B-174466, DEC 27, 1971

B-174466, DEC 27, 1971

CIVILIAN EMPLOYEE - ANNUAL LEAVE - RETIREMENT FOR MEDICAL REASONS DECISION AUTHORIZING CERTIFICATION OF PAYMENT ON A VOUCHER IN FAVOR OF JOHN J. BAGWELL FOR 75 HOURS OF ANNUAL LEAVE CHARGED HIM UPON HIS RESIGNATION. THE ACCEPTABILITY OF THE MEDICAL EVIDENCE PRESENTED IS A MATTER PRIMARILY FOR ADMINISTRATIVE CONSIDERATION AND DETERMINATION. B 151900, JULY 19, 1963. HOWEVER, IT IS NOTED THAT MR. BAGWELL'S INJURY DURING 1964 DID ENTITLE HIM TO BUREAU OF EMPLOYEES COMPENSATION BENEFITS AND THAT HE NEVER RETURNED TO WORK BECAUSE OF THIS INJURY. IN THESE CIRCUMSTANCES, THE COMP. GEN. CAN SEE NO REASON WHY THE VOUCHER MAY NOT BE PROCESSED FOR PAYMENT.

TO MAJOR H. W. UTMAN:

YOUR LETTER OF OCTOBER 18, 1971, REQUESTS OUR DECISION AS TO WHETHER A VOUCHER IN FAVOR OF MR. JOHN J. BAGWELL FOR 75 HOURS OF ANNUAL LEAVE MAY BE PAID IN VIEW OF THE CIRCUMSTANCES HEREINAFTER RELATED.

YOU STATE THAT MR. BAGWELL WAS INJURED ON THE JOB IN 1964 AND HE ELECTED TO RECEIVE EMPLOYEES' COMPENSATION (INJURY) UNTIL HE RESIGNED ON MARCH 6, 1970. DURING THIS PERIOD OF TIME, MR. BAGWELL WAS IN A LEAVE-WITHOUT-PAY STATUS. YOU FURTHER STATE THAT MR. BAGWELL MADE THE FOLLOWING STATEMENT ON HIS RESIGNATION FORM:

"PRESENTLY RECEIVING FEDERAL EMPLOYEES' COMPENSATION DUE TO A WORK INCURRED INJURY AND DO NOT EXPECT TO BE ABLE TO RETURN TO WORK IN THE FORESEEABLE FUTURE. I WISH TO REMAIN IN FEDERAL EMPLOYEES' COMPENSATION BUT FILED FOR A RETIREMENT ANNUITY TO ESTABLISH ELIGIBILITY FOR RETIREMENT ANNUITY IN THE EVENT FEDERAL EMPLOYEES' COMPENSATION IS DISCONTINUED."

IT IS INDICATED THAT SINCE IT WAS NOT CLEAR THAT MR. BAGWELL'S RESIGNATION WAS BASED ON MEDICAL FACTORS, HIS ANNUAL LEAVE CREDIT OF 75 HOURS WAS USED TO OFFSET AN EQUAL NUMBER OF HOURS OF ADVANCED SICK LEAVE. MR. BAGWELL SUBSEQUENTLY DELIVERED A LETTER FROM HIS MEDICAL DOCTOR WHICH STATES:

" *** FOLLOWING THESE SURGICAL PROCEDURES HE HAS HAD A CONTINUOUS DISABILITY FOR WORK.

"IT IS MY OPINION THAT MR. BAGWELL HAS HAD A TOTAL DISABILITY FOR HIS USUAL LINE OF WORK FOR THE PAST TEN YEARS."

THIS TEN-YEAR TIME PERIOD WOULD INCLUDE THE DATE OF HIS RESIGNATION.

THE CODE OF FEDERAL REGULATIONS REQUIRES AN EMPLOYEE WHO IS INDEBTED FOR UNEARNED LEAVE AT THE DATE OF HIS SEPARATION TO REFUND THE AMOUNT PAID HIM OR DEDUCT THAT AMOUNT FROM ANY PAY DUE HIM. HOWEVER, THIS REGULATION DOES NOT APPLY WHERE AN EMPLOYEE IS SEPARATED BECAUSE OF A DISABILITY WHICH PREVENTS HIM FROM RETURNING TO DUTY AS DETERMINED BY HIS AGENCY ON THE BASIS OF ACCEPTABLE MEDICAL EVIDENCE. SEE 5 CFR 630.209.

THE ACCEPTABILITY OF THE MEDICAL EVIDENCE PRESENTED IS A MATTER PRIMARILY FOR ADMINISTRATIVE CONSIDERATION AND DETERMINATION BY YOUR AGENCY. 151900, JULY 19, 1963, AND B-144189, OCTOBER 24, 1960. HOWEVER, WE NOTE THAT MR. BAGWELL'S INJURY DURING 1964 DID ENTITLE HIM TO BUREAU OF EMPLOYEES' COMPENSATION BENEFITS AND THAT HE NEVER RETURNED TO WORK DUE TO THIS INJURY. IN VIEW THEREOF, AS WELL AS THE MEDICAL CERTIFICATE REFERRED TO ABOVE, WE SEE NO REASON WHY THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE PROCESSED FOR PAYMENT.