C.S. and Federal Aviation Administration, Charlotte/Douglas International Airport, Charlotte, NC (Board decision, November 2, 2016)

ECAB remand decision. The Board set aside OWCP’s June 29, 2016 overpayment decision and remanded for further proceedings; the remanded issue remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

An FAA employee challenged a $16,740.25 overpayment calculated from a disputed weekly pay rate. In a related appeal, the Board had already ordered OWCP to develop the correct pay rate, including whether the employee was in a learner’s capacity at injury. The Board set aside the overpayment decision because the rate was not yet established. OWCP must resolve the pay rate before determining whether any overpayment exists.

Decision snapshot

• Authority: FECA pay rate and overpayment.
• Outcome: June 29, 2016 decision set aside and remanded.
• Key point: An overpayment could not be fixed before the correct pay rate was determined.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.S., Appellant
)
)
and ) Docket No. 16-1437
) Issued: November 2, 2016
FEDERAL AVIATION ADMINISTRATION,
)
CHARLOTTE/DOUGLAS INTERNATIONAL
)
AIRPORT, Charlotte, NC, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge

On July 2, 2016 appellant filed a timely appeal of a June 29, 2016 decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as No. 16-1437.

On review of the case record the Board finds the case must be remanded to OWCP. By decision dated March 10, 2016, OWCP found appellant had been paid compensation based on an incorrect weekly pay rate of $2,292.06 from July 18, 2013 to March 5, 2016. It found the correct pay rate was $2,129.81. The June 29, 2016 OWCP decision on appeal finalizes a March 16, 2016 preliminary determination that an overpayment of $16,740.25 was created, based on use of an incorrect pay rate for compensation purposes.

The Board reviewed the March 20, 2016 decision on a prior appeal. By decision dated July 27, 2016, the Board remanded the case to OWCP.1 The Board found the evidence was insufficient to make a proper determination as to the correct pay rate for compensation purposes. It was noted that appellant had argued that he was in a “learner’s capacity” under 5 U.S.C.
§ 8113 at the time of injury on March 15, 2013, and therefore the pay rate should correspond to a probable higher wage-earning capacity upon completion of training. The Board found the case

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Docket No. 16-0881(issued July 27, 2016). was not in posture for decision, and additional development was required to properly determine appellant’s rate of pay.

In view of the Board’s finding as to the pay rate, the June 29, 2016 overpayment decision is not in posture for decision. The correct pay rate has not been determined, and OWCP should properly develop the evidence in accord with the Board’s July 27, 2016 decision. Once a proper determination is made as to the correct pay rate, OWCP may then address an overpayment issue if necessary. The case will be remanded to OWCP to properly resolve the issues regarding pay rate and a possible overpayment of compensation. After such further development as is deemed necessary, OWCP should issue an appropriate decision.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated June 29, 2016 is set aside and the case remanded to OWCP for further action consistent with this order of the Board.

Issued: November 2, 2016
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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