A-28158, OCTOBER 9, 1929, 9 COMP. GEN. 157

A-28158: Oct 9, 1929

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AN INJURY INCURRED PRIOR TO ENTRANCE INTO THE MILITARY SERVICE FOR WHICH DAMAGES WERE AWARDED FROM PRIVATE SOURCES. THE SAME INJURY FROM WHICH RESULTED THE DISABILITY FOR WHICH WAR-RISK DISABILITY COMPENSATION WAS AWARDED BY THE GOVERNMENT UNDER THE PRESUMPTION CLAUSE OF SECTION 200 OF THE WORLD WAR VETERANS' ACT ON THE BASIS THAT THE INJURY WAS INCURRED AS OF SERVICE ORIGIN BECAUSE NOT NOTED OF RECORD AT OR PRIOR TO ENTRANCE INTO THE MILITARY SERVICE. 1929: I HAVE YOUR LETTER OF JULY 23. THE CASE WAS COMPROMISED BY THE PAYMENT OF $3. MCNEAL'S DISABILITY WAS NOT NOTED AT THE DATE OF HIS ENLISTMENT IN MILITARY SERVICE. IT WAS RECORDED ON HIS DISCHARGE FROM SERVICE OCTOBER 10. WAS GRANTED TO CLAIMANT.

A-28158, OCTOBER 9, 1929, 9 COMP. GEN. 157

VETERANS' BUREAU - DISABILITY COMPENSATION - PRESUMPTION CLAUSE - SUBROGATION FOR THE PURPOSE OF DETERMINING THE GOVERNMENT'S RIGHT TO SUBROGATION PURSUANT TO THE PROVISIONS OF SECTION 313 OF THE WAR RISK INSURANCE ACT, AS AMENDED BY THE ACT OF JUNE 25, 1918, 40 STAT. 614, CONTINUED IN FORCE UNDER THE TERMS OF SECTION 600 (5) OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 629, AN INJURY INCURRED PRIOR TO ENTRANCE INTO THE MILITARY SERVICE FOR WHICH DAMAGES WERE AWARDED FROM PRIVATE SOURCES, AND THE SAME INJURY FROM WHICH RESULTED THE DISABILITY FOR WHICH WAR-RISK DISABILITY COMPENSATION WAS AWARDED BY THE GOVERNMENT UNDER THE PRESUMPTION CLAUSE OF SECTION 200 OF THE WORLD WAR VETERANS' ACT ON THE BASIS THAT THE INJURY WAS INCURRED AS OF SERVICE ORIGIN BECAUSE NOT NOTED OF RECORD AT OR PRIOR TO ENTRANCE INTO THE MILITARY SERVICE, SHOULD BE CONSIDERED AS ONE AND THE SAME INJURY, AND ANY AMOUNT RECOVERED BY THE BENEFICIARY FROM THE PRIVATE SOURCE SHOULD BE OFFSET AGAINST THE AMOUNT AWARDED BY THE GOVERNMENT IN THE MANNER REQUIRED BY THE STATUTE.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, OCTOBER 9, 1929:

I HAVE YOUR LETTER OF JULY 23, 1929, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

ON MARCH 15, 1918, JAMES H. MCNEAL, C-345930, SUSTAINED AN INJURY TO HIS BACK WHILE WORKING ON THE TRACKS OF THE PENNSYLVANIA RAILROAD AT GARFIELD, OHIO. HE INSTITUTED LEGAL ACTION FOR DAMAGES AGAINST THE RAILROAD COMPANY AND ON MAY 22, 1920, THE CASE WAS COMPROMISED BY THE PAYMENT OF $3,500.00, OF WHICH AMOUNT MCNEAL HAS MADE AFFIDAVIT THAT HE RECEIVED $2,400.00.

MCNEAL'S DISABILITY WAS NOT NOTED AT THE DATE OF HIS ENLISTMENT IN MILITARY SERVICE, APRIL 29, 1918, BUT IT WAS RECORDED ON HIS DISCHARGE FROM SERVICE OCTOBER 10, 1918. MCNEAL FILED A CLAIM FOR COMPENSATION, AND IN REFERENCE TO HIS INJURY THE REGIONAL RATING BOARD, CLEVELAND, OHIO, HELD AS FOLLOWS:

"EXISTING PRIOR TO ENLISTMENT; NOT NOTED AT TIME OF ACCEPTANCE AND ENROLLMENT; HELD AS CONTRACTED IN SERVICE UNDER THE TERMS OF SECTION 300, W.R.I. ACT, AS AMENDED.'

AN AWARD OF COMPENSATION, BASED UPON THE CONCLUSION PRESUMPTION OF SOUNDNESS AT THE TIME OF ENLISTMENT, WAS GRANTED TO CLAIMANT, AND,THEREFORE, THE QUESTION IS PRESENTED WHETHER THE NET AMOUNT THE CLAIMANT RECEIVED FROM THE RAILROAD COMPANY "* * * SHALL BE CREDITED UPON ANY COMPENSATION PAYABLE, OR WHICH MAY BECOME PAYABLE, TO SUCH BENEFICIARY * * * BY THE UNITED STATES ON ACCOUNT OF THE SAME INJURY * * *.' (SECTION 313, WAR RISK INSURANCE ACT.) IN OTHER WORDS, SHALL PAYMENTS OF COMPENSATION AWARDED CLAIMANT BE SUSPENDED UNTIL THE AMOUNT OF SUCH SUSPENDED PAYMENTS EQUALS THE NET AMOUNT HE RECEIVED FROM THE RAILROAD COMPANY?

SECTION 313 OF THE WAR RISK INSURANCE ACT, AS AMENDED BY THE ACT OF JUNE 25, 1918, 40 STAT. 614, WHICH REMAINED IN FORCE UNDER THE EXPRESS TERMS OF SECTION 600 (5) OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 629, REQUIRES THAT THE AMOUNT RECOVERED BY A BENEFICIARY FROM ANY OTHER PERSON "ON ACCOUNT OF THE SAME INJURY OR DEATH" BE CREDITED AGAINST THE COMPENSATION PAYABLE BY THE UNITED STATES.

IN YOUR CONCLUDING PARAGRAPH, YOU STATE AS FOLLOWS:

UNQUESTIONABLY SUBROGATION WOULD LIE IN THE INSTANT CASE, UNDER SECTION 313 OF THE WAR RISK INSURANCE ACT, IF CLAIMANT WERE RECEIVING COMPENSATION ON ACCOUNT OF THE INJURY FOR WHICH SETTLEMENT HAS BEEN MADE BY THE RAILROAD COMPANY, BUT BY FICTION OF LAW HE IS NOT RECEIVING COMPENSATION ON ACCOUNT OF THE INJURY HE RECEIVED WHILE WORKING ON THE RAILROAD, BUT ON ACCOUNT OF AN INJURY HE SUSTAINED IN SERVICE, IN CONNECTION WITH WHICH THERE IS NO THIRD PARTY LIABILITY.

IT THUS APPEARS THAT THE PRE-SERVICE INJURY FOR WHICH THE RAILROAD COMPANY WAS RESPONSIBLE AND HAS PAID MCNEAL $2,400 AS DAMAGES, IS IN FACT THE IDENTICAL INJURY THAT THE VETERANS' BUREAU HAS NOW ACCEPTED AS A PROPER BASIS FOR COMPENSATION PAYMENTS, THROUGH CONSIDERING THE INJURY AS OF SERVICE CONNECTION BY REASON OF THE CONCLUSIVE PRESUMPTION PROVISION APPEARING IN SECTION 200 OF THE WORLD WAR VETERANS' ACT, AS AMENDED.

AS POINTED OUT BY YOU, IF THE INJURY HAD ACTUALLY OCCURRED DURING MILITARY SERVICE THERE COULD BE NO QUESTION BUT THAT THE STATUTE REQUIRES ANY AMOUNT RECOVERED AS DAMAGES TO BE APPLIED IN REDUCTION OF ANY COMPENSATION FOUND TO BE LAWFULLY PAYABLE BECAUSE OF SUCH INJURY, AND TO APPLY THE CONCLUSIVE PRESUMPTION PROVISION SO AS TO MAKE THE SUGGESTED DISTINCTION, FOR SUBROGATION PURPOSES, BETWEEN INJURIES PRESUMPTIVELY CONNECTED AND INJURIES ACTUALLY CONNECTED WITH MILITARY SERVICE, WOULD OPERATE TO DENY TO VETERANS WHOSE INJURIES WERE ACTUALLY SUSTAINED IN THE SERVICE EQUAL COMPENSATION WITH THOSE WHOSE LIKE INJURIES WERE INCURRED PRIOR TO MILITARY SERVICE, BUT WHICH INJURIES, BECAUSE OF THE STATUTORY PRESUMPTION OF SOUND CONDITION AT ENTRANCE, ARE NOW TO BE CONSIDERED AS OF SERVICE CONNECTION. IT IS NOT BELIEVED THE CONGRESS PURPOSED SUCH UNEQUAL TREATMENT FOR VETERANS AND THEIR BENEFICIARIES.

THE INJURY IN THE SUBMITTED CASE DID NOT OCCUR DURING MILITARY SERVICE. IT OCCURRED MORE THAN 30 DAYS PRIOR TO ENLISTMENT--- BUT FOR SOME REASON WAS NOT MADE OF RECORD BY OFFICERS OF THE UNITED STATES AT OR BEFORE ENTRY UPON SERVICE AND CONSEQUENTLY THE STATUTORY CONCLUSIVE PRESUMPTION OF SOUND CONDITION AT ENLISTMENT BECOMES INVOLVED. IN WHAT RESPECT IS IT APPLICABLE AND CONTROLLING IN THE MATTER OF THE SUBMITTED QUESTION?

NO LEGISLATIVE ENACTMENT CAN, OF COURSE, CHANGE THE TIME OR PLACE OR THE HAPPENING OF AN EVENT THAT HAS ALREADY TAKEN PLACE. AN ACCIDENT HAPPENING SAY IN 1910, RESULTING IN THE LOSS OF A FINGER, THE DISLOCATING OF A JOINT, OR OTHER INJURY, COULD NOT BE CHANGED AS TO TIME OF OCCURRENCE, TO 1918 OR TO ANY OTHER YEAR, BY ANY PROCEDURE KNOWN, AND NO IMPOSSIBLE PURPOSE NEED BE ATTRIBUTED TO THE CONCLUSIVE PRESUMPTION PROVISION APPEARING IN SECTION 200 OF THE WORLD WAR VETERAN'S ACT, AS AMENDED. WHAT THE ENACTMENT OF THE PROVISION ACTUALLY ACCOMPLISHED WAS, IN EFFECT, TO REQUIRE IN THE MATTER OF ASCERTAINING AND DETERMINING PRESENT DISABILITY FOR COMPENSATION PURPOSES, THAT DEFECTS, DISORDERS OR INFIRMITIES EXISTING BUT NOT MADE OF RECORD AT OR PRIOR TO ENTRY UPON MILITARY SERVICE, BE CONSIDERED AS OF SERVICE ORIGIN. SEE 8 COMP. GEN. 416.

FOR THE PURPOSES OF SUBROGATION PURSUANT TO THE PROVISIONS OF SECTION 313, WAR RISK INSURANCE ACT, THE INJURY INFLICTED BY THE RAILROAD COMPANY, AND FOR WHICH IT HAS RESPONDED IN DAMAGES IN THE SUM OF $2,400, AND THE INJURY NOW ACCEPTED BY THE VETERANS' BUREAU AS BASIS FOR COMPENSATION PAYMENTS, ARE ONE AND THE SAME INJURY, AND PAYMENT OF ANY COMPENSATION NOW OR HEREAFTER AWARDED CLAIMANT SHOULD BE SUSPENDED AND APPLIED AS BY SAID SECTION 313 REQUIRED, UNTIL THE AMOUNT OF PAYMENTS SUSPENDED EQUALS THE NET AMOUNT SO RECEIVED FROM THE RAILROAD COMPANY.