Request for Restoration of Sick Leave

B-194020: May 12, 1981

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After a required physical examination, an employee was notified that his agency's medical officer had found him to be incapable of performing the duties of his position. He was placed on sick leave and carried on the agency's rolls in a leave status. He subsequently filed an application for disability retirement which was disallowed on the basis that the medical disorder did not render him totally disabled for useful and efficient service in his position. Thereafter, the employee was returned to active duty status. The employee filed an appeal alleging that the action taken placing him on sick leave was tantamount to suspension. He requested that his sick leave be recredited to his leave account. The agency denied the appeal on the basis that, since he was not ready, willing, and able to perform all of his assigned duties as of the date his agency first placed him on leave status until his application for disability retirement was disapproved, he was not entitled to have his sick leave recredited. There is no evidence that the employee contested his agency's evaluation of his physical condition or the determination to place him on sick leave. There is also no evidence to show that he attempted to return to work during the period in question. GAO could not conclude that the employee's placement on sick leave was involuntary or that he was ready, willing, and able to perform his duties. Therefore, his claim for restoration of sick leave may not be allowed.

B-194020, MAY 12, 1981

DIGEST: EMPLOYEE OF UNITED STATES ARMY WAS PLACED ON INDEFINITE SICK LEAVE AS A RESULT OF A MEDICAL EXAMINATION WHICH FOUND HIM TO BE LEGALLY BLIND IN ONE EYE. THE EMPLOYEE VOLUNTARILY APPLIED FOR A DISABILITY RETIREMENT WHICH WAS DENIED BY THE CIVIL SERVICE COMMISSION AND HE WAS RESTORED TO ACTIVE DUTY. EMPLOYEE IS NOT ENTITLED TO HAVE RECREDITED THE SICK LEAVE CHARGED TO HIM WHILE APPLICATION FOR RETIREMENT WAS PENDING SINCE THERE IS NOTHING TO INDICATE THAT HIS LEAVE WAS INVOLUNTARY OR THAT HE WAS READY, WILLING AND ABLE TO WORK DURING SUCH PERIOD.

WILSON MALBREAU:

THE ISSUE IN THE PRESENT CASE IS WHETHER MR. WILSON MALBREAU, AN EMPLOYEE OF THE MILITARY TRAFFIC MANAGEMENT COMMAND, OAKLAND ARMY BASE, IS ENTITLED TO RESTORATION OF THE SICK LEAVE WHICH WAS CHARGED TO HIM DURING THE PERIOD MARCH 6 THROUGH AUGUST 29, 1977, WHILE HE WAS ON INDEFINITE SICK LEAVE PENDING A DETERMINATION BY THE CIVIL SERVICE COMMISSION ON HIS APPLICATION FOR DISABILITY RETIREMENT. FOR THE FOLLOWING REASONS MR. MALBREAU IS NOT ENTITLED TO HAVE HIS SICK LEAVE RECREDITED.

ON MARCH 2, 1977, MR. MALBREAU SUBMITTED TO A PHYSICAL EXAMINATION. THIS EXAMINATION WAS CONSISTENT WITH THE REQUIREMENTS OF HIS POSITION AS A POLICEMAN. ON MARCH 4, 1977, HE REPORTED TO THE MEDICAL UNIT IN RESPONSE TO HIS AGENCY'S REQUEST. AT THAT TIME HE WAS NOTIFIED THAT AS A RESULT OF HIS MEDICAL EXAMINATION THE AGENCY'S MEDICAL OFFICER HAD FOUND HIM TO BE LEGALLY BLIND IN ONE EYE AND THEREFORE INCAPABLE OF PERFORMING THE ESSENTIAL DUTIES OF HIS POSITION. HE WAS THEN PLACED ON SICK LEAVE EFFECTIVE MARCH 6, 1977, AND WAS CARRIED ON THE AGENCY'S ROLLS IN A LEAVE STATUS THROUGH AUGUST 29, 1977. DURING THIS PERIOD 1,000 HOURS OF SICK LEAVE WERE CHARGED TO MR. MALBREAU.

UPON BEING INFORMED OF THE DECISION TO PLACE HIM ON SICK LEAVE, MR. MALBREAU VOLUNTARILY FILED AN APPLICATION FOR DISABILITY RETIREMENT ON MARCH 14, 1977. THIS APPLICATION WAS SUBSEQUENTLY DISALLOWED BY THE BUREAU OF RETIREMENT, INSURANCE, AND OCCUPATIONAL HEALTH (BUREAU), CIVIL SERVICE COMMISSION, ON THE BASIS THAT THE MEDICAL DISORDER DID NOT RENDER HIM TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE IN HIS POSITION AS A POLICEMAN. THE BUREAU ALSO FOUND THAT WHILE DISABILITIES DID EXIST, THE MEDICAL EVIDENCE INDICATED THAT MR. MALBREAU'S CONDITION WAS ESSENTIALLY THE SAME AS IT WAS WHEN HE FIRST ENTERED ON DUTY IN HIS MOST RECENT POSITION, NOVEMBER 1972. THEREAFTER, MR. MALBREAU WAS RETURNED TO ACTIVE DUTY STATUS EFFECTIVE AUGUST 30, 1977.

BY LETTER OF APRIL 12, 1978, MR. MALBREAU SUBMITTED AN APPEAL TO THE FEDERAL EMPLOYEE APPEALS AUTHORITY (FEAA), SAN FRANCISCO FIELD OFFICE, ALLEGING THAT THE ACTION TAKEN BY THE MILITARY TRAFFIC MANAGEMENT COMMAND WAS TANTAMOUNT TO A SUSPENSION. THE FEAA DENIED MR. MALBREAU'S APPEAL ON THE BASIS THAT SINCE HE WAS NOT "READY, WILLING AND ABLE" TO PERFORM ALL OF HIS ASSIGNED DUTIES AS OF THE DATE HIS AGENCY FIRST PLACED HIM IN A LEAVE STATUS, OR AT ANY TIME THEREAFTER UNTIL HIS APPLICATION FOR DISABILITY RETIREMENT WAS DISAPPROVED, HE WAS NOT ENTITLED TO HAVE HIS SICK LEAVE RECREDITED.

THE BACK PAY ACT, 5 U.S.C. SEC. 5596 (1976), PROVIDES IN PERTINENT PART THAT AN AGENCY EMPLOYEE WHO IS FOUND TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH RESULTS IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF HIS PAY AND ALLOWANCES IS ENTITLED UPON CORRECTION OF THE ACTION TO RECOVER THE AMOUNT THE EMPLOYEE WOULD HAVE EARNED DURING THAT PERIOD AS IF THE PERSONNEL ACTION HAD NOT OCCURRED. FOR ALL PURPOSES, THE EMPLOYEE IS DEEMED TO HAVE PERFORMED SERVICES FOR THE AGENCY DURING THAT PERIOD.

IN THE PRESENT CASE, THERE IS NO EVIDENCE TO SHOW THAT MR. MALBREAU CONTESTED HIS AGENCY'S EVALUATION OF HIS PHYSICAL CONDITION OR THE DETERMINATION TO PLACE HIM IN A LEAVE STATUS. MOREOVER, THE RECORD INDICATES THAT UPON BEING NOTIFIED OF THE AGENCY DETERMINATION, MR. MALBREAU VOLUNTARILY FILED AN APPLICATION FOR DISABILITY RETIREMENT. FURTHERMORE, THERE IS NO EVIDENCE WHICH SHOWS THAT MR. MALBREAU ATTEMPTED TO TAKE ANY ACTION TO RETURN TO WORK DURING THE PERIOD IN QUESTION. SEE LEE E. HOFFLER, B-128314, JANUARY 8, 1979. THUS, ON THE BASIS OF THE RECORD BEFORE US AND THE FINDINGS OF THE FEDERAL EMPLOYEE APPEALS AUTHORITY WE CANNOT CONCLUDE THAT MR. MALBREAU'S PLACEMENT ON SICK LEAVE WAS INVOLUNTARY OR THAT HE WAS IN FACT READY, WILLING AND ABLE TO PERFORM HIS DUTIES DURING THE PERIOD MARCH 6 THROUGH AUGUST 29, 1977. HOFFLER, SUPRA. SEE ALSO [REDACTED], B-184522, APRIL 21, 1977, AND MARCH 16, 1976; WILLIAM J. HEISLER, B-181313, FEBRUARY 7, 1975; AND B-179965, JULY 18, 1974.

ACCORDINGLY, MR. MALBREAU'S CLAIM FOR RESTORATION OF THE SICK LEAVE CHARGED TO HIM MAY NOT BE ALLOWED.