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

05-3310

ALBERT WHITE, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

__________________________ DECIDED: February 8, 2006

__________________________ Before GAJARSA, DYK, and PROST, Circuit Judges

. PER CURIAM. Petitioner Albert White petitions for review of the final order of the Merit Systems Protection Board (“Board” or “MSPB”), sustaining the decis ion of the United States Postal Service (“USPS”) to remove Mr. White from service. We affirm

. Background Mr. White began his employment with t he USPS in 1973 and suffered an initial job-related injury in June 1990. On June 13, 2000, Mr. White was offered a rehabilitation assignment as a Modified Carri er due to the 1990 occupational injury. Mr. White subsequently report ed an occupational injury occurring on October 1, 2001, arising from an attempted robbery in the workplace, and filed a claim forcompensation under the Federal Employees’ Compensation Act (“FECA”) for this injury. The Office of Workers Compensation Progr ams (“OWCP”) accepted Mr. White’s claim based on his psychiatric injury, and he rema ined on leave without pa y (“LWOP”) status from that time forward. On November 3, 2003, a Human Resource s Specialist at the USPS submitted a letter to the Manager of Safety and Risk Management entitled “Reques t for Separation” in which she requested approval to separ ate Mr. White based on section 545.91-93 of the United States Postal Service, Em ployee and Labor Relations Manual (“ELM”). Thereafter, the USPS issued him a Notice of Proposed Separation citing as reasons for the separation Mr. White’s leave due to his inju ry for more than two years, his physically inability to perform the duties of his position, and the low likelihood that he would fully recover in the near future . In a Letter of Decision dated February 13, 2004, the proposed separation was made fi nal with an effective date of February 21, 2004. The letter also informed Mr. White of his rights regarding disability retirement, reappointment, and appeal. On March 16, 2004, Mr. White filed an appeal with the MSPB. In the November 3, 2004 initial decision, the adm inistrative judge limited his cons ideration to two issues: (1) whether the medical evidence relied upon by the agency in bringing the present action establis hes by preponderant evidence that the appellant is physically unable to perform the duties of his position; and (2) whether there is any legal authority that bars the agency from bringing the present action because of [Mr. Whit e’s] receipt of OWCP benefits. White v. U.S. Postal Serv. , No. SF0752040305-I-1, slip op. at 2-3 (M.S.P.B. Nov. 3, 2004) (“ Initial Decision ”). The administrative judge su stained the removal, concluding that the USPS had demonstrated by a preponderance of the evidence that Mr. White was unable to perform the duties of his prior position and that removal was appropriate.

05-3310 2The administrative judge also noted that Mr. White pr ovided no authority for his argument that an agency may not terminate an employee for physical inability to perform if he is receiving OWCP benefits. Id. slip op. at 5 n.3. Mr. White petitioned for full board review of the administrative judge’s decision. The MSPB denied the petition fo r review on June 20, 2005. White v. U.S Postal Serv. , No. SF0752040305-I-1, slip op. at 2-3 (M.S.P. B. June 20, 2005). Thereafter, the administrative judge’s initial dec ision became the final decision of the Board. 5 C.F.R. § 1201.113 (2005). Mr. White timely petitioned th is court for review of the MSPB’s final decision. Disscussion This court has jurisdiction to review a fi nal order or decision of the Board under 5 U.S.C. § 7703(b)(1). In reviewing the Board’s decision, this court shall review the record and hold unlaw ful and set aside any agency action, findings, or conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence . . . . 5 U.S.C. § 7703(c) (2000). Mr. White argues that the MSPB applied the wrong regulations in determining whether he could be terminated. His argument s center on his belief that an employee cannot be separated for physical inability to perform his work due to an OWCP compensable injury. As discussed below, Mr. White appears to confuse his rights to reinstatement with a right not to be terminated from his employer.

05-3310 3A First, Mr. White cites three MSPB cases as authority for the proposition that an employee may not be terminated from his em ployment for an OWCP compensable, injury. These cases, however, require only that when an employee is separated for reasons substantially related to his compens able injury, he is entitled to priority restoration rights. Roche v. U.S. Postal Serv. , 828 F.2d 1555, 1557 n.6 (Fed. Cir. 1987); McCoy v. Dep’t of Army , 18 M.S.P.R. 636, 638 (1984); Ruppert v. U.S. Postal Serv. , 8 M.S.P.R. 593, 595-96 n.2 (1981). Second, Mr. White argues that OWCP regulations do not permit termination due to an OWCP compensable injury, but points to no particular regulation as support. Indeed, OWCP regulations are not inconsis tent with separating an employee receiving worker’s compensation due to the injury for which compensation is based. Under these regulations, if an employee has been separated, he may apply for reinstatement to the employer once he experiences a partial or full recovery. See discussion below. Third, Mr. White argues that termination for an on-the-job injury is not permitted by Article 13 of the collective bargaining agr eement under which he is covered. Article 13 of that agreement, however, refers to reassignment requests of employees performing the regular duties of their positi ons, not to employees already out on leave due to an injury. The section of the agreement applicable to on-the-job injuries is Article 21, section 4, which requires the USPS to promulgate regulations in compliance with OWCP regulations. The USPS has issued such regulations governing compensation of employees for work injuries, namely section 540 of the ELM. This section also lays out procedures for removal of an employee on pr olonged leave due to on-the-job injuries. See ELM § 545.9.

05-3310 4B Mr. White also appears to argue that he was not properly terminated under USPS procedures in the ELM because his doctor recommended that he be “phased back into the workforce.” (Petr.’s Br. 3.) He therefore submits that the USPS should have accommodated him in some position, and the USPS and MSPB erred in finding that he was physically unable to perform his job. Under the ELM policies, an employee on leave due to an OWCP compensable injury for more than one year may be separ ated from the USPS. ELM § 545.92. The requesting official must initiate proceedi ngs in accordance wit h the procedures in section 365. Id. § 545.93. The regulation states: If an employee on the rolls of the Offi ce of Workers’ Compensation Programs (OWCP) is unable to return to work at the end of the initial 1- year period of LWOP, the LWOP may be extended for successive additional periods of up to 6 months each. Extensions are granted only if it appears likely that the empl oyee will be able to return to work within the period of the extension. If it does not appear likel y that the employee will be able to return to work during t he period, the employee, upon approval of the area manager of Human Res ources, is separated subject to reemployment rights. Id. § 365.342(b) (emphasis added). USPS regul ations are in a ccordance with the OWCP regulations which do not forbid termination of employment due to a compensable injury. From October 2001 through 2003, Mr. Wh ite’s treating psychologist, Dr. Nerenberg, diagnosed him with a “total disability.” Initial Decision , slip op. at 4. On January 13, 2004, a month afte r the proposed removal letter, Dr. Nerenberg wrote that Mr. White “continues to suffer from depre ssion and PTSD. However, he has improved to a point whereby as of 5/1/04 he should be able to handle four hrs a day of work05-3310 5related responsibilities in terms of rehab, light-duty assignment.” Id. slip op. at 5. 1 T h e MSPB held that “this vague st atement provides no basis for concluding that the appellant could return to any of his fo rmer duties as a City Letter Carrier.” Id. 2 Under USPS procedures, the Board’s conclu sion was not arbitrary or capricious and was supported by substantia l evidence. A single statem ent from his psychologist that Mr. White “should be able” to handl e four hours a day of “work-relatedresponsibilities” do not make it “likely that the employee will be able to return to work,” as required by the ELM poli cy. Indeed, the administrat ive judge considered medical records spanning the entire term of Mr. Whit e’s leave from the USPS to reach this conclusion. 3

1 Mr. White submitted additional documents on November 16 and December 13, 2005. Both submissions occurr ed after the time permitted for him to file a reply brief. See Fed. Cir. R. 31(e)(3); Guide for Pro Se Petitioners and Appellants, number 14 (requiring filing within fourteen days after respondent’s brief is served, in this case November 9, 2005). The court therefore treats these submissions as motions to supplement the record. The additional documents submitted included correspondence with the OWCP and medical evaluations, all occurring on or a fter September 30, 2005. A petitioner may “not attempt to supplement the record on appeal with new evidence that was not considered at [his] hearing or trial.” Id. at number 13. Therefor e, Mr. White’s motion is denied with respect to these filings. Mr. White also submitted additional argum ents and legal authority. The motion to supplement is granted with respect to these submissions.

2 The USPS and MSPB treated Mr. White’ s work-related mental trauma no differently from a physical injury resulting in an inability to work, but did not confuse his mental trauma with his former physical injury as Mr. White claims.

3 Mr. White’s current continued st atus as a recipient of OWCP compensation further supports the contention that it was reasonable to conclude, in January 2004, that he could not likely return to his position within six months of his proposed separation.

05-3310 6C Mr. White also argues that the USPS had a responsibility to search for and offer him a job while he was on leave. However, OWCP regulations require the employer to 1) reinstate a fully recovered employee t hat applies for reinstatement, and 2) seek a suitable position for a partially recovered employee upon notice from the OWCP or an attending physician. 20 C.F.R. §§ 10.505, 10.507 (2005). Mr. White continues to receive OWCP payments, and neither he nor the OWCP has sought his reinstatement under applicable procedures. Therefore, the USPS had no responsibility, under the asserted regulations, to try to place him in a position, as Mr. White urges. 4 It appears Mr. White’s real concern ma y be that he will be precluded from reinstatement to the USPS once he recovers because he will be off the rolls. However, an employee receiving benefits from OWCP reta ins a priority right of reinstatement when he has fully or partially recovered from the compensable injury. Id. ; 5 C.F.R. § 353.301 (2005). If he seeks reinstatement and is denied, Mr. White “could appeal the denial of restoration rights if he could show that his removal was the result of a compensable injury or was substantially related to a compensable injury.” Roche , 828 F.2d at 1557. Conclusion For the foregoing reasons, we affirm the decision of the Board. No costs.

4 This case involves no claim that t he agency has violated its duty under the Rehabilitation Act or has otherwise di scriminated against the petitioner.
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