B-151822, AUG. 27, 1963

B-151822: Aug 27, 1963

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EARLIER CORRESPONDENCE FROM YOU AND YOUR ATTORNEY DISCLOSES THAT ON THE BASIS OF REPORTS OF MEDICAL AUTHORITIES YOU WERE REQUESTED TO APPLY FOR DISABILITY RETIREMENT BUT REFUSED TO DO SO. THEREUPON AN INVOLUNTARY APPLICATION WAS FILED BY THE AGENCY AND YOU WERE PLACED IN A LEAVE STATUS PENDING CONSIDERATION OF YOUR CASE BY THE CIVIL SERVICE COMMISSION. THE APPLICATION WAS DENIED AND YOU WERE RETURNED TO DUTY. IT APPEARS FROM THE INFORMATION SUBMITTED BY YOU AND YOUR ATTORNEY THAT YOU HAVE BEEN EMPLOYED AT THE ABOVE-NAMED HOSPITAL SINCE 1949 AND THAT YOUR DUTIES AS NURSING ASSISTANT BRING YOU IN CONTACT WITH WOMEN MENTAL PATIENTS. SUCH DUTIES ARE SAID TO INVOLVE THE LIFTING AND MOVING OF PATIENTS AS WELL AS THE HAZARD OF RESTRAINING THOSE WHO ARE MORE DISTURBED.

B-151822, AUG. 27, 1963

TO MRS. JANIE P. ROBINSON:

THIS REFERS TO YOUR LETTER AND THE LETTER OF MR. LAWRENCE, BOTH DATED MARCH 16, 1963, AND TO PRIOR CORRESPONDENCE REQUESTING RESTORATION OF ANNUAL AND SICK LEAVE CHARGED TO YOU DURING THE PERIOD FROM MARCH 25 TO JUNE 10, 1962, INCIDENT TO YOUR SERVICE AT THE VETERANS ADMINISTRATION HOSPITAL, SALEM, VIRGINIA.

EARLIER CORRESPONDENCE FROM YOU AND YOUR ATTORNEY DISCLOSES THAT ON THE BASIS OF REPORTS OF MEDICAL AUTHORITIES YOU WERE REQUESTED TO APPLY FOR DISABILITY RETIREMENT BUT REFUSED TO DO SO. THEREUPON AN INVOLUNTARY APPLICATION WAS FILED BY THE AGENCY AND YOU WERE PLACED IN A LEAVE STATUS PENDING CONSIDERATION OF YOUR CASE BY THE CIVIL SERVICE COMMISSION. THE APPLICATION WAS DENIED AND YOU WERE RETURNED TO DUTY. YOU CONTEND THAT THE LEAVE SO USED SHOULD BE RECREDITED TO YOUR ACCOUNT.

IT APPEARS FROM THE INFORMATION SUBMITTED BY YOU AND YOUR ATTORNEY THAT YOU HAVE BEEN EMPLOYED AT THE ABOVE-NAMED HOSPITAL SINCE 1949 AND THAT YOUR DUTIES AS NURSING ASSISTANT BRING YOU IN CONTACT WITH WOMEN MENTAL PATIENTS. SUCH DUTIES ARE SAID TO INVOLVE THE LIFTING AND MOVING OF PATIENTS AS WELL AS THE HAZARD OF RESTRAINING THOSE WHO ARE MORE DISTURBED. IN THE PERFORMANCE THEREOF YOU SUSTAINED INJURIES. IN YOUR LETTER OF MARCH 16 YOU DISCUSS AT SOME LENGTH SEVERAL OCCASIONS BETWEEN OCTOBER 25, 1960, AND JANUARY 22, 1962, ON WHICH YOU INJURED YOUR BACK WHILE LIFTING PATIENTS, RECEIVED BRUISES, ETC., FROM HELPING TO RESTRAIN PATIENTS, ETC. ON EACH OCCASION IT APPEARS THAT YOU REPORTED TO THE MEDICAL OFFICERS AND WERE GIVEN MEDICAL ATTENTION. ALSO, YOU STATE THAT ON JANUARY 24, 1962, YOU WERE UNABLE TO REPORT FOR DUTY AND ARRANGEMENTS WERE MADE (BY THE BUREAU OF EMPLOYEES' COMPENSATION) FOR YOU TO ENTER THE UNITED STATES PUBLIC HEALTH HOSPITAL, NORFOLK, VIRGINIA, ON JANUARY 30.

YOUR PHYSICAL CONDITION AT THAT TIME AS SET FORTH IN YOUR LETTER WAS:

"I COULD NOT DRIVE, HARDLY SIT UP, SO I GOT MY BROTHER IN LAW TO TAKE ME TO NORFOLK ON JANUARY 29-62. I ARRIVED THERE AT 5 P.M. BUT COULD NOT BE ADMITTED, THEY REFERRED ME TO A PLACE WHERE I COULD SPEND THE NIGHT AND REPORT BACK THE NEXT MORNING. I GOT A ROOM AND SIT UP ALL NIGHT, NEVER UNDRESSED AND WENT TO HOSP. 1 BLOCK AWAY THE FOLLOWING MORNING.'

A DIAGNOSIS OF "MUSCLE STRAIN, LOW NECK, POSTERIORLY" WAS MADE. YOU REMAINED IN THE U.S. PUBLIC HEALTH HOSPITAL UNTIL FEBRUARY 12, 1962, AT WHICH TIME YOU WERE DISCHARGED WITH THE RECOMMENDATION THAT YOU BE TRANSFERRED TO LESS STRENUOUS ACTIVITY AND RETURNED TO DUTY.

APPARENTLY YOU REPORTED BACK TO THE VETERANS HOSPITAL AT SALEM ON FEBRUARY 13 AND WERE ASSIGNED TO DUTY IN THE SAME BUILDING BUT IN A DIFFERENT END OF THE WARD TO WORK WITH QUIETER PATIENTS. YOU SAY THAT ON FEBRUARY 26, WHEN YOU WERE NOTIFIED OF YOUR REASSIGNMENT TO THE DISTURBED SECTION OF THE BUILDING AS OF MARCH 4, YOU PROTESTED TO THE CHIEF NURSE, REFERRED HIM TO DR. NORRIS AS TO YOUR PHYSICAL CONDITION AND FINALLY SAID YOU WOULD RETURN TO THE DISTURBED WARD AT THE RISK OF THE HOSPITAL.

CONCERNING SUCH REASSIGNMENT THE REPORT OF DR. NORRIS READS IN PART AS FOLLOWS:

"IN ATTEMPTING TO CARRY OUT THE RECOMMENDATION OF THE U.S.P.H. HOSPITAL, I CONFERRED WITH THE CHIEF NURSE WHO ADVISED ME THAT MRS. ROBINSON'S GRADE AND POSITION WERE PREDICATED ON THE FACT THAT SHE DID WORK ON THE ACUTE SERVICE; HOWEVER, THE CHIEF NURSE ALSO INFORMED ME THAT, EVEN IF MRS. ROBINSON WERE TRANSFERRED TO ANOTHER SERVICE, SHE STILL WOULD BE WORKING WITH PSYCHOTIC PATIENTS AND BE SUBJECT TO THE OCCUPATIONAL HAZARD OF ALTERCATION AS WELL AS LIFTING AND MOVING PATIENTS.'

ON MARCH 5, 1962, YOU WERE EXAMINED BY DR. NORRIS WHO REPORTED:

"ON FEBRUARY 27, 1962 I RECEIVED A REQUEST FROM THE CHIEF NURSE APPROVED BY THE ACTING CHIEF OF STAFF TO CONDUCT A PHYSICAL EXAMINATION OF MRS. ROBINSON TO DETERMINE WHETHER SHE IS CAPABLE OF PERFORMING THE DUTIES OF A NURSING ASSISTANT. I CONDUCTED THIS EXAMINATION AND THE PHYSICAL EXAMINATION REVEALS SLIGHT TENDERNESS ALONG THE CERVICAL DORSALSPINE WITH MUSCULAR STIFFNESS AND SORENESS. THERE IS SOME LIMITATION OF MOTION ON FLEXION AND EXTENSION OF THE NECK, AND ROTATION OF THE SHOULDERS. THERE IS SUBJECTIVE MUSCULAR DISCOMFORT IN THE CERVICO-DORSAL AREA AND RIGHT UPPER ARM MUSCLE GROUPS. SHE SEEMS "MUSCLE BOUND" ABOUT THE NECK AND SHOULDERS.

"THIS EMPLOYEE HAS BEEN AN ACCIDENT PRONE PERSON, AS THE RECORD SHOWS MANY MORE TRAUMATIC INCIDENTS IN HER CASE THAN IN THE CASE OF THE AVERAGE NURSING ASSISTANT. SHE HAS BEEN A CHRONIC COMPLAINER AND THE RECORD REVEALS INNUMERABLE VISITS TO THE PERSONNEL PHYSICIAN FOR RELIEF. THERE HAVE BEEN REPEATED X-RAYS OF THE AFFECTED AREAS AND REPEATED ORTHOPEDIC CONSULTATIONS. CONTINUED SYMPTOMATIC THERAPY HAS DONE NO GOOD. THERE HAS BEEN A PAUCITY OF PHYSICAL FINDINGS, YET SHE HAS BEEN OFF DUTY ON SICK LEAVE 57 1/2 DAYS IN THE PAST TWO YEARS. IT IS MY FEELING THAT TO PLACE HER AT ANY LEVEL OF DUTY CARING FOR PSYCHIATRIC PATIENTS WOULD BE DETRIMENTAL TO HER PHYSICAL AND MENTAL WELL-BEING AS ANY SUCH DUTY CARRIES THE HAZARD OF ALTERCATION, AND SUCH DUTY REQUIRES A NURSING ASSISTANT TO LIFT AND MOVE PATIENTS.

"I CONSIDER THIS EMPLOYEE UNFIT FOR FURTHER DUTY AS A NURSING ASSISTANT. DIAGNOSIS: MUSCULAR STRAIN, NECK AND SHOULDERS, CHRONIC, RECURRENT, AND REFRACTIVE TO THERAPY.'

ON THE DATE OF THIS EXAMINATION (MARCH 5) YOU EXECUTED THE FOLLOWING STATEMENT:

"I STARTED OUT COMPLAINING OF STIFFNESS AND SORENESS IN MY NECK AND BACK ABOUT TWO YEARS AGO WHEN LIFTING A PATIENT ON WARD NO. 7 ON THE COMMODE. I HAD A BURNING AND ACHING IN MY NECK AND BACK. I FELT LIKE SOMEONE HAD BURNED ME IN THE BACK WITH A CIGARETTE AND THE NEXT MORNING I HAD A STIFF NECK AND COULDN-T MOVE MY HEAD EITHER WAY, AND A HURTING IN MY BACK.

"I HAVE HAD SOME FAINTING SPELLS THAT OCCURRED ABOUT EVERY SIX MONTHS AND HAVE HAD A BURNING SENSATION IN MY BACK, RIGHT SHOULDER AND MY RIGHT ARM ACHES. I AM STILL COMPLAINING WITH THE SAME CONDITION ESPECIALLY WHEN I LIFT OR PUT MY ARMS OVER MY HEAD. THIS HAS BEEN AGGRAVATED ON SEVERAL OCCASIONS WHEN RESTRAINING, PULLING, LIFTING, AND ANCHORING PATIENTS. THIS CONDITION ALSO WAS AGGRAVATED ON A BUS RIDE WHEN THE BUS ACCIDENTALLY HIT A DITCH IN THE ROAD AND ON ONE OCCASION IT WAS AGGRAVATED WHEN A PATIENT BEAT ME IN THE BACK WITH HER FISTS. I HAVE HEADACHES USUALLY AFTER RESTRAINING ONE OF THESE PATIENTS.'

YOU URGE, THROUGH YOUR ATTORNEY, THAT YOU WERE GIVEN A "CLEAN BILL OF HEALTH" BY THE U.S. PUBLIC HEALTH SERVICE, THAT YOU WORKED CONTINUOUSLY AT YOUR JOB (SAVE FOR REGULAR DAYS OFF) AND THAT NO PHYSICAL DISABILITY HAMPERED YOUR ACTIVITIES, BUT THAT AT THE CAPRICE OF YOUR SUPERVISOR YOU WERE ORDERED TO TAKE A PHYSICAL EXAMINATION WHICH WAS ONLY PERFUNCTORY IN NATURE. THE INFORMATION FURNISHED BY THE AGENCY AS WELL AS THAT FURNISHED BY YOU DOES NOT SUPPORT THAT VIEW. THE U.S. PUBLIC HEALTH SERVICE DID FIND PARTIAL DISABILITY AND RECOMMENDED THAT YOU BE ASSIGNED LESS STRENUOUS DUTIES. FOR SOME WEEKS YOU WERE SO ASSIGNED. THE REQUEST FOR THE PHYSICAL EXAMINATION WAS PROMPTED AT LEAST IN PART, BY YOUR PROTEST AGAINST RETURNING TO YOUR REGULAR ASSIGNMENT. THE FACT THAT YOU WERE STILL HAMPERED BY PHYSICAL DISABILITIES IS CLEARLY SET FORTH IN YOUR STATEMENT OF MARCH 5, QUOTED HEREIN.

ON THE FACTS OF RECORD IT DOES NOT APPEAR THAT THE ADMINISTRATIVE ACTION IN PLACING YOU ON INVOLUNTARY LEAVE WITH PAY WAS ARBITRARY OR CAPRICIOUS BUT SUCH ACTION WAS BASED UPON YOUR STATEMENTS AND MEDICAL FINDINGS THAT YOU WERE DISABLED FROM PERFORMING YOUR REGULARLY ASSIGNED DUTIES.

UNDER THE CIRCUMSTANCES THE GRANT OF LEAVE WITH PAY APPEARS TO HAVE BEEN PROPER AND WE ARE UNAWARE OF ANY AUTHORITY BY WHICH SUCH LEAVE MAY BE RESTORED TO YOUR CREDIT.