The MSPB denied restoration to a postal supervisor in part because he was drawing workers’ compensation. ECAB ruled he was entitled to draw workers’ compensation because the Postal Service wouldn’t restore him to duty in the local commuting area where he lived. The appellant had a psychological condition related to derogatory comments that Rochester P&DC employees had made about his fiancée. His only work restriction was that he must work in a congenial environment away from the Rochester P&DC.
The appellant was an EAS-17 Supervisor of Distribution Operations at the agency’s Rochester, New York Processing and Distribution Center (P&DC). On December 14, 2002, the appellant began suffering from a psychological condition related to derogatory comments that Rochester P&DC employees had made about his fiancée. The appellant absented himself from work, and the Office of Workers’ Compensation Programs (OWCP) ruled the condition compensable. The appellant moved to Fort Myers, Florida, in early 2004. It is undisputed that the appellant is capable of performing the full range of duties of his position in a location other than the Rochester P&DC; the only work restriction that the appellant has is that he must work in a congenial environment away from the Rochester P&DC.
On February 3, 2004, the agency offered the appellant an EAS-17 Supervisor of District Operations position at the Utica, New York P&DC. The appellant declined the job offer and OWCP terminated his benefits. The appellant appealed the decision to the Employees’ Compensation Appeals Board (ECAB), which reversed OWCP’s decision and reinstated the appellant’s benefits. The ECAB found that the agency was aware that the appellant was in the process of relocating to Fort Myers when it offered him the position in Utica, and that the agency was therefore obligated to find him suitable employment in the Fort Myers area, if possible.
We acknowledge a disparity between OPM’s restoration regulations at 5 C.F.R. § 353.301(d) and the Department of Labor’s (DOL) regulations at 20 C.F.R. § 10.508 regarding a compensably injured employee’s return to work. As explained above, 5 C.F.R. § 353.301(d) requires an agency only to attempt to restore a partially recovered individual within the former local commuting area. However, as the ECAB found in the appellant’s workers’ compensation appeal, 20 C.F.R. § 10.508 states that “[i]f possible, the employer should offer suitable reemployment in the location where the employee currently resides.”
Paul Dean vs US Postal ServiceRestoration MSPB vs OWCP2010 MSPB 187