B-171294, DEC. 15, 1970

B-171294: Dec 15, 1970

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WHERE AN EMPLOYEE WAS PAID SICK LEAVE FOR A PERIOD OF DISABILITY FOR WHICH INJURY COMPENSATION WAS SUBSEQUENTLY AVAILABLE. CLAIM FOR SICK LEAVE USED DURING PERIOD OF DISABILITY IS DENIED. PACIFIC - DEPARTMENT OF THE NAVY: REFERENCE IS MADE TO LETTER OF OCTOBER 29. SKUBIC WAS PAID SICK LEAVE FROM JUNE 16 TO JULY 13. THE RECORD INDICATES THAT THE EMPLOYEE WAS PAID INJURY COMPENSATION BY THE BUREAU OF EMPLOYEES' COMPENSATION FROM JULY 14 TO AUGUST 29. IF THE LEAVE PREVIOUSLY PAID FOR AS ANNUAL LEAVE IS CONVERTED TO BUREAU OF EMPLOYEES' COMPENSATION COMPENSATION THE NET RESULT WOULD BE A PAYMENT OF $301.59. IT SHOULD BE NOTED THAT IN THIS CASE THE APPLICATION IS BEING MADE BY THE WIDOW RETRO- ACTIVELY RATHER THAN BY THE EMPLOYEE.

B-171294, DEC. 15, 1970

DISABILITY PAY - SURVIVORS RIGHTS DENIAL OF CLAIM OF WIDOW FOR A LUMP-SUM LEAVE PAYMENT FOR HER LATE HUSBAND'S SICK LEAVE USED DURING A PERIOD OF DISABILITY. WHERE AN EMPLOYEE WAS PAID SICK LEAVE FOR A PERIOD OF DISABILITY FOR WHICH INJURY COMPENSATION WAS SUBSEQUENTLY AVAILABLE, HE MUST REQUEST SUBSTITUTION OF LEAVE-WITHOUT-PAY FOR SICK LEAVE IN ORDER TO RETAIN THE SICK LEAVE USED DURING THAT PERIOD AND SUCH RIGHT DOES NOT CARRY OVER TO HIS WIDOW. THEREFORE, CLAIM FOR SICK LEAVE USED DURING PERIOD OF DISABILITY IS DENIED.

TO MILITARY SEALIFT COMMAND, PACIFIC - DEPARTMENT OF THE NAVY:

REFERENCE IS MADE TO LETTER OF OCTOBER 29, 1970, REFERENCE P-542, REQUESTING OUR DECISION AS TO THE LEGALITY OF PAYING MRS. FRANK P. SKUBIC A LUMP-SUM LEAVE PAYMENT FOR HER LATE HUSBAND'S ANNUAL LEAVE UNDER THE CIRCUMSTANCES HEREINAFTER RELATED.

IT APPEARS THAT FRANK P. SKUBIC WAS PAID SICK LEAVE FROM JUNE 16 TO JULY 13, 1967, AND AT NO TIME PRIOR TO HIS DEATH ON MARCH 9, 1969, DID HE REQUEST CONVERSION OF LEAVE SO THAT HE COULD APPLY FOR COMPENSATION FROM THE BUREAU OF EMPLOYEES' COMPENSATION, DEPARTMENT OF LABOR, FOR THIS PERIOD. THE RECORD INDICATES THAT THE EMPLOYEE WAS PAID INJURY COMPENSATION BY THE BUREAU OF EMPLOYEES' COMPENSATION FROM JULY 14 TO AUGUST 29, 1967. MRS. SKUBIC NOW DESIRES THAT APPLICABLE LEAVE RECORDS BE CHANGED FROM LEAVE TO LEAVE-WITHOUT-PAY IN ORDER TO RECEIVE THE BUREAU OF EMPLOYEES' COMPENSATION COMPENSATION FOR THE PERIOD JUNE 16 TO JULY 13, 1967, WHICH WOULD THEN PERMIT A LUMP-SUM LEAVE PAYMENT OF 126 HOURS OF ANNUAL LEAVE ORIGINALLY PAID AS SICK LEAVE. IF THE LEAVE PREVIOUSLY PAID FOR AS ANNUAL LEAVE IS CONVERTED TO BUREAU OF EMPLOYEES' COMPENSATION COMPENSATION THE NET RESULT WOULD BE A PAYMENT OF $301.59. IT SHOULD BE NOTED THAT IN THIS CASE THE APPLICATION IS BEING MADE BY THE WIDOW RETRO- ACTIVELY RATHER THAN BY THE EMPLOYEE.

SECTION 8118 OF TITLE 5 OF THE U.S.C. PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"AN EMPLOYEE MAY USE ANNUAL OR SICK LEAVE TO HIS CREDIT AT THE TIME DISABILITY BEGINS, BUT HIS COMPENSATION FOR DISABILITY DOES NOT BEGIN, AND THE TIME PERIODS SPECIFIED BY SECTION 8117 OF THIS TITLE DO NOT BEGIN TO RUN, UNTIL THE USE OF THE ANNUAL OR SICK LEAVE ENDS."

OUR VIEW IS THAT THE ELECTION CONTEMPLATED BY THE ABOVE PROVISION OF LAW MUST BE MADE BY THE EMPLOYEE HIMSELF ASSUMING, OF COURSE, THAT HE WAS CAPABLE OF DOING SO AFTER THE AWARD OF COMPENSATION WAS MADE. THE FACT THAT HE FAILED TO REQUEST A SUBSTITUTION OF LEAVE-WITHOUT-PAY FOR ANNUAL AND SICK LEAVE IN ORDER TO RECEIVE INJURY COMPENSATION DOES NOT MEAN THAT SUCH A RIGHT CARRIES OVER TO HIS WIDOW OR OTHER SURVIVORS.

ACCORDINGLY, THIS OFFICE ON THE PRESENT RECORD MAY NOT APPROVE THE SUBSTITUTION OF LEAVE-WITHOUT-PAY FOR LEAVE-WITH-PAY AS REQUESTED BY MRS. SKUBIC.