Johnson v. MSPB , 592 F. App'x 935 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES G. JOHNSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3074
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0353-10-0501-B-1.
______________________
Decided: November 7, 2014
______________________
CHARLES G. JOHNSON, of Omaha, Nebraska, pro se.
JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before TARANTO, BRYSON, and CHEN, Circuit Judges.
2 JOHNSON v. MSPB
PER CURIAM.
DECISION
Petitioner Charles G. Johnson seeks review of a deci-
sion of the Merit Systems Protection Board dismissing his
restoration claim for lack of jurisdiction. We affirm.
BACKGROUND
Mr. Johnson worked for the United States Postal Ser-
vice from 1960 until he accepted an early retirement offer
effective November 20, 1992. The following month, he
sought workers’ compensation benefits from the Office of
Workers’ Compensation Programs (“OWCP”) based on an
injury that he claimed to have suffered during his em-
ployment. Mr. Johnson characterized his injury as “tinni-
tus . . . a permanent condition, with associated hearing
loss.” His injury had been diagnosed in June 1990.
On November 18, 1993, OWCP accepted Mr. John-
son’s claim for “mild binaural hearing loss.” In processing
that claim, however, OWCP found that his hearing loss
was not severe enough to be considered ratable. Although
the agency determined that Mr. Johnson was not entitled
to wage-loss compensation, it determined that he was
entitled to medical benefits. OWCP made no finding as to
Mr. Johnson’s claimed injury of tinnitus at that time.
Over the next several years, Mr. Johnson unsuccess-
fully litigated in various forums his claims that his re-
tirement was involuntary and that it was the result of age
discrimination. See Johnson v. U.S. Postal Serv., 66
M.S.P.R. 604, 606 (1995); Johnson v. Runyon, 96 FEOR
11108, EEOC Docket No. 01950766 (Apr. 18, 1996);
Johnson v. Runyon, 137 F.3d 1081 (8th Cir. 1998).
Mr. Johnson also filed several claims with OWCP and
made multiple appeals to the Employees’ Compensation
Appeals Board (“ECAB”) seeking compensation for his
tinnitus. While Mr. Johnson provided both OWCP and
JOHNSON v. MSPB 3
ECAB with numerous statements from his treating physi-
cians, the agencies found that the evidence did not estab-
lish that his tinnitus was work-related or that he was
disabled as a result of that condition. For those reasons,
Mr. Johnson was not awarded compensation for tinnitus.
In 2010, Mr. Johnson wrote to the Postal Service and
requested restoration to his previous position with the
Postal Service. He argued that under the applicable
Postal Service regulations, the Postal Service should have
restored him to employment when it received OWCP’s
determination as to his December 1992 injury claim. The
Postal Service denied his request on the grounds that he
had voluntarily retired and that he had not been separat-
ed from his position as a result of a compensable injury.
Mr. Johnson appealed that decision to the Merit Systems
Protection Board.
After considering evidence from Mr. Johnson, the ad-
ministrative judge assigned to his case held that Mr.
Johnson’s appeal was barred by res judicata and collat-
eral estoppel. Mr. Johnson petitioned the full Board for
review. On review, the Board vacated the initial decision
but ruled that Mr. Johnson’s reemployment rights had
not been violated because, even though Mr. Johnson had
received medical benefits for his injury, the OWCP had
determined that he was not entitled to wage-loss compen-
sation. Mr. Johnson appealed that decision to this court.
At the Board’s request, this court vacated the Board’s
decision on the ground that it was contrary to some of the
Board’s previous decisions holding that an OWCP award
of medical benefits is sufficient to establish that the
employee has suffered a “compensable injury” for purpos-
es of entitlement to restoration rights. The court remand-
ed the case to the Board for further proceedings on two
issues: (1) whether Mr. Johnson’s separation was sub-
stantially related to his compensable injury, and (2) if so,
whether he has fully or partially recovered from his
4 JOHNSON v. MSPB
injury. Johnson v. Merit Sys. Prot. Bd., 455 F. App’x 984
(Fed. Cir. 2012).
During the remand proceedings, Mr. Johnson partici-
pated in a telephonic status conference with the adminis-
trative judge. In the course of that conference, Mr.
Johnson stated that he had not “fully or partially recov-
ered” from his injury, and he stipulated that he “had not
recovered sufficiently to return to duty at the agency on a
part-time basis or to return to work in a position with less
demanding physical requirements than those previously
required of him.”
Following the status conference, the administrative
judge ruled that Mr. Johnson had failed to prove that his
on-the-job injury was related to his retirement. The
administrative judge found that the reasons for Mr.
Johnson’s retirement “included another medical condition,
tinnitus, as well as his desire to avoid a disciplinary
action.” The administrative judge also found that Mr.
Johnson had not fully or partially recovered from his
injury or injuries. The administrative judge therefore
dismissed Mr. Johnson’s restoration claim for lack of
jurisdiction.
On review, the Board affirmed the administrative
judge’s dismissal order. The Board found that Mr. John-
son’s failure to prove that he had partially or fully recov-
ered from his injury was dispositive of the case. In light
of that ruling, the Board concluded that it was not neces-
sary to determine whether the administrative judge was
correct in finding that Mr. Johnson’s separation was not
substantially related to a compensable injury.
DISCUSSION
A federal employee who is separated from his position
is entitled to restoration rights if he recovers from his
injury. The nature of his restoration rights depends on
JOHNSON v. MSPB 5
the timing and extent of his recovery. See 8 U.S.C.
§ 8151; 5 C.F.R. § 353.301.
In order to establish the Board’s jurisdiction over an
appeal from the denial of a restoration request, an em-
ployee alleging partial recovery “must prove by prepon-
derant evidence (1) absence due to a compensable injury;
(2) sufficient recovery from the injury to return to duty on
at least a part-time basis or in a less physically demand-
ing position; (3) agency denial of a request for restoration;
and (4) denial of restoration rendered arbitrary and
capricious by agency failure to perform its obligations
under 5 C.F.R. § 353.301(d).” Bledsoe v. Merit Sys. Prot.
Bd., 659 F.3d 1097, 1104 (Fed. Cir. 2011). An employee
alleging full recovery must prove similar elements, includ-
ing at least (1) absence due to a compensable injury and
(2) full recovery from his compensable injury. See 5
C.F.R. § 353.301(a)-(b); Delalat v. Dep't of the Air Force,
103 M.S.P.R. 448, 453-54 (2006). Whether Mr. Johnson’s
retirement was the result of his compensable injury and
whether he had fully or partially recovered were the
questions before the Board after this court remanded the
case to the Board on Mr. Johnson’s previous appeal.
In its final order, the Board affirmed the administra-
tive judge’s determination that Mr. Johnson had not fully
or partially recovered from his injury. The administrative
judge based his decision on the medical documentation
submitted by Mr. Johnson and on Mr. Johnson’s own
statements that he had not recovered. On appeal, Mr.
Johnson has not pointed to any evidence contrary to the
administrative judge’s determination.
Instead, Mr. Johnson argues that the injury found by
OWCP was sufficiently minor that it should not have
6 JOHNSON v. MSPB
prevented the Postal Service from restoring him to duty. 1
But the severity of his original injury is not at issue in
this restoration proceeding. Given that he sought and
obtained OWCP benefits for his hearing loss, Mr. Johnson
was required to prove that he had recovered sufficiently
from his injury to return to duty. Based on Mr. Johnson’s
stipulation and the administrative judge’s finding that
Mr. Johnson had not partially or fully recovered from his
injury, the Board properly held that it lacked jurisdiction
over his appeal.
AFFIRMED
1 Mr. Johnson’s other arguments focus on the im-
pairment that he experiences as a result of his tinnitus.
As he has noted in his prior briefs, however, OWCP has
not recognized his tinnitus as a compensable injury. Mr.
Johnson has already litigated the issue of whether his
tinnitus is disabling and work-related before OWCP and
ECAB. The correctness of those decisions is not before us.