A-22459, APRIL 19, 1928, 7 COMP. GEN. 678

A-22459: Apr 19, 1928

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VETERANS' BUREAU - DISABILITY COMPENSATION - DAMAGES RECOVERED BY BENEFICIARIES FROM OTHER PERSONS THE NET AMOUNT OF DAMAGE AWARDED BY A STATE WORKMEN'S COMPENSATION BUREAU IN FAVOR OF A BENEFICIARY OF THE VETERANS' BUREAU FOR THE SAME INJURY FOR WHICH HE IS RECEIVING DISABILITY COMPENSATION FROM THE UNITED STATES SHOULD BE CREDITED UPON THE AMOUNT OF THE GOVERNMENT'S AWARD FOR THAT INJURY. REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS: YOUR DECISION IS REQUESTED AS TO THE GOVERNMENT'S RIGHT OF SUBROGATION ARISING OUT OF THE FOLLOWING FACTS: CLAUDE E. SUFFERED SEVERE GUN-SHOT WOUNDS OF THE RIGHT LEG WHICH WERE CORRECTED TO SOME EXTENT BY THE REMOVAL OF THE KNEE JOINT AND A PARTIAL ANKYLOSIS OF THE JOINT.

A-22459, APRIL 19, 1928, 7 COMP. GEN. 678

VETERANS' BUREAU - DISABILITY COMPENSATION - DAMAGES RECOVERED BY BENEFICIARIES FROM OTHER PERSONS THE NET AMOUNT OF DAMAGE AWARDED BY A STATE WORKMEN'S COMPENSATION BUREAU IN FAVOR OF A BENEFICIARY OF THE VETERANS' BUREAU FOR THE SAME INJURY FOR WHICH HE IS RECEIVING DISABILITY COMPENSATION FROM THE UNITED STATES SHOULD BE CREDITED UPON THE AMOUNT OF THE GOVERNMENT'S AWARD FOR THAT INJURY, BUT NOT UPON A PRIOR AWARD FOR ANOTHER INJURY.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, APRIL 19, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF APRIL 3, 1928, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

YOUR DECISION IS REQUESTED AS TO THE GOVERNMENT'S RIGHT OF SUBROGATION ARISING OUT OF THE FOLLOWING FACTS:

CLAUDE E. HAMAND, WHILE A MEMBER OF THE MILITARY FORCES OF THE UNITED STATES DURING THE WORLD WAR, SUFFERED SEVERE GUN-SHOT WOUNDS OF THE RIGHT LEG WHICH WERE CORRECTED TO SOME EXTENT BY THE REMOVAL OF THE KNEE JOINT AND A PARTIAL ANKYLOSIS OF THE JOINT. THERE WAS CONSIDERABLE BOWING OF THE LEG BOTH OUTWARD AND BACKWARD. THE CLAIMANT RECEIVED COMPENSATION FROM THE BUREAU ON A PERMANENT PARTIAL BASIS OF 61 PERCENT ($61.00 PER MONTH) FOR SAID DISABILITY.

ON JANUARY 20, 1927, THE CLAIMANT WHILE EMPLOYED IN HIS OCCUPATION OF AUTOMOBILE MECHANIC AT THE MOORE AUTOMOBILE COMPANY, GRAND FORKS,NORTH DAKOTA, FELL INTO AN ELEVATOR SHAFT IN THE PLACE OF HIS EMPLOYMENT AND SUFFERED A FRACTURE OF THE RIGHT LEG WHICH HAD BEEN INJURED IN SERVICE. IT WAS FOUND NECESSARY TO AMPUTATE THE LEG, BECAUSE ITS LOWERED VITALITY AS A RESULT OF THE GUN-SHOT WOUNDS RECEIVED IN SERVICE PREVENTED IT FROM HEALING.

THE RATING OFFICERS OF THE BUREAU DECIDED THAT SERVICE CONNECTION FOR THE AMPUTATION OF THE LEG SHOULD BE GIVEN BECAUSE IT APPEARED THAT THE CONDITION OF THE LEG DUE TO THE SERVICE DISABILITY PREVENTED IT FROM HEALING AS A NORMAL LEG SHOULD HEAL. THEREFORE, CLAIMANT WAS AWARDED AN ADDITIONAL 7 PERCENT, MAKING HIS RATING PERMANENT PARTIAL 68 PERCENT ($68.00 PER MONTH) * * *

THE CLAIMANT WAS AWARDED COMPENSATION BY THE WORKMEN'S COMPENSATION BUREAU OF NORTH DAKOTA IN THE AMOUNT OF $3,220, INCLUDING THE COST OF MEDICAL TREATMENT. SHOULD THE SUM OF $3,220 BE CREDITED UPON THE COMPENSATION PAYABLE FROM THE BUREAU) $7.00 PER MONTH), ON ACCOUNT OF THE ACCIDENT OF JANUARY 20, 1927? SEE SECTION 313 WAR RISK INSURANCE ACT; SAVED FROM REPEAL BY PARAGRAPH 5, SECTION 600, WORLD WAR VETERANS' ACT, 1924.

YOU GIVE NONE OF THE FACTS AS TO THE PROCEDURE ON WHICH THE AWARD BY THE WORKMEN'S COMPENSATION BUREAU OF NORTH DAKOTA WAS BASED. IT IS ASSUMED THAT THERE WAS NO PARTICIPATION BY THE VETERANS' BUREAU THEREIN BUT THAT SUCH AWARD WAS THE RESULT OF THE BENEFICIARY'S OWN INITIATIVE OR SOME PRIVATE PARTY OR PARTIES IN HIS BEHALF WITHOUT REQUIREMENT OR DIRECTION FROM THE VETERANS' BUREAU. IF SO, THERE IS FOR CONSIDERATION AND APPLICATION THE FOLLOWING PARAGRAPH FROM SECTION 313 (1) OF THE WAR RISK INSURANCE ACT AS AMENDED BY THE ACT OF JUNE 25, 1918, 40 STAT. 614, AS FOLLOWS:

IF A BENEFICIARY OR CONDITIONAL BENEFICIARY SHALL HAVE RECOVERED, 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 MONEY OR OTHER PROPERTY SO RECOVERED SHALL BE CREDITED UPON ANY COMPENSATION PAYABLE, OR WHICH MAY BECOME PAYABLE, TO SUCH BENEFICIARY, OR CONDITIONAL BENEFICIARY BY THE UNITED STATES ON ACCOUNT OF THE SAME INJURY OR DEATH.

IN DECISION OF MAY 8, 1923, 2 COMP. GEN. 716, THE THREE GENERAL CLASSES OF CASES COMING WITHIN THE TERMS OF SECTION 313 OF THE WAR RISK INSURANCE ACT, INVOLVING RECOVERY OF DAMAGES BY OR FOR BENEFICIARIES FROM PRIVATE PARTIES, WERE DESCRIBED AND THE APPLICATION OF THE STATUTE MADE THERETO. WITH RESPECT TO THOSE COMING WITHIN THE TERMS OF THE ABOVE QUOTED PORTION OF THE STATUTE, IT WAS STATED, PAGE 718:

FIRST IS THE CASE OF A BENEFICIARY WHO HAS RECOVERED DAMAGES FROM THE OUTSIDE PARTY ON HIS OWN INITIATIVE WITHOUT REQUIREMENT OR DIRECTION FROM THE VETERANS' BUREAU. IN SUCH CASE THE SECTION PROVIDES THAT THE AMOUNT RECOVERED SHALL BE CREDITED UPON ANY COMPENSATION PAYABLE OR TO BECOME PAYABLE ON ACCOUNT OF THE SAME INJURY OR DEATH. THERE CAN BE NO DOUBT, I THINK, THAT THE AMOUNT TO BE SO CREDITED IS THE NET AMOUNT OF DAMAGES RECEIVED BY THE BENEFICIARY. THE PURPOSE AND INTENT OF THE STATUTE IS TO LIMIT THE BENEFICIARY TO HIS WAR-RISK COMPENSATION IF HE ELECTS TO APPLY FOR THE SAME, GIVING HIM THE FULL BENEFIT OF SUCH COMPENSATION, AND GIVING THE GOVERNMENT THE BENEFIT OF THE NET RECOVERY.

IT IS NOT APPARENT FROM YOUR SUBMISSION WHEREIN YOUR DOUBT LIES AS TO THE RIGHT OF SUBROGATION OF THE UNITED STATES IN THIS CASE, UNLESS IT BE WHETHER THE RIGHT OF SUBROGATION EXTENDS TO THE FULL AMOUNT OF DISABILITY COMPENSATION UNDER BOTH THE ORIGINAL AND SUPPLEMENTAL AWARDS OR ONLY UNDER THE SUPPLEMENTAL AWARD. THE REQUIREMENTS OF THE STATUTE WOULD SEEM TO BE CLEAR, AND THIS CASE, TO THE EXTENT OF THE SUPPLEMENTAL AWARD OF $7 PER MONTH, COMES SQUARELY WITHIN THE TERMS THEREOF. THEREFORE, THE AMOUNT OF THE WORKMEN'S COMPENSATION AWARD IS FOR CREDITING UPON THE AMOUNT OF THIS SUPPLEMENTAL AWARD OF DISABILITY COMPENSATION, BUT NOT UPON THE ORIGINAL AWARD OF DISABILITY COMPENSATION IN THE AMOUNT OF $61 PER MONTH, WHICH WAS MADE PRIOR TO AND INDEPENDENTLY OF THE INJURY WHICH RESULTED IN THE WORKMEN'S COMPENSATION AWARD.