Flowers v. Merit Systems Protection Board , 197 F. App'x 937 ( 2006 )

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
2006-3152
ANN H. FLOWERS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: September 13, 2006
___________________________
Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit
Judge.
RADER, Circuit Judge.
The Merit Systems Protection Board (Board) dismissed for lack of jurisdiction the
appeal of Ann H. Flowers against the United States Postal Service for denying her
request for restoration following a compensable injury. Flowers v. U.S. Postal Serv.,
MSPB Docket No. Ch-0353-05-0114-I-1. Finding no reversible error, this court affirms.
I
On October 7, 1994, the Office of Workers Compensation Programs (OWCP)
accepted Ms. Flowers’ claim that she suffered from major depression. The claim
identified April 6, 1992 as the date of the injury. On September 28, 1995, her physician
advised that she was able to return to work. On May 3, 1996 the Postal Service offered
Ms. Flowers reinstatement subject to her commitment to enroll in an Employee
Assistance Program and other conditions. Ms. Flowers rejected the offer and filed an
equal employment opportunity (EEO) grievance protesting the conditions. The EEO
grievance was rejected. Ms. Flowers, nonetheless, continued to receive compensation
benefits.
On December 16, 2002, the OWCP discontinued benefits because Ms. Flowers
had “failed to provide medical evidence/argument supporting continued work related
residuals of her April 6, 1992 injury on or after December 16, 1996.” On August 5, 2003
Ms. Flowers’ doctor approved her return to work and in September 2003 Ms. Flowers
requested reinstatement. After corresponding with the Postal Service regarding its
failure to reinstate her, Ms. Flowers filed another grievance with the EEO on November
10, 2003. The agency denied this claim as well.
II
Whether the Board has jurisdiction to adjudicate a particular appeal is a question
of law, which this court reviews de novo. Herman v. Dep’t of Justice, 193 F.3d 1375,
1378 (Fed. Cir. 1999); Middleton v. Dep’t of Defense, 185 F.3d 1374, 1379 (Fed. Cir.
1999). Ms. Flowers has the burden of establishing jurisdiction before the Board by a
preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2) (2006); Clark v. United States
Postal Serv., 989 F.2d 1164, 1167 (Fed. Cir. 1993).
A separated employee’s rights to reinstatement after a compensable injury
depends on the recovery of the injured or disabled employee. An employee who fully
recovers from a compensable injury within one year from the date of eligibility for
compensation is entitled to immediate and unconditional restoration to the former
position or an equivalent. 5 C.F.R. § 353.301(a)(2005). However, an employee who
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separated because of a compensable injury and whose full recovery takes longer than
one year from the date eligibility for compensation receives priority consideration,
agencywide, for restoration to the position he or she left or an equivalent provided he or
she applies for reappointment within thirty days of the cessation of compensation. 5
C.F.R. § 5 CFR 353.301(b)(2005)(emphasis added). An employee is fully recovered
when compensation payments have been terminated on the basis that the employee is
able to perform all the duties of the vacated position. 5 C.F.R. § 353.102(b).
Ms. Flowers argues § 353.301(a) applies because she indicated she was able to
go back to work on September 28, 1995, within one year of the OWCP accepting her
disability claim. As noted by the Board, however, § 353.301(a) only applies if the
employee is fully recovered. That is, “when compensation payments have been
terminated.” § 353.102(b). Ms. Flowers continued to collect compensation benefits
until December 16, 2002, some ten years after the April 6, 1992 compensable injury
date. Therefore, § 301(a) cannot apply.
Regarding the possibility of reinstatement under § 353.301(b), the critical date to
request reinstatement is January 15, 2003, thirty days after the discontinuation of
OWCP benefits. Ms. Flowers, however, did not request reinstatement until September
of 2003, some ten months after the critical date. Thus, she is not eligible reinstatement
under § 353.301(b).
As a result, as the Board found, Ms. Flowers is not eligible for reinstatement
under either § 353.301(a) or § 353.301(b). Therefore, this court affirms the Board’s
decision.
2006-3152 3