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

04-3286 ALAN DANIELS, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

___________________________ DECIDED: January 6, 2005

___________________________ Before RADER, Circuit Judge , ARCHER, Senior Circuit Judge , and DYK, Circuit Judge

. PER CURIAM. Petitioner Alan Daniels (“Daniels”) petitions for review of the final decision of the Merit Systems Protection Board (the “Board ”), upholding his removal by respondent, the United States Postal Service (“USPS”). Daniels v. USPS , No. CH-0752020701-I-1 (M.S.P.B. Mar. 18, 2004). We affirm

. BACKGROUND Daniels was employed by the USPS as a letter carrier. In 1997, he injured his right knee at work and received benefits from the Office of Workers Compensation Programs (“OWCP”). He returned to USPS em ployment in May 1999, in a limited duty position with carrier duties and clerk craft duties. In August 2000, he accepted a schedule award and thereafter, in June 2001, D aniels ceased receiving compensation from OWCP.In November 2001, the USPS sought to reassign Daniels to a modified position consisting of only clerk craft duties. The agency offered Daniels this new position in a letter dated November 13, 2001. Daniels re fused to even read this letter. He complained that the modified position had not been certified by the OWCP as within his physical limitations. USPS then sought an OWCP ruling on the suitability of the modified position. OWCP refused to make any ruling on suitability, stating that, because Daniels was no longer in receipt of compensation, it was OWCP policy not to make suitability determinations in such circumstances. (Resp’t App. at 41.) After OWCP’s refusal to rule on the su itability of the modifi ed position, the USPS again offered Daniels the modified position on December 5, 2001. The USPS advised Daniels that, if he did not a ccept the modified position, he could either take annual leave or leave without pay, but he could no longer continue his prior assignment. Daniels elected to take leave without pay. In the meantime, Daniels filed a not ice of recurrence with the OWCP on November 16, 2001, claiming t hat he had to seek treatment for his left knee. OWCP denied his claim for compensation, finding t hat there was no evid ence either of a recurrent disability or of any causal relationship between Daniels’ claimed disability and the prior injury to his right knee. This OWCP determination was made on March 18,
2002. The USPS then issued a letter on Marc h 26, 2002, instructing Daniels “to immediately report to work, accepting the job offer that was presented . . . in November 2001, or provide . . . acceptable medical docum entation” to substantiate his absence. (Resp’t App. at 34 (emphasis om itted).) The USPS further warned that failure to comply

04-3286 2would result in Daniels being charged as being absent without official leave (“AWOL”) and action would be taken to remove him from the USPS. Daniels failed to respond to this letter. The agency thereafter, on May 28, 2002, proposed Daniels’ removal on a charge of being AWOL. Daniels did not make any written reply to the proposed removal but met with the deciding official, where he st ated his continued refusal to accept the modified position until his claims had been adj udicated by the OWCP. The deciding official found that Daniels had no pending cl aims before OWCP, that he was AWOL, and that his removal promoted the efficiency of the service. T he removal therefore became effective on July 12, 2002. Daniels appealed his removal to the Boar d. The administrat ive judge found that Daniels had been AWOL; that his removal prom oted the efficiency of the service; and that the penalty was reasonable. The administrative judge also dismissed Daniels’ claim that he was not obliged to accept t he modified position unt il a OWCP suitability determination had been made, finding that t he agency had no obligation to clear the assignment of new duties wit h OWCP after Daniels accepted the schedule award. (Resp’t App. at 9.) The administrative judge therefore upheld the removal. The full Board affirmed. Daniels petitions for review in this c ourt. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION The Board’s decision must be affirmed unless it is found to be arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law; obtained

04-3286 3without procedures requir ed by law, rule or regulation; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Carreon v. Office of Pers. Mgmt. , 321 F.3d 1128, 1130 (Fed. Cir. 2003). I The core of Daniels’ argument is t hat the agency never se cured an OWCP ruling on the suitability of the modifi ed position, and that he could not be compelled to accept the modified position without such a ruling. In effect, Daniels is arguing that he was separated because of compensable injury and that he is being deprived of his restoration rights under 5 U.S.C. § 8151. We held in New v. Dep’t of Veterans Affairs , 142 F.3d 1259, 1265 (Fed. Cir. 1998), that “when an agency removes an empl oyee who has a compensable injury solely for refusal to return to work in the absence of a suitability determination by the OWCP, a sufficient nexus exists between the compensable injury” to give the employee restoration rights. Howeve r, “[s]uch nexus . . . depends upon the employee’s continuing compensable injury at the time of . . . removal.” Id. Once the employee ceases receiving compensation, OWCP no longer has any role to play. Thereafter, for an employee to prove that he was dischar ged because of compensable injury, the employee must establish the unsuitability of the offered position through medical evidence. See Walley v. Dep’t of Veterans Affairs , 279 F.3d 1010, 1018-20 (Fed. Cir. 2002) (employee bears burden of proving that absence was due to compensable injury). Daniels has not presented any evidence that the position was unsuitable.

04-3286 4II Daniels argues that there were a number of procedural defects in his removal. We conclude that none of his contentions has merit. Daniels contends that the decision on proposed removal erroneously stated that: “According to the Office of Workers Compens ation the job offer pr esented to you was within your restrictions.” (Resp’t App. at 22.) Any error by the agency in making the quoted statement is irrelevant. As ex plained above, because Daniels was no longer receiving compensation, there was no need fo r any OWCP suitability determination to effect his removal. Rather, as the Board found, the agency needed only show that Daniels was absent as char ged and that the decision to deny leave was appropriate. (Resp’t App. at 8.) The Board found both elements proved, and its finding is supported by substantial evidence. There is no basis to disturb the Board’s decision in this respect. Daniels also contends that the Board found two different dates for his alleged absence. He points out that the admin istrative judge found “the agency charged [Daniels] with AWOL for each day he was absent from April 7, 2002 to the date of the proposal notice, May 28, 2002,” but then concluded that “the agency appropriately charged him with AWOL from April 7 to June 28, 2002.” (Resp’t App. at 8-9.) Though the seeming confusion in the Board’s findings is regrettable, it is also irrelevant. Daniels cannot point to a different result whether his AWOL period ended on May 28 or June 28. The Board found that the removal was r easonable compared to other employees who were removed for being AWOL for two wee ks, nineteen days, or twenty days. The Board’s findings are supported by substantial evidence.

04-3286 5Lastly, Daniels argues that the agency’s re fusal to allow him to continue his old assignment after December 5, 2001, constitu ted a constructive suspension that would have permitted him to appeal to the Board. This argument has no significance since no such appeal was taken. CONCLUSION For the foregoing reasons, the decision of the Board is affirmed. COSTS No costs.

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