B-170092, SEP. 1, 1970

B-170092: Sep 1, 1970

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WAS PLACED ON INVOLUNTARY SICK LEAVE BY SUPERVISOR RATHER THAN BY MEDICAL AUTHORITY AT INSTALLATION. FOR MORE THAN ONE MONTH UNTIL A MEDICAL EXAMINATION CONFIRMED THAT HE WAS ABLE TO PERFORM HIS DUTIES. MAY HAVE THE PLACEMENT ON INVOLUNTARY SICK LEAVE REGARDED AS AN UNJUSTIFIED OR UNWARRANTED ACTION WITHIN MEANING OF 5 U.S.C. 5596. BAADE: THIS WILL REFER TO YOUR LETTERS OF JANUARY 17 AND JULY 13. CONCERNING YOUR CLAIM FOR RECREDIT OF SICK LEAVE FOR WHICH YOU WERE INVOLUNTARILY CHARGED DURING THE PERIOD JULY 28. THE CIRCUMSTANCES UNDER WHICH YOUR CLAIM AROSE ARE DESCRIBED AS FOLLOWS IN YOUR LETTER DATED JANUARY 17. I WAS THE PRINCIPAL POSITION CLASSIFICATION SPECIALIST AT NAVAL AIR RESERVE COMMAND HEADQUARTERS (CNARESTRA).

B-170092, SEP. 1, 1970

INVOLUNTARY SICK LEAVE STATUS FORMER NAVY EMPLOYEE WHO, AFTER PERIOD OF HOSPITALIZATION FOR HEART CONDITION, WAS PLACED ON INVOLUNTARY SICK LEAVE BY SUPERVISOR RATHER THAN BY MEDICAL AUTHORITY AT INSTALLATION, FOR MORE THAN ONE MONTH UNTIL A MEDICAL EXAMINATION CONFIRMED THAT HE WAS ABLE TO PERFORM HIS DUTIES, MAY HAVE THE PLACEMENT ON INVOLUNTARY SICK LEAVE REGARDED AS AN UNJUSTIFIED OR UNWARRANTED ACTION WITHIN MEANING OF 5 U.S.C. 5596. ACCORDINGLY, THE SALARY RECEIVED FOR SICK LEAVE MAY BE REGARDED AS COMPENSATION ALLOWABLE UNDER 5 U.S.C. 5596 AND THE SICK LEAVE SO CHARGED SHOULD BE RECREDITED.

TO MR. RAYMOND A. BAADE:

THIS WILL REFER TO YOUR LETTERS OF JANUARY 17 AND JULY 13, 1970, CONCERNING YOUR CLAIM FOR RECREDIT OF SICK LEAVE FOR WHICH YOU WERE INVOLUNTARILY CHARGED DURING THE PERIOD JULY 28, 1969, THROUGH SEPTEMBER 12, 1969.

THE CIRCUMSTANCES UNDER WHICH YOUR CLAIM AROSE ARE DESCRIBED AS FOLLOWS IN YOUR LETTER DATED JANUARY 17, 1970:

"A. I WAS THE PRINCIPAL POSITION CLASSIFICATION SPECIALIST AT NAVAL AIR RESERVE COMMAND HEADQUARTERS (CNARESTRA), GLENVIEW, ILL. UNTIL I ACCEPTED REASSIGNMENT TO A POSITION AT MILITARY ASSISTANCE COMMAND HEADQUARTERS, VIETNAM, SAIGON ON 29 APRIL, 1969. ON 3 JUNE I WAS HOSPITALIZED WITH A HEART CONDITION AT SAIGON AND EVACUATED TO THE STATES, BEING DISCHARGED AT GREAT LAKES NAVAL HOSPITAL ON 15 JUNE 1969. AT THAT TIME I WENT UNDER THE CARE OF DR. F. W. JEFFORDS, MD, MY PERSONAL PHYSICIAN, AS AN AMBULATORY OUT-PATIENT. ON 20 JULY 1969 I WAS REASSIGNED FROM MAC-V TO MY FORMER POSITION AT CNARESTRA GLENVIEW.

"B. ON 25 JULY DR. JEFFORDS TOLD ME TO RETURN TO FULL-TIME WORK IN MY POSITION AT GLENVIEW AND GAVE ME A LETTER SO CERTIFYING FOR MY EMPLOYER AND A RESUME' OF MY CONDITION, PROGRESS, AND TREATMENT. ON MY RETURN TO RESUME MY WORK AT GLENVIEW MR. D. B. CLARKE, MY SUPERVISOR, REFERRED ME TO THE MEDICAL DEPT. FOR APPROVAL THAT I WAS PHYSICALLY QUALIFIED (A NORMAL ROUTINE FOR ALL EMPLOYEES ON RETURN FROM MORE THAN THREE DAYS OF SICK LEAVE). CAPTAIN JONES, THE MEDICAL OFFICER PROFESSED INABILITY TO DETERMINE MY ABILITY TO RESUME MY DUTIES BECAUSE OF A RARE REQUIREMENT THAT I OCCASIONALLY TRAVEL IN NAVAL AIRCRAFT WHICH ARE UNPRESSURIZED AND STATED THAT HE WANTED A CARDIOLOGIC EXAMINATION AND CONSULTATION BY THE GREAT LAKES NAVAL HOSPITAL PRIOR TO AUTHORIZING MY RETURN TO WORK. ABOUT TWO DAYS LATER I WAS CALLED BY MR. CLARKE TO ADVISE THAT THE GREAT LAKES APPOINTMENT WAS SCHEDULED FOR 10 SEPTEMBER 1969. I WAS NOT PERMITTED TO RETURN TO WORK.

"C. I AGAIN VISITED THE GLENVIEW MEDICAL DEPT. A COUPLE OF DAYS LATER TO REQUEST THAT I BE PERMITTED TO RETURN TO FULL-TIME DUTY WITH THE EXCEPTION OF TRAVEL IN NAVAL AIRCRAFT, PENDING THE 10 SEPTEMBER SCHEDULED EXAMINATION. THE MEDICAL OFFICER REFUSED TO GRANT MY REQUEST. IT SEEMS SIGNIFICANT THAT, ON BOTH OF MY VISITS TO THE MEDICAL DEPT., GLENVIEW, NO PHYSICAL EXAMINATION OF ANY KIND WAS MADE ON ME; FURTHERMORE, NO CONTACT WAS MADE BY THE MEDICAL DEPT. WITH MY PERSONAL PHYSICIAN TO OBTAIN SPECIFIC TECHNICAL INFORMATION REGARDING THE STATE OF MY HEALTH AND HIS PROFESSIONAL REASON FOR CERTIFYING MY RETURN TO FULL-TIME WORK ***

"D. SINCE I HAD EXHAUSTED ALL EFFORTS TO RESUME MY WORK, I CONTINUED INVOLUNTARILY ON SICK LEAVE UNTIL 12 SEPTEMBER 1969. THE EXAMINATION AT GREAT LAKES ON THE 10TH OF SEPTEMBER 1969 CONFIRMED THAT I WAS ABLE TO RESUME ALL OF MY DUTIES INCLUDING TRAVEL BY UNPRESSURIZED AIRCRAFT IF SUPPLEMENTAL OXYGEN SUPPLY WAS AVAILABLE ABOVE CERTAIN HIGHER ALTITUDES. THIS CONFIRMED MY PERSONAL PHYSICIAN'S CERTIFICATION OF 28 JULY THAT I WAS FIT TO RETURN TO WORK, AND COULD HAVE BEEN VERIFIED BY THE MEDICAL DEPT., GLENVIEW BY CONSULTING DR. JEFFORDS OR BY CONDUCTING THEIR OWN PHYSICAL EXAMINATION ON MY 28 JULY VISIT TO THEM."

WE HAVE BEEN ADVISED BY THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT OF THE DEPARTMENT OF THE NAVY THAT YOUR REQUEST FOR RECREDIT OF SICK LEAVE WAS DENIED ADMINISTRATIVELY ON THE BASIS OF ITS UNDERSTANDING OF CERTAIN DECISIONS OF THIS OFFICE. THE DECISIONS RELIED UPON APPEAR TO BE THOSE IN WHICH WE HAVE STATED (ORDINARILY IN CASES INVOLVING AN AGENCY APPLICATION FOR DISABILITY RETIREMENT OF AN EMPLOYEE) THAT PLACING AN EMPLOYEE ON INVOLUNTARY SICK OR ANNUAL LEAVE IS PROPER IF IT IS PREDICATED UPON FINDINGS AND OPINIONS OF COMPETENT MEDICAL AUTHORITY THAT THE EMPLOYEE IS INCAPACITATED FOR THE PERFORMANCE OF HIS ASSIGNED DUTIES.

IN YOUR CASE THE STATEMENT OF YOUR PERSONAL PHYSICIAN AND THE EXAMINATION CONDUCTED AT THE GREAT LAKES NAVAL HOSPITAL CONFIRMED THAT YOU WERE PHYSICALLY ABLE TO PERFORM YOUR WORK. ALTHOUGH THE MEDICAL OFFICER AT THE GLENVIEW STATION RECOMMENDED A CARDIOLOGICAL EXAMINATION TO DETERMINE YOUR ABILITY TO FLY IN UNPRESSURIZED AIRCRAFT (NOT AN ESSENTIAL REQUIREMENT OF YOUR JOB) HE DID NOT EXAMINE YOU AND NOTHING IN THE RECORD SHOWS A POSITIVE DETERMINATION BY THAT OFFICER THAT YOU SHOULD BE PLACED ON SICK LEAVE PENDING THAT EXAMINATION. INSTEAD, IT APPEARS THAT THE DECISION THAT YOU SHOULD BE PLACED ON SICK LEAVE WAS MADE NOT BY MEDICAL AUTHORITY, BUT, RATHER, BY YOUR SUPERVISOR, THE CIVILIAN PERSONNEL OFFICER AT THE INSTALLATION. THE NAVY OFFICE OF CIVILIAN MANPOWER MANAGEMENT REPORTS THAT YOUR USE OF SICK LEAVE WAS REQUIRED NOT BECAUSE OF ILLNESS BUT BY THE DELAY INCURRED IN SCHEDULING YOUR CARDIOLOGICAL EXAMINATION.

IN 30 COMP. GEN. 390 (1951) WE STATED IN A SOMEWHAT SIMILAR CASE:

"AS THE EMPLOYEE WAS AVAILABLE FOR DUTY AT ALL TIMES DURING THE SICK AND ANNUAL LEAVE IN QUESTION, AND SINCE THE FAILURE TO PERFORM SERVICES WAS NOT DUE TO ANY FAULT ON HIS PART, HE CANNOT BE HELD RESPONSIBLE FOR HIS FAILURE TO RENDER SERVICES ON THE DAYS IN QUESTION. ACCORDINGLY, UNDER THE STATED FACTS AND CIRCUMSTANCES, IT IS PROPER TO TAKE ADMINISTRATIVE ACTION TO CANCEL THE SICK AND ANNUAL LEAVE SO GRANTED AND TO RECREDIT SUCH LEAVE TO HIS ACCOUNT."

SEE ALSO 39 COMP. GEN. 154 (1959); AND B-163493, DATED MARCH 29, 1968.

IT IS OUR VIEW THAT PLACING YOU ON SICK LEAVE WITHOUT YOUR CONSENT MAY BE REGARDED AS AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WITHIN THE MEANING OF SECTION 5596 OF TITLE 5 OF THE UNITED STATES CODE. THE IMPLEMENTING REGULATION, 5 CFR 550.803(E), SPECIFICALLY INCLUDES IN THE DEFINITION OF PERSONNEL ACTIONS FOR WHICH RELIEF IS AVAILABLE UNDER THE CITED SECTION OF THE CODE " *** PERIODS OF ENFORCED PAID LEAVE WHETHER OR NOT CONNECTED WITH AN ADVERSE ACTION *** ." ACCORDINGLY, THE SALARY YOU RECEIVED FOR SICK LEAVE MAY BE REGARDED AS COMPENSATION ALLOWABLE UNDER 5 U.S.C. 5596 AND THE SICK LEAVE SO CHARGED SHOULD BE RESTORED TO YOUR ACCOUNT.

A COPY OF THIS DECISION IS BEING SENT TO THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT OF THE DEPARTMENT OF THE NAVY. SINCE IT APPEARS FROM THE FILE THAT YOU ARE NOW EMPLOYED ELSEWHERE WE WOULD SUGGEST THAT YOU BRING THIS DECISION TO THE ATTENTION OF YOUR CURRENT ADMINISTRATIVE OFFICE AS A MEANS OF INITIATING THE STEPS NECESSARY TOWARD RECREDIT OF YOUR LEAVE RECORD WITH THE SICK LEAVE IN QUESTION.