                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PAUL O. WRIGHT,                                 DOCKET NUMBER
                   Appellant,                        DA-0353-15-0517-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: May 17, 2016
                   Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Paul O. Wright, Houston, Texas, pro se.

           Nadalynn F. Hamilton, Esquire, Dallas, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his restoration appeal for lack of jurisdiction.          For the reasons
     discussed below, we GRANT the appellant’s petition for review, VACATE the
     initial decision, and REMAND the case to the regional office for further
     adjudication in accordance with this order.

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                     BACKGROUND
¶2        The appellant formerly was employed by the agency as an Electronic
     Technician until he retired, effective September 30, 2004.     Initial Appeal File
     (IAF), Tab 5 at 4, 7, 12, Tab 7 at 57. Prior to his retirement, on May 19, 2002,
     the appellant sustained an on-the-job injury for which he received a schedule
     award from the Office of Workers’ Compensation Programs (OWCP) for
     22% permanent partial loss of use of his right upper extremity for the period
     May 1, 2003, to August 23, 2004. IAF, Tab 5, Subtab 3 at 2. On May 29, 2002,
     the appellant accepted a limited-duty maintenance assignment, which involved,
     among other things, cleaning and wiping tables using his left hand and arm. IAF,
     Tab 8, Subtab 4 at 8. On June 17, 2002, he sustained an on-the-job injury for
     which he received a schedule award from OWCP for 14% permanent partial loss
     of use or loss of his left upper extremity for the period April 15, 2003, to
     February 14, 2004. IAF, Tab 5, Subtab 3 at 3.
¶3        On June 14, 2004, the appellant suffered a recurrence of his June 17, 2002
     injury to his left hand. IAF, Tab 8, Subtab 5 at 2. The appellant appears to assert
     that on June 14, 2004, he was informed that there was no available position that
     could accommodate his medical restrictions and he was sent home.          Id.   The
     appellant also asserts that his supervisor refused to assist him in filling out the
     forms for him to obtain wage loss benefits from OWCP and that, as a result, he
     retired several months later on September 30, 2004, because he was not being
     paid or receiving OWCP benefits and needed money. IAF, Tab 5, Subtab 1 at 3,
     5, Tab 8, Subtab 5 at 1, Tab 9, Subtab 1 at 7, Subtab 3 at 4. Following his
     retirement, on March 14, 2013, April 9, 2015, May 11, 2015, and June 10, 2015,
     the appellant sent letters to the agency requesting restoration to duty based both
     on his alleged partial and full recovery from a compensable injury, to which he
     contends the agency failed to respond. IAF, Tab 5, Subtab 5 at 1-3, 5.
¶4        On July 14, 2015, the appellant filed a restoration appeal with the Board.
     IAF, Tab 1, Tab 5, Subtab 1. The administrative judge provided him with notice
                                                                                              3

     of his burden of establishing jurisdiction over a restoration appeal under 5 C.F.R.
     part 353. 2   IAF, Tab 4.     Specifically, the administrative judge informed the
     appellant of his burden of, among other things, making a nonfrivolous allegation
     that he had been “separated or furloughed from an appointment without time
     limitation . . . as a result of a compensable injury” and afforded him an
     opportunity to submit evidence and argument on that threshold issue. Id. at 1
     (citing 5 C.F.R. § 353.103(b)).
¶5         The appellant filed several responses. IAF, Tabs 5, 8-11. With one of his
     responses, he submitted a March 10, 2014 letter from OWCP to his Congressman
     responding to the appellant’s “concerns regarding his work status and
     compensation for lost wages regarding his accepted work related injury for his
     left trigger finger.” IAF, Tab 8, Subtab 5 at 3. In the letter, OWCP stated that it
     had accepted the appellant’s June 14, 2004 recurrence of injury claim on
     February 18, 2005, approximately 5 months after he had retired.            Id.     OWCP
     further indicated that, because the appellant had filed a Form CA-7, Claim for
     Compensation, covering the period from June 15 through June 24, 2004, it would
     pay him a total of $1,204.40 in wage loss benefits for that period.              Id.   The
     appellant included a copy of a March 14, 2014 check from OWCP, which he
     contends he should have received in July 2004, not March 2014, and without
     having to have his Congressman intervene. Id. at 4. The appellant also submitted
     a copy of his Postal Service Form 50, which reflects that his last day in pay status
     was June 14, 2004, and that, as of the effective date of his retirement, he was in a

     2
       Consistent with the decision of the U.S. Court of Appeals for the Federal Circuit in
     Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1102 (Fed. Cir. 2011), the
     administrative judge informed the appellant that, to prove jurisdiction over his appeal,
     he would need to first make nonfrivolous allegations of Board jurisdiction, and then he
     would be entitled to a jurisdictional hearing at which he would be required to prove
     jurisdiction by preponderant evidence. IAF, Tab 4 at 2. However, the Board’s revised
     regulation, effective March 30, 2015, and applicable in any appeal filed on or after
     March 30, 2015, modified the burden of proof for establishing jurisdiction over
     restoration appeals to require only nonfrivolous allegations of jurisdiction. See
     5 C.F.R. § 1201.57(b).
                                                                                            4

     status of leave without pay due to an injury on duty (LWOP/IOD). IAF, Tab 5,
     Subtab 3 at 1.
¶6           The agency filed a motion to dismiss, asserting, among other things, that the
     Board lacks jurisdiction because the appellant’s retirement was voluntary and
     “wholly unrelated to any prior compensable injury he may have had.” 3               IAF,
     Tab 7 at 4.
¶7           The administrative judge issued an initial decision, 4 dismissing the appeal
     for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID). The administrative
     judge found that the appellant failed to make a nonfrivolous allegation that he
     was separated as a result of a compensable injury because his submissions
     reflected that his OWCP benefits terminated on August 23, 2004, over a month
     before he retired and also that the reason he retired was because he needed
     money. ID at 1-3.
¶8           The appellant has filed a petition for review in which he asserts that he is a
     preference eligible who was forced to retire 5 because he needed money based on
     the fact that he had been on LWOP/IOD, the agency did not have a light-duty

     3
       The agency did not respond to the appellant’s contentions regarding his requests for
     restoration, and it did not submit its case file concerning his restoration claim because
     he had not been employed since 2004 and it was waiting to receive his archived
     personnel file. IAF, Tab 7 at 4 n.1.
     4
         The appellant did not request a hearing. IAF, Tab 5, Subtab 1 at 2.
     5
       It is not clear whether the appellant is raising this issue merely in support of his
     restoration claim or whether he is attempting to bring an involuntary retirement appeal.
     On remand, the administrative judge should clarify whether the appellant is attempting
     to bring an involuntary retirement appeal, and, if so, provide him with notice of his
     jurisdictional burden. Because the appellant retired in 2004, there would be a question
     as to the timeliness of such an appeal. However, the issues of timeliness and
     jurisdiction typically are inextricably intertwined in an appeal based on an alleged
     involuntary retirement because, if the agency has subjected the employee to an
     appealable action, then the agency’s failure to inform an employee of his right to appeal
     may excuse an untimely filed Board appeal. See Brown v. U.S. Postal Service,
     115 M.S.P.R. 609, ¶ 5, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). We make no findings
     as to whether the Board would have jurisdiction over such an appeal or whether it
     would be timely.
                                                                                            5

     position for him, and his supervisor refused to fill out paperwork for him to
     receive OWCP benefits. Petition for Review (PFR) File, Tab 1 at 2. 6 The agency
     has opposed the appellant’s petition. PFR File, Tab 3. The appellant has filed a
     reply. 7 PFR File, Tab 4.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶9         The Federal Employees’ Compensation Act (FECA) and its implementing
     regulations provide that Federal employees who suffer on-the-job compensable
     injuries enjoy certain rights to be restored to their previous or comparable
     positions. 5 U.S.C. §§ 8101, 8151; 5 C.F.R. part 353; see Tat v. U.S. Postal
     Service, 109 M.S.P.R. 562, ¶ 9 (2008). To be entitled to any restoration rights
     under 5 C.F.R. part 353, an employee must have been “separated or furloughed
     from an appointment without time limitation . . . as a result of a compensable
     injury.” 5 C.F.R. § 353.103(b). Although the regulation speaks only in terms of
     an employee separated “as a result of a compensable injury,” the Board has
     interpreted this to mean that the separation was “substantially related to” a
     compensable injury. See, e.g., Mobley v. U.S. Postal Service, 86 M.S.P.R. 161,
     ¶ 6 (2000); Wright v. U.S. Postal Service, 62 M.S.P.R. 122, 128, aff’d, 42 F.3d

     6
       On review, the appellant also submits various documents. PFR File, Tabs 1, 4.
     Except for a medical record dated December 8, 2015, all of these documents are dated
     prior to the close of the record on appeal and were not submitted below. We have not
     considered them because he has not established that they were not available previously
     despite his due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
     (1980). The December 8, 2015 medical record, PFR File, Tab 1 at 1, is not material to
     our decision to remand; however, the administrative judge should consider this record
     on remand.
     7
       On May 2, May 6, and May 9, 2016, the appellant submitted additional pleadings.
     PFR File, Tabs 6-8. Because the record in this matter already had closed upon the
     expiration of the period for filing the reply to the response to the petition for review,
     see 5 C.F.R. § 1201.114(k), and because the appellant did not comply with the Board’s
     regulation that required him to file a motion and obtain leave to submit an additional
     pleading, see 5 C.F.R. § 1201.114(a)(5), we have not considered these pleadings on
     review. However, the administrative judge should consider the appellant’s additional
     pleadings on remand.
                                                                                       6

      1410 (Fed. Cir. 1994) (Table); Brown-Cummings v. Department of Health
      & Human Services, 39 M.S.P.R. 627, 630 (1989).        A compensable injury is a
      medical condition accepted by OWCP to be job related and for which medical or
      monetary benefits are payable pursuant to FECA. Tat, 109 M.S.P.R. 562, ¶ 9.
¶10         Although the typical restoration appeal involves a situation in which a fully
      or partially recovered employee exercises a restoration right after having been
      separated from Federal service for a period of time, the Board has held that an
      employee need not show that he was separated from duty, merely that he was
      absent from his position due to a compensable injury, e.g., on sick leave or leave
      without pay (LWOP).      Wilson v. U.S. Postal Service, 98 M.S.P.R. 679, ¶ 9
      (2005). A compensably injured individual who has been separated from Federal
      service is not precluded from exercising restoration rights merely because the
      separation was voluntary rather than involuntary. See Hays v. Department of the
      Air Force, 84 M.S.P.R. 443, ¶ 16 (1999); Morman v. Department of Defense,
      84 M.S.P.R. 96, ¶ 6 (1999).

      The appellant nonfrivolously alleged that his separation resulted from, or was
      substantially related to, a compensable injury.
¶11         The administrative judge found that the appellant failed to nonfrivolously
      allege that he was separated as a result of a compensable injury because his
      OWCP benefits terminated on August 23, 2004, over a month before his
      separation via voluntary retirement on September 30, 2004.         ID at 3.    The
      administrative judge appears to have based this finding solely on the appellant’s
      schedule awards, without considering OWCP’s retroactive award of wage loss
      benefits.
¶12         Under FECA, a schedule compensation award involves compensation for a
      permanent disability due to “the loss, or loss of use, of a member or function of
      the body or involving disfigurement” without regard to the effect of that loss on
      an employee’s earning capacity or ability to perform the functions of his position.
      5 U.S.C. § 8107(a); see Carter v. U.S. Postal Service, 27 M.S.P.R. 252, 254-55
                                                                                         7

      (1985). The employee is entitled to “basic compensation” for the disability for a
      predetermined number of weeks as set forth in the statutory compensation
      schedule.   5 U.S.C. § 8107(a), (c).      A schedule compensation award is “in
      addition to compensation for temporary total or temporary partial disability.”
      5 U.S.C. § 8107(a)(3).
¶13         In contrast, periodic support payments, or wage loss benefits, for a total or
      partial disability are available only if the claimant submits evidence that he is
      incapacitated, because of an employment injury, to earn the wages he was
      receiving at the time of injury. 5 U.S.C. §§ 8105-8106; Hays, 84 M.S.P.R. 443,
      ¶ 16 (explaining that, by awarding wage loss benefits to the appellant, OWCP
      made an implicit finding that the appellant’s compensable injury made her
      incapable of earning the wages she was receiving at the time of the injury);
      20 C.F.R. § 10.115(f) (stating that, to obtain wage loss benefits, the claimant
      must submit medical evidence showing that the condition claimed is disabling);
      20 C.F.R. § 10.5(f) (defining disability as the incapacity, because of an
      employment injury, to earn the wages the employee was receiving at the time of
      injury).
¶14         It is the cessation of the periodic support payments while temporarily
      totally or partially disabled, not the payment of a schedule award for a permanent
      injury, that triggers the restoration rights set forth in 5 C.F.R. § 353.304.
      See Stewart v. Merit Systems Protection Board, 534 F. App’x 956, 962 (Fed. Cir.
      2013); 8 Nixon v. Department of the Treasury, 104 M.S.P.R. 189, ¶ 9 (2006);
      Carter, 27 M.S.P.R. at 255.      Thus, the fact that the appellant received two
      schedule awards does not give rise to restoration rights.
¶15         Nonetheless, as set forth below, we find that the appellant has
      nonfrivolously alleged that his separation was a result of, or substantially related

      8
        The Board may choose to follow nonprecedential decisions of the U.S. Court of
      Appeals for the Federal Circuit if, as here, it finds the reasoning persuasive. E.g.,
      Erlendson v. Department of Justice, 121 M.S.P.R. 441, ¶ 6 n.2 (2014).
                                                                                      8

      to, his compensable injury. The evidence submitted by the appellant indicates
      that he retired approximately 3 months after he suffered a recurrence of a
      work-related injury on June 14, 2004, his last day in a pay status. IAF, Tab 5,
      Subtab 3 at 1, Tab 8, Subtab 5 at 2.     The appellant appears to have been on
      LWOP/IOD status until he retired, effective September 30, 2004. IAF, Tab 5,
      Subtab 3 at 1.     Although difficult to discern, we interpret the appellant’s
      pleadings as alleging that, from June 14, 2004, until he retired, he was told no
      duties within his medical restrictions were available, he was instructed to go
      home, his supervisor refused to fill out the forms so that he could receive wage
      loss benefits from OWCP, and he was forced to retire because he needed money.
      IAF, Tab 5, Subtab 1 at 3, 5, Tab 8, Subtab 5 at 1-2, Tab 9, Subtab 1 at 7,
      Subtab 3 at 4.
¶16        The record is consistent with such contentions. For example, the appellant
      submitted contemporaneous documentation reflecting his attempts to have his
      supervisor sign a CA-2A notice of recurrence form or a CA-7 claim for
      compensation form. IAF, Tab 9, Subtab 1 at 7. Further, following his retirement,
      on February 18, 2005, OWCP accepted the appellant’s notice of recurrence and,
      in 2014, awarded him retroactive wage loss benefits for the period from June 15
      through June 24, 2004. IAF, Tab 8, Subtab 5 at 3. In awarding the appellant
      wage loss benefits for this period, OWCP implicitly found that the appellant
      suffered from a compensable injury that rendered him incapable of earning the
      wages he was earning at the time of the injury. 20 C.F.R. §§ 10.5(f), 10.115(f);
      see Hays, 84 M.S.P.R. 443, ¶ 16. Although the record does not reflect that the
      appellant received wage loss benefits following June 24, 2004, he may have been
      entitled to them in light of his assertions concerning the problems he experienced
      submitting the requisite paperwork, which appear to some extent to be
      corroborated by the fact that it was not until 2014 that OWCP awarded him
      benefits for the period from June 15 through June 24, 2004.
                                                                                             9

¶17         Based on the unique circumstances of this case, including OWCP’s wage
      loss award, the appellant’s apparent LWOP/IOD status, and his contentions that
      he retired because he needed money and the agency failed to assist him in
      obtaining OWCP benefits for an injury that, following his retirement, OWCP
      determined to be work related, we find that the appellant has raised a
      nonfrivolous allegation that his separation resulted from, or was substantially
      related to, a compensable injury. See Hays, 84 M.S.P.R. 443, ¶¶ 16-17 (finding
      that the appellant established that her separation resulted from, or was
      substantially related to, her compensable injury because OWCP awarded her
      retroactive wage loss benefits following her retirement and thus, when she retired,
      she was separated from a position that OWCP determined she was disabled from
      performing due to a compensable injury); Morman, 84 M.S.P.R. 96, ¶ 6 (finding
      the appellant raised a nonfrivolous allegation that her separation resulted from, or
      was substantially related to, her compensable injury when she alleged that the
      agency forced her to resign by refusing to accommodate a work-related medical
      condition, for which OWCP awarded her benefits retroactive to the day following
      her resignation).

      The appellant has established Board jurisdiction over his restoration appeal.
¶18         To establish jurisdiction over a restoration appeal as a partially recovered
      individual, the appellant must make nonfrivolous 9 allegations of the following:
      (1) he was absent from his position due to a compensable injury; (2) he 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 him;
      (3) the agency denied his request for restoration; and (4) the denial was arbitrary
      and capricious because of the agency’s failure to perform its obligations under

      9
        Nonfrivolous allegations of Board jurisdiction are allegations of fact that, if proven,
      could establish a prima facie case that the Board has jurisdiction over the matter at
      issue. Coleman v. Department of the Army, 106 M.S.P.R. 436, ¶ 9 (2007); see 5 C.F.R.
      § 1201.4(s).
                                                                                      10

      5 C.F.R. § 353.301(d).     See Bledsoe, 659 F.3d at 1104 (applying the former
      preponderant evidence standard); Latham v. U.S. Postal Service, 117 M.S.P.R.
      400, ¶ 10 (2012) (same); 5 C.F.R. § 1201.57 (providing for a nonfrivolous
      allegation jurisdictional standard for restoration appeals filed on or after
      March 30, 2015). If the appeal is within the Board’s jurisdiction and timely filed,
      the appellant is required to prove the merits of the appeal by preponderant
      evidence. 5 C.F.R. § 1201.57(c)(4).
¶19         In addition to nonfrivolously alleging that he was absent due to a
      compensable injury, we also find that the appellant has made nonfrivolous
      allegations as to the remaining three jurisdictional elements.      The appellant
      submitted a functional capacity evaluation report dated November 12, 2014,
      which indicates that his position requires a medium physical demand level and he
      was performing at a light-medium physical demand level with moderate
      functional deficit. IAF, Tab 1 at 17-35. We find this sufficient to constitute a
      nonfrivolous allegation that the appellant was partially recovered and able to
      return to duty in some capacity with restrictions. The appellant also submitted
      letters dated April 9, May 11, and June 10, 2015, which he contends he sent to the
      agency requesting restoration based upon his partial recovery and alleges that the
      agency disregarded his requests by failing to respond or act upon them. IAF,
      Tab 1 at 6-7, Tab 5, Subtab 5 at 2-3, 5. We find that such assertions constitute
      nonfrivolous allegations that the agency denied him restoration and that the denial
      was arbitrary and capricious on the basis that the agency did not even attempt to
      find work for him. See Urena v. U.S. Postal Service, 113 M.S.P.R. 6, ¶ 13 (2009)
      (finding evidence that the agency failed to search the commuting area as required
      by 5 C.F.R. § 353.301(d) constitutes a nonfrivolous allegation that the agency
      acted arbitrarily and capriciously in denying restoration).
¶20         Accordingly, we find that the appellant has established Board jurisdiction
      over his restoration appeal based upon his status as a partially recovered
      employee. The appellant did not request a hearing; however, we decline to rule
                                                                                       11

on the merits because the parties should be given notice and an opportunity to file
submissions regarding the merits of the appeal prior to the issuance of a decision
on the merits. See Jarrard v. Department of Justice, 113 M.S.P.R. 502, ¶ 11
(2010). Thus, under the circumstances, remand is appropriate. 10




10
   The appellant also alleged that the agency denied him restoration following his full
recovery. IAF, Tab 5, Subtab 5 at 1. To meet the definition of fully recovered under
the regulations, OWCP must have terminated his benefits on the basis that he was able
to perform all the duties of his position or an equivalent one. 5 C.F.R. § 353.102;
see Steinmetz v. U.S. Postal Service, 106 M.S.P.R. 277, ¶ 8 (2007) (stating that the
requirement that OWCP first find an individual to be fully recovered is a prerequisite to
a Board finding that an individual is fully recovered), aff’d, 283 F. App’x 805 (Fed. Cir.
2008); see also Morman, 84 M.S.P.R. 96, ¶ 7 (explaining that the regulations equate
fully recovered with an OWCP decision to terminate benefits on the basis that the
employee is able to perform all the duties of the position he left or an equivalent one).
Thus, the appellant’s entitlement to OWCP benefits and the duration of such benefits
must be clarified before a determination may be made as to whether the agency denied
him reemployment priority rights. In light of the appellant’s contentions that he was
improperly denied OWCP benefits, on remand, the administrative judge should afford
the parties an opportunity to submit evidence and argument concerning the appellant’s
eligibility for OWCP benefits and the duration of any such benefits. The administrative
judge then should determine whether the appellant has met his burden of making
nonfrivolous allegations regarding the applicable substantive jurisdictional elements,
and, if so, address the merits. See Nevins v. U.S. Postal Service, 107 M.S.P.R. 595,
¶ 11 (2008) (setting forth the jurisdictional elements for a claim involving a fully
recovered individual); 5 C.F.R. § 1201.57(b) (modifying the burden of proof for
establishing jurisdiction over restoration appeals to a nonfrivolous standard for appeals
filed on or after March 30, 2015).
                                                                                   12

                                          ORDER
¶21        For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.




      FOR THE BOARD:                          ______________________________
                                              William D. Spencer
                                              Clerk of the Board
      Washington, D.C.
