OWCP and the 10-Month Letter, what does it mean to a Claimant?
When a claimant stays in Leave Without Pay (LWOP) status for 10 consecutive months while receiving workers’ compensation benefits, OWCP issues a 10-month letter. The letter explains that under section 5 U.S.C. 8151 of the Federal Employees’ Compensation Act (FECA), only a total recovery—the ability to return to regular work—within one year of the wage loss protects the claimant’s right to reclaim their former job or an equivalent one. Claimants are encouraged to contact their servicing personnel office to discuss the impact of extended LWOP.
If the claimant cannot return to work within one year of LWOP, the protection ends, and the agency may separate the claimant from employment.
Restoration Rights
Federal employees covered by FECA who recover from a compensable injury have restoration rights. The exact rights depend on how long recovery takes and the extent of recovery.
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Governance: Restoration rights fall under 5 USC 8151 of FECA and regulations issued by OPM at 5 CFR part 353, subparts A and C. They are not under OWCP’s jurisdiction.
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Appeals: Employees may appeal agency decisions to the Merit Systems Protection Board (MSPB). Further appeals of MSPB decisions go to the U.S. Court of Appeals, Federal Circuit.
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Retirement status: Employees who apply for and are approved for federal retirement benefits are no longer employees, even if they have not yet received an annuity. Their reemployment follows OPM rules for reemployed annuitants under 5 CFR part 553.
Types of Restoration Rights
Fully recovered within one year
Employees who fully recover from a compensable injury within one year must be “immediately and unconditionally” restored to their former job or an equivalent one. 5 CFR 353.301(a).
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They must return to work as soon as compensation ends.
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These rights apply agency-wide. If no position exists locally, the employee may displace someone in a continuing temporary role.
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If no position is available in the commuting area, the agency must offer a similar position elsewhere.
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The same rules apply to employees who took lower-graded jobs instead of separation and later fully recovered.
Case Example: For a worker to be entitled to immediate restoration as an employee who fully recovered from a compensable injury within one year of becoming eligible for OWCP benefits, the worker must definitively show that the OWCP considered him to be fully recovered. Steinmetz v. U.S. Postal Service, 107 LRP 40714, 106 MSPR 277 (MSPB 2007).
Fully recovered after one year
Federal employees who recovers from a compensable injury within one year after becoming eligible for compensation gain priority consideration for their former position or equivalent, preferably in the local commuting area. 5 CFR 353.301(b).
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They must apply for reappointment within 30 days after compensation ends.
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The same rights apply to employees who took lower-graded positions and later fully recovered.
Case Example: When an agency rehires an employee who has fully recovered from a compensable injury, a new position must be equivalent to his prior position in terms of seniority, status and pay. Nixon v. Department of the Treasury, 106 LRP 70447, 104 MSPR 189 (MSPB 2006).
Physically Disqualified
Employees who cannot return to their prior job because of physical disqualification are entitled to roles for which they qualify, with the same status and pay or the closest equivalent. 5 CFR 353.301(c).
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This right applies agency-wide for one year after compensation begins. After that year, the employee receives the same rights as those who fully or partially recover.
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Applying for a vacant position during that year counts as a request for restoration.
Case Example: If an employee who is physically disqualified for his position applies for a vacant position during the year after he becomes eligible for worker’s compensation benefits, the application should be considered a request for restoration. Kravitz v. Department of the Navy, 107 LRP 4882, 104 MSPR 483 (MSPB 2007).
Case Example: An appellant physically disqualified for his original position claimed his non selection for another position for which he was qualified was a denial of his restoration rights. The MSPB found it had jurisdiction over this restoration appeal, because the appellant exercised diligence in requesting restoration as a physically disqualified individual when he applied for the position within one year after the issuance of his OWCP award. Gerdes v. Treasury, 101 FMSR 5383, 89 MSPR 500 (MSPB 2001)
Partially recovered
Employees who partially recover and can perform limited duty must be restored to duty in their commuting area as much as possible. Agencies must treat them substantially the same as other individuals with disabilities under the Rehabilitation Act. 5 CFR 353.301(d).
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A partially recovered employee should seek re-employment as soon as possible.
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Fully recovered employees retain rights to their prior or equivalent positions.
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Agencies must provide reasonable accommodations, such as modifying duties or reassigning the employee to a suitable vacant position.
Case Example: An agency must make reasonable accommodation of an employee’s disability through means such as modifying or adjusting the duties of the position at issue or reassigning the employee to a vacant position for which she is qualified. If the employee does not qualify for any vacant positions, the agency still is obliged to attempt to modify or adjust the duties of a position where accommodation is reasonable. Taylor v. Department of Homeland Security, 107 LRP 68363, 107 MSPR 306 (MSPB 2007).
Loss of Restoration Rights
Injured employees do not receive special protection from a reduction in force (RIF). Workers separated for RIF or for cause lose restoration rights. 5 CFR 353.302.
Appeal Rights to Merit System Protection Board (MSPB)
Federal employees may appeal under the following circumstances:
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Failure to restore or improper restoration: Employees may appeal an agency’s failure to restore or refusal to return them after leave. 5 CFR 353.304(a).
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Full recovery after one year: Employees may appeal under rules in 5 CFR part 302 (excepted service) or 5 CFR part 330 (competitive service). 5 CFR 353.304(b).
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Partial recovery: Employees may appeal if the agency acted arbitrarily in denying restoration. Once reemployed, they may also appeal failures to credit compensation time toward service-based rights. 5 CFR 353.304(c).
For the MSPB to hold jurisdiction over appeals involving full recovery after one year, the claimant must show:
- They were separated due to a compensable injury.
- They fully recovered more than one year after becoming eligible for benefits.
- They requested restoration within 30 days after compensation stopped.
- They believe the agency violated reemployment priority rights.
Case Example: Nevins v. U.S. Postal Service, 108 LRP 1728, 107 MSPR 595 (MSPB 2008).
Conclusion
Claimants must understand their restoration rights, and agencies must know their obligations when employees receive OWCP compensation. The OWCP 10-month letter plays a crucial role in outlining these protections. Effective application of restoration rules requires agency specialists to ensure both claimants and agencies remain protected
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