UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

REGINA ROBLES,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

SF-0353-15-0837-I-1

DATE: June 28, 2016

THIS ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 172 [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/DOL3

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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board