In Welby v. Dept. of Agriculture, MSPB Doc. No. SF-0353-04-0649-I-1, January 4, 2006, a case involving an employee fully recovered from a work injury who sought placement on the agency’s reemployment priority list (RPL), the Merit Systems Protection Board (MSPB) reversed prior case law and held that an employee need not prove the merits of his/her case before proving Board jurisdiction over the claim of denial of proper placement on the RPL. The Board ordered a hearing on the merits to determine if the employee was improperly kept off the RPL and, if so, to determine a make-whole remedy.

Mr. Welby suffered a work-related injury and received workers’ compensation benefits. Shortly after one year of separation from the agency due to his injury, he was fully recovered and notified his agency of that fact. Under OPM regulations, an employee who fully recovers from a compensable injury after one year is entitled to priority consideration agency-wide as long as the employee applies for such consideration within 30 days of the cessation of workers’ compensation. 5 CFR § 353.301(b). An agency must enroll such an employee in its RPL within 10 days after receiving the employee’s request. 5 CFR§ 330.202(b). An appeal of denial of priority placement rights is appealable to the MSPB under 5 CFR § 330.209 if the employee believes that his/her reemployment rights have been violated because of the employment of another person who otherwise could not have been appointed, i.e. if the recovered worker had priority hiring rights over the person actually hired.

In this case, Mr. Welby proved that he had a work-related compensable injury, was fully recovered after one year, and requested placement on the agency’s RPL within 30 days of cessation of compensation. However, the administrative judge dismissed Mr. Welby’s appeal and denied him the right to a hearing because he did not demonstrate, in advance of the hearing, that another employee was appointed in place of him. The MSPB reversed prior cases and held that Mr. Welby established a nonfrivolous case of Board jurisdiction by establishing, as he did, his entitlement to be placed on the agency’s RPL. The Board held that by establishing a nonfrivolous claim to entitlement to be placed on the RPL, Mr. Welby was entitled to a hearing on the merits as to whether his placement rights were actually violated. If his placement rights were violated, i.e., the agency failed to put him on the RPL timely or at all, the burden shifts to the agency to prove, by a preponderance of the evidence, that it did not appoint another person who could not have been properly appointed had Mr. Welby been given his proper reemployment rights.

The Board remanded the case to the administrative judge to adjudicate the merits of Mr. Welby’s claim. If he proves his claims on remand, Mr. Welby will be entitled to a remedy which places him back in the position he should have been in: a position, if another employee was appointed instead of him, or if no one was appointed instead of him, an extension of his RPL eligibility equal to the period of time he was erroneously kept off the list.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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