BRUC E H . SIMO N 

ROBER T S . SAVELSO N 

STEPHE N B . MOUJO F 

MICHAEL , E . ABRA M 

KEIT H E . SECULA R 

PETE R HERMA N 

Ricii(VRD M . SELTZE R 

JAME S L . LINSEY * 

JAN I K . RACHELSO N 

BABETT E CEccora* 

SUSA N DAVIS * 

MICHAE L L . AVINSTO N 

THOMA S N . CIANTR A 

JOSEP H J . VITALE * 

PETE R D . DECHIAR A 

LIS A M . GOMEZ * 

BRUC E S . LEVIN E 

TRAVI S M . MASTRODD I 

CoHEiv , WEIS S AN D SIMO N liLP 

COUNSEUJOR S A T LA W 

330 WIEST 42''" STREE T 

NEWYORK, N.Y. 10036-6976 

SAMUE L J . COHE N (1908-1991 ) 

HENR V WEIS S (1910-2004 ) 

(212) 563-410 0 

Decembers, 2012 

Office of the Clerk of the Board 

Merit Systems Protection Board 

1615 IVI Street, NW 

Washington, DC 20419 

Dear Sir: 

DAVI D R . HOCK * 

CLAIR E TUCK * 

RICHAR D C . HARMO N 

MARCELL E J . HENR Y 

EVA N HUDSON-PLUSH * 

MICHAE L S . ADIJER * 

JOSHU A ELLISON * 

ZACHAR Y N . LEED S 

Tzv i MACKSO N 

NoELi A E . JARAMILL O 

DANY A AHMED * 

* AI.S O ADMIITE D I N N J 

Re: James C. Latham, et al. v. U.S. Postal Service 

Docket No. DA-0353-10-04081-1 

Pursuant to the Board's Order, dated December 13, 2011, we submit for filing in the 

above matter a post-argument brief on behalf of amicus the National Association of 

Letter Carriers, along with attachments thereto. 

As stated in the Board's Order the Office of the Clerk will serve on the parties copies of 

this brief. 

Sincerely, 

Keith E. Secular 

Enclosures 

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UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

JAMES C. LATHAM, 

RUBY N. TURNER, 

ARLEATHER REAVES, 

CYNTHIA E. LUNDY, AND 

MARCELLA ALBRIGHT, 

Appellants, 

V. 

UNITED STATES POSTAL SERVICE, 

Agency. 

Docket Numbers: 

DA-0353-10-0408-I-1 

AT-0353-11-0369-1-1 

CH-0353-10-0823-I-1 

DC-0752-11-0196-1-1 

SF-0353-10-0329-I-1 

POST-ARGUMENT BRIEF OF NATIONAL ASSOCIATION OF LETTER 

CARRIERS. AFL-CIO 

Keith E. Secular, Esq. 

Claire Tuck, Esq. 

COHEN, WEISS AND SIMON LLP 

330 West 42nd Street 

New York, NY 10036 

(212) 563-4100 

00207964.1 
INTRODUCTION 

In accordance with the Board's order, dated December 13, 2011, the 

National Association of Letter Carriers, AFL-CIO (NALC), submits the following brief 

addressing matters raised during the oral argument in this appeal. 

I. Relationship of NRP to the ELM 

During the argument, the Board repeatedly inquired as to whether the 

Postal Service's unilaterally implemented National Reassessment Process (NRP) had 

superseded the collectively-bargained regulations goveming the assignment of limited 

duty embodied in subchapter 546 of the Employee and Labor Relations Manual (ELM). 

In fact, this very question was the cmx of a national-level grievance initiated by the 

NALC. The grievance contended, in pertinent part, that the NRP violated the parties' 

collective bargaining agreement by implementing a new "necessary work" standard for 

the creation and continuation of limited duty and rehabilitation assignments. 

The grievance was resolved by a settlement, dated June 18, 2009, a copy 

of which is submitted herewith as Attachment A. The settlement expressly provides that 

"[t]he NRP has not redefined or changed the Postal Service's obhgation to provide 

limited duty or rehabilitation assignments for injured employees. The ELM 546 has not 

been amended and remains applicable to all pending grievances." The settlement also 

specifically states that "[t]he Postal Service has not developed new criteria for assigning 

limited duty. Injured employees will continue to be assigned limited duty, in accordance 

with the requirements of ELM 546 and 5 C.F.R., Part 353." 

Appellants are absolutely correct in asserting that the application ofthe 

NRP has resulted in widespread violations of the ELM at the local level. However, under 

the national level settlement, all such violations may be remedied through the grievance 
procedure. Individual grievances involving the application of the NRP to particular 

employees must be resolved in strict conformity with the requirements of ELM 546. 

II. The Statutory Term "Overcome" Does Include Partial Recovery 

The Postal Service's principal argument in this case is that OPM's 

regulations, 5 C.F.R. 353.301(d) and 304(c), goveming restoration of partially recovered 

employees are inconsistent with the underlying statute. Specifically, the Service 

contends that 5 USC 8151 applies only to employees who fully recover from injuries. 

This argument is simply wrong. The statute does not contain any 

reference to the concept of "full recovery." Rather, it grants restoration rights to 

employees who "overcome" their injuries. An injured employee may never achieve a full 

medical recovery. But when such an employee can retum to work, he/she may 

reasonably be said to have "overcome" the injury. Legislative history, acknowledged by 

USPS, supports this interpretation. The Senate Report accompanying the 1974 

amendments to the Federal Employees Compensation Act specifically states that the 

Civil Service Commission (now OPM) "is authorized to promulgate regulations covering 

the rights of employees whose injuries or disabihties are partially overcome, as well as 

those who have fully overcome their disabilities." S. Rep. No. 93-1081 (93d Cong., 2d 

Sess.)(Aug8, 1974) at p. 4. 

In any event, OPM has been given responsibility for interpreting the 

statute and, under familiar case law, its reasonable interpretation must be accorded 

deference. Chevron, U.S.A., Inc. v Natural Resources Defense Council, 467 U.S. 837, 

844 (1984); Brandt V Department of the Air Force, 103 M.S.P.R. 671 (2006). 
III. In the Postal Service, Emplovees Working Limited Duty Assignments 

Continue to Occupy Their "Former or Equivalent Positions" 

The Postal Service also argues that regulations requiring injured 

employees to be placed in temporary limited duty or rehabilitation assignments are not 

subject to enforcement by the Board because those regulations exceed the requirements 

of the statute. It stresses that 5 U.S.C. §8151(b) speaks of placement of an employee in 

"his former or equivalent position," which, according to the Service, means that 

reinstatement is required only when an employee can be placed in a permanent 

assignment. By contrast, the Service argues, ELM 546 contemplates the assignment of 

partially recovered employees to non-permanent limited duty or rehabilitation 

assignments created solely to accommodate the employee's medical limitations. 

But this argument obfuscates the relevant postal terminology. All career 

employees in the Postal Service, including injured employees working limited duty, 

occupy permanent standard "positions," such as "City Letter Carrier" or "Distribution 

Clerk." For example, when an injured letter carrier is given a temporary, limited duty 

assignment, there is no change in his/her official employment status. The employee is 

still listed on the Postal Service employment rolls as occupying the permanent position of 

"City Letter Carrier." Even when an employee is given a specially created modified 

assignment in another craft, so that a new "Form 50" must be cut, the Form will still 

show that the employee assigned to a standard career position.' Thus, the reinstatement of 

' Submitted herewith as Attachment B are four pages from the Postal Service's 

Handbook EL-505. The first two pages show that when an injured employee is 

reassigned, or retumed to work after having been off-duty, the Postal Service must make 

an appropriate entry on a Form 50, Notification ofPersonnel Action. The last two pages 

are sample Form 50's included in the EL-505. These samples clearly show that a current 

employee reassigned to limited duty, or a former employee reinstated to active 

employment, will still have a standard position title. (See line 52 of the Forms.) 
such an employee is entirely consistent with the statutory concept of placing the 

employee in his "former or equivalent position." 

The Board has recognized that injured Postal Service employees working 

temporary assignments are still classified as occupying permanent positions in the 

Anchetta hne of cases. In Anchetta v Office of Personnel Management, 95 M.S.P.R. 343 

(2003), the question presented was whether the appellant was entitled to a disability 

retirement even though she was physically capable of performing the duties ofthe 

modified letter carrier assignment which she had been working after being injured. In 

answering this question affirmatively, the Board found that because the modified letter 

carrier duties to which appellant was assigned did not constitute a "position," it 

necessarily followed that "the appellant's position of record, i.e., the relevant position for 

disability retirement purposes, was the "Carrier (City) position to which she was 

originally appointed." Id., at 351. 

Since Anchetta, the Board has consistently recognized that injured postal 

employees assigned to temporary limited duties or rehabilitation assignments continue to 

occupy permanent positions of record. See, Starks v Office of Personnel Management, 96 

M.S.P.R. 4 (2004); Bell v Office of Personnel Management, 95 M.S.P.R. 386 (2004); see 

also, Cadman v Office of Personnel Management, 106 M.S.P.R. 192 (2007) (remand 

necessary to determine whether injured letter carrier assigned to modified clerk position 

had been given new position of record in clerk craft); Hussey v Office of Personnel 

Management, 102 M.S.P.R. 324 (2006) (same). 

These cases clearly demonstrate that reinstating an injured Postal Service 

employee to a limited duty or rehabilitation assignment does fall within the scope of 
Section 815l's requirement that such an employee be placed "in his former or equivalent 

position." 

IV. OWCP Policv 

The Postal Service's opening brief contained an erroneous statement 

conceming the Office of Workers Compensation Programs (OWCP) position with respect 

to an injured employee's right to decline offers of work. Although this matter is not 

strictly relevant to the issues identified by the Board, we are concemed that the Postal 

Service's misstatement might be reflected in the Board's mling. 

The Postal Service brief (pp. 17 and 30) states that if a job offer was 

temporary or part-time (where the injured worker was career and full-time) an employee 

could refuse it without the refusal impacting receipt of OWCP wage-loss compensation. 

In fact, if the duties of a job offer are within an injured worker's medical restrictions, 

he/she must accept such work, even if it is temporary or part-time. If an employee 

refuses such work, OWCP will not pay wage-loss compensation. 

The foregoing is confirmed by a letter from OWCP Acting Director Gary 

Steinberg to NALC, dated December 16, 2011, a copy of which is submitted herewith as 

Attachment C. 
CONCLUSION 

The Board should uphold its jurisdiction in the cases under review. 

January 6, 2012 Respectfully submitted. 

Keith E. Secular, Esq. 

Claire Tuck, Esq. 

COHEN, WEISS AND SIMON LLP 

330 West 42nd Street 

New York, NY 10036 

(212) 563-4100 

Attomeys for Amicus National 

Association of Letter Carriers, AFLCIO 
ATTACHMENT A 
M-K31706 

Mr. William H. Young 

President 

National Association of Letter 

Carriers, AFL-CIO 

100 Indiana Avenue, NW 

Washington, DC 20001-2144 

Re: Q01N-4Q-C-07190177 

Class Action 

Washington, DC 20260-4110 

Dear Mr. Young: 

Recently, our representatives met in prearbltratlon discussion of the above-referenced 

grievance. 

This grievance was filed regarding the Postal Service's application ofthe National 

Reassessment Program (NRP). The grievance contained three issues. The first issue involves 

the Union's contention that through the NRP the Postal Service has implemented a new 

'necessary work' standard for the creation and continuation of limited duty and rehabilitation 

assignments. The second issue involves the Union's contention that as part of the NRP the 

Postal Sen/ice has developed new criteria for assigning limited duty. The third issue concerned 

the potential impact of the NRP on employees assigned to light duty under Article 13 of the 

Agreement. 

In resolution of these issues the parties agree as follows: 

1. The NRP has not redefined or changed the Postal Service's obligation to provide limited 

duty or rehabilitation assignments for injured employees. The ELM 546 has not been 

amended and remains applicable to all pending grievances. 

2. The Postal Sen/ice has not developed new criteria for assigning limited duty. Injured 

employees will continue to be assigned limited duty, in accordance with the requirements 

of ELM 546 and 5 C.F.R., Part 353. 

3. Employees on existing non-workers' compensation light duty assignments made pursuant 

to Article 13 of the National Agreement will not normally be displaced solely to make new 

limited duty or rehabilitation assignments unless required by law or regulation. The 

foregoing sentence does not establish any guarantee of daily work hours for employees 

in a light duty assignment. 
All grievances which have been held in abeyance will be processed in accordance with the 

foregoing. 

This settlement is without prejudice to tte right of the Postal Service to propose changes to ELM 

546 in accordance with the Article 19 process. 

Please sign and return the enclosed copy of this settlement as your acknowledgment that this 

case is closed, removing it from the nationai arbitration cbcket 

Time limits were extended by mutual consent. 

Sincerely, 

Alan S. Moore William H. Young 

Manager, Labor Relations President 

Policy and Programs National Associatfsri of Letter 

U.S. Postal Service Carriers, AFL-CIO 

Date: 6//^2.00^ 
ATTACHMENT B 
77SyM'€y'7il^ 

»^ t. , ' 1- ' 

Handbook EL-505 December 1995 
HBK EL-505, INJURY COMPENSATION, DECEMBER 1995 

LIMITED DUTY PROGRAM MANAGEMENT 

Questions and Answers About Limited Duty 

Q, What are the differences between limited duly and light duty? 

A. Limited duty is provided to employees who have partial disabilities which stem 

from a job-related injury or illness. 

Limited duty does not have to be requested, rather it is made available and 

offered. 

Limited duty comes under the purview of FECA 5 U.S.C. 8101, et. seq. 

Normally light duty is provided to employees who have partial disabilities from 

non-job-related medical conditions. 

Light duty must be requested in writing. 

Light duty comes under the purview of Article XIII of the National Agreement 

(including but not limited to American Postal Workers Union (APWU) and 

National Association of Letter Carriers (NALC).) 

Q. If a full-time employee's schedule is changed as a resuit of being placed in a 

limited duty assignment, is such employee entitled to out-of-schedule premium 

pay? 

A. No. Exceptions to the obligation to pay "out-of-schedule premium" to full-time 

employees for work performed outside of schedule include situations in which the 

employee's schedule is temporarily changed for a limited duty assignment as 

required by FECA, as amended (Handbook F-21, Time and Attendance, 

232.23b). 

Q, If an eligible employee who is regularly assigned to a night tour of duty is 

rescheduled to limited duty on the day tour, is the employee entitled to receive an 

equivalent amount of night differential when rescheduled to day work? 

A. Yes. COP and compensation payments both include night differential. Thus, if the 

employee is not compensated for the loss in salary (i.e., night differential), the 

employee wouid be entitled to COP (if othenwise eligible) or compensation. If the 

employee is entitled to COP, night differential can be paid as COP and count as a 

"COP day," even though the employee works 8 hours of limited duty. 

Q. If a limited duty employee is found to ha ve permanent partial disabilities resulting 

from a job injury, can the limited duty assignment be made permanent? 

A. No. All limited duty assignments are temporary. If medical documentation 

confirms that an employee has permanent physical restrictions, the employee 

must be officially reassigned, i.e., a Form 50, Notification of Personnel Action, is 

initiated to show a rehabilitation program classification (see Chapter 11, 

Rehabilitation Program). 

Q. To what labor distribution code (LDC) or operation should limited duty hours be 

charged? 

A. Generally, limited duty hours are charged to LDC 68, operation 959, 

165 
HBK EL-505, INJURY COMPENSATION, DECEMBER 1995 

TIMEKEEPING AND ACCOUNTING 

13.14 Notifying Personnel of LWOP Status — ICCO or designated control point personnel 

• When an ernployee.has been in an LWOP status more than 30 days, notify the; 

persohnel services office to prepare Form 50 (see Exhibit 13.14a, Sample Letter:" 

Personnel Notification — Leave Without Pay). The form will be submitted to the 

Minneapolis Information Systems Service Center (MNISSC) and annotated under 

item 50, Remarks, "LWOP for the purpose of receiving workers' compensation 

under PL93-416." The employee LDC should be changed to "67." 

• When the employee returns to duty, notify the personneLservices office via memo 

to update Fbrm 50, item 50 td read "Return to duty" (see Exhibit 13.14b, Sample 

Letter: Personnel Notification — Return to Duty). The LDC must then be 

changed back to the appropriate LDC. 

385 
HBK EL-505, INJURY COMPENSATION, DECEMBER 1995 

REHABILITATION PROGRAM 

Exhibit 11.11b 

Sample Form 50 Actions 

€FFECTm DATE 

12-23-95 

3 

a 

NOTIFICATION OF 

PERSONNEL ACTION 

SOCIAL SECURITY NunSCR 

111-03-1225 

EMPLOYgH INFORMATION 

03 EMPLOYEE HAMf-.-LAST DOE 39 FLSA STATUS N-NUN-EXEHl'T 

04 EHfLOYEE MAne-rms T JANE 40 PAY LOCATION 001 

05 EMPLOYEE NAME-MIDDLE 41 RURAL CARRIER-ROUTE 

06 HAILINS ADDRESS 124 FIRST STREET 4 2 RURAL CARR-L-RTE ID 

STREET/BOX/APT 

124 FIRST STREET 

4 5 RURAL CARR-PAY TYPE 

07 MAILINB ADDRESS-CITY BALTIMORE 44 RURAL CARR-TRI-WEEKLY 

OS MAILi m ADDRESS-STATE MD 45 RURAL CARR-FLSA 

09 HAILI M AD0RESS-ZIP* 4 21231-1234 4 6 RURAL CARR-C0MI1IT 

10 OATE o r BIRTH n7-9<l-S S 47 RURAL CARR-EMA 

11 VETERANS PREFERENCE 2-5 POINTS 4S RURAL CARR-HOURS 

12 SEX 49 RURAL CARR-MILES 

13 MINORITY 50 JOB SEWENC e 1 

14 DISABILITY 51 OCCUPATION CODE 2340-0IXX 

IS LEAVE COUP DATE 52 POSITION TITLE - G k N (Tl.K 

l i ENTER ON DUTY DATE 02-05-79 53 LABOR DIST CODE 6900 

17 RETIREMENT COHP DATE 02-05-79 54 DESIGNATION/ACTIVITY 11/0 

IS SERV ANNIVERSARY PPYR 04-79 55 POSITION TYPE 1-HTI.I . TTK R 

19 TSP ELieiBILIT Y E-ELIGIBLE W/0 DEDUCT 56 LIMIT HOURS 

20 TSP SERVICE CONP DATE 57 ALLOWANCE CODE 

21 PRIOR CSRS SERVICE SS EMPLOYMENT TYPE 

22 FROZEN CSRS TIMC SALAR Y INFORMATIO N 

23 LEAVE DATA-CATESORY a-flotms/pp 59 PAY RATE COOE A-AMHUAL KATE 

24 LEAVE DATA-CHO PPYR 04-94 60 RATE SCHEDULE CODE P-PS 

25 LEAVE DATA-TYPE 1-ADVANCED AT BEGINNING 61 GRADE/STEP (15/0 

26 CREDIT MILITARY SERV 62 SALARY i<i,mi 

27 RETIRED MILITARY 63 COLA 

2« RETIREMENT PLAH 1-CSRS 64 COLA ROLL-I N IND 

29 EMPLOYEE STATUS RD-REINS ttUP llUttH'l' UU^ 65 NEXT STEP PPYR 

S« LIF E INSURANCE C-BASIC COVERAGE ONLY 66 HERIT ANNIV DATE 

31 SPECIAL BENEFITS 67 MERIT LUMP SUN 

POSITION INFORMATION M SPECIAL SALARY CODE 

32 EMPLOY OFFICE-FI N NO 23-0378 69 PROTECTED RSC 

33 EMPLOY OFFICE-NAH E BALTIMORE/AO'S 70 PROTECTED GRADE/STEP 

71 EXPIRATION PPYR 

3 * EMPLOY OFFICE-ADDRESS BALTU4URK 72 PROTECTED RC HOURS 

MD 21233-9998 73 PROTECTED RC MILES 

SS DUTY STATION-FI N NO 23-0378 74 RC GUARANTEED SALARY 

36 DUTY STATION-NAME RAI.TTMORE/AG' S 75 ANNUITY AHOUNT 

37 APPT EXPIRATION DATE 76 RED CIRCLE CODE 0 

3S PROBATION EXPI R DATE 

NATURE OF PERSONNEL ACTION 

77 NATURE OF ACTION CODE 721 7S AUTHORITY 39-US C S«c t 1001 

79 DESCRIPTION REASSTCNHIiNT 80 CODEl Isl l CODEI 821 CODE ! |83 | COOE I 

84 REMARKS 

85 AUTHORIZATION 86 PROCESSED DATE 12-28-95 

VICE PRESIDENT, AREA OPERATIONS B7 PERSONNEL OFFICE ID 

SS OPF LOCATION 

PS FORH SO, MARCH 1990 (EXCEPTION TO STANDARD FORM 50) 

330 
HBK EL-505, INJURY COMPENSATION, DECEMBER 1995 

REHABILITATION PROGRAM 

Exhibit 11.11b 

Sample Form 50 Actions (continued) 

01 EFFECTIVE DATE 

12-23-95 

NOTIFICATION OF 

PERSONNEL ACTION 

SOCIAL SECURITY NUMBER 

111-02-1225 

EMPLOYEE INFORMATION 

03 EMPLOYEE NAMH-LAST SMIT H 39 FLSA STATUS N-H0H-E5tEHPT 

04 EMPLOYEE HAME-FIRST .ini m 40 PAY LOCATION OOi 

05 EMPLOYEE NAME-MIDDLE 41 RURAL CARRIER-ROUTE 

06 MAIL INS ADDRESS 

STREET/BOX/APT 

06 MAIL INS ADDRESS 124 FIRST .STREET 42 RURAL CARR-L-RTE ID 

STREET/BOX/APT 

124 FIRST .STREET 

43 RURAL CARR-PAY TYPE 

07 MAILIMS AOORtSS-CITY BALTIMORE 44 RURAL CARR-TRI-HEEKLY 

OS MAILINS ADDRESS-STATE MD 45 RURAL CARR-FLSA 

09 MAILINO ADDRESS-ZIP>4 71711-171 * 46 RURAL CARR-COnniT 

10 DATE OF BIRTH 47 RURAL CARR-EMA 

11 VETERANS PREFERENCE 48 RURAL CARR-HOURS 

12 SEX 49 RURAL CARR-MILES 

13 MINORITY 50 JOB SEQUENCE 1 

14 DISABILITY 51 OCCUPATIOM CODE ' I5l5-04xx < 

15 LEAVE COUP DATE 02-05-79 52 POSITION TITLE DIS T CL K 

16 ENTER ON DUTY DATE 02-05-79 53 LABOR DIST CODE A 90 0 

17 RETIREMENT COMP OATE 02-05-7 9 54 DESIGNATION/ACTIVITY 11 fn 

IS SERV ANNIVERSARY PPYR 04-7 9 SS POSITIOH TYPE 1-rOL L TIM E 

19 TSP ELISIBILIT Y E-ELIGIBLE W/O DEDUCT 56 LIMIT HOURS 

20 TSP SERVICE CONP DATE 00-00-00 57 ALLOMANCE CODE 

21 PRIOR CSRS SERVICE SB EMPLOYMENT TYPE 

22 FROZEN CSRS TIHC SALARY INFORMATION 

23 LEAVE DATA-CATEGORY 8-HOURS/PP 59 PAY RATE CODE A-ANNOA L RAT E 

24 LEAVE DATA-Cne PPYR 04-9 4 60 RATE SCHEDULE CODE P-P S 

25 LEAVE DATA-TYPE 1-ADVANCED AT BEGINNING 61 GRADE/STEP 05/ n 

26 CREDIT MILITARY SERV 62 SALARY 36.031 

27 RETIRED MILITARY 63 COLA 

28 RETIREMENT PLAN l-CSR S 64 COLA ROLL-I N INO 

29 ENPLOYEE STATUS RD-REIH S COM P CORH T EM P 65 NEXT STEP PPYR 

30 LIF E INSURANCE c-RASir rnvy.HAr.F ONTT 66 MERIT ANNIV DATE 

31 SPECIAL BENEFITS 67 MERIT LUMP su n 

POSITION INFORMATION 68 SPECIAL SALARY CODE 

32 EMPLOY OFFICE-FI N NO 23-0378 69 PROTECTED RSC 

33 EMPLOY OFFICE-NAM OFFICE-NAME BALTIMORE/AO' BALTIMORE/AO' S 70 PROTECTED GRADE/STEP 

71 EXPIRATION PPYR 

34 EMPLOY OFFICE-ADDRESS BALTIMOR E 

MD 21233-qqq H 

34 EMPLOY OFFICE-ADDRESS BALTIMOR E 72 PROTECTED RC HOURS 

MD 21233-qqq H 73 PROTECTED RC MILES 

35 DUTY STATION-FIN NO 23-m7 « 74 RC GUARANTEED SALARY 

36 DUTY STATION-NAHC BALTIMORE/AO' S 75 ANNUITY AMOUNT 

37 APPT EXPIRATIDM DATE 76 RED CIRCLE CODE 0 

3S PROBATION EXPIR DATE 

NATURE OF PERSONNEL ACTION 

77 NATURE OF ACTION CODE 292 7S AUTHORITY 59-USC S»o» 1001 

79 DESCRIPTION RETUR N T O DUT Y fRTD V 80 CODE ! Isl l CODEl 821 CODEl laslcOOE i 

84 REMARKS 

85 AUTHORIZATION 86 PROCESSED DATE 12-28-95 

VICE PRESIDENT, AREA OPERATIONS VICE

87 PERSONNEL OFFICE ID PRESIDENT, AREA OPERATIONS 

88 OPF LOCATION 

PS FORM 50, MARCH 1990 (EXCEPTION TO STANDARD FORM 50) 

331 
ATTACHMENT C 
U.S. Department of Labor Office of Workers' Compensation Programs 

Washington, D.C. 20210 

DEC 1 6 2011 File Number: 

Ron Watson 

National Association ot" Letter Carriers 

100 Indiana Avenue, NW 

Washington, DC 20001-21.44.. 

Dear Mr. Watson, 

I am vvriting in re.sponse to your letter of October 26, 2011. You have asked tbr claritication of 

OWCP's policy on light duty vvork and suitable vvork determinations. 

As noted in your letter, 20 C.F.R. 10.500 vvas recently updated. While this update did not 

change our interpretation of the relevant provisions of the Federal Employees' Compensation 

Act, the update was made to provide clarity with regard to an injured worker's obligation to 

perform light duty vvork when the evidence establishes that work is available within the 

employee's restrictions. This regulation states, in part, that "compensation for wage loss due to 

disability is available only for any periods during which an employee's work-related medical 

condition prevents him or her from earning the wages earned before the work-related injury." 

This is consistent with one ofthe key program goals to help employees return to work as soon as 

their medical condition permits them to do so. 

There are critical distinctions; however, between this policy and the suitable employment penalty 

sanction issued under 5 U.S.C. 8106(c). 

• Tlie general premise regarding light duty assignments discussed in 20 CFR 10.500(a) is that 

the assignments in these instances are temporary in nature. 

• If an assignment is temporary in nature, a formal suitability determination in accordance 

with 5 U.S.C. 8106(c) cannot be made, unless of course the injured worker was a temporary 

employee at the time of injury. 

• A formal suitability finding terminates a claimant's right to any future wage-loss 

compensation (as well as schedule award) even ifthe work-related medical condition 

worsens. 

• A finding that a claimant vvas not prevented from earning the wages eamed before the 

work-related injury in accordance with 20 CFR 10.500(a) results in a denial of 

compensation for the period work was available, but does not bar future compensation if 

a recurrence of disabiUty is established. Entitlement to schedule award is also not 

affected by this determination, unlike a suitability decision. 

From your letter, we understand that you are seeking claritication regarding the impact, ifany, 

on compensation entitlement should an employee refuse an offer ofemployment and whether a 

suitability determination is a determining factor. You included the following statement which 

you indicated was an excerpt from a Postal Service brief to the MSPB: "[f an offer is not 

suitable, an employee's decision to refuse it does not impact the receipt ofcompensation." This 

statement is inaccurate as written. We believe our policy is clear that ifthe evidence establishes 
that a light duty assignment within the employee's vvork restrictions has been olTered, 

compensalion for that period is not payable. While a suitability sanction decision under 5 U.S.C. 

8106(c) may not be issued ifthe position cannot be found suitable, a formal decision in 

accordance vvith 20 C.F.R. 10.500 can be issued denying compensation on the basis lhat the 

claimant was not prevented from earning the wages earned before the work-related injury for the 

period vvork vvas available. 

I trust that this response has been helpful in clarifying OWCP's position in regard to light duty 

vvork and the payment of compensation. Ifyou believe it would be helpful, OWCP would be 

happy to discuss this issue further with you and your colleagues as well as the Postal Service, if 

necessary. 

Sincerely, 

Gary /\. Steinberg 

Director