A-10870, SEPTEMBER 8, 1925, 5 COMP. GEN. 177

A-10870: Sep 8, 1925

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THE APPROVAL OF AN INDIVIDUAL CLAIM BY THE DIRECTOR OF THAT BUREAU MAY NOT BE CONSIDERED AS A WAIVER OF SUCH REGULATIONS WHICH ARE OF A STATUTORY CHARACTER AND NOT SUBJECT TO WAIVER IN INDIVIDUAL CASES. THE CLAIM RECEIVED ADMINISTRATIVE APPROVAL OF THE VETERANS' BUREAU AND WAS REFERRED TO THIS OFFICE FOR DIRECT SETTLEMENT FOR THE STATED REASON "REIMBURSEMENT FOR LOSS OF WAGES BASED ON AN AVERAGE.'. THE CLAIM FOR LOSS OF WAGES IS BASED ON AN AFFIDAVIT OF THE SUPERINTENDENT OF MINE NO. 7. WHEREIN IT IS STATED THAT SAID MINE WAS WORKED MAY 13 AND 14. ON THE FOLLOWING AFFIDAVIT MADE BY A CLERK OF THE PEABODY COAL CO.: THIS IS TO CERTIFY THAT JAMES COTTA IS IN THE EMPLOY OF THE PEABODY COAL CO.

A-10870, SEPTEMBER 8, 1925, 5 COMP. GEN. 177

VETERANS' BUREAU - LOSS OF WAGES OF BENEFICIARIES REIMBURSEMENT FOR LOSS OF WAGES SUSTAINED BY BENEFICIARIES OF THE VETERANS' BUREAU, INCIDENT TO ABSENCE FROM EMPLOYMENT WHILE UNDERGOING MEDICAL EXAMINATION, COMPUTED ON A PIECEWORK OR AVERAGE BASIS, MAY NOT BE MADE FOR THE PERIOD SUBSEQUENT TO JUNE 4, 1923, FOR THE REASON THAT REGULATIONS OF THE VETERANS' BUREAU PROMULGATED ON THAT DATE FAILED TO PROVIDE FOR LOSS OF WAGES SO COMPUTED, AND THE APPROVAL OF AN INDIVIDUAL CLAIM BY THE DIRECTOR OF THAT BUREAU MAY NOT BE CONSIDERED AS A WAIVER OF SUCH REGULATIONS WHICH ARE OF A STATUTORY CHARACTER AND NOT SUBJECT TO WAIVER IN INDIVIDUAL CASES.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 8, 1925:

JAMES COTTA HAS REQUESTED REVIEW OF SETTLEMENT NO. 072177, DATED MARCH 30, 1925, DISALLOWING HIS CLAIM FOR $15, REPRESENTING LOSS OF WAGES FOR MAY 13 AND 14, 1924, WHILE ABSENT FROM HIS EMPLOYMENT WITH THE PEABODY COAL CO., KINCAID, ILL., INCIDENT TO REPORTING FOR MEDICAL EXAMINATION UNDER ORDER OF THE VETERANS' BUREAU DATED APRIL 24, 1924.

THE CLAIM RECEIVED ADMINISTRATIVE APPROVAL OF THE VETERANS' BUREAU AND WAS REFERRED TO THIS OFFICE FOR DIRECT SETTLEMENT FOR THE STATED REASON "REIMBURSEMENT FOR LOSS OF WAGES BASED ON AN AVERAGE.'

THE CLAIM FOR LOSS OF WAGES IS BASED ON AN AFFIDAVIT OF THE SUPERINTENDENT OF MINE NO. 7, WHEREIN IT IS STATED THAT SAID MINE WAS WORKED MAY 13 AND 14, 1924, AND ON THE FOLLOWING AFFIDAVIT MADE BY A CLERK OF THE PEABODY COAL CO.:

THIS IS TO CERTIFY THAT JAMES COTTA IS IN THE EMPLOY OF THE PEABODY COAL CO., OF KINCAID, ILL., AND WAS ABSENT FROM WORK ON THE FOLLOWING DAYS:MAY 13 AND 14, 1924.

MR. COTTA IS A LOADER IN THE MINE, AND SINCE HE MUST DEPEND ON THE NUMBER OF CARS ALLOTTED TO HIM ON EACH DAY, IT IS HARD TO FIX AN AVERAGE DAILY WAGE, AS SOME DAYS HE WOULD EARN SEVEN, SOME EIGHT, SOME NINE, AND SOME TEN DOLLARS PER DAY, BUT BELIEVES THAT $7.50 A DAY WOULD BE A VERY FAIR AVERAGE DAILY WAGE.

HIS WORKING DAY CONSISTED OF EIGHT HOURS AND BECAUSE OF HIS ABSENCE FROM THE MINE ON THE ABOVE-MENTIONED DAYS HE LOST APPROXIMATELY $15.

IN DECISION OF APRIL 2, 1925, A-8096, IT WAS HELD:

SECTION 8024, REGULATIONS UNITED STATES VETERANS' BUREAU, 1923, SUPPLEMENT NO. 1, SEPTEMBER 30, 1923, WHICH WAS ORIGINALLY PROMULGATED JUNE 4, 1923, HAS THE FORCE AND EFFECT OF LAW, BEING BASED ON SECTION 303 OF THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 406, PROVIDING FOR ,LOSS OF WAGES INCURRED" REIMBURSABLE "IN THE DISCRETION OF THE DIRECTOR.' SEE ALSO SECTION 203 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 622. AND IT HAS BEEN HELD THAT THE LOSS OF WAGES MUST BE SUSCEPTIBLE OF DEFINITE ASCERTAINMENT. 3 COMP. GEN. 549; 4 ID. 515. LOSS OF WAGES ON THE BASIS OF PERCENTAGE OR FLAT COMMISSIONS, OR BASED ON WHAT IS USUALLY TERMED PIECEWORK, DEPENDING ON THE INDIVIDUAL EFFORTS OF EMPLOYEE, MAY NOT BE DEFINITELY ASCERTAINED; THAT IS, THE "ACTUAL EXTENT THEREOF" AS REQUIRED BY THE REGULATIONS IS IMPOSSIBLE OF ASCERTAINMENT. THEREFORE, THERE IS NO AUTHORITY UNDER THE REGULATIONS PROMULGATED JUNE 4, 1923, IN THEIR PRESENT FORM, TO COMPUTE LOSS OF WAGES ON THE BASIS OF AVERAGE EARNINGS FOR ANY PRIOR PERIOD OF EMPLOYMENT.

THE PERIOD INVOLVED IN THE PRESENT CASE WAS SUBSEQUENT TO JUNE 4, 1923, THE DATE THE REGULATIONS WERE ORIGINALLY PROMULGATED, AND THIS CLAIM IS, THEREFORE, CONTROLLED BY THE REGULATIONS WHICH DO NOT PROVIDE FOR REIMBURSEMENT FOR LOSS OF WAGES FOR PIECEWORK OR ON AN AVERAGE BASIS. THE SPECIFIC APPROVAL BY THE VETERANS' BUREAU OF THIS CLAIM MAY NOT BE CONSIDERED AS HAVING THE EFFECT OF WAIVING THE TERMS OF GENERAL REGULATIONS WHICH ARE OF A STATUTORY CHARACTER AND NOT SUBJECT TO WAIVER IN INDIVIDUAL CASES.

IN OTHER WORDS, THE BASIC STATUTE DOES NOT GRANT AN ABSOLUTE RIGHT TO BENEFICIARIES OF THE VETERANS' BUREAU TO REIMBURSEMENT FOR LOSS OF WAGES INCIDENT TO MEDICAL EXAMINATION IN ALL CASES, BUT THE STATUTE EXPRESSLY PROVIDES THAT LOSS OF WAGES WILL BE PAID ONLY "IN THE DISCRETION OF THE DIRECTOR," AND THIS AND SIMILAR CLAIMS MUST BE DENIED BECAUSE THE DIRECTOR IN THE EXERCISE OF THAT DISCRETION VESTED IN HIM BY CONGRESS, HAS SEEN FIT TO PROMULGATE REGULATIONS WHICH DO NOT PROVIDE FOR LOSS OF WAGES ON A PIECEWORK OR AVERAGE BASIS.