A-31495, MAY 7, 1930, 9 COMP. GEN. 465

A-31495: May 7, 1930

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FOR WHICH INJURY A THIRD PARTY IS LIABLE AND RESPONDS IN DAMAGES. IS NOT REQUIRED TO APPLY THE DAMAGES RECEIVED FROM THE THIRD PARTY AGAINST THE ANNUITY PAYMENTS. 1930: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF APRIL 21. IT IS REQUESTED THAT SAID AMOUNT BE WITHHELD FROM HIS ANNUITY UNDER THE CIVIL SERVICE RETIREMENT LAW AND APPLIED IN SATISFACTION OF HIS INDEBTEDNESS TO THE COMMISSION. THIS MATTER IS SUBMITTED FOR YOUR CONSIDERATION. IT IS ALSO REQUESTED THAT A RULING BE MADE ON THE QUESTION WHETHER HAINDEL IS ENTITLED TO ANNUITY AT ALL UNDER THE CIRCUMSTANCES OF THE CASE. IT WOULD SEEM THAT THE GOVERNMENT IS ONLY TEMPORARILY AND NOT FULLY AND FINALLY RELEASED FROM ITS LIABILITY UNDER THE COMPENSATION LAW.

A-31495, MAY 7, 1930, 9 COMP. GEN. 465

EMPLOYEES' COMPENSATION BENEFITS - RETIREMENT ANNUITY A GOVERNMENT EMPLOYEE PERMANENTLY AND TOTALLY DISABLED BY AN INJURY INCURRED IN THE PERFORMANCE OF OFFICIAL DUTY, FOR WHICH INJURY A THIRD PARTY IS LIABLE AND RESPONDS IN DAMAGES, MAY ELECT BETWEEN THE RECEIPT OF BENEFITS UNDER THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 747, IN REDUCTION OF WHICH BENEFITS HE MUST APPLY ALL AMOUNTS RECEIVED FROM THE THIRD PARTY FOR SUCH INJURY, OR THE RECEIPT OF AN ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT OF JULY 3, 1926, 44 STAT. 907. IF ELECTING THE RETIREMENT ANNUITY, THE EMPLOYEE MUST MAKE THE UNITED STATES WHOLE AS TO ALL BENEFITS RECEIVED UNDER THE EMPLOYEES' COMPENSATION ACT, IN CASH OR BY WAY OF MEDICAL OR HOSPITAL TREATMENT, BUT IS NOT REQUIRED TO APPLY THE DAMAGES RECEIVED FROM THE THIRD PARTY AGAINST THE ANNUITY PAYMENTS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MAY 7, 1930:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF APRIL 21, 1930, AS FOLLOWS:

THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION HAS FILED A CLAIM AGAINST ROSCOE E. HAINDEL IN THE SUM OF $91 PAID BY THE COMMISSION FOR MEDICAL SERVICE FOR THE SAID HAINDEL, AND IT IS REQUESTED THAT SAID AMOUNT BE WITHHELD FROM HIS ANNUITY UNDER THE CIVIL SERVICE RETIREMENT LAW AND APPLIED IN SATISFACTION OF HIS INDEBTEDNESS TO THE COMMISSION. THIS MATTER IS SUBMITTED FOR YOUR CONSIDERATION.

IT IS ALSO REQUESTED THAT A RULING BE MADE ON THE QUESTION WHETHER HAINDEL IS ENTITLED TO ANNUITY AT ALL UNDER THE CIRCUMSTANCES OF THE CASE, HE HAVING FIRST ELECTED TO TAKE COMPENSATION AND AFTERWARDS RELINQUISHED THE SAME AND RETURNED THE AMOUNT RECEIVED AS COMPENSATION UPON RECOVERY OF DAMAGES FOR THE INJURY FROM A THIRD PARTY. HE THUS RECEIVED DAMAGES FROM A THIRD PARTY IN LIEU OF COMPENSATION FROM THE GOVERNMENT UNDER THE COMPENSATION LAW, BUT IT WOULD SEEM THAT THE GOVERNMENT IS ONLY TEMPORARILY AND NOT FULLY AND FINALLY RELEASED FROM ITS LIABILITY UNDER THE COMPENSATION LAW, AS THE SURPLUS RECEIVED BY THE CLAIMANT FROM THE THIRD PARTY IS MERELY CREDITED TO THE GOVERNMENT ON ANY FUTURE PAYMENTS OF COMPENSATION PAYABLE TO HIM ON ACCOUNT OF THE SAME INJURY. SEE SECTION 777, TITLE 5, U.S.C. THE RETIREMENT ACT IN SECTION 6 PROVIDES THAT BOTH COMPENSATION AND ANNUITY MAY NOT BE ALLOWED COVERING THE SAME PERIOD OF TIME.

THE FACTS IN THE CASE ARE FULLY STATED IN THE RECORD WHICH IS SUBMITTED HEREWITH. KINDLY RETURN SAME WITH APPROPRIATE INSTRUCTIONS IN THE PREMISES.

IT APPEARS FROM THE RECORD THAT HAINDEL, WHILE EMPLOYED AS A RAILWAY POSTAL CLERK, WAS INJURED IN THE PERFORMANCE OF HIS DUTY NOVEMBER 24, 1925, WHICH INJURY HAS BEEN DETERMINED TO BE PERMANENT AND TOTAL. HIS PAY AS POSTAL CLERK CONTINUED UNTIL DECEMBER 28, 1925, FROM WHICH DATE UNTIL NOVEMBER 24, 1926, HE WAS CARRIED ON THE ROLLS OF THE POSTAL SERVICE AS ON "CONTINUOUS LEAVE ON ACCOUNT OF SICKNESS.' NOVEMBER 29, 1926, HE FILED APPLICATION FOR RETIREMENT ON ACCOUNT OF DISABILITY. FEBRUARY 16, 1927, HE WAS NOTIFIED BY THE COMMISSIONER OF PENSIONS THAT IT WOULD BE NECESSARY TO ELECT BETWEEN THE RETIREMENT ANNUITY AND DISABILITY COMPENSATION. LETTERS DATED APRIL 25, 1927, AND SEPTEMBER 27, 1927, CLAIMANT REQUESTED THAT THE MATTER OF ELECTION BE HELD IN ABEYANCE PENDING FINAL SETTLEMENT OF HIS CLAIM AGAINST THE RAILROAD COMPANY. BY LETTER DATED DECEMBER 29, 1927, HE NOTIFIED THE COMMISSIONER OF PENSIONS OF HIS ELECTION TO PURSUE HIS RETIREMENT CLAIM, HAVING RECEIVED AS SETTLEMENT OF $15,000 FROM THE RAILROAD COMPANY. DURING THE PENDENCY OF THE FOREGOING, HAINDEL HAD BEEN RECEIVING DISABILITY COMPENSATION AND NECESSARY MEDICAL AND HOSPITAL SERVICES AT THE EXPENSE OF THE EMPLOYEES' COMPENSATION COMMISSION. OUT OF THE SETTLEMENT RECEIVED FROM THE RAILROAD COMPANY THE CLAIMANT RETURNED TO THE COMMISSION $2,865.97, REPRESENTING THE AMOUNTS EXPENDED BY THE COMMISSION FOR COMPENSATION PAID TO HIM AND DOCTOR AND HOSPITAL BILLS WHICH HAD BEEN PAID BY THE COMMISSION UP TO THAT TIME. IT APPEARS, ALSO, THAT HAINDEL PAID PERSONALLY MEDICAL BILLS AMOUNTING TO $1,750 AND ATTORNEYS' FEES AND COURT COSTS IN THE AMOUNT OF $5,231.22, WHICH LEFT HIM IN HAND $5,152.81. SUBSEQUENTLY, THERE WERE PRESENTED TO THE EMPLOYEES' COMPENSATION COMMISSION BILLS OF DOCTORS MISENOR AND TAYLOR FOR $300 AND $115, RESPECTIVELY, WHICH THE COMMISSION REQUESTED HAINDEL TO PAY FROM THE FUNDS IN HAND. HE PAID DOCTOR MISENOR $224 AND DOCTOR TAYLOR $100 BUT REFUSED TO PAY THE BALANCE, CLAIMING THAT IT SHOULD BE PAID BY HIS ATTORNEYS. THE COMMISSION THEREUPON PAID THE $91 BALANCE UPON THESE TWO BILLS AND NOW REQUESTS THAT THAT AMOUNT BE WITHHELD FROM ANY RETIREMENT ANNUITY WHICH MAY BE DUE HAINDEL.

SECTION 27 OF THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 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 AS 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.

(B) IF NO COMPENSATION HAS BEEN PAID TO HIM BY THE UNITED STATES, HE SHALL CREDIT THE MONEY OR OTHER PROPERTY SO RECEIVED UPON ANY COMPENSATION PAYABLE TO HIM BY THE UNITED STATES ON ACCOUNT OF THE SAME INJURY.

SECTION 6 OF THE FEDERAL EMPLOYEES' RETIREMENT ACT OF JULY 3, 1926, 44 STAT. 907, PROVIDES:

ANY EMPLOYEE TO WHOM THIS ACT APPLIES WHO SHALL HAVE SERVED FOR A TOTAL PERIOD OF NOT LESS THAN FIFTEEN YEARS, AND WHO, BEFORE BECOMING ELIGIBLE FOR RETIREMENT UNDER THE CONDITIONS DEFINED IN THE PRECEDING SECTIONS HEREOF, BECOMES TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE IN THE GRADE OR CLASS OF POSITION OCCUPIED BY THE EMPLOYEE, BY REASON OF DISEASE OR INJURY NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT ON THE PART OF THE EMPLOYEE, SHALL UPON HIS OWN APPLICATION OR UPON THE REQUEST OR ORDER OF THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE CONCERNED, BE RETIRED ON AN ANNUITY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 HEREOF: * * * NO CLAIM SHALL BE ALLOWED UNDER THE PROVISIONS OF THIS SECTION, UNLESS THE APPLICATION FOR RETIREMENT SHALL HAVE BEEN EXECUTED PRIOR TO THE APPLICANT'S SEPARATION FROM THE SERVICE OR WITHIN SIX MONTHS THEREAFTER. * * *

NO PERSON SHALL BE ENTITLED TO RECEIVE AN ANNUITY UNDER THE PROVISIONS OF THIS ACT, AND COMPENSATION UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 7, 1916, ENTITLED "AN ACT TO PROVIDE COMPENSATION FOR EMPLOYEES OF THE UNITED STATES SUFFERING INJURIES WHILE IN THE PERFORMANCE OF THEIR DUTIES, AND FOR OTHER PURPOSES," COVERING THE SAME PERIOD OF TIME; BUT THIS PROVISION SHALL NOT BE SO CONSTRUED AS TO BAR THE RIGHT OF ANY CLAIMANT TO THE GREATER BENEFIT CONFERRED BY EITHER ACT FOR ANY PART OF THE SAME PERIOD OF TIME.

WHILE THE APPLICATION FOR RETIREMENT WAS NOT FILED WITHIN SIX MONTHS FROM THE LAST DATE THIS EMPLOYEE WAS IN RECEIPT OF PAY AS CLERK, IT WAS FILED WITHIN SIX MONTHS FROM THE DATE HE WAS ADMINISTRATIVELY SEPARATED FROM THE SERVICE. SEE DECISION OF OCTOBER 4, 1920, TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, IN WHICH IT WAS STATED THAT THE STATUS OF EMPLOYEES UNDER THE RETIREMENT ACT WHEN ON A PROLONGED LEAVE OF ABSENCE WAS AN ADMINISTRATIVE MATTER.

SECTION 6 OF THE RETIREMENT ACT, SUPRA, GRANTS THE RIGHT OF ELECTION BETWEEN RETIREMENT ANNUITY AND COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT. AS THE EMPLOYEE HAS FORMALLY ELECTED TO RECEIVE THE RETIREMENT ANNUITY AND HAS MADE THE UNITED STATES WHOLE AS TO ALL COMPENSATION AND OTHER EXPENDITURES IN HIS BEHALF UNDER THE COMPENSATION LAW, WITH THE EXCEPTION OF THE $91 MENTIONED ABOVE, HE APPEARS TO BE ENTITLED LAWFULLY TO THE BENEFITS OF THE RETIREMENT ACT. SECTION 27 (B) OF THE COMPENSATION ACT, SUPRA, REQUIRES THAT THE MONEY OR OTHER PROPERTY RECEIVED BY AN EMPLOYEE FROM A THIRD PERSON IN SETTLEMENT OF A CLAIM FOR DAMAGES SHALL BE CREDITED "UPON ANY COMPENSATION PAYABLE TO HIM BY THE UNITED STATES ON ACCOUNT OF THE SAME INJURY.' THE DISABILITY ENTITLING THIS EMPLOYEE TO THE BENEFITS OF THE RETIREMENT ACT RESULTED FROM THE SAME INJURY AS THAT FOR WHICH THE SETTLEMENT WAS MADE WITH THE RAILROAD COMPANY WHICH PRESENTS FOR DETERMINATION THE QUESTION WHETHER THE RETIREMENT ANNUITY IS COMPENSATION FOR THE INJURY WITHIN THE MEANING OF THE COMPENSATION LAW. WHILE THE INJURY RESULTED IN THE DISABILITY ENTITLING THE EMPLOYEE TO RETIREMENT BEFORE REACHING THE RETIREMENT AGE, THE ANNUITY PAYABLE IS NO GREATER THAN HAD HE ATTAINED THE RETIREMENT AGE ON THE DATE ON WHICH THE INJURY WAS INCURRED. THEREFORE, THE RETIREMENT ANNUITY IS NOT COMPENSATION FOR THE INJURY WITHIN THE MEANING OF THE COMPENSATION LAW, AND THE RETIRED EMPLOYEE IS NOT REQUIRED TO CREDIT THE AMOUNT REMAINING IN HIS HANDS FROM THE SETTLEMENT WITH THE RAILROAD COMPANY AGAINST HIS RETIRED ANNUITY.

HOWEVER, THE EMPLOYEES' COMPENSATION COMMISSION HAS PAID $91 IN DOCTORS' BILLS FOR THIS EMPLOYEE, WHICH DOCTORS' SERVICES WERE INCURRED NOT FOR ANY PURPOSE OF THE UNITED STATES BUT IN CONNECTION WITH THE SETTLEMENT OF HIS CLAIM AGAINST THE RAILROAD COMPANY, THE BENEFITS OF WHICH INURED ENTIRELY TO HAINDEL, AND THE UNITED STATES IS, ACCORDINGLY, ENTITLED TO REIMBURSEMENT THEREFOR. HAINDEL HAS FILED A LENGTHY STATEMENT AND ARGUMENT AGAINST ANY RESPONSIBILITY ON HIS PART FOR THIS ITEM, CLAIMING THAT IT SHOULD HAVE BEEN PAID BY HIS ATTORNEYS. THE STATEMENT HAS BEEN GIVEN THE MOST CAREFUL CONSIDERATION BUT NO MERIT IS FOUND THEREIN.

ACCORDINGLY, YOU ARE AUTHORIZED TO INSTRUCT THE DISBURSING CLERK OF THE BUREAU OF PENSIONS TO DEDUCT FROM THE NEXT ANNUITY PAYMENTS DUE HAINDEL SUFFICIENT TO SATISFY THE CLAIM OF $91 AND TO REMIT THAT AMOUNT BY DISBURSING OFFICER'S CHECK TO THE EMPLOYEES' COMPENSATION COMMISSION FOR DEPOSIT TO THE CREDIT OF THE APPROPRIATION WHICH WAS DEPLETED BY PAYMENT TO THE DOCTORS IN HAINDEL'S BEHALF.