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B-87890, JANUARY 10, 1950, 29 COMP. GEN. 296

B-87890 Jan 10, 1950
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1950: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 24. TO THE LEAVE ACCOUNTS OF EMPLOYEES WHO HAVE BEEN SEPARATED FROM THE SERVICE AND TO EMPLOYEES WHO STILL ARE ON THE ROLLS. WHICH AUTHORIZED THE CREDIT OF LEAVE TO EMPLOYEES IN RECEIPT OF DISABILITY COMPENSATION WAS IN CONTRAVENTION OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7. THAT A LUMP-SUM PAYMENT FOR ANNUAL LEAVE COULD NOT BE MADE TO AN EMPLOYEE FOR THAT PART OF THE ACCRUED ANNUAL LEAVE CREDITED DURING A PERIOD THE EMPLOYEE WAS IN RECEIPT OF DISABILITY COMPENSATION. THE PERTINENT PORTION OF SECTION 30.403 OF THE LEAVE REGULATIONS INVOLVED IN THE ABOVE DECISION IS AS FOLLOWS: * * * THAT WHEN AN EMPLOYEE ABSENT BECAUSE OF INJURY RECEIVED IN LINE OF DUTY REQUESTS TO BE CARRIED ON LEAVE-WITHOUT-PAY.

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B-87890, JANUARY 10, 1950, 29 COMP. GEN. 296

COMPENSATION - DISABILITY - ANNUAL LEAVE ACCRUAL DURING PERIOD OF DISABILITY THE DECISION OF AUGUST 12, 1949, 29 COMP. GEN. 73, THAT ANNUAL LEAVE MAY NOT ACCRUE TO AN EMPLOYEE FOR A PERIOD DURING WHICH HE RECEIVED DISABILITY COMPENSATION, DOES NOT REQUIRE THE RETROACTIVE ADJUSTMENT OF LEAVE CREDITS, OR LUMP-SUM PAYMENTS THEREFOR, MADE PRIOR TO THAT DATE PURSUANT TO LEAVE REGULATIONS THEN IN EFFECT.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, JANUARY 10, 1950:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 24, 1949, REQUESTING ADVICE REGARDING THE APPLICATION OF DECISION OF AUGUST 12, 1949, B 87890, 29 COMP. GEN. 73, TO THE LEAVE ACCOUNTS OF EMPLOYEES WHO HAVE BEEN SEPARATED FROM THE SERVICE AND TO EMPLOYEES WHO STILL ARE ON THE ROLLS. SAID DECISION HELD THAT THE PROVISION OF SECTION 30.403 OF THE LEAVE REGULATIONS ISSUED UNDER THE 1936 LEAVE ACTS, 49 STAT. 1161, 1162, WHICH AUTHORIZED THE CREDIT OF LEAVE TO EMPLOYEES IN RECEIPT OF DISABILITY COMPENSATION WAS IN CONTRAVENTION OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, AND, THEREFORE, THAT A LUMP-SUM PAYMENT FOR ANNUAL LEAVE COULD NOT BE MADE TO AN EMPLOYEE FOR THAT PART OF THE ACCRUED ANNUAL LEAVE CREDITED DURING A PERIOD THE EMPLOYEE WAS IN RECEIPT OF DISABILITY COMPENSATION.

THE PERTINENT PORTION OF SECTION 30.403 OF THE LEAVE REGULATIONS INVOLVED IN THE ABOVE DECISION IS AS FOLLOWS:

* * * THAT WHEN AN EMPLOYEE ABSENT BECAUSE OF INJURY RECEIVED IN LINE OF DUTY REQUESTS TO BE CARRIED ON LEAVE-WITHOUT-PAY, HE SHALL, UPON HIS RETURN TO DUTY, RECEIVE CREDIT FOR ACCRUED LEAVE COVERING THE PERIOD FOR WHICH HE WAS PAID DISABILITY COMPENSATION BY THE EMPLOYEES' COMPENSATION COMMISSION.

IT IS STATED IN YOUR LETTER THAT SINCE PUBLICATION OF THE CITED DECISION IT HAS BEEN LEARNED THAT SEVERAL OTHER EMPLOYEES IN RECEIPT OF DISABILITY COMPENSATION HAVE IN THE PAST BEEN CREDITED WITH LEAVE UPON THEIR RETURN TO DUTY, NO QUESTION HAVING BEEN RAISED IN REGARD THERETO BECAUSE LUMP-SUM LEAVE PAYMENTS WERE NOT INVOLVED. IN VIEW THEREOF, YOU DESIRE TO KNOW WHETHER IN ALL SUCH CASES SUBSEQUENT TO THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, 58 STAT. 845, AN ADJUSTMENT OF LEAVE IS REQUIRED FOR THOSE EMPLOYEES STILL ON THE ROLLS AND WHETHER RECOVERY SHOULD BE EFFECTED FOR SUCH LEAVE WHICH HAS BEEN INCLUDED IN LUMP-SUM PAYMENTS TO EMPLOYEES UPON SEPARATION FROM THE SERVICE.

UNDER DATE OF OCTOBER 20, 1949, THIS OFFICE ADVISED THE UNITED STATES CIVIL SERVICE COMMISSION OF THE HOLDING IN THE DECISION OF AUGUST 12, 1949, SUPRA, AND SUGGESTED THAT THE COMMISSION GIVE CONSIDERATION TO THE ELIMINATION FROM THE LEAVE REGULATIONS OF THE PROVISION IN SECTION 30.403 THEREOF AUTHORIZING CREDIT FOR ANNUAL AND SICK LEAVE COVERING PERIODS WHEN AN EMPLOYEE IS IN RECEIPT OF DISABILITY COMPENSATION FROM THE EMPLOYEES' COMPENSATION COMMISSION. BY AMENDMENT TO THE ANNUAL AND SICK LEAVE REGULATIONS FILED IN THE DIVISION OF FEDERAL REGISTER ON DECEMBER 5, 1949, AND PUBLISHED IN THE FEDERAL REGISTER ON DECEMBER 6, 1949 (14 F.R. 7288), THE CIVIL SERVICE COMMISSION REVISED SECTION 30.403 OF SAID REGULATIONS IN ACCORDANCE WITH THE FOREGOING SUGGESTION.

THE PROVISION OF SECTION 30.403 OF THE LEAVE REGULATIONS AS IT EXISTED PRIOR TO THE AMENDMENT OF DECEMBER 5, 1949, IS NOT AMBIGUOUS; AND IN ADDITION TO THE EMPLOYEES IN YOUR ADMINISTRATION WHO HAVE BEEN CREDITED WITH LEAVE THEREUNDER, THERE DOUBTLESS ARE NUMEROUS OTHER EMPLOYEES THROUGHOUT THE GOVERNMENT SERVICE WHO, UNDER SAID PRIOR REGULATIONS, HAVE BEEN CREDITED WITH LEAVE WHILE IN RECEIPT OF DISABILITY COMPENSATION.

IN THE LIGHT OF THE ACTION OF THE CIVIL SERVICE COMMISSION IN ELIMINATING THE OBJECTIONABLE PROVISION FROM SECTION 30.403 OF THE LEAVE REGULATIONS, AND HAVING REGARD FOR THE DIFFICULTY IN ATTEMPTING TO ADJUST LEAVE ACCOUNTS OVER PERIODS OF SEVERAL YEARS, INVOLVING BOTH THE CLOSED OUT AND OPEN ACCOUNTS, THE DECISION OF AUGUST 12, 1949, NEED NOT BE GIVEN ANY RETROACTIVE EFFECT.

ACCORDINGLY, NO ACTION NEED BE TAKEN TO DISTURB ANY ANNUAL LEAVE CREDITED TO AN EMPLOYEE IN RECEIPT OF DISABILITY COMPENSATION UPON HIS RETURN TO DUTY PRIOR TO THE DATE OF THE DECISION OF AUGUST 12, 1949, OR TO REQUIRE ANY REFUND FOR SUCH LEAVE THAT MAY HAVE BEEN INCLUDED IN A LUMP-SUM PAYMENT. MOREOVER, SINCE THE SAID DECISION DID NOT INVOLVE SICK LEAVE THERE WILL BE NO OBJECTION TO THE CREDITING OF SICK LEAVE TO EMPLOYEES WHO RETURN TO DUTY AFTER BEING IN RECEIPT OF DISABILITY COMPENSATION UP TO THE DATE OF THE AMENDMENT TO THE LEAVE REGULATIONS, NAMELY, DECEMBER 5, 1949.

UPON THE ABOVE VIEW OF THE MATTER, THERE IS FOR RECONSIDERATION THE CASE OF THE NURSE TO WHOM REFERENCE IS MADE IN THE DECISION OF AUGUST 12, 1949. IN YOUR LETTER OF JULY 13, 1949, IT IS STATED THAT SAID EMPLOYEE REPORTED FOR DUTY ON APRIL 3, 1949, AFTER BEING IN RECEIPT OF DISABILITY COMPENSATION AND WAS CONVERTED FROM HER FORMER CLASSIFIED POSITION TO THAT OF NURSE, ASSOCIATE GRADE, IN THE DEPARTMENT OF MEDICINE AND SURGERY, AND AS THE LATTER POSITION WAS NOT WITHIN THE PURVIEW OF THE LEAVE ACTS OF 1936, IT WAS SUGGESTED THAT SECTION 30.403 OF THE LEAVE REGULATIONS AS IT EXISTED AT THAT TIME WAS NOT APPLICABLE TO PERMIT THE CREDITING OF LEAVE TO SAID EMPLOYEE. IN THAT CONNECTION, IT IS FOR NOTING THAT THE ACT OF JANUARY 3, 1946, 59 STAT. 675, 676, AUTHORIZING THE ESTABLISHMENT OF A DEPARTMENT OF MEDICINE AND SURGERY IN THE VETERANS ADMINISTRATION, CONTAINS A PROVISION TO THE EFFECT THAT NURSES COULD BE CONTINUED IN THEIR PRESENT POSITIONS IN THE THEN MEDICAL SERVICE UNTIL THEIR QUALIFICATIONS FOR APPOINTMENT IN THE DEPARTMENT OF MEDICINE AND SURGERY WERE DETERMINED BY THE ADMINISTRATOR. IN VIEW THEREOF, THERE IS SOME DOUBT AS TO WHETHER THE ABOVE EMPLOYEE IS TO BE REGARDED AS NOT BEING WITHIN THE PURVIEW OF THE 1936 LEAVE ACTS AND THE LEAVE REGULATIONS ISSUED PURSUANT THERETO WHEN SHE RETURNED TO DUTY. IN OTHER WORDS, IF NO ACTION WAS TAKEN TO DETERMINE HER QUALIFICATIONS OR TO PROCESS HER APPOINTMENT UNDER THE ACT OF JANUARY 3, 1946, SUPRA, UNTIL THE DAY SHE REPORTED FOR DUTY, IT REASONABLY MAY BE CONCLUDED THAT FOR A PORTION OF THAT DAY SHE WAS STILL SUBJECT TO THE 1936 LEAVE ACTS AND MAY BE CREDITED WITH LEAVE TO THE SAME EXTENT AS AUTHORIZED HEREIN FOR OTHER EMPLOYEES WHO RETURNED TO DUTY PRIOR TO THE DATE OF THE DECISION OF AUGUST 12, 1949. ON THE OTHER HAND, IF THERE ACTUALLY WAS A CHANGE IN THE EMPLOYEE'S STATUS UNDER THE ACT OF JANUARY 3, 1946, PRIOR TO HER RETURN TO DUTY ON APRIL 3, 1949, SHE WOULD BE EXCLUDED FROM ANY BENEFITS WHATSOEVER UNDER THE 1936 LEAVE ACTS OR THE REGULATIONS ISSUED PURSUANT THERETO.

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