B-172128, AUG 17, 1971

B-172128: Aug 17, 1971

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GAO WILL NOT SUBSTITUTE ITS JUDGEMENT FOR THAT OF THE ADMINISTRATIVE AGENCY. WE WISH TO ADVISE YOU THAT WE HAVE AGAIN REVIEWED THE FILE ON THIS MATTER. THE ISSUE TO BE DETERMINED IS THAT OF MR. ROBINSON'S PHYSICAL ABILITY TO PERFORM HIS WORK DURING THE PERIOD HE WAS SEPARATED FROM THE SERVICE. AS EVIDENCE THAT HE WAS ABLE TO WORK. THE POSTMASTER REFERS TO A LETTER FROM YOU CONCERNING HIS CONDITION AND STATES THAT " *** WE HAVE NEVER HAD ANY MEDICAL EVIDENCE SUBMITTED BY YOU *** THAT WOULD INDICATE YOU ARE NOT ABLE TO WORK.". WE NOTE THAT THE LETTER WAS WRITTEN AFTER MR. ROBINSON'S RESTORATION TO DUTY AND THAT OTHER STATEMENTS IN IT APPEAR TO REFER TO HIS PHYSICAL CONDITION FOR WORK AFTER THAT RATHER THAN DURING THE PRECEDING PERIOD WHEN HE WAS SEPARATED.

B-172128, AUG 17, 1971

CIVILIAN EMPLOYEE - SEPARATION FROM DUTY - ADMINISTRATIVE DETERMINATION DECISION AFFIRMING PREVIOUS DENIAL OF A CLAIM ON BEHALF OF EMMETT G. ROBINSON FOR BACK PAY FOR A PERIOD OF SEPARATION FROM GOVERNMENT SERVICE DUE TO MEDICAL REASONS. WHEN OPINIONS CONFLICT AS TO THE ABILITY, FITNESS AND AVAILABILITY OF AN EMPLOYEE FOR DUTY, GAO WILL NOT SUBSTITUTE ITS JUDGEMENT FOR THAT OF THE ADMINISTRATIVE AGENCY.

TO BENJAMIN J. BIRDSALL, JR.:

WITH REFERENCE TO YOUR LETTER OF MAY 19, 1971, CONCERNING ENTITLEMENT OF MR. EMMETT G. ROBINSON TO BACK PAY, WE WISH TO ADVISE YOU THAT WE HAVE AGAIN REVIEWED THE FILE ON THIS MATTER.

AS YOUR LETTER INDICATES, THE ISSUE TO BE DETERMINED IS THAT OF MR. ROBINSON'S PHYSICAL ABILITY TO PERFORM HIS WORK DURING THE PERIOD HE WAS SEPARATED FROM THE SERVICE, OCTOBER 4, 1968, THROUGH NOVEMBER 14, 1969. YOUR LETTER ENCLOSES, AS EVIDENCE THAT HE WAS ABLE TO WORK, A COPY OF A LETTER FROM MR. ROBINSON'S SUPERVISOR, THE POSTMASTER AT METAIRIE, LOUISIANA, DATED NOVEMBER 20, 1969. IN THAT LETTER TO MR. ROBINSON, THE POSTMASTER REFERS TO A LETTER FROM YOU CONCERNING HIS CONDITION AND STATES THAT " *** WE HAVE NEVER HAD ANY MEDICAL EVIDENCE SUBMITTED BY YOU *** THAT WOULD INDICATE YOU ARE NOT ABLE TO WORK." WE NOTE THAT THE LETTER WAS WRITTEN AFTER MR. ROBINSON'S RESTORATION TO DUTY AND THAT OTHER STATEMENTS IN IT APPEAR TO REFER TO HIS PHYSICAL CONDITION FOR WORK AFTER THAT RATHER THAN DURING THE PRECEDING PERIOD WHEN HE WAS SEPARATED.

THE ONLY INFORMATION AVAILABLE TO US BEARING ON MR. ROBINSON'S PHYSICAL CONDITION DURING THE PERIOD HE WAS SEPARATED ARE CERTAIN REFERENCES TO A PHYSICAL EXAMINATION PERFORMED BY A DR. A. E. JOHNSON ON JANUARY 10, 1969, MORE THAN 3 MONTHS AFTER THE SEPARATION DATE. THE REPORT OF THE EXAMINATION IS NOT INCLUDED IN OUR RECORDS. HOWEVER, WE FIND REFERENCES TO IT IN THE DECISION OF THE BOARD OF APPEALS AND REVIEW, UNITED STATES CIVIL SERVICE COMMISSION, AND IN LETTERS TO YOU FROM THE DEPUTY REGIONAL DIRECTOR OF OPERATIONS DATED JANUARY 27, 1970; THE DIRECTOR, PERSONNEL DIVISION, DATED MARCH 23, 1970; AND FROM THE POSTMASTER DATED JUNE 9, 1970. THE LETTER FROM MR. OLIVER W. BOYD, JR., DIRECTOR, PERSONNEL DIVISION, QUOTES A LETTER TO YOU FROM DR. JOHNSON DATED THE DAY OF THE EXAMINATION, JANUARY 10, 1969, STATING THE BELIEF OF THE DOCTOR THAT MR. ROBINSON "IS NOT ABLE TO DO THE TYPE OF WORK WHICH HE WAS DOING, POSSIBLY BECAUSE OF THE USE OF ANTI-GOUT DRUGS, BUT ALSO POSSIBLY AND MORE PROBABLY BECAUSE OF THE DISEASE ITSELF." ACCORDING TO MR. BOYD'S LETTER, THE PHYSICIAN'S MEDICAL OPINION WAS THAT "IT WAS UNLIKELY THAT MR. ROBINSON WOULD EVER BE ABLE TO RETURN TO HIS POSTAL POSITION SORTING MAIL."

APPARENTLY, IT IS ON THE BASIS OF THIS MEDICAL REPORT, TOGETHER WITH MR. ROBINSON'S HISTORY OF EXCESSIVE ABSENTEEISM PRIOR TO HIS SEPARATION, THAT THE ADMINISTRATIVE AGENCY REFUSES TO ACCEPT THE EMPLOYEE'S STATEMENT THAT HE WAS READY AND ABLE TO PERFORM HIS JOB DURING THE PERIOD IN QUESTION.

ON THE OTHER HAND, WE FIND NOTHING TO SUPPORT YOUR CLAIM ON BEHALF OF MR. ROBINSON THAT HE WOULD HAVE BEEN AVAILABLE FOR WORK ON EVERY DAY, INCLUDING HOLIDAYS, WITHOUT LEAVE OF ANY KIND DURING THE 29 PAY PERIODS OF HIS SEPARATION.

AS STATED TO YOU IN OUR LETTER OF APRIL 12, 1971, WHEN OPINIONS ARE CONFLICTING AS TO THE ABILITY, FITNESS, AND AVAILABILITY OF AN EMPLOYEE FOR DUTY, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF AN ADMINISTRATIVE AGENCY. MOREOVER, WE DO NOT FIND THE ADDITIONAL INFORMATION YOU HAVE PRODUCED SUFFICIENT TO OVERCOME THE OPINION OF THE AGENCY THAT MR. ROBINSON WAS NOT CONSIDERED READY AND ABLE TO PERFORM HIS DUTIES DURING THE PERIOD OF HIS SEPARATION. OUR DECISION OF APRIL 12, 1971, IS HEREBY AFFIRMED.

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    We dismiss the protest as untimely because it was filed more than 10 days after the protester knew, or should have known, the basis for its protest.
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