B-181406, FEB 5, 1975

B-181406: Feb 5, 1975

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WHO USED ALL HER LEAVE AND WAS PLACED ON LEAVE WITHOUT PAY (LWOP) DURING EXTENDED ILLNESS. WAS RELEASED FOR WORK BY HER DOCTOR. WAS REQUIRED BY VA TO TAKE FITNESS- FOR-DUTY EXAMINATION PRIOR TO RETURN TO WORK. WHICH EXAMINATION WAS NOT COMPLETED FOR ONE AND ONE-HALF MONTHS. SHE WAS THEN DETERMINED UNFIT FOR HER POSITION AND WAS PLACED IN ANOTHER ONE. THE DELAY WAS NOT. SINCE VA HAS DISCRETION TO GIVE THE EXAMINATION WITHIN REASONABLE TIME AND SINCE VA STATES DELAY WAS PARTIALLY OCCASIONED BY AGENCY EFFORTS TO FIND EMPLOYEE ANOTHER JOB. ALTHEA JEAN BROWN - BACK PAY: THIS ACTION IS A RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION'S SETTLEMENT DATED APRIL 9. BROWN WAS EMPLOYED BY THE VETERANS ADMINISTRATION HOSPITAL.

B-181406, FEB 5, 1975

EMPLOYEE OF VETERANS ADMINISTRATION (VA) HOSPITAL, WHO USED ALL HER LEAVE AND WAS PLACED ON LEAVE WITHOUT PAY (LWOP) DURING EXTENDED ILLNESS, WAS RELEASED FOR WORK BY HER DOCTOR, BUT WAS REQUIRED BY VA TO TAKE FITNESS- FOR-DUTY EXAMINATION PRIOR TO RETURN TO WORK, WHICH EXAMINATION WAS NOT COMPLETED FOR ONE AND ONE-HALF MONTHS. SHE WAS THEN DETERMINED UNFIT FOR HER POSITION AND WAS PLACED IN ANOTHER ONE. THE DELAY WAS NOT, PER SE, AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION ENTITLING HER TO BACK PAY UNDER 5 U.S.C. SEC. 5596, SINCE VA HAS DISCRETION TO GIVE THE EXAMINATION WITHIN REASONABLE TIME AND SINCE VA STATES DELAY WAS PARTIALLY OCCASIONED BY AGENCY EFFORTS TO FIND EMPLOYEE ANOTHER JOB.

ALTHEA JEAN BROWN - BACK PAY:

THIS ACTION IS A RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION'S SETTLEMENT DATED APRIL 9, 1974, DISALLOWING THE CLAIM OF MRS. ALTHEA JEAN BROWN, AN EMPLOYEE OF THE VETERANS ADMINISTRATION (VA), FOR BACK PAY INCIDENT TO HER BEING PLACED IN A LEAVE-WITHOUT-PAY STATUS FROM FEBRUARY 15, 1973, THROUGH APRIL 3, 1973.

THE RECORD SHOWS THAT MRS. BROWN WAS EMPLOYED BY THE VETERANS ADMINISTRATION HOSPITAL, NASHVILLE, TENNESSEE, AS A TELEPHONE OPERATOR IN THE MEDICAL ADMINISTRATION SERVICE. ON JANUARY 24, 1972, MRS. BROWN WAS PLACED IN A LEAVE-WITHOUT-PAY STATUS FOR AN EXTENDED ILLNESS BECAUSE AT THAT TIME SHE HAD EXHAUSTED ALL OF HER EARNED SICK AND ANNUAL LEAVE AND 30 DAYS OF ADVANCED SICK LEAVE. THE PURPOSE OF PLACING MRS. BROWN IN A LEAVE -WITHOUT-PAY STATUS WAS TO PROTECT HER EMPLOYMENT STATUS UPON EXPIRATION OF HER ANNUAL AND SICK LEAVE.

ON FEBRUARY 15, 1973, MRS. BROWN'S PRIVATE PHYSICIAN RELEASED HER AS FIT FOR DUTY. PRIOR TO MRS. BROWN'S RETURN TO HER JOB AS A TELEPHONE OPERATOR, HOWEVER, THE MEDICAL ADMINISTRATION SERVICE REQUESTED THAT SHE RECEIVE A FITNESS-FOR-DUTY EXAMINATION IN ACCORDANCE WITH THE PROVISIONS OF FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 752-1, SEC. S1 3.A(5)(E) (FEBRUARY 4, 1972), AND VA MANUAL MP-5, PART 1, CHAPTER 792, PARAGRAPH 9, DECEMBER 13, 1968.

IT IS NOT STATED IN THE RECORD AS TO WHEN THE FITNESS-FOR-DUTY EXAMINATION TOOK PLACE BUT THE RESULTS OF THE EXAMINATION WERE EVALUATED ON MARCH 14, 1973, BY HOSPITAL OFFICIALS, MRS. BROWN'S PERSONAL PHYSICIAN, THE PERSONNEL HEALTH PHYSICIAN, AND THE PSYCHIATRIST AND PSYCHOLOGIST WHO CONDUCTED THE PHYSICAL AND MENTAL EXAMINATIONS. IT WAS THE CONCLUSION OF THE ABOVE EVALUATION COMMITTEE THAT IN LIGHT OF HER MEDICAL HISTORY, MRS. BROWN SHOULD NOT RETURN TO HER POSITION OF TELEPHONE OPERATOR AT THE HOSPITAL AS THE SAFETY AND WELL BEING OF THE HOSPITAL PATIENTS AND PERSONNEL WERE DEPENDENT ON CORRECT AND PROMPT RESPONSES TO EMERGENCY SITUATIONS AND HER ABILITY TO MAKE THESE RESPONSES WAS IN DOUBT. FURTHER DETERMINATION WAS MADE THAT, IF POSSIBLE, MRS. BROWN SHOULD BE REASSIGNED TO ANOTHER POSITION IN THE HOSPITAL BEFORE CONSIDERATION BE GIVEN TO REMOVAL PROCEDURES AS CONTAINED IN FPM SUPPLEMENT 752-1, SEC. S1- 3(A)(5)(A) (FEBRUARY 4, 1972). SUBSEQUENTLY, AFTER SEVERAL MEETINGS BETWEEN THE POSITION MANAGEMENT COMMITTEE, THE PERSONNEL SERVICE AND THE CHIEF OF THE MEDICAL ADMINISTRATION SERVICE, A POSITION AT THE SAME GRADE LEVEL WAS LOCATED TO WHICH MRS. BROWN COULD BE REASSIGNED WITHOUT LOSS OF PAY AND THE REASSIGNMENT WAS MADE EFFECTIVE APRIL 4, 1973, WHEREUPON MRS. BROWN'S LEAVE-WITHOUT-PAY STATUS WAS TERMINATED AS SHE RETURNED TO DUTY ON THAT DATE.

MRS. BROWN CLAIMS BACK PAY FOR THE PERIOD FROM FEBRUARY 15, 1973, THROUGH APRIL 3, 1973, ON THE GROUNDS THAT THE ADMINISTRATION AT THE VA HOSPITAL UNJUSTIFIABLY AND UNWARRANTEDLY DELAYED HER EXAMINATION, THUS DELAYING HER EVENTUAL REASSIGNMENT AND PLACEMENT IN A PAY STATUS. IN ITS REPORT TO OUR OFFICE, THE VA STATES THAT "*** THE STATION MAY HAVE TAKEN AN EXCESSIVE AMOUNT OF TIME TO COMPLETE THE FITNESS FOR DUTY EXAMINATION AND SUBSEQUENT PLACEMENT OF MRS. BROWN INTO A POSITION FOR WHICH SHE WAS PHYSICALLY QUALIFIED." HOWEVER, THE REPORT STATES THAT SINCE NO AUTHORITY IS KNOWN TO JUSTIFY BACK PAY UNDER SUCH CONDITIONS, THE CLAIM SHOULD BE DISALLOWED.

SECTION S1-3A(5)(C) OF FPM SUPPLEMENT 752-1 (FEBRUARY 4, 1972), PROVIDES THAT AN AGENCY "*** HAS AUTHORITY TO DIRECT AN EMPLOYEE TO TAKE A FITNESS- FOR-DUTY EXAMINATION ***." PARAGRAPH 9A OF VA MANUAL MP-5, PART 1, CHAPTER 792, DECEMBER 13, 1968, STATES THAT VA INSTALLATIONS MAY BE USED TO CONDUCT EXAMINATIONS FOR THE PURPOSE OF:

"(6) DETERMINING, AFTER A PERIOD OF ILLNESS, WHETHER THE EMPLOYEE IS ABLE TO RESUME HIS REGULAR DUTIES WITHOUT IMPAIRING HIS OWN HEALTH OR THE HEALTH OF OTHERS.

"(7) DETERMINING THE EMPLOYEE'S PHYSICAL FITNESS FOR CONTINUED EMPLOYMENT."

PARAGRAPH 10C(3) OF VA MP-5, PART 1, CHAPTER 630, SEPTEMBER 18, 1970, STATES FURTHER:

"*** WHEN AN EMPLOYEE, BECAUSE OF *** ILLNESS (MENTAL OR PHYSICAL) REASONABLY MAY NOT BE REGARDED AS READY, WILLING AND ABLE TO PERFORM HIS DUTIES FOR THE TIME BEING AND SUCH *** PHYSICAL OR MENTAL CONDITION CREATES AN EMERGENCY SITUATION CONSTITUTING AN IMMEDIATE THREAT TO GOVERNMENT PROPERTY OR TO THE WELL BEING OF THE EMPLOYEE OR HIS FELLOW WORKERS OR THE GENERAL PUBLIC, THE EMPLOYEE MAY BE PLACED ON SICK OR ANNUAL LEAVE, OR IN A LEAVE WITHOUT PAY STATUS AS THE STATE OF HIS LEAVE ACCOUNT OR THE CIRCUMSTANCES MAY REQUIRE ***."

IT IS APPARENT FROM THE ABOVE THAT THE VA HAD THE DISCRETION TO DETERMINE THAT MRS. BROWN SHOULD HAVE UNDERGONE A PHYSICAL EXAMINATION AFTER HER LONG ILLNESS SO THAT IT COULD BE DETERMINED IF SHE WAS FIT FOR DUTY. SINCE MRS. BROWN HAD NO LEAVE TO HER CREDIT THE VA PROPERLY PLACED HER IN A LEAVE-WITHOUT-PAY STATUS. MRS. BROWN, HOWEVER, DECLARES THAT THE TIME THAT IT TOOK TO EXAMINE HER AND PLACE HER IN ANOTHER POSITION WAS UNREASONABLY LONG AND FOR THAT REASON SHE IS ENTITLED TO BACK PAY. WITH RESPECT TO AN ENTITLEMENT TO BACK PAY 5 U.S.C. SEC. 5596(B) (1970), STATES:

"AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE -

"(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; AND

"(2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION."

THE VA REGULATIONS DO NOT SET A TIME LIMIT AS TO WHEN THE FITNESS-FOR DUTY EXAMINATION SHOULD OCCUR. APPARENTLY, THE VA MAY TAKE A REASONABLE TIME TO PROCESS MRS. BROWN'S FITNESS-FOR-DUTY EXAMINATION. ALTHOUGH THE VA HAS STATED THAT THE HOSPITAL MAY HAVE TAKEN AN EXCESSIVE AMOUNT OF TIME TO COMPLETE MRS. BROWN'S EXAMINATION, IT HAS NOT MADE A FINDING THAT SUCH DELAY WAS SO EXCESSIVE AS TO CONSTITUTE AN UNWARRANTED OR UNJUSTIFIED PERSONNEL ACTION. CONSIDERING THE AGENCY'S DISCRETION IN THIS MATTER AND ALSO THAT 2 WEEKS OF THE ONE AND ONE-HALF MONTH DELAY WERE SPENT IN FINDING MRS. BROWN A NEW JOB, THIS OFFICE CANNOT FIND THAT THE ONE AND ONE -HALF MONTH'S DELAY WAS, PER SE, AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. ACCORDINGLY, NO ALLOWANCE OF BACK PAY MAY BE SUSTAINED.