                         NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                           is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                             06-3087

                                         PAULA K. LUA,

                                                                         Petitioner,

                                                v.

                            UNITED STATES POSTAL SERVICE,

                                                                         Respondent.

                             ___________________________

                             DECIDED: May 18, 2006
                             ___________________________


Before SCHALL, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit
Judge.

PER CURIAM.

       Paula K. Lua seeks review of the decision of the Merit Systems Protection Board

(“Board”), which dismissed for lack of jurisdiction her appeal from the United States

Postal Service’s denial of restoration. We affirm.

                                      BACKGROUND

       Lua was employed as a Mail Handler by the United States Postal Service (“the

agency”). Lua suffered a work-related injury and as a result, in 1993, the Office of

Workers’ Compensation Programs (“OWCP”) accepted Lua’s compensation claim. Lua

was then placed in a rehabilitation position as a letter repairer consistent with her

physical restrictions.
      In December of 1999, Lua was involved in some problematic incidents. First, on

December 23, Lua left work to take a co-worker to the hospital, without “clocking out”

and without filling out the appropriate leave forms, despite being asked to do so. Then,

on December 28, during a meeting about the December 23 incident, Lua failed to follow

instructions, interrupted the meeting by praying on the floor, yelled, and “slammed” a

notebook on the table which slid across the table and struck another employee.

Finally, while being escorted by postal police from the December 28 meeting, Lua made

threatening remarks to a postal police officer. On March 3, 2000, the agency issued a

notice of emergency suspension and thirty day notice of removal. The removal notice

contained three charges based on the aforementioned incidents. On April 8, 2000, the

agency terminated Lua. Lua challenged her termination but that appeal was dismissed

by the Board.

        On September 20, 2000, Lua’s OWCP claim for depression, which had been

pending for some time, was accepted. However, further treatment for Lua’s condition

was denied because OWCP determined that there was “no longer any evidence of a

connection between the condition and factors of federal employment.” App. at 5.

      On February 14, 2005, Lua filed a petition with the Board alleging that the agency

violated her restoration rights when it refused to restore her to her former position. She

alleged that she had fully recovered from a compensable injury (the depression) and

that the agency had removed her based on that injury.          In an initial decision, the

Administrative Judge (“AJ”) dismissed the appeal for lack of jurisdiction.           The AJ

characterized the only issue as being whether Lua “has made a nonfrivolous allegation

that her separation was ‘solely attributable’ to her major depression.” App. at 8.



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       The AJ found that the three December incidents were intervening actions that

formed the basis of the agency’s three charges which led to the termination, and that

Lua was not terminated solely because of a compensable injury. The AJ also found that

“[e]ven assuming that [Lua’s] condition contributed to, or even caused, the behavior that

led to her termination, as the appellant appears to be arguing, it cannot be said that no

cause aside from her compensable injury led to her termination.” Id. The AJ thus

dismissed the appeal for lack of jurisdiction. The full Board denied review. This petition

for review followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                     DISCUSSION

       We must affirm the Board’s decision unless it is found to be arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law; obtained without

procedures required by law, rule or regulation; or unsupported by substantial evidence.

5 U.S.C. § 7703(c) (2000); Butterbaugh v. Dep’t of Justice, 336 F.3d 1332, 1336 (Fed.

Cir. 2003).

       The Board has jurisdiction over a restoration appeal when the petitioner proves

by a preponderance of the evidence that (1) she suffered a compensable injury; (2) that

her OWCP benefits were terminated because she fully recovered from the injury; and

(3) that her separation was substantially related to her injury. See 5 U.S.C. § 8151(b)

(2000); 5 C.F.R. § 353.103(b) (2005).

       It is the third prong—whether the separation was “substantially related” to her

compensable injury—that is in dispute here.       To establish that the separation was

“substantially related” to the compensable injury, the petitioner must establish that no




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                                        3
cause aside from the compensable injury caused the termination. New v. Dep’t of

Veterans Affairs, 142 F.3d 1259, 1264 (Fed. Cir. 1998).

       The AJ properly found that Lua failed to establish that no cause aside from her

compensable injury caused the termination. Lua’s intervening conduct provided the

agency with a sufficient basis for its termination action. We note that we are skeptical

that the AJ is correct in stating that “[e]ven assuming that [Lua’s] condition contributed

to, or even caused, the behavior that led to her termination . . . it cannot be said that no

cause aside from her compensable injury led to her termination.” App. at 8. However,

there is no medical evidence in the record suggesting the conclusion that Lua’s

depression, or the medication she was taking to combat the depression, caused her

misconduct. Williams v. United States Postal Serv., 967 F.2d 577, 578-79 (Fed. Cir.

1992) (finding that this court may affirm a Board’s decision on grounds other than those

relied upon by the Board). For the forgoing reasons, we affirm the Board’s decision.

       No costs.




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