number. The Board found, 

however, that a work stoppage was not required for application of a recurrent pay rate, but is 

instead based on whether the claimant experienced a new period of employment-related 

disability.

The Board finds that the case is not in posture for decision. Following this and any 

further development, it should determine whether an overpayment exists and the amount of any 

overpayment.12

CONCLUSION

The Board finds that the case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the May 16, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.13

Issued: December 20, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

12 In view of the Board’s disposition of the overpayment, it is premature to address the issues of whether OWCP 

properly denied waiver and set the rate recovery of the overpayment.

13 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.