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. 17-2013

Issued: April 11, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 28, 2017 appellant filed a timely appeal from an August 22, 2017 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.

ISSUES

The issues are: (1) whether OWCP properly denied waiver of recovery of a $16,749.25

overpayment of compensation; and (2) whether OWCP properly required recovery of the 

overpayment by deducting $200.00 from appellant’s continuing compensation payments.

 

1 5 U.S.C. § 8101 et seq.
2

On appeal appellant contends that repayment of the overpayment would cause undue 

financial hardship for him and his family as his income is needed for food expenses related to his 

family’s food allergies.

FACTUAL HISTORY

This case has previously been before the Board.

2

 The facts of the case as presented in the 

prior Board decisions are incorporated herein by reference. The relevant facts are set forth below.

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 a right ear injury when he was 

exposed to a loud tone on the line at work. He stopped work on the date of injury. Appellant

briefly returned to work from May 23 to June 9, 2013 and then claimed wage-loss compensation 

for total disability from June 10, 2013. 

OWCP accepted the claim for right ear tinnitus and began paying compensation for wage 

loss on the supplemental rolls as of July 18, 2013 and on the periodic rolls as of January 12, 2014.

In an August 2, 2013 memorandum, the employing establishment reported that appellant’s 

base salary on May 15, 2013 was $105,736.00. It also reported premium pay for the year prior to 

March 15, 2013 as: $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.

Based on the information provided by the employing establishment OWCP determined that 

appellant’s pay rate on May 15, 2013 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. 

In a June 5, 2015 letter, appellant requested that OWCP adjust his pay rate. He contended 

that, under employing establishment guidelines, he was considered a certified professional 

controller in training when he transferred to the Charlotte worksite. Appellant had completed one 

half of his required training at the time of injury, and would have completed training if not for the 

work injury. He indicated that his pay would have increased upon completion of training. 

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

and should therefore 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 

indicating 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 Certified Professional Controller-In Training and would have to 

complete training and become fully certified before he would be eligible for a pay increase. 

 

2 Docket No. 17-0257 (issued July 27, 2017); Order Remanding Case, Docket No. 16-1437 (issued November 2, 

2016); and Docket No. 16-0881 (issued July 27, 2016).
3

By letter dated October 8, 2015, 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 he was in a formal training program with a specific 

date of completion and, if he would automatically receive a pay raise on completion of any training, 

to provide the pay rate. In a response dated November 2, 2015, an employing establishment 

manager responded “no” to the question of 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 each controller’s 

performance determined certification. No pay information was provided.

By decision dated November 17, 2015, OWCP denied appellant’s request for an increased 

pay rate for compensation purposes. It noted the November 2, 2015 response from the employing 

establishment and found that he was not in a learner’s capacity.

On December 15, 2015 appellant requested reconsideration. He submitted a December 10, 

2015 letter from an employing establishment air traffic manager. The manager asserted that 

appellant was in a formal training program. He indicated that there was no set time, “just hours 

allocated for the position [appellant] was training on.” The manager related 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 that 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. He

reported that appellant’s base pay in 2013 would have been $118,349.00. In addition, the manager 

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

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

By letter dated January 8, 2016, OWCP requested that the employing establishment 

provide comments. On March 9, 2016 it received updated pay rate information with respect to 

appellant’s earnings in the year prior to May 15, 2013. The employing establishment manager 

now indicated that he 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 based on 

another employee. 

In a March 10, 2016 decision, OWCP found that appellant’s pay rate was $110,750.28, or 

$2,129.81 per week, based on the information provided by the employing establishment. It found 

that he was not 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 Certified Professional Controller, upon completion of training, would 

not be automatic.” In addition, OWCP found that the evidence indicated that appellant’s status 

was not any different from any employee who had an opportunity for advancement depending on 

ability and merit.

In a notice dated March 16, 2016, OWCP advised appellant of its preliminary 

determination that he had received a $16,740.25 overpayment of compensation for the period 

July 18, 2013 to March 5, 2016 as he had received compensation based on a pay rate for 
4

compensation purposes of $2,292.06 per week. It noted that the proper pay rate was $2,129.81 per 

week. In addition, OWCP made a preliminary determination that appellant was without fault in 

the creation of the overpayment as he was not aware, nor could he have reasonably been aware,

that his compensation payments had been paid incorrectly. It requested that he complete a Form 

OWCP-20 and submit supporting financial documents. Additionally, OWCP 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. An overpayment worksheet 

dated March 15, 2016 determined that appellant was overpaid during the period July 18, 2013 to 

March 5, 2016 for a total of $16,740.25. 

On March 23, 2016 appealed the March 10, 2016 pay rate decision to the Board.

On March 24, 2016 appellant requested that OWCP make a decision based on the written 

record. He submitted a completed Form OWCP-20 overpayment recovery questionnaire dated 

March 20, 2016 and supportive financial information which included copies of credit card 

statements, other monthly bill, and a 2015 federal tax return. Appellant contended that he was not 

at fault in creation of the overpayment. He reported total monthly income of $5,885.95 in FECA 

compensation benefits. Appellant also reported total monthly expenses of $1,530.36, which 

included $1,496.00 for rent or mortgage, $1,700.00 for food, $50.00 for clothing, $340.00 for 

utilities, $1,389.00 for other expenses, $363.98 for a USAA personal loan, $542.00 and $546.00 

for AES loans, and $78.30 for Navient. He noted a $45,505.41 federal student loan owed to 

Mohela that was in nonpayment status for financial hardship. Appellant indicated that he had 

$4,285.17 in a checking account, $1,418.33 in a savings account, totaling $5,703.50, and no cash 

on hand, stocks, bonds, or other personal property. 

In a letter dated June 1, 2016, OWCP reported that in a telephone conference held on that 

date, appellant had been advised to provide sufficient proof of his monthly expenses. It afforded 

him 15 days to submit the additional evidence.

By letter dated June 6, 2016, appellant listed additional expenses which included $140.00 

for a storage unit, $110.00 for a cellphone, $45.00 for internet, $200.00 for gas, $104.00 for car 

and renters insurance, $50.00 for repairs and tires, $150.00 for physician’s, $75.00 for food and 

miscellaneous for a dog, $50.00 for household management, $150.00 for daughters’ classes, 

$300.00 for a USAA American Express card (used for miscellaneous expenses clothes and such), 

totaling $1,374.00 for other expenses. He submitted his family’s monthly budget and bank 

statements. 

By decision dated June 29, 2016, OWCP finalized its preliminary determination of an 

overpayment in the amount of $16,740.25. It denied waiver of recovery of the overpayment, 

finding that appellant had submitted insufficient evidence to justify waiver. OWCP required

recovery of the overpayment by deducting $200.00 from his continuing compensation payments. 

By decision dated July 27, 2016, the Board set aside the March 10, 2016 pay rate decision

and remanded the case to OWCP.

3

 The Board found that OWCP had failed to properly make 

findings as to whether appellant was in a learner’s capacity under 5 U.S.C. § 8113(a). The Board 

 

3 Docket No. 16-0881 (issued July 27, 2016). 
5

noted that, as to the likelihood of completing training and receiving additional pay, the employing 

establishment should provide additional clarification.

OWCP, by letter dated August 31, 2016, requested additional information from the 

employing establishment regarding appellant’s training program. In a September 26, 2016

memorandum, an employing establishment acting air traffic manager responded that appellant was 

in a formal qualification training program to become a certified Professional Controller. He related 

that this required certification on two departure radar positions with an allotment of 120 training 

hours each, and certification on 3 satellite radar positions with allotments of 100 training hours 

each. Appellant’s qualification training would not continue indefinitely, but according to 

demonstrated abilities in the hours allocated. The acting air traffic manager concluded, “Positive 

progress generally leads to position certification; however, negative progress could lead to 

suspension or termination of training.”

On July 2, 2016 appellant filed a timely appeal from the June 29, 2016 OWCP 

overpayment decision. By order dated November 2, 2016, the Board set aside the June 29, 2016 

decision and remanded the case to OWCP.4 The Board found that the overpayment issues were 

not in posture for decision as OWCP had not yet determined the correct pay rate. The case was 

remanded to OWCP to properly resolve the pay rate issue and possible overpayment of 

compensation.

By decision dated November 3, 2016, OWCP found that appellant was not entitled to an 

increase in pay as a certified professional controller. It found that the evidence from the employing 

establishment established that he was not in a learner’s capacity at the time of injury.

On November 7, 2016 appellant appealed the November 3, 2016 decision to the Board. 

By decision dated July 27, 2017, the Board affirmed OWCP’s November 3, 2016 decision,

finding that appellant failed to meet his burden of proof to establish a greater pay rate for 

compensation purposes based on 5 U.S.C. § 8113(a).5 The Board found that the evidence of record 

was insufficient to establish that his pay rate should be based on completion of a training program 

and certification as a controller. The Board also found that the overpayment issues were not in 

posture for decision until the learner’s permit compensation issue was resolved, therefore on 

remand OWCP should issue a merit decision on the overpayment issues to preserve appellant’s 

appeal rights. 

By decision dated August 22, 2017, OWCP denied waiver of recovery of the $16,740.25 

overpayment of compensation, noting that, although appellant had minimal assets, he had not 

shown that he required substantially all of his income to meet ordinary and necessary living 

expenses. Itset recovery of the overpayment at $200.00, to be deducted from his continuing FECA 

compensation payments.

 

4 Order Remanding Case, Docket No. 16-1437 (issued November 2, 2016). 

5 Docket No. 17-0257 (issued July 27, 2017).
6

LEGAL PRECEDENT -- ISSUE 1

The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that 

rests within OWCP’s discretion pursuant to statutory guidelines.6 These statutory guidelines are 

found in section 8129(b) of FECA which states: “Adjustment or recovery of an overpayment by 

the United States may not be made when incorrect payment has been made to an individual who 

is without fault and when adjustment or recovery would defeat the purpose of this subchapter or 

would be against equity and good conscience.”

7

 If OWCP finds a claimant to be without fault in 

the matter of an overpayment, then, in accordance with section 8129(b), OWCP may only recover 

the overpayment if it determined that recovery of the overpayment would neither defeat the

purpose of FECA nor be against equity and good conscience.8

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of 

FECA if recovery would cause hardship because the beneficiary needs substantially all of his or 

her income (including compensation benefits) to meet current ordinary and necessary living 

expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by 

OWCP from data provided by the Bureau of Labor Statistics.9 According to 20 C.F.R. § 10.437, 

recovery of an overpayment is considered to be against equity and good conscience when an 

individual who received an overpayment would experience severe financial hardship attempting 

to repay the debt and when an individual, in reliance on such payments or on notice that such 

payments would be made, gives up a valuable right or changes his position for the worse.10 To 

establish that a valuable right has been relinquished, it must be shown that the right was in fact 

valuable, that it cannot be regained, and that the action was based chiefly or solely in reliance on 

the payments or on the notice of payment.11

Section 10.438 of OWCP regulations provides that the individual who received the 

overpayment is responsible for providing information about income, expenses, and assets as 

specified by OWCP. This information is needed to determine whether or not recovery of an 

overpayment would defeat the purpose of FECA or be against equity and good conscience. This 

information will also be used to determine the repayment schedule, if necessary. Failure to submit 

 

6 See Robert Atchison, 41 ECAB 83, 87 (1989).

7 5 U.S.C. § 8129(b).

8 M.G., Docket No. 14-1917 (issued January 22, 2015).

9 20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet current and 

ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio 

Martinez, 55 ECAB 245 (2004). OWCP procedures provide that assets must not exceed a resource base of $4,800.00 

for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. 

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) 

(June 2009).

10 Id. at § 10.437(a), (b).

11 Id. at § 10.437(b)(1).
7

the requested information within 30 days of the request shall result in denial of waiver, and no 

further request for waiver shall be considered until the requested information is furnished.12

The Board has held that OWCP must rely on current financial information when 

determining eligibility for waiver of recovery of an overpayment.

13

ANALYSIS -- ISSUE 1

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

On July 27, 2017 the Board affirmed OWCP’s November 3, 2016 decision finding that 

appellant failed to meet his burden of proof to establish a greater pay rate for compensation 

purposes. With respect to the findings made in the Board’s July 27, 2017 decision, those matters 

are res judicata absent any further review by OWCP.14

The Board also found, however, that the overpayment issues were not in posture for 

decision until the pay rate issue was resolved. The Board, therefore, remanded the case for OWCP 

to issue a merit decision on the overpayment issues to preserve appellant’s appeal rights. 

OWCP thereafter issued an August 22, 2017 decision denying waiver of the recovery of 

the overpayment, finding that appellant had not shown that he required substantially all of his 

income to meet ordinary and necessary living expenses. It set repayment at $200.00 to be deducted 

each period from his continuing FECA compensation. OWCP based the denial of waiver and the 

repayment schedule on the financial information appellant had submitted prior to OWCP’s 

June 29, 2016 decision. 

The Board finds that OWCP did not follow the Board’s instructions from the July 27, 2017 

decision. OWCP did not issue a merit decision regarding all of the overpayment issues, to preserve 

appellant’s appeal rights. 

The Board also finds that OWCP improperly denied waiver of recovery of the overpayment

in the August 22, 2017 decision. As noted above, the Board has held that OWCP must rely on 

current financial information when determining eligibility for waiver of an overpayment.15 In 

Thomas E. Ray16 the Board remanded the case for further development on the issue of waiver 

where OWCP relied on three-year-old financial information in its waiver determination. In 

Carol R. Graham17 the Board remanded the case for further development on the issue of waiver 

as OWCP relied on financial information that was 16 months old in determining the claimant’s 

 

12 Id. at § 10.438.

13 C.S., Docket No. 12-0313 (issued October 23, 2012). 

14 See W.F., Docket No. 15-1208 (issued October 23, 2015); see also Robert G. Burns, 57 ECAB 657 (2006).

15 Id. 

16 51 ECAB 344 (2000). 

17 Docket No. 02-2198 (issued February 4, 2003). 
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eligibility for waiver of the overpayment. Similarly, in R.O.,18 the Board remanded the case for 

further development of the issue of waiver as OWCP relied on financial documents that were 11 

months old in denying waiver. 

In its August 22, 2017 decision, OWCP relied upon financial information appellant 

submitted in March and June 2016 prior to OWCP’s June 29, 2016 decision. This financial 

information was not reasonably current. OWCP should have requested that appellant submit new 

financial information after the Board’s July 27, 2017 decision. As appellant’s financial 

information was not reasonably current as of August 22, 2017, OWCP has not properly determined 

whether he is entitled to waiver of recovery of the overpayment.19

Therefore, the case shall be remanded to OWCP. OWCP shall issue a merit decision 

regarding fact and amount of the overpayment. It shall also request that appellant provide current 

financial information regarding his monthly income, monthly expenses, and assets for the purpose 

of evaluating whether he qualifies for waiver of recovery of the overpayment. After such 

development as it deems necessary, OWCP shall issue a de novo decision on this matter.20

CONCLUSION

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

 

18 Docket No. 16-1836 (issued May 23, 2017). 

19 Id.

20 In light of the Board’s disposition, the issue regarding recovery of the overpayment is not in posture for decision. 
9

ORDER

IT IS HEREBY ORDERED THAT the August 22, 2017 decision of the Office of 

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

consistent with this opinion. 

Issued: April 11, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board