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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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