Office of the General Counsel

Matter of: [xxx]
File Number: S98000606
Date: June 8, 1999

OPM Contact: Jo-Ann Chabot

This is a claim for reimbursement in the amounts of $41,475.20 for 260 days of sick leave and $4,785.60 for 240 hours of annual leave that he allegedly accrued while receiving workers' compensation benefits and other matters relating to his reemployment in a GS-9 position.

On July 30, 1973, the claimant, a retired federal employee, began working for the [agency] under a term appointment. The [agency] converted his appointment to career-conditional on April 7, 1974, and on March 24, 1976, he filed a workers' compensation claim for a job-related injury. The claimant went on leave without pay on April 29, 1976 because of that injury. On April 29, 1979, his disability retirement was approved and, on May 17, 1979, he was separated from the [agency]on a disability retirement. In August 1991, the Office of Workers' Compensation Programs (OWCP) approved the claimant's claim for workers' compensation benefits. The claimant elected to receive workers' compensation benefits rather than disability retirement benefits. Therefore, his workers' compensation benefits were made retroactive to April 29, 1976 through April 3, 1980 for total disability; April 4, 1980 through March 6, 1981 when he worked at home; and, from March 7, 1981 for total disability.

On January 22, 1996, the [agency] offered a GS-11 position to the claimant and, on March 18, 1996, OWCP determined that the position met the claimant's medical restrictions. The claimant accepted this offer on April 3, 1996. However, the [agency] notified him on April 9, 1996 that, due to a reduction-in-force (RIF), the claimant's return to work would be delayed until after August 1, 1996. The [agency] also advised that the GS-11 position that it had offered to him previously was no longer available and that it currently was offering him a GS-9 position. The claimant returned to work in the GS-9 position on September 30, 1996.

On October 28, 1996, the claimant completed a Notice of Recurrence and, shortly thereafter, he submitted a claim for continuation of pay (COP) and a Notice of Occupational Disease and Claims and Compensation. On December 19, 1996, the OWCP denied the claim for COP. The claimant thereafter resigned from his position, effective January 11, 1997 to receive disability retirement benefits.

Finally, by letter of November 4, 1997, the [agency] determined that the claimant was not entitled to full service credit and restoration rights, to any RIF notification or rights, or grade and/or pay retention. The [agency] stated in this regard that, at the time it conducted the RIF, the claimant was not an employee. The [agency] advised the claimant that, if he believed that he was not provided the appropriate reemployment entitlement, he had the right to appeal to the United States Merit Systems Protection Board (MSPB), enclosing with its letter the MSPB regulations and an MSPB appeal form.

With regard to the claim for reimbursement for leave, the Federal Employees' Compensation Act, at 5 U.S.C. 8116(a) provides that, except for the payments specifically described in subsection (a), an employee who is receiving disability compensation under the Act may not simultaneously receive salary, pay, or remuneration of any type from the United States. Exceptions to the statutory bar on simultaneous payment of remuneration and compensation benefits do not include annual leave or sick leave. ⁽¹⁾ The right to annual leave and sick leave is a form of compensation. See Matter of Office of Technology Assessment, 67 Comp. Gen. 418 (1988); Matter of Sidonio L. Dubuclet, B-156279 (April 7, 1965). Thus, an employee may not accrue annual leave or sick leave while he or she is receiving benefits under the Federal Employees' Compensation Act. Matter of Larry V. Salas and William D. Morger, 67 Comp. Gen. 295 (1988); Matter of John P. Mitchell, B-180010 and B-180010.12 (March 18, 1979); Matter of Lee J. Gage, B-182078 (January 6, 1975); Matter of Glenn D. Rahr, B-164617 (April 13, 1972); Matter of John Vrtjak, B-130687 (March 15, 1957); Matter of the Administrator of Veterans Affairs, 29 Comp. Gen. 73 (1949). Accordingly, we cannot approve the claims for monetary reimbursement for 260 days of sick leave or for 240 hours of annual leave.

The claimant's remaining claims include back pay for the difference between the salary of a position at the GS-11, step 4 grade level; grade and pay retention benefits resulting from his alleged RIF; priority consideration for a position at the GS-11, step 4 level that he allegedly should have received on his reemployment; promotion opportunities that he would have received had he not been receiving worker's compensation benefits; service credit for the entire period that he received workers' compensation; and within-grade pay increases for the period that he was receiving workers' compensation benefits. With regard to these claims, the claimant states that the agency did not properly notify him of the RIF or his RIF rights, and that he was not given priority consideration for a GS-11 position. The record shows that the claimant and the agency disagree as to whether he remained an agency employee while he was receiving workers' compensation benefits and whether he was fully recovered or partially recovered when he returned to work for the agency.

Section 8151 governs civil service retention rights for individuals who have been receiving workers' compensation. Subsection (a) provides that, when an individual resumes employment with the government, the entire time during which the employee was receiving compensation shall be credited to the employee for the purposes of within-grade step increases, retention purposes, and other rights and benefits based on length of federal service. Subsection (b)(1) provides that, under regulations issued by OPM, the agency shall give employees who have overcome their injury or disability within one year after they begin receiving compensation, the right to resume their former or an equivalent position, as well as all other accompanying rights which they would have had, or acquired, in their former position if they had not been injured or disabled, including tenure, promotion, and safeguards in reduction-in-force procedures. Subsection (b)(2) provides, with respect to employees who overcome their injury or disability in a period of more than one year after they began receiving compensation, that the agency shall make all reasonable efforts to place, and give priority to placing, them in their former position or in an equivalent position. Thus, the essence of the claimant's remaining claims is that he was effectively denied his restoration rights in view of the RIF which led to his appointment to a GS-9 position rather than to a GS-11 position, and in view of the alleged failure of the agency to give him priority consideration for a GS-11 level position and credit for rights and benefits based on length of service.

We do not have jurisdiction to adjudicate alleged denials of RIF rights or of restoration rights. The Merit Systems Protection Board has jurisdiction to consider such allegations. 5 CFR 351.901; 5 CFR 353.304 ; Walley v. Department of Veterans' Affairs, 80 MSPR 401 (1998); Hartman v. Department of the Treasury, 79 MSPR 576 (1998); Moore v. United States Postal Service, 76 MSPR 373 (1997); O'Connell v. United States Postal Service, 69 MSPR 438 (1996); Martin v. Department of Navy, 61 MSPR 21 (1994). Accordingly, the remaining claims relating to the RIF and alleged denial of the claimant's restoration rights are denied.

1. The exceptions specified in subsection (a) are: (1) pay in return for service actually performed; (2) a pension for service in the Army, Navy, or Air Force; (3) other benefits administered by the Department of Veterans' Affairs unless such benefits are payable for the same injury; and (4) retired pay, retirement pay, retainer pay, or equivalent pay for service in the Armed Forces or other uniformed services, subject to the reduction of such pay in accordance with section 5532 (b) of title 5, United States Code.