B-156450, APR. 13, 1965

B-156450: Apr 13, 1965

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COUK WAS REMOVED FROM ACTIVE DUTY PENDING ACTION BY THE UNITED STATES CIVIL SERVICE COMMISSION UPON AN APPLICATION FOR HIS DISABILITY RETIREMENT SUBMITTED BY THE BUREAU OF MINES. COUK WAS GIVEN A PHYSICAL EXAMINATION BY DR. COUK "IS NOT PHYSICALLY ABLE TO PERFORM THE ARDUOUS WORK OF A COAL MINE INSPECTOR.'. NANCE WAS REFERRED TO THE MEDICAL REVIEW BOARD OF THE UNITED STATES PUBLIC HEALTH SERVICE WHICH. COUK WAS EXAMINED IN THE BALTIMORE HOSPITAL. COUK IS NOT PHYSICALLY QUALIFIED FOR THE ARDUOUS DUTIES OF A FEDERAL COAL MINE INSPECTOR.'. THE DECISION OF THE MEDICAL REVIEW BOARD WAS CONFIRMED BY THE MEDICAL DIVISION OF THE UNITED STATES CIVIL SERVICE COMMISSION ON DECEMBER 10. COUK'S RETIREMENT WHICH WAS APPROVED BY THE CIVIL SERVICE COMMISSION ON SEPTEMBER 15.

B-156450, APR. 13, 1965

TO THE HONORABLE SECRETARY OF THE INTERIOR:

ON MARCH 31, 1965, THE DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION, UNITED STATES DEPARTMENT OF THE INTERIOR, REQUESTED OUR ADVANCE DECISION WHETHER, UNDER THE CIRCUMSTANCES SET FORTH BELOW, THE LEAVE ACCOUNT OF MR. HERBERT D. COUK, FEDERAL COAL MINE INSPECTOR FOR THE BUREAU OF MINES, MAY BE RECREDITED WITH PERIODS OF SICK AND ANNUAL LEAVE CHARGED FOR THE PERIOD DURING WHICH MR. COUK WAS REMOVED FROM ACTIVE DUTY PENDING ACTION BY THE UNITED STATES CIVIL SERVICE COMMISSION UPON AN APPLICATION FOR HIS DISABILITY RETIREMENT SUBMITTED BY THE BUREAU OF MINES.

THE RECORD SHOWS THAT ON JULY 26, 1963, MR. COUK WAS GIVEN A PHYSICAL EXAMINATION BY DR. DANA W. NANCE, A FEDERAL PHYSICIAN, WHO REPORTED THAT MR. COUK "IS NOT PHYSICALLY ABLE TO PERFORM THE ARDUOUS WORK OF A COAL MINE INSPECTOR.' THE REPORT OF DR. NANCE WAS REFERRED TO THE MEDICAL REVIEW BOARD OF THE UNITED STATES PUBLIC HEALTH SERVICE WHICH, BY LETTER DATED SEPTEMBER 19, 1963, RECOMMENDED THAT MR. COUK BE GIVEN A COMPLETE PHYSICAL EXAMINATION AT THE PUBLIC HEALTH SERVICE HOSPITAL IN BALTIMORE,MARYLAND. DURING THE PERIOD OCTOBER 21-25, 1963, MR. COUK WAS EXAMINED IN THE BALTIMORE HOSPITAL.

ON THE BASIS OF THE MEDICAL REPORT ISSUED BY THE PUBLIC HEALTH SERVICE HOSPITAL AND THE REPORT OF DR. NANCE, THE MEDICAL REVIEW BOARD BY LETTER DATED DECEMBER 5, 1963, DECLARED THAT: "MR. COUK IS NOT PHYSICALLY QUALIFIED FOR THE ARDUOUS DUTIES OF A FEDERAL COAL MINE INSPECTOR.' THE DECISION OF THE MEDICAL REVIEW BOARD WAS CONFIRMED BY THE MEDICAL DIVISION OF THE UNITED STATES CIVIL SERVICE COMMISSION ON DECEMBER 10, 1963.

ON DECEMBER 23, 1963, THE ADMINISTRATIVE OFFICE PLACED MR. COUK ON SICK LEAVE AND CARRIED HIM ON SICK AND ANNUAL LEAVE PENDING DETERMINATION OF HIS STATUS. ON DECEMBER 24, 1963, THE BUREAU OF MINES OFFERED MR. COUK AN OPTION OF ELECTING TO RETIRE ON DISABILITY OR ACCEPTING A POSITION WITH LESS ARDUOUS DUTIES. MR. COUK DID NOT REPLY TO THE AGENCY'S OFFER.

ON MARCH 4, 1964, THE ADMINISTRATIVE OFFICE SUBMITTED AN APPLICATION FOR MR. COUK'S RETIREMENT WHICH WAS APPROVED BY THE CIVIL SERVICE COMMISSION ON SEPTEMBER 15, 1964. HOWEVER, THE COMMISSION LATER WITHDREW ITS PRIOR APPROVAL OF MR. COUK'S RETIREMENT AND BY LETTER DATED NOVEMBER 10, 1964, THE COMMISSION DECLARED THAT MR. COUK WAS NOT TOTALLY DISABLED WITHIN THE MEANING OF THE RETIREMENT LAW. MR. COUK RETURNED TO DUTY AS A FEDERAL COAL MINE INSPECTOR ON NOVEMBER 11, 1964, AND HAS REQUESTED THE ADMINISTRATIVE OFFICE TO RECREDIT HIS LEAVE ACCOUNT WITH ALL HOURS OF LEAVE USED DURING THE PERIOD JANUARY 4, 1964, TO NOVEMBER 11, 1964.

IN A LONG LINE OF DECISIONS OF THIS OFFICE, WE HAVE HELD THAT THE PLACING OF AN EMPLOYEE ON INVOLUNTARY SICK OR ANNUAL LEAVE PENDING THE DECISION OF THE CIVIL SERVICE COMMISSION ON AN AGENCY DISABILITY RETIREMENT APPLICATION DOES NOT CONSTITUTE AN UNJUSTIFIED OR UNWARRANTED SUSPENSION SO AS TO ENTITLE THE EMPLOYEE TO BACK PAY UNDER THE PROVISIONS OF 5 U.S.C. 652 WHEN ADMINISTRATIVE OFFICERS DETERMINE, NOT ARBITRARILY OR CAPRICIOUSLY BUT UPON THE BASIS OF COMPETENT MEDICAL FINDINGS, THAT THE EMPLOYEE IS INCAPACITATED FOR THE PERFORMANCE OF HIS ASSIGNED DUTIES. 136721, JANUARY 18, 1960; B 151072, MAY 14, 1963; B-150087, NOVEMBER 30, 1962 (COPIES ENCLOSED); 41 COMP. GEN. 774.

UPON EXAMINATION OF THE EVIDENCE OF RECORD IN THIS CASE, WE CAN FIND NO BASIS TO CONCLUDE THAT THE ACTION OF THE ADMINISTRATIVE OFFICE WAS NOT PROPERLY BASED UPON COMPETENT MEDICAL ADVICE. THEREFORE, THE RECREDIT OF LEAVE TO MR. COUK'S ACCOUNT IS NOT AUTHORIZED.