B-175201, JUN 2, 1972

B-175201: Jun 2, 1972

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ON THE BASIS OF CERTAIN ITEMS IN THE RECORD - THE INABILITY TO LOCATE THE ORIGINAL X-RAYS AND THE FAILURE OF THE HOSPITAL TO DENY THAT AN ERRONEOUS MEDICAL JUDGMENT WAS RENDERED - IT MUST BE CONCLUDED THAT THE EMPLOYEE'S ACUTE MEDICAL CONDITION WAS EXTANT BEFORE THE DATE OF HIS RETIREMENT AND. WOULD HAVE BEEN TIMELY DETECTED WITH THE RESULT THAT THE EMPLOYEE WOULD HAVE BEEN GRANTED ACCRUED SICK LEAVE FOR THE DURATION OF HIS INCAPACITY. THE CLAIM WAS DENIED BY OUR CLAIMS DIVISION ON JUNE 29. HE WAS AGAIN X-RAYED INCIDENT TO PREEMPLOYMENT EXAMINATION BY A PRIVATE HOSPITAL IN NEW ORLEANS AND WAS FOUND TO BE SUFFERING WITH "A POORLY DIFFERENTIATED CARCINOMA OF THE LEFT LOWER LOBE OF THE LUNG" WHICH REQUIRED A LOBECTOMY ON FEBRUARY 6.

B-175201, JUN 2, 1972

CIVILIAN EMPLOYEE - SEPARATION PHYSICAL - SICK LEAVE AFTER RETIREMENT DECISION ALLOWING THE CLAIM OF NORMAN ST. MARTIN, A FORMER EMPLOYEE OF THE VETERANS ADMINISTRATION HOSPITAL, NEW ORLEANS, LA; FOR ACCRUED SICK LEAVE TO HIS CREDIT AT THE TIME OF HIS VOLUNTARY OPTIONAL RETIREMENT EFFECTIVE DECEMBER 30, 1966. ON THE BASIS OF CERTAIN ITEMS IN THE RECORD - THE INABILITY TO LOCATE THE ORIGINAL X-RAYS AND THE FAILURE OF THE HOSPITAL TO DENY THAT AN ERRONEOUS MEDICAL JUDGMENT WAS RENDERED - IT MUST BE CONCLUDED THAT THE EMPLOYEE'S ACUTE MEDICAL CONDITION WAS EXTANT BEFORE THE DATE OF HIS RETIREMENT AND, UNDER ORDINARY CIRCUMSTANCES, WOULD HAVE BEEN TIMELY DETECTED WITH THE RESULT THAT THE EMPLOYEE WOULD HAVE BEEN GRANTED ACCRUED SICK LEAVE FOR THE DURATION OF HIS INCAPACITY.

TO MR. DONALD E. JOHNSON:

THIS REFERS TO THE CLAIM OF MR. NORMAN ST. MARTIN, A FORMER EMPLOYEE OF THE VETERANS ADMINISTRATION HOSPITAL, NEW ORLEANS, LOUISIANA, FOR ACCRUED SICK LEAVE TO HIS CREDIT AT THE TIME OF HIS VOLUNTARY OPTIONAL RETIREMENT EFFECTIVE DECEMBER 30, 1966. THE CLAIM WAS DENIED BY OUR CLAIMS DIVISION ON JUNE 29, 1971, BUT HAS BEEN REVIEWED BY THIS OFFICE AT THE REQUEST OF THE CLAIMANT.

THE FACTS OF RECORD DISCLOSE THAT MR. ST. MARTIN RECEIVED A PHYSICAL EXAMINATION INCLUDING A "SEPARATION" CHEST X-RAY ON DECEMBER 21, 1966, FOR THE STATED PURPOSE OF "DETECTING DISEASES IN *** (ITS) INCIPIENCY AND REFERRING THE EMPLOYEE TO HIS PRIVATE PHYSICIAN FOR TREATMENT." THE RESULTS OF THE X-RAY INDICATED NO ABNORMALITY NOR ANY NEED FOR ADDITIONAL X-RAY EXAMINATION. HOWEVER, ON JANUARY 3, 1967, 4 DAYS AFTER HIS RETIREMENT, HE WAS AGAIN X-RAYED INCIDENT TO PREEMPLOYMENT EXAMINATION BY A PRIVATE HOSPITAL IN NEW ORLEANS AND WAS FOUND TO BE SUFFERING WITH "A POORLY DIFFERENTIATED CARCINOMA OF THE LEFT LOWER LOBE OF THE LUNG" WHICH REQUIRED A LOBECTOMY ON FEBRUARY 6, 1967.

ALTHOUGH A RECENT ADMINISTRATIVE REPORT CITES THE ABSENCE OF ANY "KNOWN AGENCY POLICY OR PRACTICE OF DEFERRING THE PROCESSING OF RETIREMENT APPLICATIONS" WHEN A CRITICAL MEDICAL PROBLEM IS DETECTED IN THE COURSE OF A "SEPARATION" PHYSICAL EXAMINATION, IT IS ALSO STATED THAT IN SUCH CIRCUMSTANCES AN INDIVIDUAL EMPLOYEE MIGHT "BE ADVISED BY THE PERSONNEL OFFICER TO ADJUST HIS PERSONAL PLANS TO SERVE THE EMPLOYEE'S BEST INTERESTS." WE INTERPRET THAT COMMENT AS MEANING THAT PROCESSING OF MR. ST. MARTIN'S RETIREMENT APPLICATION WOULD HAVE BEEN DEFERRED IF HIS TRUE PHYSICAL CONDITION HAD BEEN TIMELY DISCOVERED ON OR ABOUT DECEMBER 21, 1966.

THE RECORD FURTHER INDICATES THAT NUMEROUS UNSUCCESSFUL ATTEMPTS HAVE BEEN MADE TO LOCATE THE X-RAY FILMS IN QUESTION FOR PURPOSES OF COMPARATIVE ANALYSIS. BECAUSE OF THEIR UNAVAILABILITY, IT IS PRESENTLY IMPOSSIBLE TO DETERMINE IF A MORE THOROUGH AND COMPETENT EVALUATION AT THE TIME (DECEMBER 21, 1966) COULD HAVE REASONABLY REVEALED THE EMPLOYEE'S CONDITION. NOWHERE IN THE RECORD, HOWEVER, HAVE WE DISCOVERED AN OFFICIAL DENIAL THAT AN ERRONEOUS MEDICAL JUDGMENT WAS RENDERED IN CONNECTION WITH EVALUATING THE ROENTGENOLOGICAL EXAMINATION. IN THE ABSENCE OF SUCH DENIAL, WE BELIEVE YOUR ADMINISTRATION CONCEDES THE LIKELIHOOD OF ERROR WHICH WOULD TAINT THE OTHERWISE VALID PROCESSING OF THE EMPLOYEE'S RETIREMENT APPLICATION AND RENDER THE SEPARATION INEFFECTIVE AS CONTRARY TO THE INTENT OF BOTH MR. ST. MARTIN AND RESPONSIBLE ADMINISTRATIVE OFFICIALS. THE SITUATION IS THEREFORE SUFFICIENTLY SIMILAR TO OUR RECENT DECISIONS B-174708, FEBRUARY 4, 1972, AND B-172375, MAY 17, 1971 (COPIES ENCLOSED), SO AS TO WARRANT THE SAME RESULT.

ON THE BASIS OF THE FOREGOING DISCUSSION, WE CONCLUDE THAT THE EMPLOYEE'S ACUTE MEDICAL CONDITION WAS EXTANT BEFORE THE DATE OF HIS RETIREMENT AND UNDER ORDINARY CIRCUMSTANCES WOULD HAVE BEEN TIMELY DETECTED WITH THE RESULT THAT THE EMPLOYEE WOULD HAVE BEEN GRANTED ACCRUED SICK LEAVE FOR THE DURATION OF HIS INCAPACITY, INCLUDING PERIODS OF HOSPITALIZATION AND CONVALESCENCE. UNDER THE RELATED CIRCUMSTANCES PECULIAR TO THIS CASE WE BELIEVE THE EMPLOYEE SHOULD BE RESTORED TO THE ROLLS FOR THE PURPOSE OF COMPENSATING HIM FOR AN APPROPRIATE AMOUNT OF SICK LEAVE. SUCH AMOUNT SHOULD REPRESENT ONLY THE PERIOD OF INCAPACITY FOR WORK STEMMING FROM THIS SPECIFIC CONDITION, NOT TO EXCEED SICK LEAVE ACCRUALS.

ADVICE OF YOUR ACTION SHOULD BE TRANSMITTED TO THE CIVIL SERVICE COMMISSION SO THAT APPROPRIATE ADJUSTMENTS CAN BE MADE IN THE RETIREMENT ACCOUNT.

CONGRESSMAN HALE BOGGS HAS EXPRESSED AN INTEREST IN THIS CLAIM AND IS BEING FURNISHED A COPY OF THIS LETTER.