Federal employees who have partially recovered from workplace injuries have certain possible avenues to restoration to federal employment. Each of these avenues has its own mechanics, and so it is important for employees who have been injured in the workplace, and recipients of benefits from the Office of Workers Compensation Programs as a result understand their rights under each program.
Restoration rights are also available to certain employees who have been affected by a reduction in force (RIF) (as previously analyzed in this blog), to employees who are fully recovered from compensable workplace injuries, and to employees who are returning from uniformed service. However, the focus of this blog entry will be those who are partially recovered from compensable workplace injuries. Again, different rules apply to employees who are fully recovered from their workplace injuries or physically disqualified from performing after reaching maximum medical improvement.
As an initial matter, merely being injured or developing an industrial disease in the federal workplace does not entitle an employee to restoration benefits. The employee’s injury must have been the subject of a FECA workers compensation claim to the Department of Labor’s Office of Workers Compensation Programs (DOL/OWCP) under 5 U.S.C. § 8151. Thus, an injury becomes a “compensable injury” when the “medical condition accepted by OWCP to be job-related and for which medical or monetary benefits are payable from the Employee’s Compensation Fund.” See Tat v. U.S. Postal Service, 109 M.S.P.R. 562, ¶ 9 (2008); King v. Department of the Navy, 90 M.S.P.R. 341, 345 (2001) (citing Mobley v. U.S. Postal Service, 86 M.S.P.R. 161, 164 (2000)).
Restoration appeals at the Merit Systems Protection Board (MSPB or Board) are not a second opportunity to litigate the merits of a workers’ compensation decision. The Board has no jurisdiction to reconsider an OWCP decision to deny compensation for an injury, or an OWCP decision that an employee has recovered to the degree that they can return to limited duty. As to eligibility for OWCP benefits, 5 U.S.C. § 8128(b) states that the action of the Secretary of Labor or his designee in allowing or denying a payment under 5 U.S.C. chapter 81, subchapter 1, is final and conclusive and is not reviewable by another official of the United States or by a tribunal.
Agencies are required to “make every effort” to reinstate partially recovered employees to full or partial duty, commonly called “limited duty,” even when doing so requires the agency to provide reasonable accommodations. See 5 C.F.R.§ 353.301(d). Other forms of restoration right appeals exist, for example where an agency had granted restoration for a partially recovered employee but then either rescinded the restoration, or where an agency discontinued outright or truncated the work hours of a limited duty position positing for an employee. See Scott v. U.S. Postal Service, 118 M.S.P.R. 375 (2012).
A violation of restoration rights for partially recovered employees can also occur where the agency’s denial of restoration violated the agency’s own internal rules. See Ashley v. U.S. Postal Service, 118 M.S.P.R. 231 (2012); Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012). In Ashley, the Board found restoration rights were denied when the agency’s internal rules required a position search in the local commuting area and consideration of the employee for such vacancies, and the agency failed to conduct a proper search.
Notably, competitive service employees who are partially recovered from their workplace injuries are not eligible for the Reemployment Priority List (RPL). See 5 C.F.R. § 330.203(b).
Employees who are denied restoration after partial recovery if the agency acted “arbitrarily and capriciously in denying restoration” may challenge the denial of restoration by filing an appeal to the Merit Systems Protection Board. 5 C.F.R. § 353.304.
Most restoration rights appeals must be filed with the MSPB within 30 days of the action being appealed. Where the action is the agency’s failure to respond to a request for restoration, circumstances will be evaluated to determine whether the appellant had sufficient information to conclude that the agency had effectively denied the reinstatement rights. See, e.g., Turner v. U.S. Postal Service, MSPB Docket No. AT-0353-24-0470-I-1 (April 18, 2025) (Henderson, A.J.).
If you are a federal employee who has partially recovered from a compensable injury and needs advice regarding your restoration rights, consider contacting Gilbert Employment Law to request an initial consultation.