B-233945, Feb 24, 1989

B-233945, Feb 24, 1989

CIVILIAN PERSONNEL - Leaves of Absence - Annual leave - Charging - Retroactive adjustments - Sick leave DIGEST: An employee, who used annual leave instead of sick leave based on the incomplete advice received from the agency personnel office, may retroactively substitute sick leave for annual leave to avoid forfeiture of the annual leave in a workers' compensation leave buy back situation. Prior decisions distinguished.

Gilbert J. Ramos - Retroactive Substitution of Sick Leave for Annual Leave:

The Department of the Army requests that 152 hours of sick leave be retroactively substituted for annual leave in the account of Mr. Gilbert J. Ramos so that a like amount of forfeited annual leave can be restored. We hold that based on the particular circumstances of this case the agency can retroactively substitute sick leave for annual leave to avoid forfeiture.

BACKGROUND

Mr. Ramos is a civilian employee of the Department of the Army, Ft. Huachuca, Arizona, who suffered an on-the-job injury on August 25, 1987, and filed a claim for workers' compensation. After the 45-day period of continuation of pay, Mr. Ramos was still unable to work on a full-time basis. He requested advice from the agency personnel office as to whether he should use annual or sick leave, and he was advised by a compensation specialist that he should use annual leave and that he would be able to buy it back once the Department of Labor approved his claim. The compensation specialist did not tell Mr. Ramos that in a subsequent "buy- back," annual leave in excess of the ceiling established by law would be forfeited. Furthermore, Mr. Ramos was not advised that he could use sick leave and then petition for restoration under 5 U.S.C. Sec. 6304(d) of annual leave forfeited due to sickness. Because of the advice received, Mr. Ramos requested the use of annual leave instead of sick leave.

OPINION

Where an employee receives workers' compensation, the employee must "buy- back" previously used annual leave or sick leave and have the leave account recredited as of the time the leave was used. If, in reconstructing the leave accounts, annual leave is forfeited due to the 240-hour annual leave ceiling imposed by 5 U.S.C. Sec. 6304(a), such forfeited leave may not be subsequently restored or reinstated. Edmond Godfrey, 62 Comp.Gen. 253 (1983); Robert W. Lochridge, B-193431, Aug. 8, 1979; Betty J. Anderson, B-182608, Aug. 9 1977.

In the present case, Mr. Ramos seeks to retroactively substitute sick leave for annual leave he used in 1987 so as to avoid a forfeiture of 152 hours of annual leave. The general rule is that an employee entitled to use sick leave who specifically requests that such time be charged to annual leave may not thereafter have such leave charged to sick leave and be recredited with the amount of annual leave previously used. Eugene W. Whitwam, 54 Comp.Gen. 1086 (1975); Lochridge, supra. Nonetheless, we believe Mr. Ramos's case can be distinguished from our prior decisions so as to allow the retroactive substitution of sick leave for annual leave.

In both Whitwam and Lochridge the employee on his own initiative, and without seeking any advice before making his decision, requested that annual leave be used instead of sick leave. In the present case Mr. Ramos requested advice from his agency's personnel office and it was based on this advice that he requested the use of annual leave instead of sick leave. The Department of the Army does not dispute that the employee acted because of a misunderstanding caused by the incomplete advice he received.

In fact, Mr. Ramos's situation is the reverse of the facts in Lochridge where the employee elected to use annual leave and we did not permit retroactive substitution because the employee, with the aid of hindsight, realized the choice of leave was injudicious. It appears clear in the record before us that had Mr. Ramos been properly counseled when he requested assistance from his personnel office, he would have used sick leave to cover his absences in 1987 and his annual leave subject to forfeiture would have been restored under 5 U.S.C. Sec. 6304 (d)(l)(c). Accordingly, we do not object to the request of the Department of the Army to retroactively substitute 152 hours of sick leave for annual leave used by Mr. Ramos in 1987.