                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DONALD M. MOREY,                                DOCKET NUMBER
                  Appellant,                         CH-0353-16-0329-I-1

                  v.

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



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Donald M. Morey, Shevlin, Minnesota, pro se.

           Melinda Varszegi, Esquire, Sandy, Utah, 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 his 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and AFFIRM the initial
     decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2         The appellant is full-time rural carrier with the agency in Bemidji,
     Minnesota. 2   He filed a claim with the Office of Workers’ Compensation
     Programs (OWCP) on May 5, 2015, stating that he injured his left shoulder while
     at work on April 30, 2015. The appellant received continuation of pay benefits
     from OWCP until that entity made a decision in October 2015 to deny his claim,
     determining that his condition was not related to a compensable injury. Although
     the agency had placed the appellant in a limited‑duty status while he was
     receiving continuation of pay benefits, it changed his status to “light duty” once it
     received notice that OWCP had denied his claim of a compensable injury.
     Because the appellant’s medical restrictions prevented him from performing the
     essential duties of his rural carrier position, and (according to the agency) there
     was no light‑duty work available under the applicable collective bargaining
     agreement, the appellant was placed in an off-duty status.
¶3         The appellant sought restoration to employment as an employee who has
     partially recovered from a compensable injury, and presented medical evidence

     2
       The information in this paragraph is taken from the initial decision and is not
     in dispute.
                                                                                           3

     that he thought showed that the OWCP determination that his injury was not work
     related was incorrect. Initial Appeal File (IAF), Tab 1. 3 The administrative judge
     laid out the jurisdictional requirements for a partial-recovery restoration appeal,
     one of which is that the employee must have been absent from his position due to
     a compensable injury. IAF, Tab 7, Initial Decision (ID) at 4. The administrative
     judge then stated that a compensable injury is defined as one that is accepted by
     OWCP as job related and for which medical monetary benefits are payable from
     the Employees’ Compensation Fund.            ID at 5 (citing Burnett v. U.S. Postal
     Service, 104 M.S.P.R. 308, ¶ 8 (2004)).             In light of OWCP’s adverse
     determination, the administrative judge found that there was no evidence
     establishing that the appellant’s work limitations were the result of a compensable
     injury.   In light of these findings, the administrative judge concluded that the
     appellant failed to make a nonfrivolous allegation of facts that, if true, would
     confer jurisdiction on the Board. ID at 5.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶4         On review, the appellant contends that OWCP’s determination that his
     injury was not work related, and therefore not a compensable injury, was
     incorrect, and submits medical evidence to dispute OWCP’s determination.
     Petition for Review File, Tab 1. An OWCP determination that an employee’s
     medical condition was not related to a compensable injury is “final and
     conclusive for all purposes and with respect to all questions of law and fact,” and
     the Board may not review that decision. 5 U.S.C. § 8128(b)(1)-(2); Williams v.
     U.S. Postal Service, 84 M.S.P.R. 374, ¶ 6 (1999).


     3
       The administrative judge noted that the appellant appeared to indicate that the agency
     took other personnel actions against him—a removal, reduction in grade or pay,
     separation, demotion or furlough for more than 30 days by reduction in force, and a
     negative suitability determination—but that the decision would not address those
     matters because the appellant provided no evidence to establish that any of those
     actions was taken. IAF, Tab 7, Initial Decision at 1 n.1.
                                                                                       4

¶5         As a result, we agree with the administrative judge’s determination that the
     appeal should be dismissed for lack of jurisdiction because the appellant is not a
     partially recovered employee entitled to restoration rights. Accordingly, we deny
     the appellant’s petition for review. The initial decision is affirmed.

                     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:
                               United States 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 United States 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
     United States 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 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.
                                                                                  5

      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.
