B-231799, Nov 14, 1989

B-231799, Nov 14, 1989

CIVILIAN PERSONNEL - Compensation - Occupational illnesses/injuries - Service credits - Step increase - Reinstatement DIGEST: A grade GS-12 employee, who was separated following a job-related injury, resumed employment nearly 4 years later at the grade GS-9 level after partial recovery from his injury. The employee was entitled to service credit during his absence for purposes of a within-grade increase at his former grade GS-12 level only up to the date he was reemployed, even though he continued to receive partial workers' compensation after he was reemployed.

Robert G. Breese - Job-Related Injury - Service Credit For Within Grade Increase:

This decision is in response to an appeal by Mr. Robert G. Breese of our Claims Group settlements which denied his claim for an additional step increase upon repromotion to his former grade level. /1/ We sustain the denial action by our Claims Group for the reasons stated in this decision.

BACKGROUND

On March 19, 1979, Mr. Breese sustained a job-related injury while employed as a Criminal Investigator for the Bureau of Alcohol, Tobacco, and Firearms. At that time, his pay rate was grade GS-12, step 6. Mr. Breese was removed from his position on May 21, 1981, but he continued to receive disability compensation benefits from the Office of Workers' Compensation Programs (OWCP), United States Department of Labor.

On February 12, 1985, Mr. Breese returned to work as a Criminal Investigator for the Department of Energy (DOE), at the grade GS-9, step 10 level, and he continued to receive partial disability compensation from OWCP. He was promoted to grade GS-11, step 10, on March 2, 1986, and to grade GS-12, step 8, on January 18, 1987.

Mr. Breese contends that since he is still receiving compensation for his disability for a loss of wage earning capacity, he should incur no loss of benefits because of his injury. Thus, he argues that based on the normal progression of within-grade increases, he should have received a within- grade increase to step 9 of grade GS-12 in 1987.

The Office of Personnel Management (OPM), in a letter dated July 17, 1987, states that once Mr. Breese resumed federal employment on February 12, 1985, any creditable service represented by injury compensation ceased. The OPM letter states that upon reinstatement and subsequent promotion to grades 11 and 12, Mr. Breese received equivalent increases which require a new waiting period for within grade increases. Finally, the OPM letter points out that when Mr. Breese was promoted to grade GS-12 on January 18, 1987, he received credit for within-grade increases during his period of injury compensation from 1979 to 1985, as required by the applicable statute.

OPINION

The statute governing compensation for work injuries provides that in the event the individual resumes employment with the federal government, the entire time for which the employee received such compensation shall be credited to the employee for the purpose of within-grade increases. U.S.C. Sec. 8151(a) (1982). Subsection 8151(b) authorizes OPM to issue regulations concerning the civil service retention rights of employees who sustain compensable injuries or disabilities.

The OPM regulations in effect during the period in this case state that certain restoration rights should be provided to employees who are partially recovered and who are able to resume limited duty. /2/ However, neither these regulations nor the revised regulations issued in 1988 support Mr. Breese's contention that since he continues to receive partial compensation, he is entitled to continued creditable service for within- grade increases at the grade GS-12 level from 1985 until his subsequent promotion in 1987. /3/

In the absence of any specific provision in the statute or regulations to support Mr. Breese's argument, we concur with OPM's interpretation that his entitlement to service credit at the grade GS 12 level for purposes of within-grade increases ended upon his restoration to duty in February 1985. Therefore, we agree with OPM and our Claims Group that Mr. Breese began a new waiting period for advancement to step 9 upon his promotion to grade 12, step 8, on January 18, 1987.

Accordingly, we deny the claim for an additional step increase.

/1/ Z-2865307, Jan. 21 and May 9, 1988.

/2/ Federal Personnel Manual, chapter 353 (Inst. 222, Oct. 29, 1975).

/3/ Id. (Inst. 342, Feb. 24, 1988).