                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     REGINA ROBLES,                                  DOCKET NUMBER
                  Appellant,                         SF-0353-15-0837-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: June 28, 2016
                   Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Guillermo Mojarro, Upland, California, for the appellant.

           Aaron Carpenter, Esquire, and Micah C. Yang, Esquire, Long Beach,
             California, 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 her restoration appeal for lack of jurisdiction.           For the reasons
     discussed below, we GRANT the appellant’s petition for review and REMAND



     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 case to the regional office for further adjudication in accordance with this
     Order.

                                      BACKGROUND
¶2        The appellant is employed by the agency as a Mail Processing Clerk. Initial
     Appeal File (IAF), Tab 1 at 1, Tab 13 at 166. On March 26, 1981, she was
     involved in a motor vehicle accident while working. IAF, Tab 13 at 151, 158.
     The Office of Workers’ Compensation Programs (OWCP) accepted the following
     injuries for compensation:     left clavicle fracture, laceration of liver, corneal
     abrasion, head injury, multiple contusions, and chronic post-traumatic stress
     disorder. Id. at 151, 158, 197-98.
¶3        The appellant returned to work in 1996, accepting a modified job offer.
     IAF, Tab 13 at 193-98. As of May 28, 2009, she was working approximately
     35 hours per week within her medical restrictions.       Id. at 180-81, 204.    Her
     duties consisted of handling and distributing bundles of magazines, parcels, and
     other pieces of mail to mail carriers, and handling return-to-sender and
     Computerized Forwarding System mail. Id. at 29.
¶4        Beginning on January 16, 2015, the agency reduced the appellant’s hours.
     IAF, Tab 1 at 6, Tab 9, Tab 13 at 35-72, 75-143. The appellant applied for
     OWCP wage-loss benefits for the period beginning January 10, 2015, claiming
     that no adequate work was available “based on most recent medical dated
     11/21/14 (attached) CA 17 2 [sic] (non-occ[upational] condition(s) [sic].” IAF,
     Tab 13 at 151, 163.      The referenced medical report reflects restrictions that
     appear to be unrelated to the appellant’s on-the-job conditions or injuries. Id.
     at 165. For example, a physician diagnosed the appellant with fibromyalgia and




     2
       A CA 17 form, or Duty Status Report, is used by OWCP to review an employee’s
     ability or inability to perform work requirements and to assess whether the employee
     should obtain or retain benefits.
                                                                                       3

     degenerative disc disease, and indicated that she was restricted in simple
     grasping, fine manipulation, and exposure to fumes and dust. Id.
¶5           On March 3, 2015, OWCP denied the appellant’s wage-loss claim because
     she did not show that she had “work limitations associated with [her] accepted
     conditions.” Id. at 151. OWCP closed the claim without compensation. Id.
     at 32, 34, 152. However, there is evidence in the file that OWCP continued to
     deem her 1981 injury as “Accepted [for] Medical Payments Only.” Id.
¶6           The appellant filed an appeal alleging that the agency violated its Employee
     and Labor Relations Manual (ELM) § 546.622 by withdrawing her “long time
     limited duty assignment because [she] now has some other non OWCP/DOL 3
     approved conditions which are concurrent conditions that are not caused by or
     related to the original job injury or disability.” IAF, Tab 1 at 6. The appellant
     also alleged that there was work available within her restrictions. IAF, Tab 8
     at 10. Finally, she alleged harmful procedural error and that the agency denied
     her restoration to duty due to her age, disability, and prior equal employment
     opportunity activity. IAF, Tab 1 at 6, Tab 8 at 5. The administrative judge
     issued a jurisdictional order explaining in detail what the appellant needed to
     prove to establish jurisdiction over her appeal. IAF, Tab 12.
¶7           The agency responded by filing a motion to dismiss the appeal, arguing that
     there was insufficient work within the appellant’s restrictions for her to work
     consistently 35 hours per week and that she failed to establish nexus between her
     reduced work hours and a compensable injury. IAF, Tab 13 at 20. The agency
     also submitted an affidavit from a Postmaster, attesting that the appellant’s hours
     were reduced because: (1) the mail volume began to drop in January 2015; (2) in
     February 2015, two Postal Support Employee Clerks, with no hours guaranteed,
     were converted to 30-hours-per-week full-time positions as Service, Sale and
     Distribution Associates (SSDA) pursuant to an American Postal Workers Union

     3
         DOL is an abbreviation for Department of Labor.
                                                                                        4

     memorandum of understanding; (3) in May 2015, three SSDAs were awarded
     full-time 40-hours-per-week job bids and their duties overlapped with the
     appellant’s duties; and (4) her duty station added a third Passive Adaptive
     Scanning System (PASS) machine that provided information on which mail route
     a scanned parcel should be directed, thus eliminating the appellant’s former duty
     of manually looking up routes. Id. at 28-30. The appellant responded by arguing
     that she had “approved on-the-job OWCP claims” and that the agency should
     have accommodated her noncompensable injuries when it reassigned her
     pursuant to ELM § 546.622. IAF, Tab 14. The appellant did not dispute any of
     the agency’s stated reasons for the reduction in her work hours.
¶8        Without holding the requested hearing, the administrative judge issued an
     initial decision that dismissed the appeal for lack of jurisdiction, finding that the
     appellant failed to nonfrivolously allege that she was absent from her position
     due to a compensable injury. ID at 8. The administrative judge further found
     that, absent an otherwise appealable action, the Board has no jurisdiction to
     consider the merits of the appellant’s claims of discrimination and prohibited
     personnel practices. ID at 8-9.
¶9        The appellant has filed a petition for review of the initial decision,
     reasserting the arguments she made on appeal and arguing that her work
     assignment was so unreasonable as to constitute a denial of restoration. Petition
     for Review (PFR) File, Tab 1 at 4. The agency has responded in opposition to
     her petition. PFR File, Tab 3.

                                        ANALYSIS
¶10       Based on our review of the record, we find that the appellant has presented
     a nonfrivolous allegation that her restoration claim is within the Board’s
     jurisdiction. The Federal Employees’ Compensation Act provides, inter alia, that
     Federal employees who suffer compensable injuries enjoy certain rights to be
     restored to their previous or comparable positions. 5 U.S.C. § 8151(b); Scott v.
                                                                                        5

  U.S. Postal Service, 118 M.S.P.R. 375, ¶ 6 (2012). As to “partially recovered”
  individuals, defined in the regulations as those who have recovered sufficiently
  from a compensable injury to return to part-time or light duty or to another
  position with less demanding physical requirements, regulations of the Office of
  Personnel Management (OPM) require agencies to “make every effort to restore
  in the local commuting area, according to the circumstances in each case, an
  individual who has partially recovered from a compensable injury and who is
  able to return to limited duty.” 4        Scott, 118 M.S.P.R. 375, ¶ 6; 5 C.F.R.
  §§ 353.102, 353.301(d).
¶11     Until recently, a partially recovered employee was required to prove Board
  jurisdiction over her restoration claim by preponderant evidence.           Bledsoe v.
  Merit Systems Protection Board, 659 F.3d 1097, 1104 (2011).              However, the
  Board amended its regulations to provide that an appellant who initiates a
  restoration appeal is required only to make nonfrivolous allegations with regard
  to the substantive jurisdictional elements.      Practices and Procedures, 80 Fed.
  Reg. 4,489, 4,496 (Jan. 28, 2015) (codified at 5 C.F.R. § 1201.57).                 The
  appellant filed the instant appeal after the regulation went into effect on March
  30, 3015, and therefore is only required to meet this lower jurisdictional burden.
  IAF, Tab 1; 80 Fed. Reg. 4,489.
¶12     Consequently, to establish Board jurisdiction over her restoration claim, the
  appellant must make nonfrivolous allegations that the agency violated her
  restoration rights. 5 C.F.R. § 1201.57(a)(4), (b). This requires the appellant to
  allege facts that would show, if proven, that:         (1) she was absent from her
  position due to a compensable injury; (2) she recovered sufficiently to return to

  4
    To the extent that the appellant is asserting that she is a “physically disqualified”
  employee, she is entitled to the same rights as a partially recovered employee because
  her March 1981 injury was more than 1 year prior to the alleged denial of her
  restoration in January 2015. 5 C.F.R. § 353.301(c); see 5 C.F.R. § 353.102 (defining
  the terms physically disqualified and partially recovered for purposes of determining an
  employee’s restoration rights).
                                                                                        6

  duty on a part-time basis, or to return to work in a position with less demanding
  physical requirements than those previously required; (3) the agency denied her
  request for restoration; and (4) the denial was arbitrary and capricious. Kinglee
  v. U.S. Postal Service, 114 M.S.P.R. 473, ¶ 10 (2010).
¶13     As to the first two elements of the jurisdictional test, we find that the
  appellant made nonfrivolous allegations that she was absent from her position
  due to her compensable injury and that she recovered sufficiently to return to
  work in a position with less demanding physical requirements than those
  previously required of her.       IAF, Tab 13 at 180-88, 193-98; see Kinglee,
  114 M.S.P.R. 153, ¶ 12. While the administrative judge found that the appellant
  failed to nonfrivolously allege that she continues to suffer a compensable injury,
  there is evidence that suggests that the appellant continues to be eligible for
  OWCP payment of her medical expenses. IAF, Tab 13 at 32; ID at 7. Payment
  of such benefits is sufficient to make an injury compensable for purposes of a
  restoration claim. 5 U.S.C. § 8101(12); Tat v. U.S. Postal Service, 109 M.S.P.R.
  562, ¶ 11 (2008); 20 C.F.R. § 10.500(d).
¶14     We recognize that OWCP’s denial of the appellant’s wage-loss benefits for
  the period beginning January 2015 supports the administrative judge’s finding
  that the appellant’s reduction in hours was due to her noncompensable injuries. 5
  ID at 7-8; IAF, Tab 13 at 151.         However, the administrative judge erred in
  weighing the evidence at the jurisdictional stage of the appeal. ID at 7 & n.4;
  see Tat, 109 M.S.P.R. 562, ¶ 15 (finding the appellant’s nonfrivolous allegations


  5
    We find that an admission by the appellant’s nonattorney representative that the
  appellant’s absence was due to her noncompensable injuries has no evidentiary value.
  IAF, Tab 9 at 4; see Harper v. Office of Personnel Management, 116 M.S.P.R. 309, ¶ 9
  (2011) (observing that pro se filings are to be construed liberally); Hendricks v.
  Department of the Navy, 69 M.S.P.R. 163, 168-69 (1995) (finding that, while the
  unchallenged statements of a party’s representative may constitute nonfrivolous
  allegations of fact, they are not evidence). Therefore, we do not agree with the
  administrative judge that this admission is a basis to find the appellant’s injury to be
  noncompensable. ID at 7.
                                                                                  7

  that his absence from duty was due to his compensable injury to be sufficient to
  meet the first criterion to establish jurisdiction over his restoration appeal,
  notwithstanding contrary evidence presented by the agency); Ferdon v. U.S.
  Postal Service, 60 M.S.P.R. 325, 329 (1994) (finding that, to the extent that the
  agency’s evidence constitutes mere factual contradiction of the appellant’s
  otherwise adequate prima facie showing of jurisdiction, the administrative judge
  may not weigh evidence and resolve conflicting assertions of the parties and the
  agency’s evidence may not be dispositive).
¶15    As to the third element of the jurisdictional test, the agency provided the
  appellant with modified duties to accommodate the restrictions related to her
  compensable injury, and then reduced her hours in January 2015. IAF, Tab 13
  at 28-30, 35-72, 75-143, 180. The reduction of hours previously provided as part
  of a limited-duty job offer can give rise to a restoration claim.           Scott,
  118 M.S.P.R. 375, ¶ 9. In addition, the appellant has alleged that, beginning
  January 19, 2015, she requested to return “into [her] long time limited duty
  assignment, and [her] requests have been denied, ignored and disregarded.” IAF,
  Tab 9 at 4-5.    Therefore, we find that the appellant has met her burden to
  nonfrivolously allege that the agency denied her request for restoration.
¶16    Finally, the appellant has nonfrivolously alleged that the agency’s actions
  were arbitrary and capricious.       The agency may discontinue a modified
  assignment consisting of tasks within an employee’s medical restrictions only if
  the duties of that assignment no longer need to be performed by anyone or those
  duties need to be transferred to other employees to provide them with sufficient
  work.   Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 31 (2012).         The
  agency presented evidence that it lacked sufficient work for the appellant
  because the “workload began to drop,” the appellant’s duties were reassigned to
  other employees, and some of her duties were eliminated by mechanization.
  IAF, Tab 13 at 29-30. On remand, the parties may present evidence to address
  the agency’s proffered reasons for the reduction in the appellant’s work hours,
                                                                                  8

  such as evidence regarding whether the agency transferred her duties to other
  employees in a manner consistent with its collective bargaining agreements,
  rules, and regulations. IAF, Tab 13 at 23; see Latham, 117 M.S.P.R. 400, ¶ 32
  (reflecting that the agency likely will be authorized to transfer work from
  modified-duty to nonmodified-duty employees as long as it does not, for
  example, violate any contractual provisions limiting its authority to combine
  work in different crafts, occupational groups, or levels into one job).
¶17    However, even assuming that the agency acted properly, as explained by the
  Board in Latham, 117 M.S.P.R. 400, ¶¶ 31-33, the appellant still can prove that
  the agency’s denial of restoration was arbitrary and capricious if the record
  establishes that the agency did not examine the entire local commuting area in
  determining the available work within the appellant’s medical restrictions. Scott,
  118 M.S.P.R. 375, ¶ 12; 5 C.F.R. § 353.301(d). The appellant alleged that the
  agency failed to search the local commuting area for alternative work, and based
  on the evidence in the existing record, we find no indication that the agency
  conducted such a search. PFR File, Tab 1 at 6; IAF, Tab 8, Tab 13 at 28-30. We
  therefore find that the appellant made a nonfrivolous allegation that the agency’s
  denial of restoration was arbitrary and capricious.
¶18    Because the appellant has nonfrivolously alleged the jurisdictional
  elements of her claim, she is entitled to a hearing on the merits.        5 C.F.R.
  §§ 353.304(c), 1201.57(a)(4), (b). Based on our finding that the appellant made
  nonfrivolous allegations of jurisdiction, we remand this appeal for further
  adjudication as explained below. In light of this disposition, we do not address
  the appellant’s arguments as to the merits of her restoration, harmful error, and
  discrimination claims. PFR File, Tab 1 at 6.
¶19    The agency filed a motion to dismiss the appeal as untimely, and the
  administrative judge did not rule on this issue below. ID at 1 n.1; IAF, Tab 13 at
  15-18. It appears from the record that the agency did not notify the appellant of
  her appeal rights. IAF, Tab 9, Tab 13 at 29-30. Under such circumstances, if the
                                                                                  9

  appellant was not diligent in filing an appeal after learning she could do so, the
  administrative judge may examine whether to dismiss the appeal on that basis.
  See Cranston v. U.S. Postal Service, 106 M.S.P.R. 290, ¶¶ 8-14 (2007)
  (discussing the appellant’s burden to prove timeliness if he is not provided with
  notice of his appeal rights); 5 C.F.R. § 1201.57(c)(2) (requiring an appellant to
  prove the timeliness of the appeal by preponderant evidence). Otherwise, she
  should rule on the parties’ pending motions to compel and hold a hearing on the
  merits, at which time the appellant must prove her restoration claim by
  preponderance of the evidence. 5 C.F.R. § 1201.57(c)(4); IAF, Tab 1 at 2, Tabs
  16-17; ID at 8 n.5; see Bedynek-Stumm v. Department of Agriculture,
  57 M.S.P.R. 176, 178 (1993).

                                      ORDER
¶20    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:                          ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
  Washington, D.C.
