B-195263.OM, MAY 9, 1980

B-195263.OM: May 9, 1980

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PRECIS-UNAVAILABLE COMPTROLLER GENERAL: WE ARE FORWARDING FOR YOUR CONSIDERATION THE FILE RELATIVE TO THE CLAIM OF MRS. CAROLYN MUNFORD FOR BACK PAY FOR THE PERIOD SHE WAS PLACED ON INVOLUNTARY LEAVE. MUNFORD WAS NOT AVAILABLE FOR WORK FROM OCTOBER 8. NO DISCIPLINARY ACTION WAS TAKEN. SHE WAS CARRIED IN A LEAVE WITHOUT PAY STATUS. THE OPTION OF WORKING LIGHT DUTY WAS PRESUMABLY STILL AVAILABLE. WHILE THE MEDICAL OFFICER HAS STATED THAT THIS STATEMENT WAS SIGNED BY THE PHYSICIAN'S RECEPTIONIST. THERE IS NO INDICATION THAT IT COULD NOT BE RELIED UPON. HOWEVER SHE WAS STILL NOT ALLOWED TO RETURN TO HER JANITORIAL DUTIES. A FITNESS FOR-DUTY EXAMINATION WAS CONDUCTED ON SEPTEMBER 15. MUNFORD WAS NOT QUALIFIED TO PERFORM HER ASSIGNED DUTIES.

B-195263.OM, MAY 9, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING FOR YOUR CONSIDERATION THE FILE RELATIVE TO THE CLAIM OF MRS. CAROLYN MUNFORD FOR BACK PAY FOR THE PERIOD SHE WAS PLACED ON INVOLUNTARY LEAVE.

AS THE RESULT OF AN INJURY, MRS. MUNFORD WAS NOT AVAILABLE FOR WORK FROM OCTOBER 8, 1976 TO DECEMBER 10, 1976, BECAUSE OF PHYSICAL INABILITY TO PERFORM THE DUTIES OF HER ASSIGNED POSITION OF JANITOR. ON DECEMBER 10 SHE REPORTED FOR WORK AND SAW THE INDUSTRIAL MEDICAL OFFICER. RECOMMENDED THAT SHE BE ASSIGNED TO SEDENTARY WORK (LIGHT DUTY) UNTIL DECEMBER 31. ON DECEMBER 14 SHE REFUSED THE SEDENTARY WORK AVAILABLE AND WENT HOME. NO DISCIPLINARY ACTION WAS TAKEN, BUT SHE WAS CARRIED IN A LEAVE WITHOUT PAY STATUS.

SHE SUBSEQUENTLY ATTEMPTED TO RETURN TO HER POSITION OF JANITOR, BUT THE MEDICAL OFFICER SAID THAT SHE COULD NOT RETURN UNTIL SHE HAD LOST WEIGHT. THE OPTION OF WORKING LIGHT DUTY WAS PRESUMABLY STILL AVAILABLE. JANUARY 24, 1977, SHE FURNISHED A STATEMENT FROM THE OFFICE OF HER PRIVATE PHYSICIAN THAT SHE COULD RETURN TO WORK. WHILE THE MEDICAL OFFICER HAS STATED THAT THIS STATEMENT WAS SIGNED BY THE PHYSICIAN'S RECEPTIONIST, THERE IS NO INDICATION THAT IT COULD NOT BE RELIED UPON. HOWEVER SHE WAS STILL NOT ALLOWED TO RETURN TO HER JANITORIAL DUTIES.

ON MAY 6, 1977 MRS. MUNFORD FILED A FORMAL GRIEVANCE REQUESTING THAT SHE BE REINSTATED TO THE DUTIES OF HER OFFICIAL POSITION. A FITNESS FOR-DUTY EXAMINATION WAS CONDUCTED ON SEPTEMBER 15, 1977, AND SHE RETURNED TO WORK THE FOLLOWING DAY.

PRIOR TO THE FITNESS-FOR-DUTY EXAMINATION THERE HAD BEEN NO DEFINITE MEDICAL BASIS OTHER THAN THE MEDICAL OFFICER'S CONSIDERATION OF HER PAST RECORD, FOR DETERMINING THAT MRS. MUNFORD WAS NOT QUALIFIED TO PERFORM HER ASSIGNED DUTIES, AND SHE WAS APPARENTLY AVAILABLE FOR WORK SINCE DECEMBER 10, 1976. SHE DID RECEIVE A COMPENSATION PAYMENT FOR THE PERIOD FEBRUARY 14, 1977 THROUGH APRIL 5, 1977 THROUGH THE OFFICE OF WORKER'S COMPENSATION PROGRAMS.

WE ARE REFERRING THIS CLAIM TO RESOLVE THE FOLLOWING QUESTIONS:

1) WAS THE DETERMINATION NOT TO ALLOW MRS. MUNFORD TO RETURN TO HER REGULAR DUTIES BASED ON COMPETENT MEDICAL FINDINGS AND THUS NOT AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION?

2) IF THE ANSWER TO THE FIRST QUESTION IS NO, WOULD THE PERIOD AFTER MRS. MUNFORD REFUSED TO PERFORM LIGHT DUTY AND BEFORE SHE PRODUCED THE STATEMENT FROM HER PHYSICIAN'S OFFICE BE EXCLUDED FROM THE BACK PAY PERIOD?

3) WHAT EFFECT WOULD THE PAYMENT OF WORKER'S COMPENSATION HAVE, OTHER THAN POSSIBLE EXCLUSION OF THE PERIOD INVOLVED FROM THE BACK PAY PERIOD? THE CLAIMANT MAY HAVE RECEIVED THIS COMPENSATION ONLY BECAUSE OF THE AGENCY'S REFUSAL TO ALLOW HER TO RETURN TO HER REGULAR DUTIES.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED. THE GENERAL RULE APPLIED BY OUR OFFICE IS THAT AN EMPLOYEE MAY BE PLACED ON LEAVE WITHOUT HIS CONSENT WHEN ADMINISTRATIVE OFFICERS DETERMINE, UPON THE BASIS OF COMPETENT MEDICAL FINDINGS, THAT THE EMPLOYEE IS INCAPACITATED FOR THE PERFORMANCE OF HIS ASSIGNED DUTIES, AND THAT THE INVOLUNTARY LEAVE DOES NOT, UNDER SUCH CIRCUMSTANCES, CONSTITUTE AN UNJUSTIFIED OR UNWARRANTED REMOVAL OR SUSPENSION WITHOUT PAY WITHIN THE MEANING OF THE BACK PAY PROVISION OF THE APPLICABLE STATUTES. SEE 41 COMP.GEN. 774 (1962); WILLIAM J. HEISLER, B-181313, FEBRUARY 7, 1975.

THE DETERMINATION MADE BY THE INDUSTRIAL MEDICAL OFFICER ON DECEMBER 10, 1976, NOT TO ALLOW MRS. MUNFORD TO RETURN TO HER REGULAR DUTIES WAS NOT AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. MRS. MUNFORD HAD BEEN UNABLE TO PERFORM HER DUTIES AS A JANITOR FROM OCTOBER 8, 1976, TO DECEMBER 10, 1976. WHEN SHE RETURNED TO WORK ON DECEMBER 10, 1976, SHE SAW THE MEDICAL OFFICER WHO OBSERVED THAT THE CAUSE OF HER PAST MEDICAL PROBLEMS HAD NOT BEEN ALLEVIATED. ALTHOUGH A THOROUGH MEDICAL EXAMINATION WAS NOT GIVEN, THE MEDICAL OFFICER BASED HIS DECISION ON MEDICAL HISTORY AND PERSONAL OBSERVATION. NO MEDICAL EVIDENCE EXISTED AT THAT TIME WHICH SHOWED THAT MRS. MUNFORD WAS ABLE TO PERFORM HER DUTIES. THE INDUSTRIAL MEDICAL OFFICER RECOMMENDED THAT SHE BE ASSIGNED TO SEDENTARY WORK FOR A FEW WEEKS AND WHEN SHE REFUSED THIS WORK SHE WAS PLACED IN A LEAVE WITHOUT PAY STATUS.

THE FEDERAL PERSONNEL MANUAL SETS FORTH THE RESTORATION TO DUTY RIGHTS OF AN EMPLOYEE WHO IS SEPARATED OR PLACED IN A NON-DUTY STATUS AS A RESULT OF SUSTAINING A COMPENSABLE INJURY. SEE FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 353, S2-6 (MARCH 6, 1978). IF AN EMPLOYEE HAS FULLY RECOVERED WITHIN ONE YEAR AFTER THE DATE COMPENSATION BEGINS, THE EMPLOYEE IS ENTITLED TO RESUME HIS OR HER FORMER OR EQUIVALENT POSITION. FPM SUPPLEMENT 353, S2-6A(1). IF, HOWEVER, THE EMPLOYEE HAS ONLY PARTIALLY RECOVERED FROM THE INJURY WITHIN ONE YEAR AND IS ABLE TO RETURN TO LIMITED DUTY, THE AGENCY MUST MAKE EVERY EFFORT TO RESTORE HIM OR HER TO AN APPROPRIATE POSITION CONSISTENT WITH THE CIRCUMSTANCES OF EACH CASE. FPM SUPPLEMENT 353, S2-6A(2). SEE ALSO 5 C.F.R. SEC. 353.304(B), 353.306 (1979). IN THIS CASE THE MEDICAL OFFICER DETERMINED THAT MRS. MUNFORD HAD NOT FULLY RECOVERED FROM HER INJURY AND INSTEAD OFFERED HER THE OPPORTUNITY TO WORK AT ANOTHER POSITION, WHICH SHE REFUSED. THE AGENCY'S ACTION COMPLIED WITH THE APPLICABLE REGULATIONS AND, THEREFORE, SUCH A DECISION WAS NOT AN UNJUSTIFIED PERSONNEL ACTION. THUS, MRS. MUNFORD WOULD NOT BE ENTITLED TO BACK PAY FOR THE PERIOD AFTER SHE REFUSED TO PERFORM LIGHT DUTY UNTIL SHE PRODUCED THE STATEMENT FROM HER PHYSICIAN.

ON JANUARY 24, 1977, MRS. MUNFORD FURNISHED A STATEMENT FROM THE OFFICE OF HER PRIVATE PHYSICIAN THAT SHE COULD RETURN TO WORK BUT THERE IS NO COPY IN THE FILE. THIS STATEMENT WAS APPARENTLY SIGNED BY THE PHYSICIAN'S RECEPTIONIST AND THERE IS SOME QUESTION AS TO WHETHER OR NOT IT WAS RELIABLE. THE BURDEN OF PROOF IS ON THE CLAIMANT TO ESTABLISH THE LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT, 4 C.F.R. SEC. 31.7 (1979). THEREFORE, THE CLAIMANT MUST ESTABLISH THAT THE NOTE FROM THE OFFICE OF HER PRIVATE PHYSICIAN WAS THE RESULT OF A MEDICAL EXAMINATION BY HER DOCTOR. IN ABSENCE OF SUCH EVIDENCE, WE MUST FOLLOW THE MEDICAL OFFICER'S DETERMINATION THAT SHE WAS UNABLE TO WORK. IN THESE CIRCUMSTANCES BACK PAY WOULD NOT BE AUTHORIZED. IF THE NOTE FROM HER DOCTOR IS SHOWN TO BE GENUINE THEN THE FOLLOWING DISCUSSION IS GERMANE.

AFTER RECEIVING THE NOTE FROM HER DOCTOR, THE MEDICAL OFFICER DID NOT EXAMINE OR ORDER AN EXAMINATION OF MRS. MUNFORD. AT THAT TIME, IT APPEARS THAT THE MOST COMPETENT EVIDENCE SHOWED THAT MRS. MUNFORD WAS READY, ABLE AND WILLING TO RETURN TO WORK. CERTAINLY, THE MEDICAL OFFICER'S DECISION AT THAT TIME WAS NOT BASED ON COMPETENT MEDICAL EVIDENCE BECAUSE THERE WAS MEDICAL EVIDENCE (ASSUMING THE NOTE WAS GENUINE) SHOWING THAT MRS. MUNFORD WAS HEALTHY AND SHE WAS NOT GIVEN A FITNESS FOR DUTY EXAMINATION. IN A SIMILAR SITUATION, OUR OFFICE HELD THAT PLACING AN EMPLOYEE ON SICK LEAVE WITHOUT A PHYSICAL EXAMINATION AFTER THE EMPLOYEE BRINGS IN A DOCTOR'S STATEMENT SHOWING HE WAS FIT FOR DUTY IS AN UNJUSTIFIABLE PERSONNEL ACTION. SEE B-170092, SEPTEMBER 1, 1970. THEREFORE, IF THE DOCTOR'S NOTE WAS GENUINE, THE DECISION TO REFUSE TO ALLOW MRS. MUNFORD TO RETURN TO WORK ON JANUARY 24, 1977, WOULD NOT HAVE BEEN BASED ON COMPETENT MEDICAL EVIDENCE AND THE REFUSAL TO ALLOW HER TO PERFORM HER DUTIES WOULD BE AN UNJUSTIFIED PERSONNEL ACTION. HOWEVER, THE AGENCY ALLEGES THAT MRS. MUNFORD RECEIVED WORKER'S COMPENSATION PAYMENTS FOR THE PERIOD OF FEBRUARY 14, 1977, TO APRIL 5, 1977, UNDER THE PROVISIONS OF 5 U.S.C. SEC. 8101 ET SEQ., COMPENSATION FOR WORK INJURIES. WE HAVE BEEN INFORMALLY ADVISED BY MRS. MUNFORD'S REPRESENTATIVE THAT SHE IS NOT CLAIMING BACK PAY FOR THE PERIOD DURING WHICH SHE RECEIVED WORKER'S COMPENSATION BENEFITS. THE FACT THAT SHE RECEIVED SUCH PAYMENTS DURING THIS PERIOD DOES NOT AFFECT HER RIGHT TO BACK PAY DURING THE REMAINING PERIOD OF HER CLAIM. UNDER THESE CIRCUMSTANCES MRS. MUNFORD WOULD BE ENTITLED TO BACK PAY FOR THE REMAINING PERIODS JANUARY 24 TO FEBRUARY 14, 1977 AND APRIL 6, TO SEPTEMBER 16, 1977.