A-41575, APRIL 14, 1932, 11 COMP. GEN. 392

A-41575: Apr 14, 1932

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EMPLOYEES' COMPENSATION COMMISSION - DISABILITY COMPENSATION WHERE NEITHER DISABILITY NOR DEATH OCCURRED WITHIN ONE YEAR FROM THE DATE OF A FALL ALLEGED TO HAVE RESULTED IN INJURY TO A GOVERNMENT EMPLOYEE. NO CLAIM FOR DISABILITY WAS FILED WITHIN THAT TIME. AS FOLLOWS: THERE IS TRANSMITTED HEREWITH APPROVED PAY ROLL VOUCHER SUBMITTED TO ME FOR PAYMENT IN THE SUM OF $108.21. THE FACTS IN THE CASE ARE AS FOLLOWS: UNDER DATE OF OCTOBER 1. ALLEGING THAT HIS PRESENT DISABILITY WAS THE RESULT OF A FALL WHICH HE SUSTAINED IN DECEMBER. SCHINDLER WAS BARRED BY THE PROVISIONS OF SECTIONS 15 TO 17 OF THE COMPENSATION ACT AND REFERRED TO THE RIGHT WHICH MR. SCHINDLER WOULD HAVE TO FILE CLAIM FOR DISABILITY ANNUITY UNDER THE RETIREMENT ACT.

A-41575, APRIL 14, 1932, 11 COMP. GEN. 392

EMPLOYEES' COMPENSATION COMMISSION - DISABILITY COMPENSATION WHERE NEITHER DISABILITY NOR DEATH OCCURRED WITHIN ONE YEAR FROM THE DATE OF A FALL ALLEGED TO HAVE RESULTED IN INJURY TO A GOVERNMENT EMPLOYEE, AND NO CLAIM FOR DISABILITY WAS FILED WITHIN THAT TIME, ALL RIGHTS UNDER THE EMPLOYEES' COMPENSATION ACT TERMINATED AND COULD NOT BE REVIVED BY DISABILITY OR DEATH OCCURRING THEREAFTER.

COMPTROLLER GENERAL MCCARL TO E. V. PARKER, CHIEF OF ACCOUNTS, UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, APRIL 14, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 24, 1932, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH APPROVED PAY ROLL VOUCHER SUBMITTED TO ME FOR PAYMENT IN THE SUM OF $108.21, COVERING AWARD OF COMPENSATION, JANUARY 23 TO MARCH 15, 1932, AT THE RATE OF $61.25 PER MONTH, TO MRS. HARRIET V. SCHINDLER. THE FACTS IN THE CASE ARE AS FOLLOWS:

UNDER DATE OF OCTOBER 1, 1931, THE POSTMASTER, UTICA, N.Y., FORWARDED TO THE COMMISSION A COMMUNICATION FROM FREDERICK S. SCHINDLER, DATED SEPTEMBER 17, 1931, IN WHICH MR. SCHINDLER MADE CLAIM FOR THE BENEFITS OF THE COMPENSATION ACT OF SEPTEMBER 7, 1916, ALLEGING THAT HIS PRESENT DISABILITY WAS THE RESULT OF A FALL WHICH HE SUSTAINED IN DECEMBER, 1929, WHILE IN THE PERFORMANCE OF DUTY AS A LETTER CARRIER. MR. SCHINDLER STATED THAT HE SLIPPED ON THE ICY INCLINE CONNECTING PIT OF THE LOADING PLATFORM WITH THE STREET LEVEL. THE POSTMASTER, IN FORWARDING THE CARRIER'S COMMUNICATION, STATED THAT HIS ATTENTION HAD BEEN CALLED TO THE PARTICULAR INCIDENT IN CONNECTION WITH FALLS SUSTAINED BY OTHER EMPLOYEES AT THE SAME PLACE.

THE COMMISSION, IN REPLY TO THE POSTMASTER'S LETTER, INFORMED HIM THAT THE CLAIM OF MR. SCHINDLER WAS BARRED BY THE PROVISIONS OF SECTIONS 15 TO 17 OF THE COMPENSATION ACT AND REFERRED TO THE RIGHT WHICH MR. SCHINDLER WOULD HAVE TO FILE CLAIM FOR DISABILITY ANNUITY UNDER THE RETIREMENT ACT. SUBSEQUENTLY THE COMMISSION WAS ADVISED THAT THE INCIDENT HAD BEEN REPORTED TO THE POSTMASTER AT THE TIME OF ITS OCCURRENCE, BY A FELLOW EMPLOYEE. THE COMMISSION THEN ORDERED AN INVESTIGATION TO BE MADE BY ONE OF ITS FIELD REPRESENTATIVES TO OBTAIN ALL THE FACTS IN THE CASE. THE INVESTIGATION WAS MADE AND COMPLETE REPORT OF SAME WAS SUBMITTED TO THE COMMISSION.

THE REPORT SHOWED THAT A FALL WAS ACTUALLY RECEIVED ON A DAY IN DECEMBER, 1929, BY MR. SCHINDLER, AND STATEMENTS OF THE WITNESSES WERE OBTAINED. FURTHER APPEARED THAT MR. SCHINDLER HAD NOT LOST ANY PAY BECAUSE OF HIS DISABILITY UNTIL MAY 12, 1931, ALTHOUGH HE HAD BEEN COMPLAINING OF TROUBLE WITH HIS BACK FOR SOME MONTHS PREVIOUS. THE FIRST MEDICAL EXPENSE FOR TREATMENT WAS INCURRED AT THIS SAME TIME. EXTRACTS FROM THE REPORT OF THE INVESTIGATION IN REGARD TO THE REPORTING OF THE INJURY AND ACTUAL KNOWLEDGE ON THE PART OF THE IMMEDIATE SUPERIOR ARE TRANSMITTED HEREWITH.

THE VETERANS' ADMINISTRATION HAS ADVISED THAT ON AUGUST 21, 1931, MR. SCHINDLER FILED CLAIM FOR THE BENEFITS OF THE RETIREMENT ACT BECAUSE OF AGE, AND THAT ON OCTOBER 20, 1931, THE VETERANS' ADMINISTRATION ISSUED CERTIFICATE OF ANNUITY BECAUSE OF AGE, EFFECTIVE AUGUST 1, 1931, AT THE RATE OF $100.00 PER MONTH. IT APPEARS THAT MR. SCHINDLER HAD REACHED THE AGE OF 65 IN DECEMBER, 1929, AND THAT HE WAS WORKING UNDER AN EXTENSION GRANTED FOR A PERIOD NOT TO EXCEED TWO YEARS. MR. SCHINDLER WAS PAID RETIREMENT ANNUITY UNTIL THE DATE OF HIS DEATH WHICH OCCURRED JANUARY 22, 1932.

UNDER DATE OF FEBRUARY 16, 1932, MRS. HARRIET V. SCHINDLER FILED CLAIM AS WIDOW FOR THE BENEFITS OF THE COMPENSATION ACT, CLAIMING THAT THE DEATH OF HER HUSBAND WAS DUE TO THE INJURY SUSTAINED BY HIM IN DECEMBER, 1929. CERTIFIED COPY OF THE DEATH CERTIFICATE ACCOMPANIED THE CLAIM, SHOWING THE DIRECT CAUSE OF DEATH AS "FALL ON CEMENT PAVEMENT CAUSING FRACTURE OF COCCYX; CONTRIBUTORY, PARALYSIS OF BLADDER, PARALYSIS OF LOWER BOWEL, AND PARALYSIS OF LEGS.' THE COMMISSION ALSO OBTAINED STATEMENTS FROM THE ATTENDING PHYSICIAN AND FOUR OTHER PHYSICIANS WHO EXAMINED AND TREATED MR. SCHINDLER AS CONSULTANTS. THE COMMISSION'S MEDICAL OFFICER, ON REVIEW OF THE RECORD, WAS OF THE OPINION THAT THE BENEFIT OF DOUBT FROM THE MEDICAL STANDPOINT SHOULD BE EXTENDED IN FAVOR OF THE CASE. THE COMMISSION IN ITS DECISION HELD THAT THE POSTMASTER HAD SUFFICIENT KNOWLEDGE OF THE INJURY TO CONSTITUTE COMPLIANCE WITH SECTION 17 OF THE ACT, AND THAT DEATH WAS DUE TO THE INJURY WHICH WAS SUSTAINED BY THE EMPLOYEE IN DECEMBER, 1929, WHILE IN THE PERFORMANCE OF DUTY. AN AWARD TO THE WIDOW WAS ACCORDINGLY MADE.

THE FOLLOWING QUESTIONS ARISE IN CONNECTION WITH THIS CLAIM: 1. DOES THE FACT THAT THE DECEASED EMPLOYEE WAS RECEIVING RETIREMENT ANNUITY AT THE TIME OF THIS DEATH AFFECT THE RIGHT OF THE WIDOW TO MAKE CLAIM FOR COMPENSATION UNDER THE ACT OF SEPTEMBER 7, 1916; AND 2. UNDER THE FACTS STATED, DOES THE CLAIM AS MADE COMPLY WITH THE PROVISIONS OF SECTION 17 OF THE COMPENSATION ACT, WHICH READS AS FOLLOWS:

"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.'

THE ACT OF SEPTEMBER 7, 1916, 39 STAT. 744, 746, AND 747, IN SO FAR AS HERE MATERIAL PROVIDES:

SEC. 10. THAT IF DEATH RESULTS FROM THE INJURY WITHIN SIX YEARS THE UNITED STATES SHALL PAY TO THE FOLLOWING PERSONS FOR THE FOLLOWING PERIODS A MONTHLY COMPENSATION EQUAL TO THE FOLLOWING PERCENTAGES OF THE DECEASED EMPLOYEE'S MONTHLY PAY, SUBJECT TO THE MODIFICATION THAT NO COMPENSATION SHALL BE PAID 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:

(A) TO THE WIDOW, IF THERE IS NO CHILD, THIRTY-FIVE PERCENTUM. THIS COMPENSATION SHALL BE PAID UNTIL HER DEATH OR MARRIAGE.

SEC. 15. THAT EVERY EMPLOYEE INJURED IN THE PERFORMANCE OF HIS DUTY, OR SOME ONE ON HIS BEHALF, SHALL, WITHIN FORTY-EIGHT HOURS AFTER THE INJURY, GIVE WRITTEN NOTICE THEREOF TO THE IMMEDIATE SUPERIOR OF THE EMPLOYEE. SUCH NOTICE SHALL BE GIVEN BY DELIVERING IT PERSONALLY OR BY DEPOSITING IT PROPERLY STAMPED AND ADDRESSED IN THE MAIL.

SEC. 16. THAT THE NOTICE SHALL STATE THE NAME AND ADDRESS OF THE EMPLOYEE, THE YEAR, MONTH, DAY, AND HOUR WHEN AND THE PARTICULAR LOCALITY WHERE THE INJURY OCCURRED, AND THE CAUSE AND NATURE OF THE INJURY, AND SHALL BE SIGNED BY AND CONTAIN THE ADDRESS OF THE PERSON GIVING THE NOTICE.

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.

SECTION 37 OF SAID ACT, AS AMENDED BY THE ACT OF JUNE 5, 1924, 43 STAT. 389, PROVIDES:

SEC. 37. THAT IF THE ORIGINAL CLAIM FOR COMPENSATION HAS BEEN MADE WITHIN THE TIME SPECIFIED IN SECTION 20, THE COMMISSION MAY, AT ANY TIME, ON ITS OWN MOTION OR ON APPLICATION, REVIEW THE AWARD, AND, IN ACCORDANCE WITH THE FACTS FOUND ON SUCH REVIEW, MAY END, DIMINISH, OR INCREASE THE COMPENSATION PREVIOUSLY AWARDED, OR, IF COMPENSATION HAS BEEN REFUSED OR DISCONTINUED, AWARD COMPENSATION. IN THE ABSENCE OF FRAUD OR MISTAKE IN MATHEMATICAL CALCULATION, THE FINDING OF FACTS IN, AND THE DECISION OF THE COMMISSION UPON, THE MERITS OF ANY CLAIM PRESENTED UNDER OR AUTHORIZED BY THIS ACT IF SUPPORTED BY COMPETENT EVIDENCE SHALL NOT BE SUBJECT TO REVIEW BY ANY OTHER ADMINISTRATIVE OR ACCOUNTING OFFICER, EMPLOYEE, OR AGENT OF THE UNITED STATES. * * *

THERE WERE FORWARDED WITH YOUR LETTER WHAT PURPORT TO BE EXTRACTS FROM THE REPORT OF AN INVESTIGATION FROM WHICH IT WOULD APPEAR THAT AT THE TIME OF MR. SCHINDLER'S FALL THE FACT OF THE FALL WAS DULY BROUGHT TO THE NOTICE OF HIS SUPERIOR OFFICER THROUGH A MR. HAMLIN, ANOTHER CARRIER, WHO WAS PRESIDENT OF THE CARRIER'S UNION, BUT IT WAS STATED THEREIN:

* * * THE FIRST ACTUAL NOTICE OF ACCIDENT AND INJURY TO DECEASED EMPLOYEE HEREIN WAS WHEN THE POSTMASTER AND THE ASSISTANT POSTMASTER, MR. KELLOGG, CALLED UPON THE CLAIMANT IN THE HOSPITAL ABOUT SEPTEMBER 10, 1931, AT WHICH TIME THE CLAIMANT TOLD HIM OF THE FALL ON THE RAMP IN THE FALL OF 1929. * * *

AND FURTHER THAT:

* * * NO NOTICE WAS GIVEN BY MR. HAMLIN TO THE POSTMASTER OF ANY ACCIDENT OR INJURY TO MR. SCHINDLER.

THE FIRST ACTUAL NOTICE THE POSTMASTER HAD OF THE FALL WAS THE CLAIMANT'S LETTER OF SEPTEMBER 10, 1931, WHEN HE WAS VISITED AT THE HOSPITAL. THAT TIME HE TOLD THEM ABOUT THE FALL AND DR. GREEN'S EXAMINATION WHICH RESULTED IN HIS FINDING A FRACTURED COCCYX CAUSED BY THE FALL. * * *

THE NOTICE REQUIRED BY SECTIONS 15, 16, AND 17 OF THE COMPENSATION ACT WITHIN 48 HOURS, OR UNDER EXTENUATING CIRCUMSTANCES, WITHIN ONE YEAR AFTER THE INJURY, IS NOTICE OF THE "INJURY.' THE RECORD FAILS TO SHOW ANY NOTICE OF THE INJURY GIVEN THE DECEASED EMPLOYEE'S SUPERIOR OFFICER WITHIN THE TIME REQUIRED BY THE STATUTE. UNLESS, THEREFORE, SOME EVIDENCE WAS PRESENTED TO THE COMMISSION OTHER THAN THAT INCORPORATED IN THE EXTRACT FROM THE REPORT, IT IS NOT UNDERSTOOD HOW THE COMMISSION COULD HAVE MADE A FINDING THAT NOTICE OF THE INJURY WAS IN FACT GIVEN TO THE EMPLOYEE'S SUPERIOR OFFICER WITHIN ONE YEAR FROM THE DATE OF INJURY. SECTION 37 OF THE STATUTE AS AMENDED MAKES THE FINDING OF THE COMMISSION FINAL ONLY WHEN SUPPORTED BY "COMPETENT EVIDENCE," AND THE "EXTRACTS FROM REPORT OF INVESTIGATION" TRANSMITTED WITH YOUR SUBMISSION DO NOT CONSTITUTE COMPETENT EVIDENCE.

ASIDE FROM THE CASE OF THE NOTICE OF THE INJURY, HOWEVER, PAYMENT OF THE AWARD TO THE WIDOW DOES NOT APPEAR TO BE AUTHORIZED FOR THE FOLLOWING REASONS: UNDER SECTION 10, DEATH BENEFITS ARE NOT PAYABLE WHEN DEATH OCCURS MORE THAN ONE YEAR AFTER INJURY IF NO DISABILITY INTERVENES. DISABILITY COMPENSATION IS NOT PAYABLE UNLESS NOTICE OF THE INJURY AND CLAIM FOR SUCH BENEFITS ARE FILED WITHIN ONE YEAR. IN THE PRESENT CASE NEITHER DISABILITY NOR DEATH OCCURRED WITHIN ONE YEAR FROM THE DATE OF THE FALL NOR WAS ANY CLAIM FILED WITHIN THE ONE-YEAR PERIOD. THEREFORE, ALL RIGHTS OF THE EMPLOYEE UNDER THE EMPLOYEES' COMPENSATION ACT TERMINATED AT THE END OF ONE YEAR FROM THE DATE OF THE FALL AND COULD NOT BE REVIVED BY DISABILITY OR DEATH THEREAFTER OCCURRING.

PAYMENT TO THE WIDOW OF THE DECEASED EMPLOYEE ON THE COMPENSATION ROLL TRANSMITTED WITH YOUR SUBMISSION IS NOT AUTHORIZED.