A-40369, FEBRUARY 24, 1932, 11 COMP. GEN. 318

A-40369: Feb 24, 1932

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AS FOLLOWS: IN CONNECTION WITH THE CLAIMS OF CERTAIN CIVIL EMPLOYEES WHO SUSTAINED INJURY IN THE PERFORMANCE OF DUTY AND TO WHOM COMPENSATION WAS AWARDED UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 7. THE MATTER WAS CALLED TO THE ATTENTION OF THE VETERANS' ADMINISTRATOR IN VIEW OF THE PROVISIONS OF SECTION 7 OF THE COMPENSATION ACT OF SEPTEMBER 7. WHICH READS AS FOLLOWS: "THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER THIS ACT. UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED. DECISION (NO. 59) WAS RENDERED BY THE ADMINISTRATOR TO THE EFFECT THAT THE DISABILITY ALLOWANCE PROVIDED BY THE ACT OF JULY 3. WAS CONSIDERED A PENSION AND THEREFORE WITHIN THE EXCEPTION STATED IN SECTION 7 ABOVE QUOTED.

A-40369, FEBRUARY 24, 1932, 11 COMP. GEN. 318

EMPLOYEES' COMPENSATION COMMISSION - PAYMENT OF DISABILITY COMPENSATION AND DISABILITY ALLOWANCE UNDER TWO STATUTES PAYMENT OF DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT AND NONSERVICE DISABILITY ALLOWANCE UNDER THE WORLD WAR VETERANS' ACT MAY NOT BE MADE LAWFULLY TO THE SAME PERSON FOR THE SAME OR RELATED DISABILITY.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, FEBRUARY 24, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JANUARY 14, 1932, AS FOLLOWS:

IN CONNECTION WITH THE CLAIMS OF CERTAIN CIVIL EMPLOYEES WHO SUSTAINED INJURY IN THE PERFORMANCE OF DUTY AND TO WHOM COMPENSATION WAS AWARDED UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 7, 1916, (39 STAT. 742), THE COMMISSION LEARNED THAT SUCH EMPLOYEES HAD ALSO FILED CLAIM WITH THE VETERANS' ADMINISTRATION FOR THE BENEFITS OF SECTION 200 OF THE ACT OF JULY 3, 930, WHICH PROVIDES FOR THE PAYMENT OF DISABILITY ALLOWANCE TO VETERANS FOR NONSERVICE CONNECTED DISABILITY.

THE MATTER WAS CALLED TO THE ATTENTION OF THE VETERANS' ADMINISTRATOR IN VIEW OF THE PROVISIONS OF SECTION 7 OF THE COMPENSATION ACT OF SEPTEMBER 7, 1916, WHICH READS AS FOLLOWS:

"THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER THIS ACT, OR, IF HE HAS BEEN PAID A LUMP SUM IN COMMUTATION OF INSTALLMENT PAYMENTS, UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED, HE SHALL NOT RECEIVE FROM THE UNITED STATES ANY SALARY, PAY, OR REMUNERATION WHATSOEVER EXCEPT IN RETURN FOR SERVICES ACTUALLY PERFORMED, AND EXCEPT PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES.'

UNDER DATE OF JUNE 17, 1931, DECISION (NO. 59) WAS RENDERED BY THE ADMINISTRATOR TO THE EFFECT THAT THE DISABILITY ALLOWANCE PROVIDED BY THE ACT OF JULY 3, 1930, WAS CONSIDERED A PENSION AND THEREFORE WITHIN THE EXCEPTION STATED IN SECTION 7 ABOVE QUOTED. COPY OF THIS DECISION IS FORWARDED HEREWITH. UNDER THE PRESENT PRACTICE, THEREFORE, AN INJURED CIVIL EMPLOYEE MAY RECEIVE PAYMENT UNDER BOTH ACTS FOR THE SAME DISABILITY.

IN THIS CONNECTION ATTENTION IS CALLED TO YOUR DECISION A-27010, OF JULY 12, 1929, IN THE CASE OF ARTHUR S. COLYER, IN WHICH IT WAS HELD THAT COMPENSATION FOR THE SAME OR RELATED DISABILITY COULD NOT BE PAID BOTH BY THE VETERANS' BUREAU AND THIS COMMISSION. IN THAT CASE THE DISABILITY UNDER THE VETERANS BUREAU LAW WAS CONSIDERED OF MILITARY SERVICE ORIGIN. THE FOLLOWING IS QUOTED FROM THAT DECISION:

"THE INSTANT CASE PRESENTS THE ADDITIONAL QUESTION WHETHER COMPENSATION IS AUTHORIZED UNDER THE TWO STATUTES FOR THE SAME DISEASE OR DISABILITY OR FOR RELATED DISABILITIES. THE LAW DOES NOT EXPRESSLY COVER THE POINT. BUT SOUND REASONING WOULD IMPEL THE VIEW THAT THE SAME OR RELATED DISABILITIES COULD NOT BE COMPENSATED UNDER TWO UNRELATED STATUTES. EACH STATUTE HAS FIXED A MAXIMUM AMOUNT OF COMPENSATION PAYABLE BY THE GOVERNMENT FOR A DISABILITY WHICH AMOUNT MAY NOT BE EXCEEDED BY AN AWARD UNDER ANOTHER STATUTE.'

IT WOULD SEEM THAT THE SAME OBJECTIONS WOULD APPLY TO THE PRESENT CASE, AND THAT IT IS DOUBTFUL THAT CONGRESS INTENDED AN EMPLOYEE TO RECEIVE DOUBLE COMPENSATION FOR THE SAME DISABILITY--- A DISABILITY ARISING ENTIRELY FROM AN INJURY RECEIVED IN THE PERFORMANCE OF DUTY AS A CIVIL EMPLOYEE OF THE UNITED STATES. THUS, AN EMPLOYEE TOTALLY DISABLED BECAUSE OF HIS INJURY AS A CIVIL EMPLOYEE WHOSE PAY WAS$175.00 PER MONTH OR MORE WOULD RECEIVE COMPENSATION OF $116.66 PER MONTH FROM THIS COMMISSION, AND IF A VETERAN, THE ADDITIONAL SUM OF $40.00 PER MONTH FROM THE VETERANS' ADMINISTRATION, A TOTAL OF $156.66 PER MONTH, IN ADDITION TO NECESSARY MEDICAL AND HOSPITAL SERVICE AUTHORIZED BY THE COMMISSION.

YOUR DECISION IS, THEREFORE, REQUESTED WHETHER THIS COMMISSION IS AUTHORIZED TO PAY COMPENSATION UNDER THE ACT OF SEPTEMBER 7, 1916, TO AN EMPLOYEE WHO IS ALSO RECEIVING DISABILITY ALLOWANCE FROM THE VETERANS' ADMINISTRATION UNDER THE ACT OF JULY 3, 1930, FOR THE SAME DISABILITY WHICH IS DUE TO INJURY SUSTAINED AS A CIVIL EMPLOYEE IN THE PERFORMANCE OF DUTY.

THE ACT OF JULY 3, 1930, 46 STAT. 996, PROVIDES, AS FOLLOWS:

ON AND AFTER THE DATE OF THE APPROVAL OF THIS AMENDATORY ACT ANY HONORABLY DISCHARGED EX-SERVICE MAN WHO ENTERED THE SERVICE PRIOR TO NOVEMBER 11, 1918, AND SERVED 90 DAYS OR MORE DURING THE WORLD WAR, AND WHO IS OR MAY HEREAFTER BE SUFFERING FROM A 25 PERCENTUM OR MORE PERMANENT DISABILITY, AS DEFINED BY THE DIRECTOR, NOT THE RESULT OF HIS OWN WILLFUL MISCONDUCT, WHICH WAS NOT ACQUIRED IN THE SERVICE DURING THE WORLD WAR, OR FOR WHICH COMPENSATION IS NOT PAYABLE, SHALL BE ENTITLED TO RECEIVE A DISABILITY ALLOWANCE AT THE FOLLOWING RATES: 25 PERCENTUM PERMANENT DISABILITY, $12 PER MONTH; 50 PERCENTUM PERMANENT DISABILITY, $18 PER MONTH; 75 PERCENTUM PERMANENT DISABILITY, $24 PER MONTH; TOTAL PERMANENT DISABILITY, $40 PER MONTH. NO DISABILITY ALLOWANCE PAYABLE UNDER THIS PARAGRAPH SHALL COMMENCE PRIOR TO THE DATE OF THE PASSAGE OF THIS AMENDATORY ACT OR THE DATE OF APPLICATION THEREFOR, AND SUCH APPLICATION SHALL BE IN SUCH FORM AS THE DIRECTOR MAY PRESCRIBE: PROVIDED, THAT NO DISABILITY ALLOWANCE UNDER THIS PARAGRAPH SHALL BE PAYABLE TO ANY PERSON NOT ENTITLED TO EXEMPTION FROM THE PAYMENT OF A FEDERAL INCOME TAX FOR THE YEAR PRECEDING THE FILING OF APPLICATION FOR SUCH DISABILITY ALLOWANCE UNDER THIS PARAGRAPH. IN ANY CASE IN WHICH THE AMOUNT OF COMPENSATION HEREAFTER PAYABLE TO ANY PERSON FOR PERMANENT DISABILITY UNDER THE PROVISIONS OF THIS ACT IS LESS THAN THE MAXIMUM AMOUNT OF THE DISABILITY ALLOWANCE PAYABLE FOR A CORRESPONDING DEGREE OF DISABILITY UNDER THE PROVISIONS OF THIS PARAGRAPH, THEN SUCH PERSON MAY RECEIVE SUCH DISABILITY ALLOWANCE IN LIEU OF COMPENSATION. NOTHING IN THIS PARAGRAPH SHALL BE CONSTRUED TO ALLOW THE PAYMENT TO ANY PERSON OF BOTH A DISABILITY ALLOWANCE AND COMPENSATION DURING THE SAME PERIOD; AND ALL PAYMENTS MADE TO ANY PERSON FOR A PERIOD COVERED BY A NEW OR INCREASED AWARD OF DISABILITY ALLOWANCE OR COMPENSATION SHALL BE DEDUCTED FROM THE AMOUNT PAYABLE UNDER SUCH NEW OR INCREASED AWARD. AS USED IN TITLES I AND V OF THE WORLD WAR VETERANS' ACT , 1924, AS AMENDED, THE TERM "COMPENSATION" SHALL BE DEEMED TO INCLUDE THE TERM "DISABILITY ALLOWANCE" AS USED IN THIS PARAGRAPH.

IN DECISION NO. 59, DATED JUNE 17, 1931, COPY OF WHICH YOU FORWARD, THE ADMINISTRATOR OF VETERANS' AFFAIRS HELD AS FOLLOWS:

THAT THE FACT THAT A CLAIMANT IS RECEIVING COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT SHOULD NOT BAR THE PAYMENT TO HIM OF DISABILITY ALLOWANCE UNDER THE AMENDMENT OF JULY 3, 1930, EVEN THOUGH THE DISABILITY UNDER WHICH THE ALLOWANCE IS PAYABLE FLOWS, IN WHOLE OR IN PART, FROM THE INJURY INCURRED IN CIVIL EMPLOYMENT OF THE GOVERNMENT, AND FOR WHICH HE MAY BE ENTITLED TO AND RECEIVING COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT. (OPINION OF GENERAL COUNSEL, UNITED STATES VETERANS' BUREAU, DATED APRIL 1, 1931, APPROVED BY THE DIRECTOR APRIL 1, 1931, APPROVED BY THE ADMINISTRATOR OF VETERANS' AFFAIRS JUNE 17, 1931.)

THIS CONCLUSION APPEARS TO BE BASED PRIMARILY ON THE PROPOSITION OF EQUALIZING THE RIGHTS OF FEDERAL EMPLOYEES RECEIVING BENEFITS UNDER THE EMPLOYEES' COMPENSATION ACT WITH EMPLOYEES IN PRIVATE INDUSTRIES RECEIVING BENEFITS UNDER WORKMEN'S COMPENSATION ACTS. THE QUESTION AS TO THE SOUNDNESS OF THE REASONING OR THE CONCLUSION OF THE ADMINISTRATOR'S DECISION IS NOT FOR CONSIDERATION BY THIS OFFICE, AS SUCH DECISION IS FINAL AND CONCLUSIVE BOTH ON THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION AND THIS OFFICE UNDER THE EXPRESS TERMS OF SECTION 5 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY SECTION 1 OF THE ACT OF JULY 3, 1930, SUPRA, SO FAR AS PAYMENTS OF DISABILITY ALLOWANCE BY THAT ADMINISTRATION ARE CONCERNED, BUT SUCH DECISION IS NOT CONTROLLING ON THE COMMISSION OR THIS OFFICE AS TO THE PAYMENTS OF COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT.

THE DISABILITY ALLOWANCE IS IN THE FORM OF A PENSION, AND, ACCORDINGLY, THE BASIC REASONING OF THE DECISION OF JULY 12, 1929, A 27010, IN THE CASE OF ARTHUR L. COYLER, FROM WHICH YOU HAVE QUOTED, HOLDING THAT THERE MAY NOT BE PAID WAR RISK DISABILITY COMPENSATION AND COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT FOR THE SAME OR RELATED DISEASE OR DISABILITY, ALSO JUSTIFIES THE CONCLUSION THAT THERE IS PROHIBITED PAYMENT OF COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT AND THE DISABILITY ALLOWANCE UNDER THE ACT OF JULY 3, 1930, UNDER THE SAME CONDITIONS. SINCE THE DISABILITY ALLOWANCE IS PAYABLE ONLY FOR A PERMANENT DISABILITY, EITHER PARTIAL OR TOTAL, AND WITHOUT THE NECESSITY OF SHOWING SERVICE CONNECTION, THERE IS EVEN MORE REASON FOR DENYING DUAL PAYMENT OF DISABILITY ALLOWANCE AND COMPENSATION UNDER THE TWO STATUTES FOR THE SAME OR RELATED DISABILITIES INCURRED ENTIRELY AS A RESULT OF CIVIL EMPLOYMENT UNDER THE GOVERNMENT. IN THE ABSENCE OF AN EXPRESS STATUTORY PROVISION TO THAT EFFECT, I AM CONSTRAINED TO THE VIEW THAT THE CONGRESS HAD NO INTENTION OF SINGLING OUT THOSE CIVIL EMPLOYEES OF THE GOVERNMENT WHO ARE VETERANS AND INCREASING THE MAXIMUM AMOUNTS PAYABLE TO THEM BY $40 PER MONTH OR LESS FOR THE DISABILITY INCURRED SOLELY AS THE RESULT OF THEIR CIVIL EMPLOYMENT.

YOU ARE ADVISED THEREFORE THAT PAYMENTS LAWFULLY MAY NOT BE MADE UNDER BOTH THE EMPLOYEES' COMPENSATION ACT AND THE WORLD WAR VETERANS' ACT FOR THE SAME OR RELATED DISABILITIES, AND ACCORDINGLY, IN THE EVENT AWARD HAS BEEN MADE BY THE VETERANS' ADMINISTRATION UNDER WHICH PAYMENTS ARE BEING RECEIVED BY THE BENEFICIARY, THE EMPLOYEES' COMPENSATION COMMISSION MAY NOT MAKE AWARD TO THE SAME BENEFICIARY UNDER THE EMPLOYEES' COMPENSATION ACT FOR THE SAME OR RELATED DISABILITY, AND AWARDS HERETOFORE MADE TO SUCH BENEFICIARIES SHOULD BE DISCONTINUED. PAYMENTS HERETOFORE MADE TO EMPLOYEES RECEIVING SUCH BENEFITS UNDER THE TWO STATUTES NEED NOT NOW BE DISTURBED.