B-158425, JUL. 13, 1966

B-158425, JUL. 13, 1966

TO MR. JOE N. FRAZAR:

WE REFER TO YOUR LETTER OF MAY 25, 1966, CONCERNING THE RESTORATION OF CREDIT FOR SICK AND ANNUAL LEAVE WHICH YOU WERE REQUIRED TO USE INCIDENT TO THE APPLICATION OF THE GENERAL SERVICES ADMINISTRATION TO THE U.S. CIVIL SERVICE COMMISSION FOR YOUR RETIREMENT ON DISABILITY.

THE REPORT OF THE GENERAL SERVICES ADMINISTRATION TO WHICH WE REFERRED IN OUR LETTER OF JUNE 8, 1966, TO YOU, HAS BEEN RECEIVED AND WE HAVE BEEN INFORMED BY THAT AGENCY, IN PERTINENT PART, AS FOLLOWS:

"THE ISSUANCE OF A GSA ORDER IN JUNE 1963 REALIGNING THE ORGANIZATION AND FUNCTIONS OF PUBLIC BUILDINGS SERVICE FIELD OFFICES SUBSTANTIALLY CHANGED THE DUTIES AND INCREASED THE PHYSICAL REQUIREMENTS OF AFFECTED BUILDINGS MANAGER POSITIONS. BUILDING INSPECTION WORK INVOLVING THE CLIMBING OF VERTICAL LADDERS AND REPEATED TRAVEL REQUIRING THE OPERATION OF PRIVATE OR GOVERNMENT MOTOR VEHICLES WAS DELEGATED TO THE INCUMBENT MANAGERS OF THE FIELD OFFICES. BUILDINGS MANAGERS OF KNOWN PHYSICAL LIMITATIONS WERE ASKED TO SUBMIT TO PHYSICAL EXAMINATIONS TO DETERMINE THEIR PHYSICAL FITNESS TO PERFORM THE JOB AND TO OPERATE MOTOR VEHICLES. MR. FRAZAR WAS ONE OF FIVE SUCH CASES IN REGION 7.

"IT WAS ON THE BASIS OF A REPORT FURNISHED BY THE MEDICAL FACILITY OF MR. FRAZAR'S CHOICE, THE SKINNER CLINIC, 124 DALLAS STREET, SAN ANTONIO, TEXAS, THAT THE DECISION WAS REACHED BY REGIONAL OFFICIALS TO PLACE HIM ON LEAVE AND RECOMMEND HIS DISABILITY RETIREMENT. AS YOU KNOW, THE BUREAU OF RETIREMENT AND INSURANCE, CIVIL SERVICE COMMISSION, INITIALLY FOUND THAT MR. FRAZAR WAS TOTALLY DISABLED FOR SERVICE IN HIS POSITION; HOWEVER, THIS FINDING WAS SUBSEQUENTLY REVERSED WHEN MR. FRAZAR APPEALED AND SUBMITTED ADDITIONAL EVIDENCE.'

IT WILL BE OBSERVED FROM THE FOREGOING THAT THE ACTION OF THE PERSONNEL OFFICER IN PLACING YOU ON LEAVE WAS PREDICATED UPON THE MEDICAL REPORT OF YOUR PHYSICAL EXAMINATION WHICH WE UNDERSTOOD WAS CONDUCTED BY A MEDICAL CLINIC OF YOUR CHOICE. FURTHER, THE REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION CONCURRED IN THE FINDING THAT YOU WERE DISABLED FROM THE PERFORMANCE OF THE DUTIES OF YOUR POSITION AND IT WAS ONLY AFTER YOU HAD APPEALED THAT FINDING AND THE INTRODUCTION OF NEW EVIDENCE THAT THE FINDING OF YOUR DISABILITY WAS REVERSED.

IN THE CIRCUMSTANCES IT CANNOT BE SAID THAT THE ACTION OF THE PERSONNEL OFFICER IN PLACING YOU ON LEAVE WAS CONTRARY TO THE EVIDENCE THEN AVAILABLE OR THAT SUCH ACTION WAS ARBITRARY OR CAPRICIOUS.

IN OUR LETTER OF FEBRUARY 8, 1966, B-158425, TO THE HONORABLE HENRY B. GONZALEZ, HOUSE OF REPRESENTATIVES, A COPY OF WHICH WE ASSUMED WAS FURNISHED YOU, WE POINTED OUT THAT IN CASES SIMILAR TO YOURS WE CONSISTENTLY HAVE RULED THAT ADMINISTRATIVE ACTIONS PLACING AN EMPLOYEE ON LEAVE BECAUSE OF MEDICALLY REPORTED DISABILITY ARE NOT SO ARBITRARY OR CAPRICIOUS AS TO WARRANT ALLOWANCE OF BACK PAY UNDER 5 U.S.C. 652, OR THE RESTORATION OF LEAVE, NOTWITHSTANDING A FINDING BY THE CIVIL SERVICE COMMISSION, AT A LATER DATE, THAT AN EMPLOYEE IS NOT DISABLED WITHIN THE PURVIEW OF THE RETIREMENT ACT.

THEREFORE, WE MUST CONCLUDE THAT YOU ARE NOT ENTITLED TO THE RESTORATION OF LEAVE USED DURING THE PENDENCY OF YOUR AGENCY'S APPLICATION FOR DISABILITY RETIREMENT BEFORE THE CIVIL SERVICE COMMISSION.