A-90679, DECEMBER 14, 1937, 17 COMP. GEN. 500

A-90679: Dec 14, 1937

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1936 - SEPARATION FROM SERVICE WITHOUT RETURN FROM NON-PAY STATUS RESULTING FROM INJURY IN LINE OF DUTY AN EMPLOYEE ABSENT IN A NON-PAY STATUS BECAUSE OF INJURY FOR WHICH HE IS ENTITLED TO THE BENEFITS OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7. IS AS FOLLOWS: ON APRIL 6. WAS INJURED IN LINE OF DUTY AND TOTALLY DISABLED FOR WORK. HE WAS CARRIED ON THE ROLLS OF THE ST. HE WAS PLACED ON LEAVE WITHOUT PAY AT CLOSE OF BUSINESS APRIL 15. WAS FILED WITH THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION UNDER THE FEDERAL COMPENSATION ACT OF SEPTEMBER 7. HIS RIGHT TO CLAIM COMPENSATION UNDER THE FEDERAL COMPENSATION ACT WAS SUSPENDED IN ACCORDANCE WITH PARAGRAPH 15 OF THE REGULATIONS OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION.

A-90679, DECEMBER 14, 1937, 17 COMP. GEN. 500

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - SEPARATION FROM SERVICE WITHOUT RETURN FROM NON-PAY STATUS RESULTING FROM INJURY IN LINE OF DUTY AN EMPLOYEE ABSENT IN A NON-PAY STATUS BECAUSE OF INJURY FOR WHICH HE IS ENTITLED TO THE BENEFITS OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, MAY BE PAID FOR ANNUAL LEAVE GRANTED THEREAFTER UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, WITHOUT AN ACTUAL RETURN TO DUTY PRIOR TO HIS SEPARATION FROM THE SERVICE BECAUSE OF REDUCTION IN FORCE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, DECEMBER 14, 1937:

YOUR LETTER OF NOVEMBER 17, 1937, IS AS FOLLOWS:

ON APRIL 6, 1937, MR. HENRY G. HENDERSON, RODMAN IN THE ENGINEER DEPARTMENT, ST. PAUL, MINNESOTA, WAS INJURED IN LINE OF DUTY AND TOTALLY DISABLED FOR WORK. HE WAS CARRIED ON THE ROLLS OF THE ST. PAUL DISTRICT IN LEAVE STATUS THROUGH APRIL 15, 1937.

BY LETTER DATED APRIL 13, 1937, MR. HENDERSON INFORMED THE DISTRICT ENGINEER THAT HE WISHED TO OBTAIN COMPENSATION BENEFITS IMMEDIATELY INSTEAD OF EXHAUSTING HIS EARNED ANNUAL LEAVE. HE WAS PLACED ON LEAVE WITHOUT PAY AT CLOSE OF BUSINESS APRIL 15, 1937, AND CLAIM FOR COMPENSATION TO BEGIN APRIL 19, 1937, WAS FILED WITH THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION UNDER THE FEDERAL COMPENSATION ACT OF SEPTEMBER 7, 1916, AS AMENDED. ON MAY 16, 1937, MR. HENDERSON REFUSED FURTHER TREATMENT BY THE DESIGNATED GOVERNMENT PHYSICIAN AND LEFT THE HOSPITAL. HIS RIGHT TO CLAIM COMPENSATION UNDER THE FEDERAL COMPENSATION ACT WAS SUSPENDED IN ACCORDANCE WITH PARAGRAPH 15 OF THE REGULATIONS OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION. HE THUS REVERTED TO THE STATUS OF AN EMPLOYEE OF THE ENGINEER DEPARTMENT ON LEAVE WITHOUT PAY.

AT THE TIME MR. HENDERSON WAS FIRST PLACED IN STATUS OF LEAVE WITHOUT PAY ON APRIL 16, 1937, HE HAD 21 1/2 DAYS ANNUAL LEAVE TO HIS CREDIT. ON MAY 21, 1937, THE DISTRICT ENGINEER, ST. PAUL, NOTIFIED MR. HENDERSON THAT DUE TO THE NEARING COMPLETION OF SEVERAL MAJOR PROJECTS IN THE DISTRICT IT WOULD BE NECESSARY TO EFFECT A REDUCTION IN FORCE AND THAT HIS SERVICES WOULD NOT BE NEEDED AFTER JUNE 19, 1937. BECAUSE OF THE MANDATORY NATURE OF THE UNIFORM LEAVE ACTS AND REGULATIONS, IT IS THE GENERAL PRACTICE IN THE ENGINEER DEPARTMENT TO GRANT ALL ANNUAL LEAVE CREDITED TO AN EMPLOYEE PRIOR TO EFFECTING HIS LAYOFF IN CONNECTION WITH REDUCTION IN FORCE. MR. HENDERSON'S NAME WAS RESTORED TO THE PAY ROLL OF THE ST. PAUL DISTRICT ON MAY 22, 1937, AND HE WAS LAID OFF FOR WANT OF WORK ON JUNE 19, 1937; FOR THE PERIOD MAY 22 TO JUNE 19, 1937, HE WAS CARRIED IN STATUS OF ANNUAL LEAVE WITH PAY; HE DID NOT, HOWEVER, ACTUALLY RETURN TO DUTY. HIS CASE, THEREFORE, DIFFERS FROM THE CASE IN WHICH LEAVE OF ABSENCE PRIOR TO LAY- OFF USUALLY IS GRANTED IN THAT HE WAS IN NON-PAY STATUS FOR A SHORT PERIOD IMMEDIATELY PRECEDING THE DATE OF COMMENCEMENT OF THE ANNUAL LEAVE.

MR. HENDERSON NOW HAS BEEN ABSOLUTELY SEPARATED FROM THE SERVICE AND HE IS SUBMITTING APPLICATION FOR REFUND OF RETIREMENT DEDUCTIONS. HOWEVER, BEFORE RECOMMENDING TO THE CIVIL SERVICE COMMISSION THAT THE REFUND BE PAID, THIS DEPARTMENT DESIRES TO ASSURE ITSELF THAT THE PAYMENT MADE FOR ANNUAL LEAVE DURING THE PERIOD MAY 22 TO JUNE 19, 1937, WILL BE ACCEPTED AS PROPER AND THEREFORE WILL NOT BE FOR SET-OFF AGAINST THE RETIREMENT DEDUCTIONS.

IT IS IN GENERAL THE PRACTICE FOR THE CHIEF OF ENGINEERS TO REQUIRE THAT AN EMPLOYEE ON LEAVE WITHOUT PAY OR IN OTHER FORM OF NON-PAY STATUS RETURN TO ACTUAL DUTY BEFORE RECEIVING ALLOWANCE OF LEAVE WITH PAY. THIS PRACTICE HAS BEEN ADOPTED AS A SAFEGUARD AGAINST POSSIBLE IMPROPER PAYMENTS AND IS BASED ON RULE DRAWN BY INFERENCE FROM SECTIONS 10 AND 13 OF THE UNIFORM ANNUAL LEAVE REGULATIONS. HOWEVER, SINCE THE TWO SECTIONS OF THE REGULATIONS CITED DO NOT LITERALLY FORBID THE ALLOWANCE UNDER ANY CIRCUMSTANCES OF ANNUAL LEAVE IMMEDIATELY FOLLOWING A PERIOD OF NON-PAY STATUS, IT IS THOUGHT POSSIBLE THAT THE PAYMENT MADE IN THE CASE OF MR. HENDERSON WAS PROPER.

THE FOLLOWING COMMENTS ON THE TWO SECTIONS SHOW THE REASONS FOR THE DOUBT IN THE MIND OF THIS DEPARTMENT AS TO THE PROPER ACTION IN THE PRESENT CASE:

(A) SECTION 10 OF THE ANNUAL LEAVE REGULATIONS PROVIDES THAT LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THE REGULATIONS IS EXHAUSTED.

A LITERAL INTERPRETATION OF THIS RULE WOULD REQUIRE THAT INJURED EMPLOYEES TAKE ALL ANNUAL LEAVE DUE THEM BEFORE BEING PLACED IN NON PAY STATUS FOR THE PURPOSE OF RECEIVING COMPENSATION BENEFITS. ON THE OTHER HAND, IT SEEMS QUITE PROBABLE THAT THE PROVISION WAS INTENDED TO COVER ONLY THOSE CASES IN WHICH AN EMPLOYEE MIGHT ELECT TO TAKE LEAVE WITHOUT PAY FOR HIS PERSONAL CONVENIENCE RATHER THAN TO EXHAUST HIS ANNUAL LEAVE AND NOT TO APPLY TO CASES IN WHICH AN EMPLOYEE IS CARRIED IN NON-PAY STATUS BY HIS EMPLOYING DEPARTMENT WHILE RECEIVING COMPENSATION FROM THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION. SO LITERAL AN INTERPRETATION OF SECTION 10 MIGHT WORK A HARDSHIP AND INJUSTICE, PARTICULARLY IN CASES OF MINOR INJURY WITH INCAPACITY FOR RELATIVELY SHORT PERIODS, SINCE IT WOULD COMPEL AN EMPLOYEE TO USE HIS ANNUAL LEAVE TO COVER ABSENCE DUE TO A CONDITION OF EMPLOYMENT, FOR WHICH HE OTHERWISE COULD OBTAIN COMPENSATION BENEFITS.

(B) SECTION 13 OF THE UNIFORM ANNUAL LEAVE REGULATIONS READS AS FOLLOWS, ITALICS SUPPLIED:

"ANNUAL LEAVE SHALL NOT BE GRANTED WITH PAY AT THE BEGINNING OF A CALENDAR YEAR IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NON-PAY STATUS IN THE PRECEDING YEAR UNLESS AND UNTIL THERE SHALL HAVE BEEN A RETURN TO DUTY, AT WHICH TIME THE LEAVE MAY BE RETROACTIVELY GRANTED. LEAVE WITHOUT PAY UNDER ANY OTHER CIRCUMSTANCES MAY NOT LATER BE CONVERTED INTO ANNUAL LEAVE.'

IN THE PRESENT CASE LEAVE WITHOUT PAY WAS NOT CONVERTED INTO ANNUAL LEAVE. THERE WAS ADVANCE AUTHORIZATION OF THE ANNUAL LEAVE, BUT THE LEAVE WAS ALLOWED WITHOUT AN ACTUAL RETURN TO DUTY FROM LEAVE WITHOUT PAY. SECTION 13 MAY HAVE BEEN INTENDED MERELY TO PREVENT AN EMPLOYEE WHO HAD EXHAUSTED ALL ANNUAL LEAVE DUE HIM PRIOR TO ALLOWANCE OF LEAVE WITHOUT PAY FROM HAVING THE LEAVE WITHOUT PAY CONVERTED TO ANNUAL LEAVE AFTER HIS RETURN TO DUTY AND AFTER HE HAS SERVED A SUFFICIENT TIME TO EARN NEW ANNUAL LEAVE. IT IS POSSIBLE THAT IT HAS NO APPLICATION IN A CASE WHERE AN EMPLOYEE HAD LEAVE TO HIS CREDIT AT THE TIME THE NON-PAY STATUS TO BE CHANGED TO ANNUAL LEAVE BEGAN. THIS VIEW IS SUPPORTED BY YOUR DECISION, A -80007, DATED MARCH 6, 1937. ON THE OTHER HAND, IN YOUR DECISION A-79827, DATED SEPTEMBER 2, 1936, IT WAS HELD THAT AN EMPLOYEE UNDER SUSPENSION WITHOUT PAY COULD NOT BE ALLOWED LEAVE WITH PAY DURING SUCH PERIOD OF SUSPENSION. IT IS NOT CLEAR TO THIS DEPARTMENT, HOWEVER, THAT THE SAME RULE WOULD APPLY IN A PERIOD OF LEAVE WITHOUT PAY.

A RULING, THEREFORE, IS REQUESTED AS TO WHETHER THE PAYMENTS MADE TO MR. HENDERSON FOR LEAVE FOR THE PERIOD MAY 22 TO JUNE 19, 1937, ARE PROPER.

NO PROVISION OF THE ANNUAL OR SICK LEAVE ACTS OF MARCH 14, 1936 (49 STAT. 1161, 1162), OR OF THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS PROMULGATED BY THE PRESIDENT PURSUANT THERETO, SPECIFICALLY REGULATES ADMINISTRATIVE ACTION IN GRANTING LEAVE WITH OR WITHOUT PAY TO AN EMPLOYEE DURING A PERIOD OF ABSENCE ON ACCOUNT OF AN INJURY SUCH AS WOULD ENTITLE THE EMPLOYEE TO DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT OR AFTER PAYMENTS OF DISABILITY COMPENSATION HAVE BEEN DISCONTINUED.

SECTION 8 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, PROVIDES:

THAT IF AT THE TIME THE DISABILITY BEGINS THE EMPLOYEE HAS ANNUAL OR SICK LEAVE TO HIS CREDIT HE MAY, SUBJECT TO THE APPROVAL OF THE HEAD OF THE DEPARTMENT, USE SUCH LEAVE UNTIL IT IS EXHAUSTED, IN WHICH CASE HIS COMPENSATION SHALL BEGIN ON THE FOURTH DAY OF DISABILITY AFTER THE ANNUAL OR SICK LEAVE HAS CEASED.

UNDER THIS STATUTORY PROVISION AN EMPLOYEE ENTITLED TO DISABILITY COMPENSATION UNDER SAID ACT, AND WHO HAS TO HIS CREDIT EITHER SICK OR ANNUAL LEAVE, MAY ELECT, SUBJECT TO THE APPROVAL OF THE HEAD OF THE DEPARTMENT CONCERNED, WHETHER HE WILL TAKE LEAVE WITHOUT PAY FROM HIS CIVILIAN POSITION AND RECEIVE DISABILITY COMPENSATION, OR HIS REGULAR COMPENSATION FOR THE PERIOD OF ACCRUED SICK AND/OR ANNUAL LEAVE.

DECISION

IN DECISION OF AUGUST 24, 1926, 6 COMP. GEN. 156, 157, IT WAS STATED:

IT HAS BEEN HELD THAT AN ABSENCE ON ACCOUNT OF AN INJURY SUCH AS WOULD ENTITLE THE EMPLOYEE TO THE BENEFITS OF THE ACT OF SEPTEMBER 7, 1916, DOES NOT IPSO FACTO BREAK THE CONTINUITY OF SERVICE FOR LEAVE PURPOSES OF AN EMPLOYEE WHO THEREAFTER RETURNS TO DUTY (26 COMP. DEC. 763). WHERE AN EMPLOYEE IS SICK OR DISABLED FOR A LONG-CONTINUED PERIOD, THE QUESTION WHETHER HE SHOULD BE CONTINUED ON THE ROLLS AS IN SERVICE OR BE DROPPED AS AN EMPLOYEE IS ONE PRIMARILY OF ADMINISTRATION. 27 COMP. DEC. 100. SEE ALSO 5 COMP. GEN. 404.

SEE ALSO 11 COMP. GEN. 409, 410.

ACCORDINGLY, IF OTHERWISE CORRECT, THE PAYMENT OF COMPENSATION TO THIS EMPLOYEE FOR ANNUAL LEAVE COVERING THE PERIOD MAY 22 TO JUNE 19, 1937, WILL NOT BE QUESTIONED BY THIS OFFICE.