B-87890, AUGUST 12, 1949, 29 COMP. GEN. 73

B-87890, AUGUST 12, 1949, 29 COMP. GEN. 73

COMPENSATION - DISABILITY - ANNUAL LEAVE ACCRUAL DURING PERIOD OF DISABILITY UNDER SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF 1916, AS AMENDED, PROHIBITING THE CONCURRENT RECEIPT OF DISABILITY COMPENSATION AUTHORIZED THEREUNDER AND ANY SALARY, PAY, OR REMUNERATION WHATSOEVER FROM THE UNITED STATES, ANNUAL LEAVE MAY NOT ACCRUE TO AN EMPLOYEE DURING A PERIOD THAT HE IS IN RECEIPT OF DISABILITY COMPENSATION, SO THAT SUCH EMPLOYEE IS NOT ENTITLED, UPON RETURN TO DUTY TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM, TO A LUMP-SUM PAYMENT FOR ANNUAL LEAVE CLAIMED TO HAVE ACCRUED DURING SUCH PERIOD.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, AUGUST 12, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JULY 13, 1949, REQUESTING DECISION WITH RESPECT TO THE RIGHT OF AN EMPLOYEE TO A LUMP-SUM PAYMENT FOR ANNUAL LEAVE CLAIMED TO HAVE ACCRUED TO HER UNDER SECTION 30.403 OF THE ANNUAL AND SICK LEAVE REGULATIONS WHILE SHE WAS IN RECEIPT OF DISABILITY COMPENSATION FOR SICKNESS INCURRED IN LINE OF DUTY.

FROM THE INFORMATION FURNISHED IN YOUR LETTER IT APPEARS THAT THE EMPLOYEE WAS EMPLOYED AT THE VETERANS ADMINISTRATION HOSPITAL, JEFFERSON BARRACKS, MO., AS HEAD NURSE, P-2, WHEN SHE CONTRACTED TUBERCULOSIS IN THE LINE OF DUTY AND WAS GRANTED LEAVE WITHOUT PAY JULY 22, 1946, THROUGH APRIL 2, 1949; THAT SHE RECEIVED DISABILITY FROM JULY 26, 1946, THROUGH APRIL 2, 1949; THAT ON APRIL 3, 1949, THIS EMPLOYEE WAS RESTORED TO DUTY AT THE VETERANS ADMINISTRATION HOSPITAL, OTEEN, N.C., AS NURSE, ASSOCIATE GRADE, IN THE DEPARTMENT OF MEDICINE AND SURGERY, IN WHICH LATTER POSITION IT WOULD APPEAR FROM YOUR SUBMISSION SHE IS NOT SUBJECT TO THE GENERAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161. YOU SUGGEST THAT THE LEAVE REGULATION IDENTIFIED ABOVE WOULD HAVE NO APPLICATION TO THE INSTANT MATTER AS THE EMPLOYEE WAS RETURNED TO DUTY IN A DIFFERENT LEAVE STATUS FROM THAT FORMERLY ENJOYED BY HER. SECTION 30.403 OF THE ANNUAL AND SICK LEAVE REGULATIONS, CHAPTER Z-1, FEDERAL PERSONNEL MANUAL, PROVIDES:

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.

SECTIONS 7 AND 8 OF THE ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, 743, AS AMENDED AND CODIFIED (5 U.S.C. 757, 758), RESPECTING BENEFITS AUTHORIZED FOR FEDERAL EMPLOYEES INJURED IN THE PERFORMANCE OF THEIR DUTIES, READ AS FOLLOWS:

SEC. 757. PERSON RECEIVING NOT TO BE PAID FOR OTHER SERVICES; PENSIONS.

AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER SECTIONS 751- 791, 793 OF THIS TITLE, OR, IF HE HAS BEEN PAID A LUMP SUM IN COMMUTATION OF INSTALLMENT PAYMENTS, UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED, HE SHALL NOT RECEIVE FROM THE UNITED STATES ANY SALARY, PAY, OR REMUNERATION WHATSOEVER EXCEPT IN RETURN FOR SERVICES ACTUALLY PERFORMED, AND EXCEPT PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES: PROVIDED, THAT WHENEVER ANY PERSON IS ENTITLED TO RECEIVE ANY BENEFITS UNDER SECTIONS 751-791 AND 793 OF THIS TITLE BY REASON OF HIS INJURY, OR BY REASON OF THE DEATH OF AN EMPLOYEE, AS DEFINED IN SECTION 790 OF THIS TITLE, AND IS ALSO ENTITLED TO RECEIVE FROM THE UNITED STATES ANY PAYMENTS OR BENEFITS (OTHER THAN THE PROCEEDS OF ANY INSURANCE POLICY), BY REASON OF SUCH INJURY OR DEATH UNDER ANY OTHER ACT OF CONGRESS, BECAUSE OF SERVICE BY HIM (OR IN THE CASE OF DEATH, BY THE DECEASED) AS AN EMPLOYEE, AS SO DEFINED, SUCH PERSON SHALL ELECT WHICH BENEFITS HE SHALL RECEIVE. SUCH ELECTION SHALL BE MADE WITHIN ONE YEAR AFTER THE INJURY OR DEATH, OR SUCH FURTHER TIME AS THE ADMINISTRATOR MAY FOR GOOD CAUSE ALLOW, AND WHEN MADE SHALL BE IRREVOCABLE, UNLESS OTHERWISE PROVIDED BY LAW.

SEC. 758. EMPLOYEE HAVING ANNUAL OR SICK LEAVE TO HIS CREDIT.

IF AT THE TIME THE DISABILITY BEGINS THE EMPLOYEE HAS ANNUAL OR SICK LEAVE TO HIS CREDIT HE MAY, SUBJECT TO THE APPROVAL OF THE HEAD OF THE DEPARTMENT, USE SUCH LEAVE UNTIL IT IS EXHAUSTED, IN WHICH CASE HIS COMPENSATION SHALL BEGIN ON THE FOURTH DAY OF DISABILITY AFTER THE ANNUAL OR SICK LEAVE HAS CEASED.

PRIOR TO THE PASSAGE OF THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, ANNUAL LEAVE COULD BE GRANTED IN KIND ONLY, AND THE ABOVE QUOTED LEAVE REGULATION WAS NOT CONSIDERED OBJECTIONABLE IN THE LIGHT OF THE STATUTORY PROVISIONS QUOTED ABOVE SINCE IT DID NOT INCREASE THE COMPENSATION PAYABLE TO AN EMPLOYEE BUT MERELY GRANTED A RIGHT TO ADDITIONAL ABSENCE FROM DUTY WITH PAY. 6 COMP. GEN. 156. HOWEVER, WITH THE PASSAGE OF THE LUMP-SUM LEAVE ACT, GRANTING THE RIGHT TO PAYMENT FOR ACCRUED ANNUAL LEAVE UPON SEPARATION FROM THE SERVICE OR UPON TRANSFER TO A DIFFERENT LEAVE SYSTEM, THE RIGHT TO ANNUAL LEAVE BECAME A VALUABLE ASSET AND A POTENTIAL ADDITION TO THE EMPLOYEE'S COMPENSATION. ACCORDINGLY, THE CONCLUSION IS INESCAPABLE THAT, UNDER THE PROVISIONS OF THE EMPLOYEES' COMPENSATION STATUTE, SUPRA, THE ACCRUING OF ANNUAL LEAVE TO AN EMPLOYEE DURING THE PERIOD THAT HE IS IN RECEIPT OF DISABILITY COMPENSATION IS IN CONTRAVENTION OF THE SPIRIT AND INTENT OF THAT STATUTE. SUCH CONCLUSION RENDERS UNNECESSARY ANY DISCUSSION OF THE APPLICABILITY OF THE SAID LEAVE REGULATION TO SITUATIONS WHERE THE RETURN TO DUTY IS NOT TO A POSITION UNDER THE 1936 LEAVE LAW.

IN THE CIRCUMSTANCES, IT MUST BE HELD THAT THE NURSE IN QUESTION IS NOT ENTITLED TO A LUMP-SUM PAYMENT FOR ANNUAL LEAVE ALLEGED TO HAVE ACCRUED DURING THE PERIOD SHE WAS DRAWING DISABILITY COMPENSATION.