5 C.F.R. § 353.102

Definitions

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In this part:

Agency means.

(1) With respect to restoration following a compensable injury, any department, independent establishment, agency, or corporation in the executive branch, including the U.S. Postal Service and the Postal Rate Commission, and any agency in the legislative or judicial branch; and

(2) With respect to uniformed service, an executive agency as defined in 5 U.S.C. 105 (other than an intelligence agency referred to in 5 U.S.C. 2302(a)(2)(C)(ii), including the U.S. Postal Service and Postal Rate Commission, a nonappropriated fund instrumentality of the United States, or a military department as defined in 5 U.S.C. 102. In the case of a National Guard technician employed under 32 U.S.C. 709, the employing agency is the adjutant general of the State in which the technician is employed.

Fully recovered means compensation payments have been terminated on the basis that the employee is able to perform all the duties of the position he or she left or an equivalent one.

Injury means a compensable injury sustained under the provisions of 5 U.S.C. chapter 81, subchapter 1, and includes, in addition to accidental injury, a disease proximately caused by the employment.

Leave of absence means military leave, annual leave, without pay (LWOP), furlough, continuation of pay, or any combination of these.

Military leave means paid leave provided to Reservists and members of the National Guard under 5 U.S.C. 6323.

Notice means any written or verbal notification of an obligation or intention to perform service in the uniformed services provided to an agency by the employee performing the service or by the uniformed service in which the service is to be performed.

Partially recovered means an injured employee, though not ready to resume the full range of his or her regular duties, has recovered sufficiently to return to part-time or light duty or to another position with less demanding physical requirements. Ordinarily, it is expected that a partially recovered employee will fully recover eventually.

Physically disqualified means that:

(1)(i) For medical reasons the employee is unable to perform the duties of the position formerly held or an equivalent one, or

(ii) There is a medical reason to restrict the individual from some or all essential duties because of possible incapacitation (for example, a seizure) or because of risk of health impairment (such as further exposure to a toxic substance for an individual who has already shown the effects of such exposure).

(2) The condition is considered permanent with little likelihood for improvement or recovery.

Reasonable efforts in the case of actions required by an agency for a person returning from uniformed service means actions, including training, that do not place an undue hardship on the agency.

Service in the uniformed services means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and a period for which a person is absent from employment for the purpose of examination to determine fitness to perform such duty.

Status means the particular attributes of a specific position. This includes the rank or responsibility of the position, its duties, working conditions, pay, tenure, and seniority.

Undue hardship means actions taken by an agency requiring significant difficulty or expense, when considered in light of—

(1) The nature and cost of actions needed under this part;

(2) The overall financial resources of the facility involved in taking the action; the number of persons employed at the facility; the effect on expenses and resources, or the impact otherwise of the action on the operation of the facility; and

(3) The overall size of the agency with respect to the number of employees, the number, type, and location of its facilities and type of operations, including composition, structure, and functions of the work force.

Uniformed services means the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the Commissioned Corps of the Public Health Service, and any other category of persons designated by the President in time of war or emergency.

Notes of Decisions

Cited in 51 cases (25 in the last 5 years), 2001–2026 · leading case: Roseanne Cronin v. United States Postal Serv., 2022 MSPB 13 (MSPB 2022).

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Roseanne Cronin v. United States Postal Serv., 2022 MSPB 13 (MSPB 2022). “301 (d) concerns the restoration rights granted to “partially recovered” employees, defined in 5 C.F.R. § 353.102 as injured employees who, “though not ready to resume the full range” of their regular duties, have “recovered sufficiently to return to part-time or light duty or…”

Randall Desjardin v. U.S. Postal Serv., 2023 MSPB 6 (MSPB 2023). “301 (d) concerns the restoration rights granted to “partially recovered” employees, defined in 5 C.F.R. § 353.102 as injured employees who, “though not ready to resume the full range” of their regular duties, have “recovered sufficiently to return to part-time or light duty or…”

Pryor v. United States, 85 Fed. Cl. 97 (Fed. Cl. 2008). “Plaintiff also cites to 5 C.F.R. §§ 353.102 , 353.301 (2008), and 5 U.”

Stewart v. Merit Sys. Prot. Bd., 534 F. App'x 956 (Fed. Cir. 2013). “” 5 C.F.R. § 353.102 . To establish Board jurisdiction as a fully recovered employee, Stewart must make nonfrivolous allegations that: “(1) [s]he was separated because of a compensable injury; (2) she has fully recovered more than one year after the date she became eligible for…”

Doreen K. Kingsley v. United States Postal Serv., 2016 MSPB 21 (MSPB 2016). “” 3 5 C.F.R. § 353.102 . 3 The administrative judge found, and the parties do not dispute, that the appellant was a partially recovered employee.”

Jerry Hodges v. Dep't of Just., 2014 MSPB 54 (MSPB 2014). “See 5 C.F.R. § 353.102 (defining a “partially-recovered” individual as one who suffers from residuals of a “compensable injury” and “fully recovered” as “compensation benefits have been terminated on the basis that the employee is able to perform all of the duties of the…”

Brenda A. Jakes v. Dep't of Def. (MSPB 2016). · cites it 3× “559 , ¶ 7 (2010); 5 C.F.R. §§ 353.102 , 353.301(d). A partially recovered employee may appeal to the Board only for a determination of whether the agency was arbitrary and capricious in denying restoration.”

Terri Smith v. Dep't of Transp. (MSPB 2024). · cites it 3× “Under 5 C.F.R. § 353.102 , an individual is “fully recovered” when her compensation benefits have been terminated on the basis that she is able to fully perform the duties of her former position or an equivalent one.”

Judy Hartman v. Dep't of the Navy (MSPB 2024). · cites it 3× “” 5 C.F.R. § 353.102 . 6 An employee is considered fully recovered if compensation payments have been terminated on the basis the employee is able to perform all the duties of the position she left or an equivalent.”

Claude E Hudson v. Dep't of Vets. Affairs (MSPB 2024). · cites it 3× “Therefore, even if the appellant fit the definition of “fully recovered” under 5 C.F.R. § 353.102 , he would not be able to establish jurisdiction over a denial of restoration claim as a fully recovered individual.”

Monifah A. Hamilton v. United States Postal Serv., 2016 MSPB 22 (MSPB 2016). · cites it 3× “” 5 C.F.R. § 353.102 . ¶10 OPM’s regulations require that agencies “make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited…”

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