Before Rich, Bryson, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Barry K. Hancock petitions for review of the final decision of the Merit Systems Protection Board, Docket No. SF-0353-97-0625-I-1. Mr. Hancock appealed a decision by the United States Postal Service to deny his request for restoration to his former position, and the Board dismissed Mr. Hancock's appeal for lack of jurisdiction. We affirm.
In August 1994, Mr. Hancock successfully applied for retirement from his position as postmaster in Port Hueneme, California, because of a back-related disability. In January 1996, the Office of Workers' Compensation Programs (OWCP) of the Department of Labor ruled that Mr. Hancock was entitled to worker compensation payments for a different condition with the same symptoms of back pain. In directing that benefits be paid to Mr. Hancock, the OWCP relied on reports by two doctors, Dr. Hill and Dr. Maltz. Dr. Maltz's June 17, 1996, report stated that Mr. Hancock did not have the condition on which his disability retirement was based, but that he suffered from permanent aggravation of spondylolisthesis and degenerative disk disease.
In October 1996, the Department of Labor inquired of the Postal Service whether it would offer Mr. Hancock a job appropriate to his physical condition. The Postal Service responded that Mr. Hancock could not be accommodated based on his medical restrictions. Mr. Hancock appealed to the Merit Systems Protection Board, claiming that he was entitled to reinstatement with the Postal Service. Mr. Hancock waived a hearing. After the parties completed the filing of written submissions as of October 22, 1997, the administrative Judge on December 11, 1997, dismissed the appeal for lack of jurisdiction. The administrative Judge concluded that Mr. Hancock had not presented any evidence tending to show that he had partially recovered from the compensable injury and thus had not shown that the Board had jurisdiction to consider his appeal.
Mr. Hancock filed a timely petition for review with the full Board on January 8, 1998. With the petition Mr. Hancock included a copy of a medical report that he said he had received subsequent to the initial decision. The report had been prepared by Dr. Paul Tsou on October 10, 1997, based on an evaluation of Mr. Hancock on October 8. Dr. Tsou stated that Mr. Hancock's condition had improved from his condition as reported by Dr. Maltz. The Board denied Mr. Hancock's petition, stating that it failed to satisfy the criteria for review set forth at 5 C.F.R. § 1201.115.
Regulations issued by the Office of Personnel Management provide that agencies must "make every effort to restore" an individual who has partially recovered from a compensable injury. 5 C.F.R. § 301(d). Mr. Hancock argues that he was improperly denied his restoration rights under that regulation and that the Board should have exercised its jurisdiction under 5 C.F.R. § 353.304 to review the agency's refusal to restore him to duty. Mr. Hancock points to the report by Dr. Tsou as evidence that he has overcome the jurisdictional hurdle of showing that he had partially recovered from the condition with which he had previously been diagnosed. Although Mr. Hancock submitted Dr. Tsou's report with his petition for review to the full Board, the Board did not discuss the report in connection with its denial of Mr. Hancock's petition for review.
By regulation, the Board "may grant a petition for review when it is established that new and material evidence is available that, despite due diligence, was not available when the record closed." 5 C.F.R. § 1201.115(d). We assume for purposes of this appeal that Dr. Tsou's report is both new and material within the meaning of the regulation. The Board, however, will not consider evidence submitted for the first time in a petition for review unless the petitioner makes "a showing that it was unavailable before the record was closed despite the party's due diligence." Comer v. Department of Veterans Affairs, 78 M.S.P.R. 633, 636 (1998). Dr. Tsou prepared his report before the close of the evidence in the proceeding before the administrative Judge. While Mr. Hancock stated in his petition to the Board that he did not receive the report until after the record closed, he made no showing that he had exercised due diligence in attempting to obtain that evidence earlier. We therefore cannot overturn the Board's decision on the ground that the Board improperly disregarded Dr. Tsou's report.
On the basis of the record before the administrative Judge, we hold that there was substantial evidence to support the Board's Conclusion that Mr. Hancock failed to demonstrate that his condition had improved since he began receiving worker's compensation. We therefore uphold the ...