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Office of the General Counsel

Date: January 12, 1998
Matter of: [xxx]
File Number: s9701047

OPM Contact: Jo-Ann Chabot

A federal employee filed a claim for restoration of annual leave and sick leave. The claim is denied for the reasons stated below.

The claimant states that, after prevailing on her discrimination complaint, she sought to recoup the annual and sick leave that she had taken because of a stress-induced illness. She also states that officials at her employing agency suggested that she file with the Department of Labor a request for workers' compensation benefits. The claimant states further that the Department of Labor denied her request and she did not appeal that decision within the prescribed thirty-day time limit. Finally, the claimant suggested that her employing agency gave her erroneous advice concerning the proper strategy for recouping the leave that she had taken.

The statutory provision for restoration of annual leave, 5 U.S.C. 6304(d), does not apply to the circumstances of this claim. It applies to annual leave that an employee forfeits at the end of the leave year, because his or her annual leave balance exceeds the 30-day maximum accumulation prescribed by statute. There is no comparable statutory provision for restoration of sick leave. Thus, under the circumstances that the claimant has described, there is no statute that permits OPM to restore the annual or sick leave that the claimant used for absences from work due to stress-related illness.

Moreover, Department of Labor regulations describe circumstances where leave may be used instead of workers' compensation benefits, or to avoid an interruption of income while waiting for a decision on a compensation claim. Section 10.202 of title 20, Code of Federal Regulations (C.F.R.), provides that an employee may elect to use accumulated annual or sick leave instead of claiming continuation of pay, but the election is not irrevocable. Thus, under section 10.202, the employee may subsequently request continuation of pay in lieu of previously requested annual or sick leave, provided the request is made within one year of the date that the leave was used. In addition, 20 C.F.R. 10.310 provides that an employee who sustains a job-related disability may use sick or annual leave or both to avoid an interruption of income. Section 10.310 further provides that, if an employee uses leave during a period of disability cause by an occupational disease or illness and the employee's claim for compensation is approved, the employee may buy back the used leave and have it recredited to his or her account with the approval of his or her employing agency. It appears in view of these provisions, as well as the circumstances described by the claimant, that her employing agency did not err in advising her to file a claim for workers' compensation to recoup her annual and sick leave. However, even if the agency had erred in advising the claimant, payments of money from the Federal Treasury are limited to those authorized by law, and erroneous advice or information provided by a government employee cannot bar the government from denying benefits that are not otherwise permitted by law. Office of Personnel Management v. Richmond, 496 U.S. 414 (1990).

In view of the above, this claim is denied.

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