B-147720, DEC. 19, 1961

B-147720, DEC. 19, 1961

TO MR. DAMON S. O-NEAL:

ON NOVEMBER 20, 1961, YOUR ATTORNEY, MR. R. P. MOLONEY, JR., ASKED THAT WE RECONSIDER OUR OFFICE SETTLEMENT DATED JULY 27, 1961, WHICH DISALLOWED YOUR CLAIM FOR BACK PAY COVERING THE PERIOD OF YOUR REMOVAL FROM THE POSTAL SERVICE SEPTEMBER 2, 1960, TO MAY 8, 1961.

IN OUR CLAIMS DIVISION LETTER OF AUGUST 11, 1961, TO YOUR ATTORNEY, WE POINTED OUT THAT SETTLEMENTS OF OUR OFFICE MAY BE REVIEWED IN THE DISCRETION OF THE COMPTROLLER GENERAL UPON THE WRITTEN REQUEST OF A CLAIMANT OR HIS DULY AUTHORIZED REPRESENTATIVE AND THAT SUCH A REQUEST SHOULD STATE THE ALLEGED ERROR OR ERRORS IN THE STATEMENT UPON WHICH THE CLAIMANT RELIES IN HIS APPEAL. WHILE MR. MOLONEY DID NOT ALLEGE SPECIFIC ERROR, HIS LETTER OFFERS TO FURNISH SUCH INFORMATION CONCERNING THE CLAIM AS MAY BE DESIRED BY US.

THE RECORD BEFORE US INCLUDES YOUR LETTER OF MAY 24, 1961, TO THE POSTMASTER, LEXINGTON, KENTUCKY. THAT LETTER READS, IN PERTINENT PART, AS FOLLOWS:

"IN RESPONSE TO YOUR INQUIRY AS TO WHETHER OR NOT I ATTEMPTED TO SECURE EMPLOYMENT DURING THE PERIOD OF TIME THAT I WAS REMOVED FROM SERVICE WITH THE POST OFFICE, THE FOLLOWING INFORMATION IS SUPPLIED.

"I WAS UNABLE TO WORK DUE TO THE FACT THAT I WAS HOSPITALIZED DURING A GREAT PORTION OF THAT TIME IN THE VETERANS HOSPITAL AT DAYTON, OHIO. DURING THE BALANCE OF THE TIME THAT I WAS NOT IN THE HOSPITAL, I WAS RECUPERATING FROM MY ILLNESS AND, THEREFORE, WAS NOT ABLE TO BE GAINFULLY EMPLOYED.'

ON JUNE 22, 1961, YOU ADVISED THE POSTMASTER AS FOLLOWS:

"IN RESPONSE TO YOUR LETTER REQUESTING INFORMATION ABOUT THE DATES THAT I WAS HOSPITALIZED, THE FOLLOWING IS FURNISHED:

"I WAS HOSPITALIZED IN BROWN VETERANS HOSPITAL, DAYTON, OHIO, FROM NOVEMBER 25, 1960 TO JANUARY 17, 1961. I RETURNED TO THE HOSPITAL SEVERAL TIMES FOR CHECKUPS, AND I BELIEVE THAT MY RECUPERATION PERIOD ENDED AROUND THE FIRST OF MARCH 1961.'

YOUR ATTENTION IS DIRECTED TO THE ARMAND CASE, 136 CT.CL. 339, A COPY OF WHICH WAS PREVIOUSLY FURNISHED MR. MOLONEY, IN WHICH THE COURT RELIED UPON THE PRINCIPLE THAT BACK PAY MAY NOT BE RECOVERED FOR A PERIOD OF WRONGFUL SEPARATION WHEN THERE IS A SHOWING THAT BECAUSE OF INCAPACITATING ILLNESS THE EMPLOYEE WAS NOT READY AND ABLE TO PERFORM HIS WORK. THIS RULE HAS BEEN FOLLOWED BY OUR OFFICE. 38 COMP. GEN. 556.

THE GENERAL LANGUAGE OF THE ABOVE-QUOTED LETTERS LEADS TO THE CONCLUSION THAT YOU WERE NOT READY AND ABLE TO PERFORM THE DUTIES OF YOUR POSITION DURING ANY PART OF THE PERIOD OF YOUR SEPARATION AND THAT, THEREFORE, YOU ARE NOT ENTITLED TO ANY OF THE BACK PAY CLAIMED. CERTAINLY, THE PERIOD OF HOSPITALIZATION MUST BE OMITTED FROM THE PERIOD FOR WHICH YOU CLAIM COMPENSATION. IT IS POSSIBLE THAT THE PRESUMPTION IN INCAPACITY ARISING FROM YOUR LETTERS FOR OTHER PERIODS OF YOUR REMOVAL MAY BE REBUTTED BY ADEQUATE EVIDENCE ESTABLISHING THE PERIODS WHEN YOU WERE READY, ABLE AND WILLING TO WORK. THE MOST ACCEPTABLE EVIDENCE TO ESTABLISH EITHER INCAPACITY OR CAPACITY TO PERFORM DUTY WOULD BE A CERTIFICATE BY A COMPETENT PHYSICIAN, HAVING KNOWLEDGE OF THE SITUATION. IN THE ABSENCE OF SUCH CERTIFICATE OTHER EVIDENCE HAVING EQUAL PROBATIVE VALUE MIGHT BE CONSIDERED.

YOUR ATTENTION IS DIRECTED, ALSO, TO THE SCHWARTZ CASE, CT.CL. NO. 513- 57, DECIDED MARCH 2, 1960, COPY HEREWITH, WHICH STANDS FOR THE PROPOSITION THAT THERE IS AN OBLIGATION UPON A SEPARATED EMPLOYEE TO MITIGATE DAMAGES BY MAKING REASONABLE EFFORT TO SECURE OTHER EMPLOYMENT.