Office of Merit Systems Oversight and Effectiveness

Date: October 23, 2001
File Number: [01-0037]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant was previously employed with the [agency] as a registered nurse. We acknowledged receipt of this claim on June 29, 2001. The agency administrative report was received on August 23, 2001. The claimant disagrees with the agency's denial of her request to buy-back annual leave, which she used in relation to an occupational disease. The occupational disease was first noted on October 1, 1989. The claimant filed an Office of Worker's Compensation Programs (OWCP) claim with the Department of Labor (DoL) on September 13, 1999 before taking early retirement on September 30, 1999. A decision on her OWCP claim was made on February 20, 2001. For the reasons discussed herein, this claim is denied.

The claimant supplied a voluminous amount of documentation, which this office has reviewed and considered including:

» U. S. Department of Labor Form CA2, Notice of Occupational Disease and claim for Compensation, signed and dated by the claimant on September 13, 1999, stating that:

• claimant was suffering from stress, which was aggravated by her employment and
• claimant was not requesting accommodation for her disability.

In submitting its report, the agency provided a copy of a May 9, 2001, letter from DoL's OWCP to the claimant. It states:

According to the Standard Form 52 "Request for Personnel Action" you retired from Federal civil service effective September 30, 1999. The reasons given for electing retirement on that form was "seeking management position." Thus you did not retire due to a disability.

A Leave-Buy-Back is designed for an employee to repurchase leave that was taken as a result of disability. A request to repurchase leave that has been used is subject to the employing agency's agreement and concurrence. In other words it is up to the Agency's discretion as to whether or not to pursue a leave-buy-back. In this particular case, the former employing agency has chosen not to grant leave-buy-back.

The Civilian Personnel Law Manual, Title II states:

An employee who uses annual or sick leave to recuperate from a work-related injury may "buy-back" such leave pursuant to 20 CFR 10.310, be placed on leave without pay, and accept compensation for the injury under the Federal Employees' Compensation Act, 5 U.S.C. 8101 - 8151. [Emphasis added.]

20 CFR 10.425 further states that, "[t]he employee may claim compensation for periods of annual and sick leave which are restorable in accordance with the rules of the employing agency." According to the agency's August 17, 2001 letter, it is the agency's policy to disallow leave-buy-back for employees who are no longer on the agency rolls.

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. We concur with the agency's decision that it has the discretion to establish policy to either allow or disallow leave-buy-back requests, which affirms DoL's position as well. Since the agency has chosen to disallow leave-buy-back for the claimant, the claim 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.