B-195597 OM, NOV 23, 1979
Highlights
CLAIMS DIVISION: RETURNED HEREWITH IS YOUR FILE Z-2810307. AT THAT TIME SHE PRESENTED THE AGENCY WITH MEDICAL INFORMATION WHICH INDICATED THAT SHE WAS ABLE TO RETURN TO DUTY FOR ONLY THE DAY SHIFT. THAT HE FELT THAT HER PRIMARY PROBLEM WAS ONE OF JOB RELATED ANXIETY AND HE SUGGESTED THAT MS. ANDERSON'S RECOMMENDATION WAS SIMILAR TO THAT MADE BY MS. A PSYCHIATRIC SOCIAL WORKER WHO WAS INVOLVED IN THE TREATMENT OF MS. AS THE AGENCY HAS NOT PROVIDED A COPY OF THE PSYCHIATRIC EVALUATION WE ARE NOT AWARE OF THE BASIS FOR HIS CONCLUSIONS. LETT WAS TEMPORARILY TOTALLY DISABLED TO FUNCTION IN HER POSITION OR IN ANY OTHER REMUNERATIVE POSITION. SHE WAS RETURNED TO DUTY ON SEPTEMBER 4. WAS DENIED ON THE BASIS THAT AN EMPLOYEE MAY BE PLACED ON INVOLUNTARY LEAVE WHILE AN AGENCY-FILED DISABILITY RETIREMENT APPLICATION IS PENDING BEFORE THE COMMISSION WHEN ADMINISTRATIVE OFFICERS DETERMINE UPON THE BASIS OF COMPETENT MEDICAL EVIDENCE THAT AN EMPLOYEE IS INCAPACITATED FOR THE PERFORMANCE OF HIS ASSIGNED DUTIES AND THAT INVOLUNTARY LEAVE DOES NOT.
B-195597 OM, NOV 23, 1979
SUBJECT: BETTY SUE LETT - INVOLUNTARY LEAVE:
DIRECTOR, CLAIMS DIVISION:
RETURNED HEREWITH IS YOUR FILE Z-2810307. THE RECORD SHOWS THAT MS. LETT, A COMPUTER OPERATOR ON THE NIGHT SHIFT AT THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, REPORTED FOR DUTY ON APRIL 4, 1977, AFTER A PERIOD OF APPROVED LEAVE WITHOUT PAY FOR MEDICAL REASONS. AT THAT TIME SHE PRESENTED THE AGENCY WITH MEDICAL INFORMATION WHICH INDICATED THAT SHE WAS ABLE TO RETURN TO DUTY FOR ONLY THE DAY SHIFT.
BY LETTER DATED SEPTEMBER 22, 1977, DR. ANDERSON, A PHYSICIAN WITH THE OAKLAND NAVAL SUPPLY CENTER DISPENSARY, STATED THAT MS. LETT HAD BEEN UNDER HIS CARE SINCE AUGUST 15, 1977, AND THAT HE FELT THAT HER PRIMARY PROBLEM WAS ONE OF JOB RELATED ANXIETY AND HE SUGGESTED THAT MS. LETT BE TRANSFERRED TO ANOTHER AREA WHERE SHE COULD FUNCTION MORE COMFORTABLY. DR. ANDERSON'S RECOMMENDATION WAS SIMILAR TO THAT MADE BY MS. CAROL FOREST, A PSYCHIATRIC SOCIAL WORKER WHO WAS INVOLVED IN THE TREATMENT OF MS. LETT. IN A LETTER DATED MARCH 23, 1977, SHE STATED THAT MS. LETT'S EMOTIONAL PROBLEMS HAD BEEN IMPROVED BY MEDICATION AND PSYCHOTHERAPY AND RECOMMENDED THAT FOR CONTINUED MENTAL HEALTH SHE BE PLACED IN A NEW DEPARTMENT AND THAT SHE NOT BE GIVEN ANY ROTATING SHIFTS OR BE PLACED UNDER UNDUE PRESSURE.
ON THE BASIS OF MS. FOREST'S STATEMENT THE AGENCY, ON SEPTEMBER 19, 1977, DIRECTED MS. LETT TO REPORT TO DR. CAHAN, A PSYCHIATRIST, FOR A PSYCHIATRIC EVALUATION. THE RECORD INDICATES THAT DR. CAHAN'S EXAMINATION OCCURRED SOMETIME PRIOR TO NOVEMBER 3, 1977. AS THE AGENCY HAS NOT PROVIDED A COPY OF THE PSYCHIATRIC EVALUATION WE ARE NOT AWARE OF THE BASIS FOR HIS CONCLUSIONS. THE AGENCY STATES THAT DR. CAHAN CONCLUDED THAT MS. LETT WAS TEMPORARILY TOTALLY DISABLED TO FUNCTION IN HER POSITION OR IN ANY OTHER REMUNERATIVE POSITION. THE DIRECTOR, OPERATIONS DIVISION, DATA PROCESSING DEPARTMENT, ADVISED HER BY MEMORANDA THAT BASED ON DR. CAHAN'S EVALUATION SHE WOULD BE PLACED ON INVOLUNTARY LEAVE EFFECTIVE NOVEMBER 18, 1977, AND THAT A DISABILITY RETIREMENT APPLICATION WOULD BE FILED ON HER BEHALF IF SHE DID NOT FILE SUCH APPLICATION. ON JANUARY 25, 1978, HE ADVISED HER THAT THE AGENCY WOULD FILE A DISABILITY RETIREMENT APPLICATION ON HER BEHALF WITH THE CIVIL SERVICE COMMISSION. THE RECORD DOES NOT SHOW ANY ATTEMPT BY THE AGENCY TO RESOLVE THE CONFLICT IN THE MEDICAL EVIDENCE CONCERNING HER ABILITY TO WORK.
ON AUGUST 12, 1978, THE COMMISSION'S BUREAU OF RETIREMENT, INSURANCE, AND OCCUPATIONAL HEALTH, ADVISED MS. LETT THAT THE APPLICATION FOR HER DISABILITY RETIREMENT HAD NOT BEEN APPROVED BECAUSE TOTAL DISABILITY FOR USEFUL AND EFFICIENT SERVICE IN HER POSITION HAD NOT BEEN SHOWN BY THE MEDICAL EVIDENCE, AND SHE WAS RETURNED TO DUTY ON SEPTEMBER 4, 1978.
IN THE CERTIFICATE OF SETTLEMENT DATED MAY 18, 1979, MS. LETT'S CLAIM FOR BACK PAY FOR THE PERIOD FROM NOVEMBER 18, 1977, TO SEPTEMBER 3, 1978, WAS DENIED ON THE BASIS THAT AN EMPLOYEE MAY BE PLACED ON INVOLUNTARY LEAVE WHILE AN AGENCY-FILED DISABILITY RETIREMENT APPLICATION IS PENDING BEFORE THE COMMISSION WHEN ADMINISTRATIVE OFFICERS DETERMINE UPON THE BASIS OF COMPETENT MEDICAL EVIDENCE THAT AN EMPLOYEE IS INCAPACITATED FOR THE PERFORMANCE OF HIS ASSIGNED DUTIES AND THAT INVOLUNTARY LEAVE DOES NOT, UNDER SUCH CIRCUMSTANCES, CONSTITUTE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION UNDER THE APPLICABLE BACK PAY PROVISIONS. SEE 41 COMP. GEN. 774 (1962) AND DORA M. MCDONALD, B-184706, JANUARY 12, 1976.
HERE, HOWEVER, THERE WAS A CONFLICT IN THE MEDICAL RECORD BETWEEN THE FINDINGS OF DR. CAHAN, WHO APPARENTLY EXAMINED MS. LETT ONLY ONCE, AND THAT OF MS. FOREST AND DR. ANDERSON, WHO WERE INVOLVED IN THE CONTINUING CARE AND TREATMENT OF MS. LETT. IT IS NOTED THAT DR. ANDERSON WAS THE AGENCY'S OWN PHYSICIAN. IN VIEW OF THAT UNRESOLVED CONFLICT IN MEDICAL OPINIONS REGARDING MS. LETT'S ABILITY TO CONTINUE TO WORK WE CANNOT SAY THAT PLACING HER ON INVOLUNTARY LEAVE WAS PREDICATED ON COMPETENT MEDICAL EVIDENCE. ALTHOUGH DR. CAHAN'S OPINION IN ITSELF MAY HAVE BEEN CONSIDERED COMPETENT EVIDENCE, THE RECORD AS A WHOLE DOES NOT FURNISH A FULL JUSTIFICATION FOR THE AGENCY'S ACTION.
ACCORDINGLY, WE MUST CONCLUDE THAT THE AGENCY DECISION TO PLACE MS. LETT ON AN INVOLUNTARY LEAVE STATUS, WITHOUT TAKING FURTHER STEPS TO DETERMINE HER ABILITY TO WORK CONSTITUTED AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION UNDER THE BACK PAY ACT, 5 U.S.C. 5596 (1976). SHE IS ENTITLED TO BACK PAY FOR THE TIME SHE WAS ON LEAVE-WITHOUT-PAY STATUS DURING THE PERIOD FROM NOVEMBER 18, 1977, TO SEPTEMBER 3, 1978, AND TO RECREDIT OF ANY ANNUAL LEAVE USED DURING THAT TIME.