A union official recently asked us about whether a non-preference eligible, non-managerial U. S. Postal Service employee can file an MSPB appeal to challenge the Postal Service’s actions such as sending an employee home with no hours under NRP. The following is an excerpt from a lengthier response provided to that official.

In Brehmer v. USPS, 106 MSPR 463 (2007) the MSPB ruled “We find that the rescission of restoration rights that were previously granted may constitute a denial of restoration within the meaning of 5 C.F.R. §353.304(c).” In other words, if a Postal employee is working limited duty because of an accepted industrial injury, and the Postal Service sends him or her home on the grounds that it no longer has any productive work for that employee, this can in theory be a violation of the employee’s right to be restored to his or her job after partial recovery from an industrial injury.

Getting MSPB to actually find such a violation of restoration rights in the context of NRP, however, may be difficult.

To establish MSPB jurisdiction over a restoration appeal as a partially recovered employee, the appellant must allege facts that would show, if proven, that: (1) he was absent from his position due to a compensable (work-related) 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 agency’s denial of restoration was “arbitrary and capricious.” See Chen v. U.S. Postal Service, 97 M.S.P.R. 527 (2004).

To date, no MSPB judge has ever found that an employee’s hours being reduced or eliminated under NRP violated that employee’s restoration rights. The point on which every reported NRP case so far was rejected, either on a jurisdictional basis or after a hearing, was the 4th prong above – i.e., proving that the action taken was “arbitrary and capricious.”

Cases dismissed for lack of jurisdiction

Patricia L. Luna, 109 LRP 67863 (August 21, 2009) – MSPB Judge Grace B. Carter dismissed a claim by a non-preference eligible postal employee whose position had been eliminated by the NRP, finding that the Appellant had established the first three prongs as discussed above but not the fourth. Judge Carter stated: “Nowhere in her voluminous submissions has the appellant suggested that she could perform any vacant, funded, and operationally necessary position, other than the now-defunct modified position of lobby director. … [T]he appellant must do more than request work, or assert that she was sent home and not given duties.”

David Hunt, 109 LRP 75995 (September 10, 2009) – MSPB Judge Gerard C. Dasey dismissed a claim by a non-preference eligible postal employee whose position was eliminated under the NRP, for lack of jurisdiction. Judge Dasey found that the first three prongs, as discussed above, were met. However, he found that the Appellant had not established ‘arbitrary and capricious.’ He stated: “I find that this claim by the appellant falls short of an allegation that the agency s decision to send him home was arbitrary and capricious. The agency provided evidence that it has experienced a substantial reduction in workload due to various marketplace factors resulting in the need to eliminate 100 million work hours this [fiscal] year. … The appellant has not refuted any of this information. I find that the undisputed business and financial difficulties experienced by the agency further undermine the appellant s claim that decisions made pursuant to the NRP are arbitrary and capricious exercises of the agency s personnel authorities. The agency has also submitted evidence that the review of the appellant s limited duty assignment and the search for other operationally necessary work for his area were done according to the procedures required by the NRP. … The appellant did not refute that evidence. To the extent the appellant has argued that some of the tasks performed by him on his limited duty assignment are still performed by others, that does not constitute a non-frivolous allegation that the agency s decision to send him home was arbitrary or capricious.

Jaime Calderon, 109 LRP 72554 (September 24, 2009) and Robbie P. Jackson 109 LRP 76365 (September 24, 2009) – MSPB Judge Franklin Kang found that the appellants in these two cases, both of whom were non-preference eligible postal employees, had failed to provide facts that would show that there was work for him that consisted of operationally necessary tasks within his restrictions. The USPS had stated that the NRP was necessary due to the reduction in workload and that it was unable to identify enough available operationally necessary tasks within the appellant’s medical restrictions to continue his limited duty position. Judge Kang ruled that the appellant: “… does not provide facts that would show, if proven, that his supervisor untruly stated the positions did not exist, or that agency officials untruly stated they were unable to identify any available operationally necessary tasks within the appellant’s medical restrictions.” [citing Hogarty v. US Postal Service, 101 M.S.P.R. at 380 - appellant failed to make a non-frivolous allegation that agency officials untruly stated that no positions within her medical restrictions were available within a particular time period].

Cases remanded (back to the Judge) for further development

The Brehmer case, above, was not an NRP case. The MSPB Judge, in his initial decision, had found that the Board lacked jurisdiction over the restoration claim and so did not address whether the denial of restoration was ‘arbitrary or capricious.’ The case was remanded for that purpose and also to consider claims of constructive termination and suspension.

Douglas Gilbert v. Department of Justice, 100 MSPR 375 (November 9, 2005) – In this non-NRP case, the appellant met his burden of non-frivolously alleging ‘arbitrary and capricious’ behavior by his agency in denying his restoration, when he asserted that the agency had hired, and continued to hire, less qualified employees in positions for which he was qualified, and when appellant submitted vacancy announcements during the relevant period of time for a position within his commuting area.

Both the Brehmer and Gilbert cases settled after appeals resulted in the cases being sent back to the Judge for further proceedings.

Case denied after hearing

Angelita E. Casis v. USPS, 109 LRP 72652 (October 2, 2009) – MSPB Judge Glen D. Williams denied the appeal after a hearing. The reason this case went to a hearing is that the Appellant identified several positions that she felt she was qualified to perform, including a specific bid position she felt she should have been awarded. At hearing, the USPS proved that the clerk positions that the Appellant had identified at a different station, Sylmar, were awarded to employees who already worked at the Sylmar office who had, “superior claims to positions within their facility to the appellant’s claim.” With regard to the specific bid position the Appellant identified, mail processing clerk, the USPS was able to prove that it required physical activity beyond the Appellant’s capabilities. They further proved that no reasonable accommodation could be made to allow her to do the full duties of that position.

How can you win one of these cases?

It appears to be a losing argument at MSPB for the appellant to claim that the tasks being performed before work hours were reduced were operationally necessary. MSPB judges have accepted that the NRP is necessary due to reduced workload.

A general allegation that the NRP process is arbitrary and capricious has been similarly ineffective. In Elfreda M. Barachina v. USPS, Docket No. SF-0353-09-0554-I-1 (December 14, 2009), the Board specifically discussed a 2002 APWU Arbitration Decision as follows: “In her response, appellant argued that the NRP 2 process was inconsistent with a 2002 arbitration decision in which the arbitrator interpreted provisions of the agency’s Employee and Labor Relations Manual and collective bargaining agreement with the American Postal Workers Union, and found that limited duty rehabilitation assignments were not created for the purpose of meeting the agency’s operational needs. … We agree with the AJ that the appellant’s challenge to the NRP 2 process in general does not constitute a non-frivolous allegation that the agency acted arbitrarily and capriciously in her particular case.”

An MSPB appeal of a Postal Service action sending home an industrially injured worker under NRP may serve as the basis of a successful case on the following grounds:

1. The agency must show that it did a search for a vacant, funded position that the appellant could perform, not just at his duty station, but within his general commuting area as well. Otherwise, the regulation’s requirements have not been met and the case should be set for hearing (see Irma Urena, Docket No. SF-0353-09-0650-I-1, December 14, 2009).

2. If the employee can show that there were vacant, funded positions that were available that he could do at the time he was removed, an MSPB Judge may find a violation of restoration rights.

IF YOU NEED MORE INFORMATION ABOUT THIS TOPIC, PLEASE CALL US.

From: Steven E. Brown, A Professional Law Corporation

Voicemail: 1-805-496-9777; 1-800-USA-6927

If you are a Postal Service employee and have recently received a Notice like the one attached to this article (“Notice – Employees Without MSPB Appeal Rights” stating the Postal Service has no work available for you), you have legal rights of which you may not be aware.  Taking steps to exercise and protect these rights may be quite important to your financial future.

As the Notice mentions, if your work limitations were caused by an industrial injury you are probably entitled to receive FECA (workers’ compensation) benefits from OWCP for the time you spend at home when the Postal Service does not offer you any work.  Which form(s) you file, however, may impact the success of your claim for these benefits and/or the time delay before you start receiving benefits.  If you have received recent medical treatment for your industrial injury, of which OWCP is aware, we recommend NOT filing a CA-2a (recurrence of disability) form, but rather filing forms CA-7 (claim for compensation) and CA-7A instead.  It is usually more difficult to obtain payment of FECA benefits from OWCP when filing a recurrence claim using a form CA-2a, as opposed to just filing for benefits using a form CA-7.  Under the workers’ compensation law, when you are working limited duty due to an accepted industrial injury and the employer reduces or eliminates your work hours, you are by definition “totally disabled” for those hours/days and entitled to FECA benefits to cover the wage loss.  Our office has represented and counseled thousands of Postal employees in OWCP claims and can assist you in making sure you receive all the benefits to which you are entitled.    

Once you begin receiving benefits from OWCP, you will likely be referred for vocational rehabilitation. This process typically involves you being referred to a government-contracted vocational specialist who will then attempt to find you a job in the private labor market. The goal of the program is to provide some token training so that OWCP can identify a job in the private labor market that you can perform within your medical restrictions. Once they have identified such a job, they will provide some assistance in helping you obtain it. However, even if you do not get the job they have identified, they will still reduce your compensation based on a finding that you have the wage-earning capacity to perform that job. There are very specific rules for what kind of job can be found suitable for you. It must be within the injured worker’s medical restrictions, and the vocational rehab specialist must show that the injured worker has the necessary work experience or training to qualify for the position. The vocational rehabilitation counselor must also show that such a position is readily available near your home. Often, the vocational rehab counselor will identify a position that is not within the injured worker’s restrictions or qualifications. On the basis of such a determination, OWCP will often reduce compensation as if the injured worker took the position. Our office has represented many injured workers through the vocational rehabilitation process to ensure that the position identified for the injured worker is in fact “suitable” within the regulations and OWCP’s guidelines.

Assuming your disability is permanent – namely, it is expected to last for at least another year – you are also entitled to apply for early retirement under FERS or CSRS based on disability.  The Notice you received from the Postal Service does not even mention this option.  Unlike workers’ compensation, disability retirement is designed as a permanent, lifetime benefit.  If disability retirement is approved, you will be able to keep your federal group health and life insurance permanently, and pay the low federal group premium.  If you are granted disability retirement, you can still work at another (non-federal) job. So long as you earn less than 80% of the current pay rate of your last occupied federal position, you can continue to receive your full retirement benefit from OPM. We have found over the years that many deserving disability retirement applications are denied due to error by OPM and/or due to improper documentation, which we can usually remedy either informally or at the hearing stage.  Even though many applications for disability retirement are denied by OPM, we have filed and obtained such benefits for over a thousand Postal and other federal employees. Every one of these applications our office has filed in the last several years has been successful.   

In both workers’ compensation claims and disability retirement applications, there are strict (and differing) requirements on the type of medical and other evidence that must be presented. Most doctors find it helpful when their patient is represented by knowledgeable legal counsel, who can advise them what they must write in an appropriate medical report.  

Although you may feel that the Postal Service’s decision to send you home is unjustified and may be motivated by disability discrimination, you should be aware that there are several class action complaints currently pending at EEOC under which you may already be covered.  If you are included in the class of Postal employees being represented by class counsel, you cannot “opt out” of that class action, and your rights with regard to disability discrimination will be determined in that case instead of in any individual EEO complaint you might file. On the other hand, if you are not covered by those class actions you retain the right to file your own EEO complaint about the discriminatory treatment.  The decision about whether to pursue a disability discrimination complaint is best made after consulting an attorney, but if you’re not sure we advise that you file your request for counseling (which is the first step in the EEO process) immediately to avoid missing the 45-day filing deadline. 

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IF YOU NEED ASSISTANCE ABOUT ANY OF THESE MATTERS, PLEASE CALL US - 805-496-9777

Recently, we had an injured client come to us who previously did not apply for disability retirement based on some bad advice she had received. As she came to our firm over a year after the time she left her position at the Postal Service, she lost all her rights to disability retirement. Losing her disability retirement also complicated her workers’ compensation case, and it eventually lowered the amount she could collect under the Federal Employees’ Compensation Act (FECA) as well. If this client had known when the rights to claim her benefits would expire, she would have been a lot better off financially.

It is equally as important for a federal employee to find out when the rights to claim workers’ compensation benefits expire. Again, I find that often federal workers are not always informed by their employers of these important deadlines. An example of a deadline for workers’ compensation is that a written claim for compensation must normally be filed within three years after the date of a traumatic injury. For a dormant injury, the three years starts when the employee was aware or should have been aware that his or her injury is related to the employment. We have had many clients that have injuries that occurred years or decades earlier, but where no claim was filed. While it is not always impossible to get those claims approved, it certainly can make things more difficult and time consuming for the injured worker.

There are exceptions to these deadlines. For example, under FECA, if an official supervisor of the injured employee has actual knowledge of the injury within 30 days of its occurrence, then the limitations period in which to file a claim is extended. It would generally be better for a federal employee to still submit a timely written claim, since then they would not have to prove that their supervisor had actual knowledge. Another exception is if an injury incapacitates the employee mentally or physically so that a written notice and claim cannot be executed. There are other exceptions not listed here, and at any rate, it is far safer to submit a written form within these time periods if possible than to rely on an exception. Note that any words of claim are sufficient: as long as the employer is put on written notice that you were injured and you claim the injury is related to work, that is enough to extend the time limit for filing a formal claim with OWCP.

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The above article was prepared by Brett E. Blumstein, an associate attorney at the firm of Steven E. Brown, A Professional Law Corporation, Westlake Village, CA. Mr. Brown and his firm’s attorneys have more than 40 years of collective experience representing federal employees, with emphasis on wrongful termination, workers’ compensation, retirement issues and discrimination complaints. Mr. Brown has lectured before various groups on these and related topics for the past several years. The firm’s website, www.federal-law.com, contains materials developed for some of these talks, as well as other educational materials developed by attorney Brown as an aid to his clients and members of the public. The firm is located at 910 Hampshire Road, Suite G, Westlake Village, CA 91361, and can be reached at 805-496-9777 (voice), 805-496-6368 (fax), or sbrownesq@federal-law.com.