In Duncan v. Social Security Administration, MSPB Doc. No. AT-0752-04-0213-I-1 (April 18, 2005), the Merit Systems Protection Board (MSPB) was faced with the issue of whether the receipt by an employee of workers’ compensation (OWCP) benefits mooted out a claim that she was placed on leave involuntarily, and thus, “constructively” suspended. The Board held that the employee’s claim was not moot.
In this case, the employee had periodically received workers’ compensation benefits due to an on-the-job injury (carpal tunnel syndrome) she sustained in 1997. The employee first started receiving benefits in 2002 and periodically received benefits when her condition flared and she was unable to perform her duties. To facilitate application for benefits during those flare-ups, the employee pre-signed some OWCP forms CA-7 which the agency would then submit for the employee when she could not report to work. One day, while the employee was at work and performing her duties, the agency submitted a CA-7 to OWCP and advised the employee the agency could no longer accommodate her and she was not to report for duty.
The employee was placed on leave without pay (LWOP) status and sent home from work. The employee subsequently received retroactive OWCP benefits. The employee filed a “constructive suspension” appeal with the MSPB, alleging that she had been place in non-pay status involuntarily for more than 14 days. The administrative judge (AJ) dismissed the appeal holding that because the employee was receiving OWCP benefits equivalent to her salary she had not been suspended without pay. The Board reversed.
The Board reiterated that the dispositive question in a constructive suspension case, to establish the Board’s jurisdiction over the appeal, is whether the employee voluntarily placed herself on leave or the agency placed her on leave contrary to her wishes. Here, the Board found that the employee had been at work, performing her duties, when the agency sent her home and refused to allow her to return to work. That the agency submitted a CA-7 to OWCP to obtain benefits for the employee did not change the fact that the employee was placed in a non-pay status while waiting for the workers’ compensation benefits to start. Neither did the fact that the employee pre-signed some CA-7 forms change the Board’s analysis.
The forms were pre-signed so they agency could request benefits for the employee on those occasions when she was unable to report to work. In this case, the agency’s decision to submit the OWCP form and request that the employee be placed on OWCP’s rolls while the employee was still able to work was without the consent of the employee. Next, the Board rejected the AJ’s analysis that the employee was not constructively suspended because she did not suffer a loss in pay due to receipt of OWCP benefits. The Board reasoned that any back pay the employee was entitled to as a result of an unwarranted suspension would be offset by the OWCP benefits; receipt of the benefits does not moot the appeal itself. The Board concluded that the employee made a non-frivolous allegation of a constructive suspension and was entitled to a hearing.
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 https://www.fedweek.com/pub/index.php.
