                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PATRICIA ANN SCHELLHORN,                        DOCKET NUMBER
                   Appellant,                        PH-0353-15-0368-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 30, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           J.R. Pritchett, McCammon, Idaho, for the appellant.

           Miriam Dole, Esquire, Philadelphia, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her restoration appeal for lack of jurisdiction.       Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous
     findings of material fact; the initial decision is based on an erroneous
     interpretation of statute or regulation or the erroneous application of the law to

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     the facts of the case; the administrative judge’s rulings during either the course of
     the appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed. Title 5
     of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
     After fully considering the filings in this appeal, we conclude that the petitioner
     has not established any basis under section 1201.115 for granting the petition for
     review. Therefore, we DENY the petition for review. However, for the reasons
     set forth below, we VACATE the initial decision and DENY the appellant’s
     restoration appeal on the merits.

                                         BACKGROUND
¶2         The appellant is a Rural Letter Carrier at the Post Office in Ringoes,
     New Jersey.     Initial Appeal File (IAF), Tab 5 at 37.     On May 20, 2010, and
     March 12, 2012, she suffered on-the-job injuries to her right arm. IAF, Tab 6
     at 25, 37. In 2013, she suffered a recurrence of her March 12, 2012 right‑arm
     injury. Id. at 9. Following her recurrence, on October 29, 2013, she accepted a
     limited‑duty position, which, among other things, required her to lift up to
     28 pounds. IAF, Tab 16 at 45. In or around September 2014, the appellant began
     to believe that she was being asked to perform duties in excess of these
     restrictions.   IAF, Tab 21 at 8.     In December 2014, she submitted medical
     documentation indicating that she could not lift more than 10 pounds and
     requested a new limited‑duty job offer within those restrictions. IAF, Tab 16
     at 34, 59-60.   According to the agency, there was no operationally necessary
     unassigned work within these restrictions and, to keep the appellant working, it
     instructed her to continue performing her prior modified duties to the extent
     possible without lifting over 10 pounds. IAF, Tab 5 at 21. On January 6, 2015,
     the appellant submitted a request for leave without pay for an indefinite period of
                                                                                      3

     time as well as a notice of recurrence form in which she contended that the duties
     of her limited‑duty position were not within her current medical restrictions. Id.
     at 39, 42.   The appellant was absent from work from January 6 through
     September 18, 2015. Id. at 42; IAF, Tab 19 at 25.
¶3        On April 9, 2015, the Office of Workers’ Compensation Programs (OWCP)
     denied the appellant’s January 6, 2015 claim for recurrence. IAF, Tab 5 at 31-33.
     The appellant appealed OWCP’s decision and, after holding a hearing, OWCP
     determined that the appellant had sought increased lifting limitations without
     medical support, and it affirmed its prior decision.       IAF, Tab 18 at 20-23.
     On April 30, 2015, the appellant requested restoration to a position within her
     current work limitations. IAF, Tab 5 at 29.
¶4        On May 28, 2015, the appellant filed this Board appeal asserting that the
     agency denied her request for restoration and that she believed that there was
     work available within her medical restrictions.     Id. at 5.    The appellant also
     contended that the agency discriminated against her based on her disability. Id.
     The agency moved to dismiss the appeal, asserting that the appellant failed to
     nonfrivolously allege that it had denied her restoration or that any such denial
     was arbitrary and capricious because she did not identify any positions or work
     she could perform in light of her claim that she could not perform the duties of
     her previous limited‑duty job offer. Id. at 10-11. The agency represented that it
     still was in the process of searching for an available position in the local
     commuting area within the appellant’s restrictions. Id. at 11.
¶5        After filing her Board appeal, in August 2015, the appellant informed the
     agency that her lifting restrictions had been raised back up to 28 pounds. IAF,
     Tab 19 at 21. On September 9, 2015, the agency offered her a new limited‑duty
     job, which again required her to lift 28 pounds. Id. at 24. The appellant accepted
     this job offer and returned to work on September 19, 2015. Id. at 24-25.
                                                                                               4

¶6         After holding a hearing, the administrative judge issued an initial decision
     dismissing the appeal for lack of jurisdiction. IAF, Tab 24, Initial Decision (ID).
     The administrative judge found that the appellant failed to prove by preponderant
     evidence that her absence from work between January 6 and September 15, 2015,
     was due to a compensable injury because OWCP had denied her recurrence claim
     for this time period. ID at 5-6. The administrative judge also found that, absent
     an otherwise appealable action, the Board lacks jurisdiction over the appellant’s
     disability discrimination claim. ID at 6. Finally, the administrative judge found
     that, to the extent the appellant’s absence could be construed as a constructive
     suspension claim, the Board lacks jurisdiction over such a claim because the
     appellant is not a preference eligible, manager, supervisor, or an employee
     engaged in confidential personnel work entitled to appeal an adverse action to the
     Board. 2 ID at 6 n.2.
¶7         The appellant has filed a petition for review in which she contends that the
     administrative judge erred in finding that she was not absent due to a
     compensable injury. Petition for Review (PFR) File, Tab 1 at 2. The agency has
     opposed the appellant’s petition. PFR File, Tab 3.




     2
       The administrative judge failed to afford the appellant proper jurisdictional notice as
     to what she must do to establish that she is an employee entitled to appeal an adverse
     action, such as a constructive suspension, to the Board. See Burgess v. Merit Systems
     Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Nonetheless, the lack of
     Burgess notice did not prejudice the appellant’s substantive rights because the initial
     decision notified her regarding which U.S. Postal Service employees have the right to
     appeal an adverse action to the Board. ID at 6 n.2; see Mapstone v. Department of the
     Interior, 106 M.S.P.R. 691, ¶ 9 (2007) (stating that an administrative judge’s failure to
     provide an appellant with proper Burgess notice can be cured if the initial decision puts
     the appellant on notice of what he must do to establish jurisdiction); Panter v.
     Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory
     error that is not prejudicial to a party’s substantive rights provides no basis for reversal
     of an initial decision). On review, the appellant does not contend that she is an
     employee with the right to appeal an adverse action under chapter 75 to the Board.
                                                                                             5

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶8         Under the Board’s revised regulation, to establish jurisdiction over a claim
     of denial of restoration as a partially recovered 3 employee for any appeal filed on
     or after March 30, 2015, an appellant is required to make nonfrivolous 4
     allegations of the following:      (1) she was absent from her position due to a
     compensable injury; (2) she recovered sufficiently to return to duty on a part-time
     basis or to return to work in a position with less demanding physical requirements
     than those previously required of her; (3) the agency denied her request for
     restoration; and (4) the denial was arbitrary and capricious because of the
     agency’s failure to perform its obligations under 5 C.F.R. § 353.301(d).              See
     Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 11 (2016); 5 C.F.R.
     § 1201.57(b). After establishing jurisdiction, an appellant must prove the merits
     of her restoration appeal by a preponderance of the evidence.                  Kingsley,
     123 M.S.P.R. 365, ¶ 12; 5 C.F.R. § 1201.57(c)(4).
¶9         Because the appellant filed her Board appeal after the March 30, 2015
     effective date of the regulation, she was required only to make nonfrivolous
     allegations of jurisdiction to obtain a hearing on the merits.          IAF, Tab 1; see
     5 C.F.R. § 1201.57(a)(4), (b). The record reflects that the administrative judge
     applied the former preponderant evidence standard and dismissed the appellant’s


     3
       The record reflects that the appellant reached maximum medical improvement on
     June 28, 2012. IAF, Tab 6 at 5. This appears to take her outside the definition of a
     partially recovered employee. See 5 C.F.R. § 353.102 (“Ordinarily, it is expected that a
     partially recovered employee will fully recover eventually.”). Instead, it appears that
     the appellant is physically disqualified from her Rural Letter Carrier position. See
     5 C.F.R. § 353.102.     Regardless, the appellant’s alleged requests for restoration
     beginning in December 2014 occurred more than 1 year from the date of the recurrence
     of her compensable injury. IAF, Tab 6 at 9 (reflecting that the date of appellant’s most
     recent prior recurrence was April 20, 2013). Thus, even if she is physically
     disqualified, her restoration rights are the same as those of a partially recovered
     employee. See 5 C.F.R. § 353.301(c).
     4
       A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
     issue. 5 C.F.R § 1201.4(s).
                                                                                               6

      restoration claim for lack of jurisdiction.          ID at 5.    However, because the
      administrative judge implicitly found that the appellant made nonfrivolous
      allegations of Board jurisdiction and held a hearing, the record is sufficiently
      developed for us to decide the appeal on the merits in accordance with 5 C.F.R.
      § 1201.57. Accordingly, we vacate the initial decision and, as set forth below,
      find that the appellant failed to prove by preponderant evidence that the agency
      denied her restoration.
¶10         A      partially   recovered   employee   “may     not    appeal   the   details   or
      circumstances of her restoration”; she may appeal to the Board only for a
      determination of whether the agency acted arbitrarily and capriciously in denying
      restoration.     Booker v. Merit Systems Protection Board, 982 F.2d 517, 519
      (Fed. Cir.     1992);    5 C.F.R.    § 353.304(c).      Nevertheless,     under    certain
      circumstances, a restoration may be deemed so unreasonable as to amount to a
      denial of restoration within the Board’s jurisdiction. Jones v. U.S. Postal Service,
      86 M.S.P.R. 464, ¶ 5 (2000).           For example, a claim that restoration was
      effectively denied may involve allegations that a partially recovered appellant is
      incapable of performing the job duties of the position to which she was restored.
      Foley v. U.S. Postal Service, 90 M.S.P.R. 206, ¶ 6 (2001).
¶11         Here, it is undisputed that, following the recurrence of her March 12, 2012
      injury, the appellant accepted a limited‑duty position within her lifting restriction
      of 28 pounds on October 29, 2013, and resumed work.                 IAF, Tab 16 at 45,
      Tab 22, Hearing Compact Disc (HCD) (testimony of the appellant). The record
      reflects that, after accepting this limited‑duty job offer, the appellant
      subsequently believed that she was being required to perform duties outside of
      her restrictions. IAF, Tab 5 at 39, Tab 21 at 8. She testified that she told her
      doctor that she was unsure whether she was lifting things in excess of her
      restrictions because she had no way of knowing the exact weight of the packages
      she was lifting. HCD (testimony of the appellant). The appellant’s doctor’s note
                                                                                          7

      dated September 4, 2014, reflects that her doctor believed that her current
      limited‑duty position complied with the restrictions in her functional capacity
      evaluation (FCE), but because the appellant reported that she was being required
      to perform activities in excess of these restrictions, he noted that, if her
      restrictions could not be accommodated exactly, he would be forced to increase
      them.    IAF, Tab 21 at 8.   On December 4, 2014, he restricted the appellant’s
      lifting capacity to 10 pounds. IAF, Tab 6 at 7. The appellant requested a new
      limited‑duty    position   within   her   restrictions   on   several   occasions   in
      December 2014, IAF, Tab 16 at 59‑60, and subsequently stopped working on
      January 6, 2015, when she filed a notice of recurrence contending that her current
      limited‑duty job offer was not within her restrictions, IAF, Tab 5 at 39, 42.
¶12           Although the appellant was dissatisfied with her limited‑duty assignment,
      there is no indication in the record that OWCP ever found it to be unsuitable.
      Determining the suitability of an offered position is within the exclusive purview
      of OWCP, subject to review by the Employees Compensation Review Board, and
      neither the Board nor the employing agency has the authority to decide whether a
      position is suitable in light of an employee’s particular medical condition.
      5 U.S.C. § 8145; Simonton v. U.S. Postal Service, 85 M.S.P.R. 189, ¶ 11 (2000).
¶13           The record reflects that OWCP denied the appellant’s January 6, 2015
      request for recurrence, finding that she failed to show that she suffered a
      spontaneous change in her prior accepted work‑related condition without an
      intervening injury or new exposure. IAF, Tab 5 at 33. On appeal, after holding a
      hearing, OWCP further determined that the appellant’s FCE supported exactly the
      duties she had been assigned and the appellant had sought increased limitations
      not supported by her FCE or other medical evidence.           IAF, Tab 18 at 22-23.
      Moreover, after OWCP denied her claim the appellant accepted a similar
      limited‑duty position with a 28‑pound lifting restriction, after confirming that it
      was within her medical restrictions, and returned to work on September 19, 2015.
                                                                                        8

      IAF, Tab 19 at 24-25. Accordingly, we find that the appellant has not shown that
      she was effectively denied restoration by purportedly being required to perform
      job duties outside of her restrictions.
¶14         The appellant also argued that the agency discriminated against her based
      on her disability. IAF, Tab 1 at 5, Tab 20 at 3. Although a claim of disability
      discrimination may prove that a denial of restoration rights was arbitrary and
      capricious, see Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶ 11 (2012), the
      agency did not deny the appellant’s restoration rights.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                     U.S. Court of Appeals
                                     for the Federal Circuit
                                    717 Madison Place, N.W.
                                     Washington, DC 20439

      The court must receive your request for review no later than 60 calendar days
      after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
      2012). If you choose to file, be very careful to file on time. The court has held
      that normally it does not have the authority to waive this statutory deadline and
      that filings that do not comply with the deadline must be dismissed. See Pinat v.
      Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you need further information about your right to appeal this decision to
      court, you should refer to the Federal law that gives you this right. It is found in
      title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
      2012). You may read this law as well as other sections of the U.S. Code, at our
      website, http://www.mspb.gov/appeals/uscode.htm.          Additional information is
      available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
                                                                                  9

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
     If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
