B-140749, OCT. 22, 1959

B-140749: Oct 22, 1959

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REQUIRES THAT ALL FIRE FIGHTING PERSONNEL UNDERGO MEDICAL EXAMINATION EVERY 12 MONTHS TO DETERMINE WHETHER THEY ARE PHYSICALLY QUALIFIED FOR THE POSITION TO WHICH THEY ARE ASSIGNED. OR WHICH PREVENT EFFICIENT PERFORMANCE OF THE DUTIES TO WHICH HE IS ASSIGNED. ACTION GENERALLY IS TAKEN TO REASSIGN THE EMPLOYEE TO A POSITION FOR WHICH HE IS QUALIFIED OR TO RETIRE OR SEPARATE HIM FROM THE SERVICE FOR PHYSICAL DISABILITY. KLEINFELTER WAS GIVEN HIS ANNUAL MEDICAL EXAMINATION AT THE U.S. STATED THAT "* * * IT IS MY CONSIDERED OPINION THAT HE IS PHYSICALLY DISQUALIFIED FOR WORK AS A FIREMAN.'. THAT NO POSITIONS WERE AVAILABLE TO WHICH THE EMPLOYEE MIGHT BE ASSIGNED CONSISTENT WITH HIS PHYSICAL CONDITION.

B-140749, OCT. 22, 1959

TO MR. THOMAS H. LANE:

THIS REFERS TO YOUR PETITION, TRANSMITTED TO OUR OFFICE BY YOUR LETTER OF AUGUST 26, 1959, IN BEHALF OF RICKER J. KLEINFELTER, SR., REQUESTING THAT WE REVIEW OUR SETTLEMENT OF JUNE 5, 1958, WHICH DISALLOWED HIS CLAIM FOR COMPENSATION FOR THE PERIOD JUNE 10, 1956, THROUGH DECEMBER 15, 1957, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, NEW CUMBERLAND GENERAL DEPOT, NEW CUMBERLAND, PENNSYLVANIA.

IT APPEARS FROM THE RECORDS THAT SECOND ARMY AREA, WHICH INCLUDES THE NEW CUMBERLAND GENERAL DEPOT, REQUIRES THAT ALL FIRE FIGHTING PERSONNEL UNDERGO MEDICAL EXAMINATION EVERY 12 MONTHS TO DETERMINE WHETHER THEY ARE PHYSICALLY QUALIFIED FOR THE POSITION TO WHICH THEY ARE ASSIGNED. IF THE MEDICAL EXAMINATION REVEALS PHYSICAL DEFECTS WHICH CAUSE THE EMPLOYEE TO BE A HAZARD TO HIMSELF OR OTHERS, OR WHICH PREVENT EFFICIENT PERFORMANCE OF THE DUTIES TO WHICH HE IS ASSIGNED, ACTION GENERALLY IS TAKEN TO REASSIGN THE EMPLOYEE TO A POSITION FOR WHICH HE IS QUALIFIED OR TO RETIRE OR SEPARATE HIM FROM THE SERVICE FOR PHYSICAL DISABILITY. ON MAY 7, 1956, MR. KLEINFELTER WAS GIVEN HIS ANNUAL MEDICAL EXAMINATION AT THE U.S. ARMY HOSPITAL, NEW CUMBERLAND GENERAL DEPOT. AS A RESULT OF THE PHYSICAL EXAMINATION, A LETTER DATED MAY 31, 1956, FROM THE POST SURGEON OF THE DEPOT, WHERE THE EXAMINATION TOOK PLACE, TO THE CHIEF, CIVILIAN PERSONNEL, STATED THAT "* * * IT IS MY CONSIDERED OPINION THAT HE IS PHYSICALLY DISQUALIFIED FOR WORK AS A FIREMAN.' BY INDORSEMENT DATED JUNE 14, 1956, THE CIVILIAN PERSONNEL OFFICER INFORMED THE COMPTROLLER, THAT NO POSITIONS WERE AVAILABLE TO WHICH THE EMPLOYEE MIGHT BE ASSIGNED CONSISTENT WITH HIS PHYSICAL CONDITION, EXPERIENCE, QUALIFICATIONS, AND SALARY. THE EMPLOYEE WAS, THEREFORE, PLACED ON SICK LEAVE PENDING FINAL DECISION CONCERNING RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY. MR. KLEINFELTER WAS PLACED ON SICK LEAVE JUNE 10, 1956. ON DECEMBER 3, 1956, THE MEDICAL DIRECTOR, UNITED STATES CIVIL SERVICE COMMISSION, NOTIFIED MR. KLEINFELTER THAT THE DEPARTMENT OF THE ARMY HAD SUBMITTED HIS APPLICATION FOR RETIREMENT ON THE BASIS THAT HE HAD A DISABLING CONDITION WHICH PREVENTED HIS RENDERING USEFUL AND EFFICIENT SERVICE IN THE POSITION HE HELD.

ON JANUARY 15, 1957, THE CIVIL SERVICE COMMISSION NOTIFIED THE NEW CUMBERLAND DEPOT THAT THE DEPARTMENT'S APPLICATION TO OBTAIN THE RETIREMENT OF MR. KLEINFELTER ON ACCOUNT OF DISABILITY HAD BEEN APPROVED BY THE RETIREMENT DIVISION AND THAT HE HAD BEEN ADVISED OF HIS RIGHT OF APPEAL. WHILE THE FILE IS NOT CLEAR AS TO WHAT HAPPENED IN THE INTERIM THE RECORD SHOWS THAT ON APRIL 2, 1957, THE CIVIL SERVICE COMMISSION ADVISED THE NEW CUMBERLAND GENERAL DEPOT THAT THEIR APPLICATION FOR THE RETIREMENT OF MR. KLIENFELTER HAD BEEN REJECTED BECAUSE IT HAD BEEN DETERMINED THAT THE EMPLOYEE WAS NOT "TOTALLY DISABLED WITHIN THE MEANING OF THE RETIREMENT LAW.' ON MAY 6, 1957, THE NEW CUMBERLAND GENERAL DEPOT APPEALED THE REJECTION OF THE APPLICATION FOR MR. KLEINFELTER'S RETIREMENT. ON OCTOBER 30, 1957, THE CHAIRMAN, BOARD OF APPEALS AND REVIEW, CIVIL SERVICE COMMISSION, NOTIFIED THE NEW CUMBERLAND DEPOT THAT SUBSEQUENT TO THE FILING OF THEIR APPEAL ANOTHER CARDIAC EXAMINATION WAS AUTHORIZED FOR MR. KLEINFELTER BY A SPECIALIST IN THAT FIELD. THE REPORT OF THE EXAMINATION CONDUCTED ON SEPTEMBER 13, 1957, REVEALED NO DISABILITY WHICH WOULD DISQUALIFY HIM FOR DUTY IN HIS POSITION AND, AS TOTAL DISABILITY WITHIN THE MEANING OF THE RETIREMENT ACT WAS NOT SHOWN, DISALLOWANCE OF THE APPLICATION FOR HIS DISABILITY RETIREMENT WAS AFFIRMED. MR. KLEINFELTER WAS NOTIFIED TO REPORT FOR WORK ON NOVEMBER 4, 1957. HOWEVER, HE DID NOT REPORT FOR WORK UNTIL DECEMBER 16, 1957. YOUR PETITION STATES THAT HE WAS ABLE TO PERFORM HIS WORK FROM JUNE 10, 1956, THROUGH DECEMBER 16, 1957, EXCEPT FOR THE PERIOD NOVEMBER 1, 1957, TO DECEMBER 16, 1957, WHEN HE WAS HOSPITALIZED BECAUSE OF ILLNESS UNRELATED TO THE ALLEGED PHYSICAL DISABILITY WHICH WAS THE BASIS OF THE DEPARTMENT'S ACTION OF JUNE 10, 1956. AT THE EXPIRATION OF MR. KLEINFELTER'S SICK LEAVE HE WAS PLACED ON ANNUAL LEAVE AND THEN ON LEAVE-WIHOUT-PAY AFTER EXHAUSTION OF HIS ANNUAL LEAVE CREDITS.

FROM A LEGAL STANDPOINT IT IS DESIRABLE TO CONSIDER MR. KLEINFELTER'S CLAIM AS FALLING INTO TWO PARTS.

FROM JUNE 10, 1956, TO APRIL 2, 1957, THE DEPARTMENT RELYING ON ITS MEDICAL OFFICER'S REPORT OF DISABILITY CARRIED THE CLAIMANT IN A SICK AND ANNUAL LEAVE STATUS WITH PAY. SUCH ACTION WAS NOT IN CONTRAVENTION OF CIVIL SERVICE REGULATION R 5-42 OF THE FEDERAL PERSONNEL MANUAL AS ALLEGED IN YOUR PETITION, SINCE THE EMPLOYEE WAS NEITHER IN A LEAVE WITHOUT-PAY STATUS NOR SEPARATED FROM THE SERVICE. THE DEPARTMENT'S ACTION WAS NEITHER ARBITRARY NOR CAPRICIOUS SINCE IT ACTED UPON COMPETENT MEDICAL ADVICE IN REMOVING THE CLAIMANT FROM ACTIVE DUTY. THEREFORE, WE FIND NO BASIS FOR RECREDITING THE LEAVE CHARGED DURING THE ABOVE PERIOD.

ON APRIL 2, 1957, HOWEVER, THE DEPARTMENT WAS NOTIFIED BY THE CIVIL SERVICE COMMISSION THAT THE CLAIMANT WAS NOT SHOWN TO BE TOTALLY DISABLED WITHIN THE MEANING OF THE RETIREMENT ACT. UPON RECEIPT OF THAT NOTICE IT IS OUR VIEW THAT UNDER APPLICABLE LAW THE DEPARTMENT SHOULD HAVE GIVEN THE CLAIMANT AN OPPORTUNITY TO PERFORM ACTIVE DUTY PENDING THE OUTCOME OF ITS APPEAL FROM THE COMMISSION'S RULING OR IN THE ALTERNATIVE IT COULD HAVE RESTORED THE CLAIMANT TO ACTIVE DUTY AND, IF IT DESIRED, INITIATE APPROPRIATE STEPS TO SEPARATE HIM FROM THE SERVICE ON GROUNDS OF DISABILITY. AS A MATTER OF FACT, THE DEPARTMENT DID NEITHER BUT CONTINUED TO CARRY THE CLAIMANT IN AN ANNUAL LEAVE AND LEAVE-WITHOUT-PAY STATUS UNTIL ITS APPEAL WAS DENIED BY THE COMMISSION. THE CLAIMANT WAS THEREUPON REQUESTED TO APPEAR FOR DUTY ON NOVEMBER 4, 1957. WE CANNOT CONCLUDE FROM THE FACTS THAT THE EXIGENCIES OF THE SERVICE REQUIRED THAT THE CLAIMANT BE CARRIED IN AN ANNUAL LEAVE STATUS AFTER APRIL 2, 1957, UNTIL THE EXPIRATION OF SUCH LEAVE CREDIT; NEITHER CAN WE SAY THAT THE CLAIMANT WAS LAWFULLY PLACED IN A LEAVE-WITHOUT-PAY STATUS AS REQUIRED BY REGULATIONS.

MR. KLEINFELTER IS THEREFORE ENTITLED TO BACK PAY FROM APRIL 2 TO NOVEMBER 1, 1957, LESS THE AMOUNT HE WAS PAID FOR ANNUAL LEAVE DURING THAT PERIOD. ALSO, HE MAY BE RECREDITED WITH THE ANNUAL LEAVE REMAINING TO HIS CREDIT ON APRIL 2, 1957. AS HE WAS HOSPITALIZED ON NOVEMBER 1 FROM AN UNRELATED ILLNESS AND COULD NOT REPORT FOR ACTIVE DUTY IN RESPONSE TO THE CALL OF NOVEMBER 4, 1957, UNTIL DECEMBER 16, 1957, HE CANNOT BE COMPENSATED FOR THAT PERIOD AS HE WAS NOT READY, WILLING, AND ABLE TO WORK. HOWEVER, THERE WOULD BE NO OBJECTION TO SUBSTITUTING THE ANNUAL LEAVE RECREDITED TO HIS ACCOUNT FOR THE LEAVE WITHOUT-PAY CHARGED DURING THE PERIOD OF THAT ILLNESS. ANY SETTLEMENT WITH MR. KLEINFELTER WOULD BE UNDER THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (B) (3) AND IT THEREFORE WILL BE NECESSARY THAT HE FURNISH A STATEMENT OF ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT INCLUDING SELF-EMPLOYMENT DURING THE PERIOD APRIL 2, 1957, TO THE DATE OF HIS RETURN TO ACTIVE DUTY.

CONCERNING MR. KLEINFELTER'S CLAIM FOR PREMIUM PAY, THE RECORDS INDICATE THAT HE RECEIVED PREMIUM PAY OF 15 PERCENT DURING THE PERIOD IN WHICH HE WAS IN A LEAVE WITH PAY STATUS. SINCE IT IS ONLY BY VIRTUE OF THE ACT OF JUNE 10, 1948, THAT HE CAN BE ALLOWED BACK COMPENSATION, THE PROVISIONS OF THAT STATUTE CONCERNING THE RATE OF COMPENSATION ALLOWABLE ARE CONTROLLING. 5 U.S.C. 652 (B) (1) PROVIDES THAT THE EMPLOYEE SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUSPENSION. THEREFORE, UNDER OUR THEORY OF THIS CASE COMPENSATION ALLOWED UNDER ANY SETTLEMENT SHALL INCLUDE 15 PERCENT PREMIUM PAY.

OUR CLAIMS DIVISION TODAY IS BEING DIRECTED TO PROMPTLY SETTLE THIS CLAIM UPON RECEIPT OF MR. KLEINFELTER'S STATEMENT OF OUTSIDE EARNINGS.

CONCERNING YOUR REQUEST FOR A HEARING, YOU ARE ADVISED THAT ANY CLAIM PRESENTED TO OUR OFFICE IS SETTLED ON THE BASIS OF THE WRITTEN RECORD BEFORE US. HOWEVER, IF YOU SO DESIRE YOU ARE FREE TO CALL AT OUR OFFICE ANY TIME BETWEEN THE HOURS OF 9 A.M. AND 5:30 P.M., MONDAY THROUGH FRIDAY.