B-131542, MAY 21, 1957

B-131542, MAY 21, 1957

TO MR. NICOLA TELLA:

YOUR LETTER OF MARCH 30, 1957, REQUESTS REVIEW OF OUR SETTLEMENT OF MARCH 27, 1957, WHICH DISALLOWED YOUR CLAIM FOR AN UNSTATED AMOUNT AS LOSS OF SALARY AND FOR RECREDIT OF SICK AND ANNUAL LEAVE RESULTING FROM YOUR ABSENCE FROM DUTY AS AN EMPLOYEE OF THE UNITED STATES NAVY CONSTRUCTION BATTALION CENTER, DEPARTMENT OF THE NAVY, DAVISVILLE, RHODE ISLAND. YOUR CLAIM WAS DISALLOWED BECAUSE YOU WERE ABSENT FROM DUTY DURING A PERIOD WHICH WAS COVERED BY SICK AND ANNUAL LEAVE AND LEAVE WITHOUT PAY BY ADMINISTRATIVE DIRECTION RESULTING FROM A TENTATIVE DEPARTMENTAL DIAGNOSIS OF ACTIVE TUBERCULOSIS IN YOUR CASE.

YOUR PRESENT LETTER INSISTS THAT YOU WERE NOT SICK NOTWITHSTANDING THAT YOU ACKNOWLEDGED YOU SENT IN TWO SICK SLIPS BUT THAT FACT IS NOT MATERIAL TO THE ISSUE HERE PRESENT. THE CIRCUMSTANCES SURROUNDING YOUR ABSENCE FROM DUTY ARE REPORTED IN A LETTER OF MARCH 2, 1956, FROM THE CHIEF OF INDUSTRIAL RELATIONS, TO THE NATIONAL COMMANDER, FEDERAL EMPLOYEES VETERANS ASSOCIATION, INC., AS FOLLOWS:

"THE COMMANDING OFFICER OF THE CENTER HAS ADVISED THAT MR. TELLA WAS GIVEN A ROUTINE CHEST X-RAY ON 25 AUGUST 1954, AND THAT IN EVALUATING THE FILM A SUSPICIOUS AREA WAS DISCOVERED. AFTER REEXAMINATION, THE DIAGNOSIS MADE BY THE MEDICAL OFFICER INTERPRETING THE FILM READS AS FOLLOWS: ,THE APPEARANCE OF THE INFILTRATE IN THE LEFT FIRST ANTERIOR INTERSPACE IS HIGHLY SUGGESTIVE OF ACTIVE TUBERCULOSIS MINIMAL, AND THE PATIENT SHOULD BE REFERRED FOR CLINICAL STUDY.' THE MEDICAL OFFICER OF THE CENTER THEN ADVISED MR. TELLA TO CONSULT WITH HIS OWN PHYSICIAN, AND TO RETURN TO WORK ONLY AFTER ALL EVIDENCE OF ACTIVE TUBERCULOSIS HAD DISAPPEARED.

"THE REPORT STATES THAT MR. TELLA SUBMITTED APPLICATIONS FOR SICK LEAVE TO COVER THE PERIOD 31 AUGUST 1954 THROUGH FIVE HOURS ON 28 SEPTEMBER 1954, A PERIOD WHICH REPRESENTED ALL SICK LEAVE THEN ACCRUED BY MR. TELLA. THEREAFTER HE WAS PLACED ON ANNUAL LEAVE THROUGH ONE HOUR ON 2 NOVEMBER 1954. THE COMMANDING OFFICER HAS ADVISED THAT SINCE THE CENTER WAS AWARE THAT MR. TELLA WAS BEING TREATED FOR THE SUSPICIOUS CONDITION BROUGHT TO LIGHT BY THE CHEST X-RAY, AND BECAUSE HE HAD NO MORE ACCRUED LEAVE TO HIS CREDIT, HE WAS CONTINUED ON THE ROLLS IN A NONPAY STATUS. WAS PLACED IN SUCH STATUS AFTER EXPIRATION OF HIS ACCRUED SICK AND ANNUAL LEAVE BECAUSE OF THE PUBLISHED POLICY OF THE CONSTRUCTION BATTALION CENTER WITH RESPECT TO GRANTING ADVANCE SICK VE.'

IT APPEARS THAT YOU CONSULTED THE VETERANS ADMINISTRATION REGIONAL OFFICE AT PROVIDENCE, RHODE ISLAND, FOR A CONCLUSIVE DIAGNOSIS OF YOUR APPARENT ILLNESS. THE RECORD SHOWS THAT BY LETTER OF NOVEMBER 26, 1954, THE VETERANS ADMINISTRATION, AFTER A SERIES OF X-RAYS AND OTHER TESTS, INFORMED THE DEPARTMENT OF THE NAVY THAT ITS DIAGNOSIS WAS THAT THE TUBERCULOSIS WAS INACTIVE AND SUGGESTED THAT THE DEPARTMENT CONSIDER YOUR RETURN TO EMPLOYMENT. IT APPEARS THAT YOU WERE RETURNED TO WORK ON THE SAME DAY. THUS, IT APPEARS THAT YOU WERE RESTORED TO ACTIVE DUTY AS SOON AS THE DEPARTMENT WAS OFFICIALLY ADVISED BY THE VETERANS ADMINISTRATION OF YOUR FITNESS FOR WORK.

AS TUBERCULOSIS IS A CONTAGIOUS DISEASE THE ADMINISTRATIVE REQUIREMENT THAT YOU ABSENT YOURSELF FROM DUTY UNTIL THE CONDITION WAS DISPROVED OR CURED WAS A PROPER ADMINISTRATIVE PRECAUTION. BY CHARGING THE TIME ABSENT TO SICK AND ANNUAL LEAVE, SO FAR AS YOUR ACCRUED LEAVE PERMITTED, THE DEPARTMENT SAVED YOU THE LOSS OF SALARY FOR THAT TIME, BUT AS YOUR SICK AND ANNUAL LEAVE WAS NOT SUFFICIENT IT WAS NECESSARY TO PLACE YOU ON LEAVE WITHOUT PAY FOR THE REMAINDER OF THE PERIOD.

SINCE APPROPRIATIONS FOR PERSONAL SERVICES ARE NOT AVAILABLE TO MAKE PAYMENT OF AN EMPLOYEE'S SALARY FOR TIME ABSENT FROM DUTY UNDER CIRCUMSTANCES SUCH AS THOSE PRESENT IN YOUR CASE EXCEPT WHERE SUCH ABSENCE MAY BE CHARGED TO AUTHORIZED SICK OR ANNUAL LEAVE, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND UPON REVIEW THE SETTLEMENT MUST BE SUSTAINED.