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. 17-0257 

Issued: July 27, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 7, 2016 appellant filed a timely appeal from a November 3, 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 appellant met his burden of proof to establish a greater pay rate 

based on 5 U.S.C. § 8113(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

The case has previously been before the Board.2 The facts of the case as provided in the 

Board’s prior decisions and orders are incorporated herein by reference. The relevant facts are as 

follows. 

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 

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 working on the date of 

injury. He did briefly return 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 periodic rolls. 

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

establishment reported, in an August 2, 2013 memorandum that showed appellant’s base salary 

on March 15, 2013 was $105,736.00. Its memorandum 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. 

OWCP accepted the information provided by the employing establishment and 

determined that appellant’s pay rate on March 15, 2013 was $119,187.25, or $2,292.08 per week. 

The wage-loss compensation appellant received was based on a pay rate of $2,292.08 per week. 

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

his pay rate. He argued, under employing 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 argued 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. 

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 automatically receive a pay raise on completion of any training, to provide the pay rate. 

 2

 Docket No. 16-1437 (issued November 2, 2016); Docket No. 16-0881 (issued July 27, 2016). 
3

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 appellant was not in a learner’s capacity. 

Appellant requested reconsideration on December 15, 2015. 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 he 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. He was allocated 120 hours on each of the 2 departure positions and 100 

hours for 3 satellite positions.” The manager reported this was not an indefinite program and 

upon completion appellant would have been promoted. He contended that previous experience 

had nothing to do with advancement, as it was based on completion of training. The manager 

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

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 5, 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 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 based on another employee. 

In a decision dated March 10, 2016, OWCP found 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 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 the evidence indicated appellant’s status 

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

ability and merit. 

In a letter dated March 16, 2016, OWCP issued a preliminary determination of an 

overpayment of compensation in the amount of $16,740.25. It found that for the period July 18, 

2013 to March 5, 2016, appellant had received compensation based on a pay rate for 

compensation purposes of $2,292.06 per week. According to OWCP, the proper pay rate was 

$2,129.81 per week. In addition, it found appellant was not at fault in creating the overpayment. 
4

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

the amount of $16.740.25. It denied waiver of the overpayment, finding appellant had submitted 

insufficient evidence to justify waiver. 

The Board set aside the March 10, 2016 OWCP decision on July 27, 2016.3

 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 noted that, as to the likelihood of completing 

training and receiving additional pay, the employing establishment should provide additional 

clarification. 

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

employing establishment regarding appellant’s training program. On September 28, 2016 the 

employing establishment acting air traffic manager responded. He wrote that appellant was in a 

formal qualification training program to become a Certified Professional Controller. 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. He concluded, “Positive progress generally leads to position 

certification; however, negative progress could lead to suspension or termination of training.” 

Appellant filed an appeal of the June 29, 2016 overpayment decision. By order dated 

November 2, 2016, the Board remanded the case to OWCP.4

 The Board found 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. 

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

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

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

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. 

§ 8113.5

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 

 3

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

4

 Docket No. 16-1437 (issued November 2, 2016). 

5

 20 C.F.R. § 10.5(s). 
5

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.”6 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.7

 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.8

 

ANALYSIS 

Appellant contends that he was in a learner’s capacity at the time of his injury on 

March 15, 2013. He argues that he should therefore be entitled to the pay rate that he would 

have had as a certified professional controller upon completion of training. 

The evidence of record is insufficient to establish that appellant’s pay rate should be 

based on completion of the training program and certification as a controller. As the Board 

noted in the prior decision, appellant had only completed approximately one half of the program. 

The happening of an event that is possible is not a sufficient basis for an assumed increase in 

wage-earning capacity.9

 5 U.S.C. § 8113(a) specifically refers to a “probable” increase in wageearning capacity. Based on the evidence of record, the Board finds that the completion of the 

training program was more in the realm of possibility, not probability. 

 6 Hayden C. Ross, 55 ECAB 455 (2004); Mary K. Rietz, 49 ECAB 613 (1998); Robert H. Merritt, 11 ECAB 64 

(1959) 

7 Hayden C. Ross, id.

8 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). 

9 Supra note 6. 
6

The evidence from the employing establishment manager indicated that the training 

program involved extensive hours of training for certification on two departure radar positions 

and three satellite radar positions. The completion of the program depended on appellant’s 

performance and demonstrated abilities with respect to a difficult training program. Given the 

extensive number of hours and the nature of the training, the Board finds the evidence does not 

establish that, as of March 15, 2013, it was probable he would complete the training program. 

It is well established that the possibility of future promotions or greater earnings is not 

sufficient to establish a higher pay rate.10 As the Board has explained, when completion of a 

training program is based on quality of performance and demonstrated ability, it is not sufficient 

to establish a higher pay rate under 5 U.S.C. § 8113(a).11 In the present case, the completion of 

the training program was dependent on appellant’s performance with respect to the certification 

program. Appellant would not complete the program until he had demonstrated the necessary 

ability and completed the training hours, and there was no set time for completion. The Board 

finds that appellant has not met his burden of proof to establish a higher pay rate for 

compensation purposes under 5 U.S.C. § 8113(a). 

On appeal, appellant argues that he was in a learner’s capacity when injured. He asserts 

that he has been successful in all training he had done for the employing establishment. For the 

reasons discussed, the Board finds that appellant’s pay rate for the March 15, 2013 injury should 

not be determined based on a probable increase in pay on completion of training. 

Appellant notes that OWCP did not reissue a decision with respect to an overpayment of 

compensation in the November 3, 2016 decision. In this regard, the Board notes that the 

overpayment in this case is based on the issue of the pay rate for compensation purposes. The 

Board found in its November 2, 2016 order that the overpayment issues were not in posture as 

the learner’s capacity issue had not been resolved. On return of the case record, OWCP should 

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

CONCLUSION 

The Board finds appellant has not met his burden of proof to establish a higher pay rate 

for compensation purposes based on 5 U.S.C. § 8113(a). 

 10 See John Olejarski, 39 ECAB 1138 (1988). 

11 See Henry M. Van Sant, 49 ECAB 593 (1998) (appellant was in a training program, but was not entitled to a 

higher pay rate as he would have to demonstrate knowledge of operating techniques and pass an oral review before a 

promotion); see also Francis L. Alexander, Jr., 56 ECAB 511 (2005) (ship fitter apprentice would not be promoted 

without demonstrated achievement in training); Hayden C. Ross, supra note 6. 
7

ORDER 

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

Compensation Programs dated November 3, 2016 is affirmed. 

Issued: July 27, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board