Joe M. and Patricia M. Brown - Page 22

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               Although we think that the issue is very close, we hold that           
          petitioners have carried their burden of proof.                             
               In advocating her position, respondent relies heavily on the           
          fact that petitioner did not use any sick leave in either 1989 or           
          1990.  However, it was not unusual for petitioner to use annual             
          leave in lieu of sick leave, as evidenced by the fact that                  
          petitioner used annual leave for his knee replacement surgery in            
          August 1990 and for the convalescent period thereafter.  We also            
          note that petitioner used all of his annual leave in 1990, as               
          well as a substantial portion thereof in 1989, mostly in the                
          final 2 months of that year.                                                
               Respondent also relies heavily on the fact that petitioner             
          remained "on the job" until December 1990, at which time he went            
          on leave, never to return to work.  In a related vein, respondent           
          points to the superior job evaluations that petitioner received             
          for 1989 and 1990.                                                          
               We observe, however, that petitioner did not receive his               
          Transfer Refund until late October 1989, almost 10 months into              
          the rating period for 1989.  Accordingly, a superior job                    
          evaluation for 1989 is not incompatible with the fact of                    
          disability immediately before the receipt of the Transfer Refund.           
               Petitioner's job evaluation for 1990 is another matter, and            
          we can appreciate why respondent focuses on it.  However, we are            








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