s98002223

Office of the General Counsel

Matter of: [xxx]
File Number: S002223
Date: January 26, 1999

OPM Contact: Jo-Ann Chabot

This is a claim for an environmental pay differential. After reviewing this claim, we have determined that it may not be allowed.

The claimant, an employee of the [agency], is claiming an environmental pay differential for work performed during the dewatering and major repairs of a canal lock. He reported that he was working in an unshored structure and that there was the possibility of a cave-in because of leaks, age of the gates, and repairs needed on the gates. The claimant also stated that this resulted in an on-the-job injury he reported to the Department of Labor in a claim for Workers' Compensation.

The agency denied that the claimant was performing unshored work. It stated that the canal lock was dewatered and stoplogs were set into place, and the claimant worked in a concrete chamber in the lock wall. The agency also stated that an assessment of the major structural components was done prior to the start of the job, stoplogs and gates were checked prior to the work being done, and the walls were monitored 24 hours a day to insure that the structure was safe. The agency stated further that the six stop logs were visually inspected, thoroughly cleansed then reinspected, and all stop logs exceeded the pertinent requirements for the procedure. The agency maintained that unshored work did not exist during the project, there was no excavation work done during that dewatering, and all existing concrete, stop logs, bulkhead, and gates used for the dewatering were checked and repaired to make the job as safe as possible throughout the entire lock. The agency noted that the claimant tripped on a valve cover that had been removed from the top of a tunnel valve, and that the accident was not connected with exposure to unshored work but resulted from the claimant's misstep. Finally, the agency submitted photographs of the concrete structure where the work was performed and the valve cover where the claimant stumbled.

The claimant and his employing agency disagree concerning conditions at the worksite. OPM does not conduct adversary hearings, but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim. 5 CFR 178.105; Matter of John B. Tucker, B-215346 (March 29, 1985). Moreover, the burden of proof is on the claimant to prove the liability of the government and his or her right to payment. 5 CFR 178.105; Matter of Jones and Short, B-205282 (June 15, 1982). Thus, where the written record presents an irreconcilable dispute of fact between a government agency and an individual claimant, the factual dispute is settled in favor of the agency, absent clear and convincing evidence to the contrary. 5 CFR 178.105; Matter of Staff Sergeant Eugene K. Krampotich, B-249027 (November 5, 1992); Matter of Elias S. Frey, B-208911 (March 6, 1984); Matter of Charles F. Callis, B-205118 (March 8, 1982). Although the claimant stated that he had performed unshored work, he did not present clear and convincing evidence that the worksite was, in fact, unshored. Therefore, we must accept the agency's statement that unshored work was not performed during the dewatering and major repairs at the canal lock, and that the claimant did not perform unshored work on that project. The claim for environmental differential pay is denied.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.