
    
      Opinion issued June 29, 1983
    
    KENNETH PAGE vs. ALCOHOL BEVERAGE CONTROL COMMISSIONER
    (CC-80-357)
    
      William L. Redd, Attorney at Law, for claimant.
    
      Henry C. Bias, Jr., Deputy Attorney General, for respondent.
   RULEY, JUDGE:

Claimant alleges that he was wrongfully terminated from his position as a clerk at respondent’s State Store on Route 60 in Huntington, West Virginia, in 1977. Claimant alleges that the termination occurred because he was unable to perform heavy lifting, due to a medical condition. He seeks an award of $33,600.00 as accumulated sick pay and back salary, based on this alleged wrongful termination.

In June 1977, claimant was treated for chronic osteomyelitis of the left upper arm by Dr. Hassan Vaziri. In a letter dated June 25, 1977, Dr. Vaziri stated in part, “He has developed pain in the left arm recently which incapacitates him to lift heavy objects.” Claimant’s job included, but was not limited to, the lifting of cartons of bottles from trucks and loading the bottles onto shelves. Since the claimant was not able to do this type of work, he did not return to work.

On August 18, 1977, Gary Hamrick, Assistant Commissioner of the Alcohol Beverage Control Commission, sent claimant a letter which stated: “If you are disabled to such an extent that you cannot perform all of the duties required by your job and if you can obtain a medical report so stating, you can obtain a leave of absence without pay.” The letter added that if a report was not obtained and claimant did not return to work at full capacity within 15 days, he would be terminated. Claimant did not submit further medical evidence concerning his condition, nor did he return to work. He was subsequently terminated.

Claimant was originally informed by Mr. Hamrick that he would be paid his accumulated sick leave. Lynn M. Schillings, respondent’s payroll clerk, testified that claimant was not paid for his sick leave because the governing regulations of the Civil Service Commission do not allow such payment to an employee who has been terminated.

The evidence in the record does not indicate to the Court that the claimant was wrongfully terminated. He was afforded the opportunity to either establish his inability to work or return to work. He did neither, so his employment was terminated. Since the claimant is not entitled to payment for his sick leave under these circumstances, and since his termination was not wrongful, the Court denies the claim.

Claim disallowed.  