John P. Sanchez v. U.S. Postal Service
Appeal Type: Restoration to Duty
Decision Number: 2010 MSPB 121
Issuance Date: June 25, 2010
The appellant is a non-preference eligible Mail Processing Clerk who sustained a work-related injury in 1992, and thereafter worked in a series of limited duty assignments. In 2009, as part of its National Reassessment Process (NRP) Program, the agency reviewed the assignments of those performing limited duty to ensure that they are consistent with employees’ medical restrictions and contain only “operationally necessary tasks.” If a limited duty assignment does not meet these criteria, and if the supervisor or manager is unable to identify operationally necessary tasks available with the employee’s work restrictions, the employee will be sent home until such work becomes available or his medical restrictions change.
In April 2009, the agency issued the appellant a letter stating that, because there was no operationally necessary work within his medical restrictions available at his workplace, he should not report again for duty unless he was informed that such work had become available. The agency later expanded its search for alternative positions beyond his tour of duty and current facility, but still found that none were available. On appeal to the Board, the appellant contended that the agency improperly denied him restoration and failed to accommodate his medical condition, and that he had been constructively suspended.
Under 5 C.F.R. § 353.301(d), agencies must make efforts to restore partially recovered employees “in the local commuting area.” The local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back and forth daily to his usual duty station. The question of what constitutes a local commuting area is one of fact, which is ordinarily determined by factors such as common practice, the availability and cost of public transportation or the convenience and adequacy of highways, and the travel time required to go to and from work. Because the agency’s search for available work was apparently limited to a single district, whether the agency searched the entire commuting area remains an unanswered question of material fact, which must be explored on remand.
In response to the administrative judge’s order on timeliness, the appellant made unrebutted allegations that he failed to timely file because the agency did not notify him of his Board appeal rights when it discontinued his limited duty assignment. The record corroborates the appellant’s allegation inasmuch as the agency’s notice to the appellant regarding the discontinuation of his limited duty assignment does not provide notice of Board appeal rights. Because the agency was required by regulation to notify the appellant of his Board appeal rights when it discontinued his limited duty assignment, the untimeliness of the appeal may be excused if the agency failed to give the appellant the required notice and the appellant acted diligently in filing his appeal after he actually learned of his appeal rights.
‘National Reassessment Process’ Must Search Entire Commuting Area
MSPB remanded three more USPS cases yesterday, because the Postal Service’s job search under the National Reassessment Process was limited to installations within a single district and failed to include the entire commuting area as required by 5 C.F.R. § 353.301(d). Each decision cited Sanchez v. USPS, 2010 MSPB 121.
Jul 01, 2010 2010 MSPB 124Patricia L. Luna U.S. Postal Service
Jul 01, 2010 2010 MSPB 125 Adelaido Vazquez U.S. Postal Service
Jul 01, 2010 2010 MSPB 126 Lydia T. Chang U.S. Postal Service
Well said Deb, I couldn’t have said better.
Though the victory should be celebrated please understand what that victory was. The Board merely stated that they have jurisdiction over the appeal. It must still be established that the rescission of the Modified offer and failure to restore to duty was also “arbitrary and capricious”. There’s a lot of work ahead to still prevail in M.S.P.B.
Also, if you are a preference-eligible veteran you should include “constructive suspension” as part of your M.S.P.B. appeal.
DEB SAYS, YES WAY TO GO JACK DALTON, YOU WILL BE MANAGMENT ANY DAY NOW. IT ONLY TAKES A FEW SECONDS TO GET HURT AND THEN YOU WOULD BE SUFFERING FOR THE REST OF YOUR LIFE. APPARENTLY ALL THE INJURED EMPLOYEES WANTED TO GET HURT BECAUSE THEY ARE ALL LAZY AND ITS A GREAT GIG HAVING THE “LAME & LAZY JOB. IT COMES WITH ALL THE PERKS OF NO JOB SECURITY, NO RESPECT, LOSS OF JOB SENORITY, HUMILIATION, HARASMENT, STRESS AND ADDITIONAL HEALTH ISSUES. IT’S A GREAT JOB! YOUR RIGHT, WE ALL SHOULD HAVE JUST GONE OUT ON DISABILITY(MOST WEREN’T ELIGIBLE). THE USPS COULD/SHOULD HAVE DISPOSED OF US(LIKE THEY USE TO HORSES)SO OTHER UN-INJURED EMPLOYEES WOULDN’T HAVE TO WORK WITH US. BUT WAIT THEN YOU WOULDN’T HAVE A JOB. HOW DID YOU GET THE JOB AS JACK A__ NEANDERTHRAL, WAS IT A BID OR A BROWN NOSE SPECIAL ASSIGNMENT FROM ONE OF YOUR FAVORITE SUPERVISORS?
Legally and/or according to any of the postal employee’s union contracts, can anyone in MANAGEMENT{supervisors, managers) cross crafts? and if so, all or some of them? Clerks, Carriers, Maintenance… Our management does it all the time…
Nene is correct! Make sure your medical paperwork is up-to-date. Follow the instructions you are given. USPS is counting on you making a mistake.
There is a one-year time limit after separation to file for a disability retirement. If you file for a disability retirement BEFORE your separation or removal from USPS, HRSSC will help you and make it easier. If you wait until after separation you are on your own to file directly with OPM, which is much harder. Keep the disability retirement in abeyance as a backup in case your OWCP benefits stop.
You will have to be able to become full duty very soon or you will be sent home under the NRP program. The USPS claim that they know longer have limited duty work available a good way to get rid of injured workers. You need to make sure you don’t hurt your self any further. So make sure your back is healed completely before returning to full duty.
I was sent home in Nov. 2009 NRP program I was able to collect OWCP but a few people I know is not due to not having the medical paper work they needed. OWCP will turn you down if you do not have what you need. Please if you are waiting to be sent home NRP you need to check you paper work to make sure that is updated . An you need to make sure that you case is still open if it is closed you have a hard time trying to get OWCP to pay you worker comp. Also you do not needed to wait to file for your disability retirement . The USPS is not returning you back to work unless you can work full duty. You do not need an attorney to file your OPM I did mine on my own and got approved. I now have it in a inactive status and it waiting on me to active it when I need to . I am still collecting OWCP and when I stop collecting from OWCP I will collected OPM. Please do not wait to the USPS separate you from the roll because you will lose your right to file disability retirement from the USPS because you will know longer work this company. Even if you only work for 10 years of service you still can collected OPM that your money don’t give if back to the USPS. Call HRSSC service today and ask for the disability retirement package . Here is there phone number 1877-477-3273 Option 5 they will help with the papers that need to be file out . All you need to do is call they walk you through the papers work. I am post this because a lot of people will miss out if they don’t acted soon. Good Lucky and God Bless
Email this Private Mes
Jack Dalton,
You are acting as a Judge and a Jury.
You decided that all rehabs are “Lame and Lazy””
I hope you will never get hurt and be judged in that
manner.
You also decided that: if a person has been injured
that long, he should take disability retirement???
Excuse me but, there are federal regulations that
govern the fate of Federal Injured Employees.
Your opinion is just that, your opinion
jerry,
Perhaps you should file a MSPB appeal go on line and find
out about if you qualified, you only have 30 days to file it.
If you are being denied “Restoration”, YES by all means
file an appeal.
Are you under NRP?
Read the decisions.
I recently had my low back fused 3 disc’s do to work related injuries. slipping down some steps in the Boston winter was the straw that broke this carriers back. I’ve been re habed and I was looking forward to returning, but with my restrictions, like no twisting for example, my manager cannot find adequate work for me. I’m a bit nervous with this new NRP stuff. I just turned 50, have 16+ years of service and 3 years military. Any advise, the local union say’s wait. And believe it or not the DOL is on my side, they say collect my pay until USPS finds me work
Yes, way to go Pasadena Local, protect another lame and lazy. That’s another reason why the general public views the PO as middle class welfare. If that clerk has been injured for that long, then he should have taken disability retirement.
Thanks APWU Western Region Coordinator Omar Gonzales
for all your help in getting all MSPB filed in Pasadena.
Much of the credit should go to Mr. Ron Luna a retired
member of the Pasadena Local 731 for his persistance,
knowledge and dedication.
USPS, WE WILL NEVER GIVE UP!!!!!!!
we are doing it one case at a time Pasadena CA local 731
way to go pasadena ca 731 we are winning one case at atime great!!!!!!!
Way to go Pasadena, CA. APWU Local 731!!!!
There are 10 more Petitions for Review cases from Pasadena.
We are confident, we will prevail in all of them.
Brother and Sisters we need to stop the NRP from attacking
injured employees