A-37324, JULY 14, 1931, 11 COMP. GEN. 23

A-37324: Jul 14, 1931

Additional Materials:

Contact:

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

 

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

AUTHORIZES CONSIDERATION AFTER THE DATE OF SAID PRIVATE ACT OF A CLAIM FOR COMPENSATION FOR ANY PERIOD FOR WHICH COMPENSATION WOULD HAVE BEEN PAYABLE UNDER THE EMPLOYEES' COMPENSATION ACT IF SECTIONS 17 AND 20 HAD NEVER APPEARED THEREIN. PROVIDED THE OTHER CONDITIONS OF THE STATUTE ARE MET. ARE HEREBY WAIVED IN FAVOR OF ALICE HIPKINS. HELD THAT SAME WAS EFFECTIVE FROM JUNE 30. WAS NOT RETROACTIVE TO THE DATE OF DEATH OF THE EMPLOYEE WHICH OCCURRED ON JUNE 24. SUBSEQUENTLY THERE WAS RECEIVED YOUR DECISION A-34149. THE LANGUAGE IN THE LATTER ACT AS TO THE WAIVER OF SECTIONS 17 AND 20 OF THE COMPENSATION ACT WAS IDENTICAL WITH THAT USED IN THE INSTANT CASE. YOUR OFFICE HELD THAT THE COMMISSION WAS AUTHORIZED IN THE CASE OF DR.

A-37324, JULY 14, 1931, 11 COMP. GEN. 23

DISABILITY COMPENSATION - PRIVATE ACT - EFFECTIVE DATE A PRIVATE ACT WAIVING IN FAVOR OF AN INDIVIDUAL THE PROVISIONS OF SECTIONS 17 AND 20 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 746, 747, REQUIRING THE FILING OF NOTICE OF INJURY AND CLAIM FOR COMPENSATION WITHIN ONE YEAR FROM THE DATE OF THE INJURY, AND RECITING THAT DEATH RESULTED FROM INJURY RECEIVED WHILE IN THE PERFORMANCE OF HIS DUTIES, AUTHORIZES CONSIDERATION AFTER THE DATE OF SAID PRIVATE ACT OF A CLAIM FOR COMPENSATION FOR ANY PERIOD FOR WHICH COMPENSATION WOULD HAVE BEEN PAYABLE UNDER THE EMPLOYEES' COMPENSATION ACT IF SECTIONS 17 AND 20 HAD NEVER APPEARED THEREIN, AND ALSO AUTHORIZES CONSIDERATION OF A CLAIM FOR BURIAL EXPENSES ON THE BASIS OF A CONGRESSIONAL DETERMINATION OF DEATH DUE TO SERVICE, PROVIDED THE OTHER CONDITIONS OF THE STATUTE ARE MET.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN, UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, JULY 14, 1931:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JUNE 22, 1931, AS FOLLOWS:

PRIVATE ACT NO. 231, 71ST CONGRESS (H.R. 1063), APPROVED JUNE 30, 1930, READS AS FOLLOWS:

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVE OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT SECTIONS 17 AND 20 OF THE ACT 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," APPROVED SEPTEMBER 7, 1916, AS AMENDED, ARE HEREBY WAIVED IN FAVOR OF ALICE HIPKINS, WIDOW OF S. OTHO HIPKINS, LATE FILTER ENGINEER, UNITED STATES PUBLIC HEALTH SERVICE, AT PERRY POINT, MARYLAND, WHO DIED AS A RESULT OF CHLORINE-GAS POISONING WHILE IN THE PERFORMANCE OF HIS DUTIES.'

UPON THE APPROVAL OF THIS ACT, THE COMMISSION AWARDED COMPENSATION TO ALICE HIPKINS, WIDOW OF S. OTHO HIPKINS, BUT HELD THAT SAME WAS EFFECTIVE FROM JUNE 30, 1930, THE DATE OF APPROVAL, AND WAS NOT RETROACTIVE TO THE DATE OF DEATH OF THE EMPLOYEE WHICH OCCURRED ON JUNE 24, 1927. SUBSEQUENTLY THERE WAS RECEIVED YOUR DECISION A-34149, DATED NOVEMBER 17, 1930, CONSTRUING THE DATE OF EFFECT FOR COMPENSATION PURPOSES OF PRIVATE ACT, NO. 270, OF JULY 3, 1930, IN THE CASE OF DR. CHARLES W. REED. THE LANGUAGE IN THE LATTER ACT AS TO THE WAIVER OF SECTIONS 17 AND 20 OF THE COMPENSATION ACT WAS IDENTICAL WITH THAT USED IN THE INSTANT CASE, AND YOUR OFFICE HELD THAT THE COMMISSION WAS AUTHORIZED IN THE CASE OF DR. REED TO CONSIDER CLAIM FOR ANY PERIOD DURING WHICH DISABILITY EXISTED AND THAT COMPENSATION WAS NOT LIMITED TO THE PERIOD SUBSEQUENT TO THE DATE OF APPROVAL OF THE ACT. UPON RECEIPT OF THIS DECISION THE COMMISSION APPLIED SAME TO THE CASE OF MRS. HIPKINS AND AWARDED COMPENSATION TO HER EFFECTIVE FROM THE DATE OF HER HUSBAND'S DEATH.

CLAIM HAS NOW BEEN MADE BY MRS. HIPKINS FOR REIMBURSEMENT OF THE BURIAL EXPENSES PAID BY HER. SECTION 11 OF THE ACT OF SEPTEMBER 7, 1916 (AS AMENDED BY THE ACT OF FEBRUARY 12, 1927) (44 STAT. 1087), PROVIDES AS FOLLOWS:

"THAT IF DEATH RESULTS FROM THE INJURY WITHIN SIX YEARS THE UNITED STATES SHALL PAY TO THE PERSONAL REPRESENTATIVE OF THE DECEASED EMPLOYEE FUNERAL AND BURIAL EXPENSES NOT TO EXCEED $200, IN THE DISCRETION OF THE COMMISSION. IN THE CASE OF AN EMPLOYEE WHOSE HOME IS WITHIN THE UNITED STATES, IF HIS DEATH OCCURS AWAY FROM HIS HOME OFFICE OR OUTSIDE OF THE UNITED STATES, AND IF SO DESIRED BY HIS RELATIVES, THE BODY SHALL, IN THE DISCRETION OF THE COMMISSION, BE EMBALMED AND TRANSPORTED IN A HERMETICALLY SEALED CASKET TO THE HOME OF THE EMPLOYEE. SUCH FUNERAL AND BURIAL EXPENSES SHALL NOT BE PAID AND SUCH TRANSPORTATION SHALL NOT BE FURNISHED WHERE THE DEATH TAKES PLACE MORE THAN ONE YEAR AFTER THE CESSATION OF DISABILITY RESULTING FROM SUCH INJURY, OR IF THERE HAS BEEN NO DISABILITY PRECEDING DEATH, MORE THAN ONE YEAR AFTER THE INJURY.'

THE INJURY ALLEGED IN THIS CASE OCCURRED ON SEPTEMBER 29, 1922, WHEN MR. HIPKINS WAS GASSED WHILE AT WORK BY CHLORINE GAS ESCAPING FROM TANK IN FILTER HOUSE. HIS DEATH OCCURRED ON JUNE 24, 1927.

MRS. HIPKINS HAS SUBMITTED AN AFFIDAVIT THAT THERE WAS NO ADMINISTRATION ON HER HUSBAND'S ESTATE AND HAS SUBMITTED PAID BURIAL AND FUNERAL BILLS IN THE SUM OF $592.50, RECEIPTED IN HER FAVOR. THE QUESTION ARISES WHETHER UNDER THE TERMS OF PRIVATE ACT 231 ABOVE REFERRED TO, THE COMMISSION IS AUTHORIZED TO CONSIDER THE CLAIM OF MRS. HIPKINS FOR REIMBURSEMENT OF BURIAL AND FUNERAL EXPENSES TO THE AMOUNT OF $200.00, THE MAXIMUM PROVIDED BY SECTION 11 OF THE COMPENSATION ACT. YOUR DECISION IN THE MATTER IS REQUESTED.

SECTIONS 17 AND 20 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 746, 747, PROVIDE AS FOLLOWS:

SEC. 17. THAT UNLESS NOTICE IS GIVEN WITHIN THE TIME SPECIFIED OR UNLESS THE IMMEDIATE SUPERIOR HAS ACTUAL KNOWLEDGE OF THE INJURY, NO COMPENSATION SHALL BE ALLOWED, BUT FOR ANY REASONABLE CAUSE SHOWN, THE COMMISSION MAY ALLOW COMPENSATION IF THE NOTICE IS FILED WITHIN ONE YEAR AFTER THE INJURY.

SEC. 20. THAT ALL ORIGINAL CLAIMS FOR COMPENSATION FOR DISABILITY SHALL BE MADE WITHIN SIXTY DAYS AFTER THE INJURY. ALL ORIGINAL CLAIMS FOR COMPENSATION FOR DEATH SHALL BE MADE WITHIN ONE YEAR AFTER THE DEATH. FOR ANY REASONABLE CAUSE SHOWN THE COMMISSION MAY ALLOW ORIGINAL CLAIMS FOR COMPENSATION FOR DISABILITY TO BE MADE AT ANY TIME WITHIN ONE YEAR.

THE DECISION OF NOVEMBER 17, 1930, A-34149, IN THE CASE OF DR. CHARLES W. REED, TO WHICH YOU REFER, HELD THAT THE PRIVATE ACT IN HIS FAVOR, WAIVING THE PROVISIONS OF SECTIONS 17 AND 20 OF THE EMPLOYEES' COMPENSATION ACT REQUIRING THE FILING OF NOTICE OF INJURY AND CLAIM FOR COMPENSATION WITHIN ONE YEAR FROM DATE OF INJURY, AUTHORIZED CONSIDERATION AFTER THE DATE OF SAID PRIVATE ACT OF A CLAIM FOR COMPENSATION WITHIN ONE YEAR FROM DATE OF INJURY, AUTHORIZED CONSIDERATION AFTER THE DATE OF SAID PRIVATE ACT OF A CLAIM FOR COMPENSATION FOR ANY PERIOD FOR WHICH COMPENSATION WOULD HAVE BEEN PAYABLE UNDER THE ACT IF SECTIONS 17 AND 20 HAD NEVER APPEARED THEREIN.

THE PRIVATE ACT IN FAVOR OF ALICE HIPKINS, QUOTED IN YOUR SUBMISSION, HAD THE SAME EFFECT, ALSO, TO GRANT HER ANY RIGHT OR BENEFIT UNDER THE PROVISIONS OF THE EMPLOYEES' COMPENSATION ACT, AS AMENDED, OTHER THAN SECTIONS 17 AND 20, WHICH SHOULD BE CONSIDERED AS ENTIRELY ELIMINATED FROM THE STATUTE, ALTHOUGH THERE WERE NOT REMOVED THE CONDITIONS FIXED IN OTHER SECTIONS OF THE STATUTE TO THE GRANTING OF SUCH RIGHTS OR BENEFITS. SAID PRIVATE ACT IS ALSO A CONGRESSIONAL DETERMINATION THAT S. OTHO HIPKINS "DIED AS A RESULT OF CHLORINE-GAS POISONING WHILE IN THE PERFORMANCE OF HIS DUTIES.'

THEREFORE, AS LESS THAN SIX YEARS ELAPSED BETWEEN INJURY AND DEATH, FUNERAL AND BURIAL EXPENSES, NOT TO EXCEED THE MAXIMUM AMOUNT AUTHORIZED BY THE STATUTE, ARE PAYABLE TO THE BENEFICIARY NAMED IN THE ACT, IN THE DISCRETION OF THE EMPLOYEES' COMPENSATION COMMISSION, UNLESS THE COMMISSION SHOULD FIND AS A MATTER OF FACT THAT DEATH TOOK PLACE "MORE THAN ONE YEAR AFTER THE CESSATION OF DISABILITY RESULTING FROM SUCH INJURY," OR THAT THERE WAS "NO DISABILITY PRECEDING DEATH MORE THAN ONE YEAR AFTER THE INJURY.'