Office of Personnel Management regulations state that an injured employee of an executive branch agency who fully recovers from a compensable injury within one year after workers’ compensation begins may appeal to the Merit Systems Protection Board if the employing agency fails to properly restore the employee. According to Title 5 of the Code of Federal Regulations, Section 353.301(a), such an employee is entitled to be restored immediately and unconditionally to his or her former position or an equivalent one. Recently, in Burgess v. Department of Interior, DC-0353-01-0446-I-1, (Oct. 24, 2003), MSPB found that an “equivalent position” is one of like seniority, status, and pay, with “status” referring to qualities such as rank or responsibility, duties, working conditions, pay, tenure, and seniority. Equivalency is also determined by pay, grade, type of appointment, tenure, work schedule, and seniority.
In Burgess, the MSPB also found that, even though 5 U.S.C.
