B-158179, APR. 27, 1966

B-158179, APR. 27, 1966

TO MR. G. DAVID GAGE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1965, WITH ENCLOSURES, CONCERNING THE PERIOD OF SICK LEAVE WHICH THE POST OFFICE DEPARTMENT HAS NOT RECREDITED TO MR. CHARLES LEPORE AS AN EMPLOYEE OF THE PHOENIX POST OFFICE IN THE CIRCUMSTANCES DISCLOSED BY THE ENCLOSURES WITH YOUR LETTER. THE STATEMENTS IN YOUR LETTER (INCLUDING THAT OF MARCH 11, 1966) HAVE BEEN CONSIDERED TOGETHER WITH THE REPORT AND MEDICAL EVIDENCE WHICH WE NOW HAVE RECEIVED FROM THE POST OFFICE DEPARTMENT.

THE PHOENIX POSTMASTER'S ACTION WHEREBY MR. LEPORE WAS PLACED ON SICK LEAVE WITH PAY BEGINNING FEBRUARY 24, 1965, APPEARS TO HAVE BEEN LAWFULLY BASED UPON THE DISABILITY DETERMINATION EXPRESSED IN THE LETTER OF FEBRUARY 11, 1965, TO MR. LEPORE, FROM THE BUREAU OF RETIREMENT AND INSURANCE, UNITED STATES CIVIL SERVICE COMMISSION, WHICH CONCERNED MEDICAL EVIDENCE THERETOFORE PRESENTED. FIVE MONTHS THEREAFTER, ON JULY 14, 1965- -- IN ADDITION TO THE LETTER TO MR. LEPORE ON THAT DATE--- THE BUREAU OF RETIREMENT AND INSURANCE ADVISED THE DIRECTOR, POSTAL DATA CENTER, DALLAS, TEXAS, AS FOLLOWS:

"MR. CHARLES LEPORE, ROUTE EXAMINER, UNITED STATES POST OFFICE, PHOENIX, ARIZONA, APPEALED OUR ALLOWANCE OF YOUR FILED-BY-DEPARTMENT CLAIM TO SECURE HIS DISABILITY RETIREMENT AND SUBMITTED MEDICAL EVIDENCE TO SUPPORT HIS POSITION.

"BASED ON A CAREFUL REVIEW OF THE EVIDENCE SUBMITTED BY THE APPELLANT AND ALSO THE ADDITIONAL MEDICAL EVIDENCE SECURED THROUGH FURTHER EXAMINATION OF THE EMPLOYEE, OUR MEDICAL DIVISION HAS REVERSED ITSELF AND NOW FINDS THAT MR. LEPORE IS NOT DISABLED WITHIN THE MEANING OF THE CIVIL SERVICE RETIREMENT ACT.

"OUR PREVIOUS ALLOWANCE OF YOUR FILED-BY-DEPARTMENT CLAIM MUST BE CHANGED TO DISALLOWANCE INSTEAD. IF YOU BELIEVE THIS ACTION IS IMPROPER, YOU MAY FILE AN APPEAL WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF THIS LETTER. COPY OF THE "RULES GOVERNING APPEALS" IS ENCLOSED.'

IN DUE COURSE EFFECTIVE JULY 28, 1965, THE PHOENIX POSTMASTER DISCONTINUED MR. LEPORE'S SICK LEAVE STATUS. YOU REQUESTED REVIEW OF THE ADMINISTRATIVE DENIAL OF RECREDIT OF THE LEAVE CHARGED FROM FEBRUARY 24 THROUGH JULY 27, 1965. THE MEDICAL DIRECTOR, BUREAU OF RETIREMENT AND INSURANCE, ADVISED THE POST OFFICE DEPARTMENT ON MARCH 14, 1966, AS FOLLOWS:

"ENCLOSED ARE COPIES OF MEDICAL AND RELATED INFORMATION RELATIVE TO THE AGENCY'S APPLICATION FOR THE DISABILITY RETIREMENT OF CHARLES LEPORE.

"THE ANALYSIS OF THIS EVIDENCE CONVINCED THE MEDICAL OFFICERS OF THE COMMISSION THAT MR. LEPORE WAS DISABLED AND THE AGENCY'S CLAIM FOR HIS DISABILITY RETIREMENT WAS APPROVED.

"MR. LEPORE APPEALED FROM THAT DECISION AND UPON RECEIPT OF EVIDENCE WHICH INDICATED THAT IMPROVEMENT IN HIS CONDITION HAD OCCURRED THE ORIGINAL DECISION OF ALLOWANCE WAS REVERSED.

"IT IS MY OPINION THAT ACTION PLACING MR. LEPORE ON LEAVE PENDING THE ADJUDICATION OF THE CLAIM FOR HIS DISABILITY RETIREMENT WAS WARRANTED BY THE MEDICAL AND OTHER EVIDENCE RELATIVE TO HIS ABERRANT ACTIONS.'

IN THE LIGHT OF THE FOREGOING INFORMATION OUR ANSWER TO THE FIRST QUESTION IN YOUR LETTER OF DECEMBER 9, 1965, IS THAT MR. LEPORE DOES NOT APPEAR TO BE ENTITLED TO RECREDIT OF THE SICK LEAVE IN QUESTION BECAUSE, AS INDICATED ABOVE, THE ACTION IN PLACING HIM IN A SICK LEAVE STATUS WAS PREDICATED ON COMPETENT MEDICAL EVIDENCE. B-156450, APRIL 13, 1965.

YOUR SECOND QUESTION IS WHETHER MR. LEPORE, IF NOT ENTITLED TO THE RECREDIT OF SICK LEAVE, IS TO BE CONSIDERED AS BEING "TOTALLY DISABLED, IN A MEDICAL SENSE," DURING THE PERIOD OF TIME HE WAS ON SICK LEAVE. WE DO NOT CONSIDER THAT OUR JURISDICTION IN THIS MATTER REQUIRES US TO MAKE A CATEGORICAL ANSWER TO THIS QUESTION. HOWEVER, WE NOTE THAT IN THE LETTER OF FEBRUARY 11, 1965, FROM THE BUREAU OF RETIREMENT AND INSURANCE, IT WAS STATED TO MR. LEPORE THAT "ON THE BASIS OF YOUR RECENT EXAMINATION, IT HAS BEEN DETERMINED THAT YOU ARE TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE IN YOUR POSITION * * *.' THE SUBSEQUENT FINDING IN THE SECOND PARAGRAPH OF THE LETTER OF JULY 14, QUOTED ABOVE, DID NOT SAY THAT THE DECISION OF FEBRUARY 11, 1965, WAS INVALIDATED. MOREOVER, SECTION 630.401 OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION PERTAINING TO SICK LEAVE PROVIDES THAT AN AGENCY MAY GRANT SICK LEAVE TO AN EMPLOYEE WHEN HE IS INCAPACITATED FOR THE PERFORMANCE OF HIS DUTIES BY SICKNESS.

THE STATEMENT IN THE MEMORANDUM DATED FEBRUARY 18, 1965, FROM THE REGIONAL DIRECTOR TO THE PHOENIX POSTMASTER, TO WHICH YOU REFER IN YOUR LETTER OF MARCH 11, 1966, IS AS FOLLOWS:

" "IT IS UNDERSTOOD THAT IF MR. LEPORE SUBMITS AN APPEAL AND AS A RESULT THEREOF THE CIVIL SERVICE COMMISSION REVERSES ITS DECISION, THE AMOUNT OF SICK LEAVE USED BY MR. LEPORE BETWEEN NOW AND THE DATE OF THE COMMISSION'S FINAL DECISION WILL BE RECREDITED TO HIM.'"

YOU SAY THAT STATEMENT WAS SHOWN TO MR. LEPORE ON FEBRUARY 23, 1965, AND THAT IT LULLED HIM INTO A FALSE SENSE OF SECURITY. HOWEVER, WE POINT OUT THAT THE PERSON MAKING SUCH STATEMENT HAD NO AUTHORITY TO PROMISE A RECREDIT OF LEAVE AND, THUS, THE GOVERNMENT OF THE UNITED STATES IS NOT BOUND THEREBY. SEE SUTTON V. UNITED STATES, 256 U.S. 575; WILBER NATIONAL BANK V. UNITED STATES, 294 U.S. 120.