Thomas Andrew and Diane Koerner Campbell - Page 12




                                       - 11 -                                         
          check to Mrs. Campbell for the appropriate amount of backpay and            
          interest on the backpay.  There is no evidence in the record that           
          Mrs. Campbell alleged to OTS or to the MSPB that she suffered any           
          personal injuries or sickness as a result of OTS’s violation of             
          the RIF regulations in effecting her demotion, nor is there any             
          evidence that the MSPB awarded her damages attributable to such             
          personal injuries or sickness.  Accordingly, we cannot say that             
          the MSPB awarded Mrs. Campbell backpay and interest thereon “by             
          reason of, or because of, * * * personal injuries.”  O’Gilvie v.            
          United States, supra at 83.                                                 
               We recognize that, in some cases, damages measured by lost             
          wages can satisfy the second prong of the test in Commissioner v.           
          Schleier, supra, because they are awarded “on account of”                   
          personal injuries or sickness.  For example, if a taxpayer was              
          out of work for a time as a direct result of injuries, the                  
          economic damages received to replace the wages lost during that             
          time would be excludable.  Commissioner v. Schleier, supra at               
          329-331.  This, however, is not the case for Mrs. Campbell.  The            
          MSPB did not compensate Mrs. Campbell for wages she lost as a               
          result of missing work due to any personal injuries or sickness.            
          Rather, the award of backpay and interest on backpay ordered by             
          the MSPB replaced the pay and benefits Mrs. Campbell lost due to            
          her demotion without the benefit of the RIF regulations.  As                
          such, the award of backpay and interest on backpay was not                  







Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next 

Last modified: November 10, 2007