B-164622, AUG. 29, 1968

B-164622, AUG. 29, 1968

TO MR. CARL L. GONOT:

WE HAVE RECEIVED THE LETTER OF JUNE 4, 1968, WRITTEN IN YOUR BEHALF BY MR. FILBEY REQUESTING FURTHER CONSIDERATION OF OUR DISALLOWANCE OF APRIL 23, 1968, OF YOUR CLAIM FOR BACK PAY AS AN EMPLOYEE OF THE HOLLYWOOD, FLORIDA, POST OFFICE UNDER THE PROVISIONS OF 5 U.S.C. 5596 FOR THE PERIOD MAY 27 (MAY 7), 1965 TO MARCH 24, 1967.

THE RECORD SHOWS THAT APPROXIMATELY 3 YEARS AFTER YOU WERE EMPLOYED IN THE HOLLYWOOD POST OFFICE -- DATE OF EMPLOYMENT JUNE 11, 1960 -- YOUR HEALTH BEGAN TO DETERIORATE AND THAT YOU WERE ADMINISTRATIVELY FURNISHED SPECIAL EQUIPMENT AND DEVICES DESIGNED TO ASSIST YOU IN THE PERFORMANCE OF YOUR WORK. FURTHER, THE RECORD SHOWS THAT FROM THE DATE OF YOUR EMPLOYMENT TO APRIL 9, 1965, YOU HAD BEEN GRANTED EVERY HOUR OF SICK AND ANNUAL LEAVE EARNED AND THAT YOU HAD BEEN ADVANCED 604 HOURS OF SICK LEAVE. IN ADDITION THE RECORD SHOWS THAT ON THE FOREGOING DATE YOU VOLUNTARILY INITIATED YOUR APPLICATION FOR RETIREMENT ASSERTING YOU WERE TOTALLY DISABLED FOR THE WORK FOR WHICH EMPLOYED. THE APPLICATION CONTAINED INFORMATION FROM YOUR DOCTOR CONFIRMING SUCH TOTAL DISABILITY. UPON THE SUBMISSION OF THE APPLICATION FOR DISABILITY RETIREMENT, YOUR ANNUAL AND SICK LEAVE HAVING BEEN COMPLETELY USED UP AND BECAUSE OF YOUR PHYSICAL INABILITY TO PERFORM YOUR WORK YOU WERE ADMINISTRATIVELY PLACED ON LEAVE WITHOUT PAY -- THIS ACTION KEPT YOU ON THE PAYROLL -- TO AWAIT OFFICIAL ACTION UPON THE APPLICATION. ON SEPTEMBER 24, 1965, THE CIVIL SERVICE COMMISSION DENIED YOUR APPLICATION FOR DISABILITY RETIREMENT SPECIFICALLY UPON THE BASIS THAT YOU DID NOT BECOME DISABLED IN THE POSITION YOU OCCUPIED AND THAT YOU WERE NOT CONSIDERED MORE DISABLED THAN WHEN YOU ENTERED ON DUTY IN YOUR POSITION. WE NOTE THAT THE BOARD OF APPEALS AND REVIEW OF THE UNITED STATES CIVIL SERVICE COMMISSION AFFIRMED SUCH ACTION ON APRIL 5, 1966. THE FOREGOING ACTION OF THE UNITED STATES CIVIL SERVICE COMMISSION WAS NOT CONCERNED WITH YOUR PRESENT PHYSICAL ABILITY OR INABILITY TO CURRENTLY PERFORM YOUR ASSIGNED DUTIES.

FURTHER, THE RECORD SHOWS THAT YOU REQUESTED ON APRIL 14, 1966, IN WRITING THAT YOU BE ADVISED OF YOUR STATUS BUT THAT BEFORE YOU COULD BE OFFICIALLY RESCHEDULED FOR DUTY YOU ASKED FOR ADDITIONAL TIME, WHICH WAS GRANTED, TO PROCESS ANOTHER APPLICATION FOR DISABILITY RETIREMENT. AUGUST 1966 YOU WERE HOSPITALIZED AND ON JANUARY 8, 1967, YOUR DOCTOR ISSUED A STATEMENT TO THE EFFECT THAT YOU WERE PHYSICALLY UNABLE TO CONTINUE WORK. AS A CONSEQUENCE THE POSTMASTER DID NOT SCHEDULE YOU FOR WORK UNTIL MARCH 25, 1967. FURTHER, WE NOTE FROM THE RECORD THAT ON AUGUST 21, 1967, YOU SUFFERED A HEART ATTACK AND THAT FROM THE TIME YOU RETURNED TO WORK UNTIL YOUR HEART ATTACK YOU HAD BEEN ADMINISTRATIVELY PLACED ON LEAVE WITHOUT PAY FOR AN ADDITIONAL 243 HOURS.

ON AND AFTER MARCH 30, 1966, BACK PAY IS AUTHORIZED UNDER THE PROVISIONS OF PUBLIC LAW 89-380, 80 STAT. 94, NOW CODIFIED IN 5 U.S.C.A. 5596. THE PERTINENT PROVISIONS THEREOF READ AS FOLLOWS:

"/B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE --

"/1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD * * *.'

IT IS CLEARLY EVIDENT FROM THE FACTS AND CIRCUMSTANCES OF YOUR CASE THAT YOU DID NOT UNDERGO AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH HAS BEEN CORRECTED BY APPROPRIATE AUTHORITY. MOREOVER, WE AGREE THAT NO CORRECTION WAS NECESSARY SINCE YOUR LEAVE WITHOUT PAY STATUS WAS PROMPTED BY YOUR USE OF ALL OF YOUR ANNUAL AND SICK LEAVE PLUS CONSIDERABLE ADVANCE SICK LEAVE AND YOUR ADMITTED PHYSICAL INABILITY, WHICH YOUR DOCTOR AFFIRMED, TO PERFORM YOUR WORK.

WE POINT OUT THAT EVEN IF THERE HAD BEEN A CORRECTION OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION IN YOUR CASE, THERE WOULD STILL BE A QUESTION OF WHETHER YOU WERE READY, WILLING AND ABLE TO PERFORM THE DUTIES OF THE POSITION SO AS TO QUALIFY FOR BACK PAY. SEE B-159803, AUGUST 12, 1966, COPY ENCLOSED, THIRD PARAGRAPH, CASES CITED THEREIN. IN THAT CONNECTION THE REGULATIONS OF THE CIVIL SERVICE COMMISSION 5 CFR 550.804 ISSUED PURSUANT TO THE FOREGOING STATUTORY PROVISIONS PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/D) IN COMPUTING THE AMOUNT OF BACK PAY UNDER * * * THE ACT, THE DEPARTMENT MAY NOT (1) INCLUDE ANY PERIOD DURING WHICH THE EMPLOYEE WAS NOT READY AND ABLE TO PERFORM HIS JOB BECAUSE OF INCAPACITATING ILLNESS, EXCEPT THAT THE DEPARTMENT SHALL GRANT UPON THE REQUEST OF THE EMPLOYEE ANY SICK OR ANNUAL LEAVE TO HIS CREDIT TO COVER THE PERIOD OF INCAPACITY BY REASON OF ILLNESS * * *.'

IN VIEW OF THE FOREGOING NO BASIS EXISTS UPON WHICH WE CAN ALLOW YOUR CLAIM. ACCORDINGLY, OUR DISALLOWANCE OF APRIL 23, 1968, MUST BE SUSTAINED.