A-10390, MARCH 1, 1926, 5 COMP. GEN. 669

A-10390: Mar 1, 1926

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

EMPLOYEES' COMPENSATION COMMISSION - REFUNDS OF DISABILITY COMPENSATION A BENEFICIARY OF THE EMPLOYEES' COMPENSATION COMMISSION WHO RECEIVED DISABILITY COMPENSATION FOR INJURIES DUE PARTLY TO GOVERNMENT SERVICE AND PARTLY TO AN ACCIDENT WHILE ALIGHTING FROM A STREET CAR AND WHO RECOVERED DAMAGES FROM THE CAR COMPANY IS REQUIRED BY LAW TO REFUND TO THE GOVERNMENT THAT PART OF THE COMPENSATION CHARGEABLE TO THE INJURY FOR WHICH DAMAGES WERE SO RECOVERED. SUCH COMPENSATION IS PROPERLY RECOVERABLE BY DEDUCTIONS FROM THE EMPLOYEE'S SALARY ON REENTRY INTO THE SERVICE OF THE UNITED STATES. 1926: THERE IS FOR CONSIDERATION THE CLAIM OF MRS. THE FACTS IN THE CASE ARE SET FORTH IN A REPORT DATED DECEMBER 31.

A-10390, MARCH 1, 1926, 5 COMP. GEN. 669

EMPLOYEES' COMPENSATION COMMISSION - REFUNDS OF DISABILITY COMPENSATION A BENEFICIARY OF THE EMPLOYEES' COMPENSATION COMMISSION WHO RECEIVED DISABILITY COMPENSATION FOR INJURIES DUE PARTLY TO GOVERNMENT SERVICE AND PARTLY TO AN ACCIDENT WHILE ALIGHTING FROM A STREET CAR AND WHO RECOVERED DAMAGES FROM THE CAR COMPANY IS REQUIRED BY LAW TO REFUND TO THE GOVERNMENT THAT PART OF THE COMPENSATION CHARGEABLE TO THE INJURY FOR WHICH DAMAGES WERE SO RECOVERED, AND SUCH COMPENSATION IS PROPERLY RECOVERABLE BY DEDUCTIONS FROM THE EMPLOYEE'S SALARY ON REENTRY INTO THE SERVICE OF THE UNITED STATES.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 1, 1926:

THERE IS FOR CONSIDERATION THE CLAIM OF MRS. ORNELIA M. OSTERMEYER FOR REFUND OF AMOUNTS DEDUCTED FROM HER SALARY AS AN EMPLOYEE OF THE CUSTODIAN SERVICE OF THE TREASURY DEPARTMENT IN ACCORDANCE WITH A REQUEST BY THE EMPLOYEES' COMPENSATION COMMISSION. THE FACTS IN THE CASE ARE SET FORTH IN A REPORT DATED DECEMBER 31, 1925, BY THE EMPLOYEES' COMPENSATION COMMISSION, AS FOLLOWS:

MRS. OSTERMEYER, WHILE EMPLOYED AS A CHARWOMAN IN THE POST OFFICE, PITTSBURGH, FELL WHILE AT WORK ON JULY 15, 1922, RESULTING IN A FRACTURE OF THE LEFT CLAVICLE. SHE RECEIVED TREATMENT FROM THE UNITED STATES PUBLIC HEALTH SERVICE AS A BENEFICIARY OF THE COMPENSATION ACT. SEPTEMBER 24, 1922, WHILE ON HER WAY FROM THE HOSPITAL WHERE SHE HAD BEEN UNDERGOING TREATMENT UNDER THE INSTRUCTION OF THIS COMMISSION, SHE RECEIVED A SECOND INJURY IN ALIGHTNG FROM A STREET CAR. THIS INJURY RESULTED IN SOME AGGRAVATION OF THE SHOULDER INJURY OF JULY 15, 1922, AS WELL AS SOME CONTUSIONS AND AN AGGRAVATION OF AN OLD KNEE DISABILITY. MRS. OSTERMEYER CONTINUED TO RECEIVE TREATMENT FOR THESE INJURIES AT ST. FRANCIS HOSPITAL, AT PITTSBURGH, UNDER THE SUPERVISION OF THE PUBLIC HEALTH SERVICE, UP TO MARCH 31, 1923. SHE WAS NOT PLACED IN THE MARINE HOSPITAL AS NO ACCOMMODATIONS WERE AVAILABLE AT THAT HOSPITAL FOR WOMEN PATIENTS. DURING HER STAY IN THE HOSPITAL FOR TREATMENT FOR THE ABOVE TWO INJURIES SHE WAS ALSO OPERATED UPON, BUT NOT AT THE EXPENSE OF THIS COMMISSION, FOR SEVERAL CONDITIONS NOT THE RESULT OF THE INJURIES IN QUESTION.

AS THIS EMPLOYEE'S RATE OF PAY WAS LESS THAN $50.00 PER MONTH, SHE WAS PAID COMPENSATION AT THE RATE OF $33.33 PER MONTH AS PROVIDED BY SECTION (6) OF THE COMPENSATION ACT FOR THE PERIOD JULY 20, 1922 TO APRIL 15, 1923, INCLUSIVE. EFFECTIVE APRIL 16, 1923, AND CONTINUING TO JUNE 15, 1924, SHE WAS PAID COMPENSATION AT THE RATE OF $3.33 PER MONTH. THIS REDUCTION IN THE RATE OF COMPENSATION WAS MADE BY THE COMMISSION BECAUSE ALL OF THE MEDICAL EVIDENCE SUBMITTED SHOWED THAT ALL BUT A SMALL FRACTION OF HER DISABILITY WAS DUE TO CAUSES NOT RELATED TO EITHER OF THE TWO ACCIDENTS.

MRS. OSTERMEYER BROUGHT SUIT FOR DAMAGES AGAINST THE STREET CAR COMPANY BECAUSE OF THE INJURY OF SEPTEMBER 24, 1922, AND AS A RESULT RECEIVED IN SETTLEMENT THE NET SUM OF $480.00. UNDER SECTION (27) AND SECTION (40) AS AMENDED OF THE ACT OF SEPTEMBER 7, 1916, MRS. OSTERMEYER WAS OBLIGED TO REPAY OUT OF THE SUM RECOVERED THE COMPENSATION AND MEDICAL BILLS AND OTHER BENEFITS WHICH HAD BEEN PAID BY THE COMMISSION. FROM SEPTEMBER 24, 1922, THE DATE OF THE SECOND INJURY, TO JUNE 15, 1924, WHEN PAYMENTS WERE DISCONTINUED, THE TOTAL MONTHLY COMPENSATION PAID AMOUNTED TO $261.21 AND HOSPITAL BILLS WERE PAID IN THE SUM OF $589.00, A GRAND TOTAL OF $850.21. AFTER CAREFUL CONSIDERATION OF THE MATTER, THE COMMISSION HELD THAT IT WAS FAIR AND JUST TO CHARGE ONE-HALF OF THE CLAIMANT'S DISABILITY AFTER SEPTEMBER 24, 1922, TO THE STREET CAR ACCIDENT. THIS DECISION WAS ARRIVED AT AFTER CAREFUL CONSIDERATION OF ALL THE MEDICAL EVIDENCE AND CONFERENCE WITH THE MEDICAL ADVISERS OF THE COMMISSION.

SECTION 27 OF THE EMPLOYEES' COMPENSATION ACT, 39 STAT. 747, PROVIDES:

THAT IF AN INJURY OR DEATH FOR WHICH COMPENSATION IS PAYABLE UNDER THIS ACT IS CAUSED UNDER CIRCUMSTANCES CREATING A LEGAL LIABILITY IN SOME PERSON OTHER THAN THE UNITED STATES TO PAY DAMAGES THEREFOR, AND A BENEFICIARY ENTITLED TO COMPENSATION FROM THE UNITED STATES FOR SUCH INJURY OR DEATH RECEIVES, AS A RESULT OF A SUIT BROUGHT BY HIM OR ON HIS BEHALF, OR AS A RESULT OF A SETTLEMENT MADE BY HIM OR ON HIS BEHALF, ANY MONEY OR OTHER PROPERTY IN SATISFACTION OF THE LIABILITY OF SUCH OTHER PERSON, SUCH BENEFICIARY SHALL, AFTER DEDUCTING THE COSTS OF SUIT AND A REASONABLE ATTORNEY'S FEE, APPLY THE MONEY OR OTHER PROPERTY SO RECEIVED IN THE FOLLOWING MANNER:

(A) IF HIS COMPENSATION HAS BEEN PAID IN WHOLE OR IN PART, HE SHALL REFUND TO THE UNITED STATES THE AMOUNT OF COMPENSATION WHICH HAS BEEN PAID BY THE UNITED STATES AND CREDIT ANY SURPLUS UPON FUTURE PAYMENTS OF COMPENSATION PAYABLE TO HIM ON ACCOUNT OF THE SAME INJURY. ANY AMOUNT SO REFUNDED TO THE UNITED STATES SHALL BE PLACED TO THE CREDIT OF THE EMPLOYEES' COMPENSATION FUND.

THE CLAIMANT INCURRED AN INJURY FOR WHICH COMPENSATION WAS PAYABLE AND WAS PAID COMPENSATION THEREFOR. LATER SHE INCURRED A SECOND INJURY WHICH AGGRAVATED THE COMPENSABLE INJURY. THE FEDERAL AGENCY CHARGED WITH THE ADMINISTRATION OF THE EMPLOYEES' COMPENSATION ACT HAS FOUND THAT ONE-HALF OF THE CLAIMANT'S DISABILITY AFTER THE DATE OF THE SECOND INJURY WAS PROPERLY CHARGEABLE TO THE SECOND INJURY FOR WHICH THE STREET CAR COMPANY WAS RESPONSIBLE AND FOR WHICH SAID COMPANY PAID CLAIMANT A NET AMOUNT OF $480, WHICH IS IN EXCESS OF THE AMOUNT PAID BY THE UNITED STATES AND FOUND TO BE CHARGEABLE TO THE INJURY FOR WHICH THE STREET CAR COMPANY IS LIABLE.

SECTION 27 OF THE ACT OF SEPTEMBER 7, 1916, REQUIRES THAT A BENEFICIARY UNDER THE ACT WHO HAS RECEIVED A PAYMENT FROM SOME PERSON LEGALLY LIABLE ON ACCOUNT OF AN INJURY FOR WHICH COMPENSATION HAS BEEN PAID BY THE UNITED STATES MUST REFUND TO THE UNITED STATES THE AMOUNT OF COMPENSATION SO PAID. THE CLAIMANT HAS BEEN PAID COMPENSATION BY THE UNITED STATES AND SHE HAS BEEN PAID BY THE STREET CAR COMPANY FOR AN INJURY TO WHICH CLAIMANT'S DISABILITY IS PARTLY CHARGEABLE.

IT MUST BE HELD, THEREFORE, THAT THE DEDUCTIONS FROM CLAIMANT'S PAY AS AN EMPLOYEE OF THE TREASURY DEPARTMENT WERE PROPER AND THAT SHE IS NOT ENTITLED TO HAVE THE AMOUNTS THUS DEDUCTED PAID TO HER. ACCORDINGLY, THE CLAIM MUST BE AND IS DISALLOWED.