B-165872, FEB. 27, 1969

B-165872: Feb 27, 1969

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REQUESTING THAT THERE BE RESTORED TO YOUR ACCOUNT THE LEAVE YOU WERE REQUIRED TO USE PENDING ACTION ON THE APPLICATION FOR INVOLUNTARY DISABILITY RETIREMENT WHICH WAS SUBSEQUENTLY REJECTED BY THE CIVIL SERVICE COMMISSION. THIS APPLICATION WAS BASED ON FINDINGS BY THE LOCAL MEDICAL OFFICER AND INCLUDED THE RECOMMENDATIONS OF YOUR FAMILY PHYSICIAN. IT WAS THEIR DECISION THAT CONTINUANCE OF THE PERFORMANCE OF FIREFIGHTER DUTIES WOULD BE DETRIMENTAL TO YOUR WELL BEING. THE RECORD SHOWS THAT YOU WERE INFORMED IN A LETTER FROM THE PERSONNEL OFFICER THAT AN ATTEMPT HAD BEEN MADE TO REASSIGN YOU TO A POSITION COMMENSURATE WITH YOUR PHYSICAL LIMITATIONS AS PREVIOUSLY DETERMINED BY THE DOCTORS. SUCH AN ASSIGNMENT AT YOUR SAME RATE OF PAY WAS NOT POSSIBLE AND YOU DID NOT WANT TO ACCEPT A POSITION AT A LESSER RATE OF PAY.

B-165872, FEB. 27, 1969

TO MR. FORREST F. HOLLAND:

THIS REFERS TO YOUR LETTER OF DECEMBER 5, 1968, CASE FILE NO. 1-040 895, REQUESTING THAT THERE BE RESTORED TO YOUR ACCOUNT THE LEAVE YOU WERE REQUIRED TO USE PENDING ACTION ON THE APPLICATION FOR INVOLUNTARY DISABILITY RETIREMENT WHICH WAS SUBSEQUENTLY REJECTED BY THE CIVIL SERVICE COMMISSION.

ON JUNE 2, 1967, THE ANNISTON ARMY DEPOT SUBMITTED AN AGENCY INITIATED APPLICATION FOR DISABILITY RETIREMENT FOR YOU TO THE CIVIL SERVICE COMMISSION. THIS APPLICATION WAS BASED ON FINDINGS BY THE LOCAL MEDICAL OFFICER AND INCLUDED THE RECOMMENDATIONS OF YOUR FAMILY PHYSICIAN, DR. ERWIN BOOZER. IT WAS THEIR DECISION THAT CONTINUANCE OF THE PERFORMANCE OF FIREFIGHTER DUTIES WOULD BE DETRIMENTAL TO YOUR WELL BEING.

ON THE PREVIOUS DAY, JUNE 1, 1967, THE RECORD SHOWS THAT YOU WERE INFORMED IN A LETTER FROM THE PERSONNEL OFFICER THAT AN ATTEMPT HAD BEEN MADE TO REASSIGN YOU TO A POSITION COMMENSURATE WITH YOUR PHYSICAL LIMITATIONS AS PREVIOUSLY DETERMINED BY THE DOCTORS. SUCH AN ASSIGNMENT AT YOUR SAME RATE OF PAY WAS NOT POSSIBLE AND YOU DID NOT WANT TO ACCEPT A POSITION AT A LESSER RATE OF PAY.

THE AGENCY-INITIATED APPLICATION FOR RETIREMENT WAS APPROVED BY THE BUREAU OF RETIREMENT AND INSURANCE, U.S. CIVIL SERVICE COMMISSION, AND NOTIFICATION OF APPROVAL DATED SEPTEMBER 18, 1967, WAS FORWARDED TO THE ANNISTON ARMY DEPOT. YOU WERE GIVEN AN OPPORTUNITY BY THE CIVIL SERVICE COMMISSION TO APPEAL THE RETIREMENT ACTION. YOU APPARENTLY DID NOT FILE WITHIN THE TIME LIMIT IMPOSED AS THE FINAL APPROVAL FOR YOUR SEPARATION, DATED NOVEMBER 9, 1967, WAS SUBSEQUENTLY RECEIVED BY THE ANNISTON ARMY DEPOT.

SUBSEQUENT TO THE DATE OF FINAL APPROVAL YOU SUBMITTED TWO MEDICAL STATEMENTS REFLECTING THE FINDINGS OF THE UNIVERSITY MEDICAL CENTER IN BIRMINGHAM, ALABAMA, TO THE EFFECT THAT YOUR CONDITION WAS NOT DISABLING. THE BUREAU OF RETIREMENT AND INSURANCE OF THE CIVIL SERVICE COMMISSION ADVISED YOU THAT THE ADDITIONAL MEDICAL EVIDENCE DATED FEBRUARY 7 AND 14, 1968, FROM THE UNIVERSITY OF ALABAMA MEDICAL SCHOOL HAD BEEN RECEIVED. ALTHOUGH THE ADDITIONAL EVIDENCE WAS NOT SUBMITTED WITHIN THE TIME LIMIT FOR APPEAL, IT WAS ACCEPTED AND REVIEWED BY THE MEDICAL DIRECTOR AND HIS EVALUATION WAS THAT THE ORIGINAL DECISION WAS SOUND.

YOU SUBSEQUENTLY REQUESTED THAT YOUR CASE BE RECONSIDERED AND AFTER THOROUGHLY CONSIDERING THE MATTER THE CIVIL SERVICE COMMISSION REVERSED ITS ORIGINAL DECISION IN YOUR CASE IN JULY 1968 AND AUTHORIZED THE DEPOT TO RESTORE YOU TO DUTY. YOU WERE THEREFORE RETURNED TO DUTY ON JULY 29, 1968.

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 WHEN THE 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. B-136721, JANUARY 18, 1960; B-151072, MAY 14, 1963; 41 COMP. GEN. 774; 5 U.S.C. 550.804 (D).

UPON EXAMINATION OF THE EVIDENCE OF RECORD IN YOUR 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 YOUR ACCOUNT IS NOT AUTHORIZED.