A-43093, JULY 16, 1932, 12 COMP. GEN. 54

A-43093: Jul 16, 1932

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DISABILITY - PANAMA CANAL - EFFECTIVE DATE WHERE THERE IS PENDING AN APPLICATION FOR DISABILITY RETIREMENT UNDER EITHER SUBSECTION (A) OR (B) OF SECTION 4 OF THE PANAMA CANAL RETIREMENT ACT OF MARCH 2. NO ADMINISTRATIVE ACTION BY THE GOVERNOR OF THE PANAMA CANAL IS AUTHORIZED TO SEPARATE THE EMPLOYEE FROM THE SERVICE SOLELY BECAUSE OF THE DISABILITY OR TO PREVENT THE EMPLOYEE FROM RENDERING SERVICE UNTIL THE FINAL DECISION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS IS RENDERED. WHICH DECISION WILL FIX THE EFFECTIVE DATE OF THE RETIREMENT. AS FOLLOWS: I HAVE THE HONOR TO TRANSMIT FOR YOUR CONSIDERATION A COPY OF A LETTER ADDRESSED BY GOVERNOR H. THE DECISION REFERRED TO WAS RENDERED IN THE CASE OF MARY E.

A-43093, JULY 16, 1932, 12 COMP. GEN. 54

RETIREMENT, DISABILITY - PANAMA CANAL - EFFECTIVE DATE WHERE THERE IS PENDING AN APPLICATION FOR DISABILITY RETIREMENT UNDER EITHER SUBSECTION (A) OR (B) OF SECTION 4 OF THE PANAMA CANAL RETIREMENT ACT OF MARCH 2, 1931, 46 STAT. 1471, NO ADMINISTRATIVE ACTION BY THE GOVERNOR OF THE PANAMA CANAL IS AUTHORIZED TO SEPARATE THE EMPLOYEE FROM THE SERVICE SOLELY BECAUSE OF THE DISABILITY OR TO PREVENT THE EMPLOYEE FROM RENDERING SERVICE UNTIL THE FINAL DECISION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS IS RENDERED, WHICH DECISION WILL FIX THE EFFECTIVE DATE OF THE RETIREMENT, THE CHANGE FROM ACTIVE STATUS TO RETIREMENT STATUS FOR PAY PURPOSES TO BE CONTINUOUS IN SO FAR AS POSSIBLE AND IN ACCORDANCE WITH THE ACT OF APRIL 23, 1930, 46 STAT. 253, ESTABLISHING THE FIRST OF A MONTH AS A UNIFORM RETIREMENT DATE.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JULY 16, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JUNE 24, 1932, AS FOLLOWS:

I HAVE THE HONOR TO TRANSMIT FOR YOUR CONSIDERATION A COPY OF A LETTER ADDRESSED BY GOVERNOR H. BURGESS, OF THE PANAMA CANAL, TO THE CHIEF OF OFFICE, THE PANAMA CANAL, WASHINGTON, D.C., PRESENTING REASONS FOR HIS OPINION THAT A DECISION OF YOUR OFFICE DATED JULY 1, 1931, CONSTRUING SECTION 6 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, SHOULD NOT BE ACCEPTED AS BINDING AS TO RETIREMENT UNDER SECTION 4 OF THE CANAL ZONE RETIREMENT ACT APPROVED MARCH 2, 1931.

THE DECISION REFERRED TO WAS RENDERED IN THE CASE OF MARY E. WADE (11 COMP. GEN. 1), THE SYLLABUS OF WHICH IS AS FOLLOWS:

"WHEN THERE IS PENDING AN APPLICATION FOR DISABILITY RETIREMENT UNDER SECTION 6 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 472, NO ADMINISTRATIVE ACTION SHOULD BE TAKEN TO SEPARATE THE EMPLOYEE FROM THE SERVICE SOLELY BECAUSE OF DISABILITY OR TO PREVENT THE EMPLOYEE FROM RENDERING SERVICE, UNTIL THE FINAL DECISION OF THE BUREAU OF PENSIONS AND/OR THE ADMINISTRATOR OF VETERANS' AFFAIRS IS RENDERED, WHICH DECISION WILL FIX THE EFFECTIVE DATE OF THE RETIREMENT, THE CHANGE FROM ACTIVE STATUS TO RETIREMENT STATUS FOR PAY PURPOSES TO BE CONTINUOUS IN SO FAR AS POSSIBLE AND IN ACCORDANCE WITH THE ACT OF APRIL 23, 1930, 46 STAT. 253, ESTABLISHING THE FIRST OF A MONTH AS A UNIFORM RETIREMENT DATE.'

THE GOVERNOR INSISTS THAT IT WAS THE INTENT OF CONGRESS, AS EXPRESSED IN THE CANAL ZONE RETIREMENT ACT, THAT HE SHOULD BE THE FINAL AUTHORITY AS TO THE RETIREMENT DATE, SUBJECT ONLY TO EXAMINATION OF THE EMPLOYEE BY THE VETERANS' ADMINISTRATION, AND THAT AN ADOPTION OF THE HOLDING IN THE WADE CASE WOULD DEPRIVE HIM OF CERTAIN AUTHORITY GRANTED BY THE ACT.

SECTION 6 OF THE CIVIL SERVICE RETIREMENT ACT PROVIDES THAT A DISABLED EMPLOYEE UNDER CERTAIN CONDITIONS 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 * * *," AND SECTION 4 OF THE CANAL ZONE RETIREMENT ACT SAYS THAT UNDER CERTAIN CONDITIONS AN EMPLOYEE SHALL "* * * UPON THE REQUEST OR ORDER OF THE GOVERNOR OF THE PANAMA CANAL, BE RETIRED ON AN ANNUITY * * *.'

THE RETIREMENT OF AN EMPLOYEE UNDER EITHER SECTION IS SUBJECT TO A MEDICAL EXAMINATION BY THE VETERANS' ADMINISTRATION, AND IT IS BELIEVED THAT THE TWO SECTIONS ARE SUFFICIENTLY ANALOGOUS FOR THE PRACTICE ESTABLISHED BY REASON OF THE WADE DECISION (SUPRA) TO BE MADE APPLICABLE TO BOTH.

COPIES OF THE CONGRESSIONAL COMMITTEE HEARINGS AND REPORTS MENTIONED BY GOVERNOR BURGESS ARE ATTACHED HERETO, AND YOUR DECISION UPON THE QUESTION PRESENTED BY HIS LETTER IS RESPECTFULLY REQUESTED.

IN HIS LETTER DATED MARCH 14, 1932, THE GOVERNOR OF THE PANAMA CANAL STATES:

2. IT SEEMS TO ME THAT THERE IS A POINT IN CONNECTION WITH THIS SUBJECT WHICH HAS BEEN OVERLOOKED OR WHICH HAS NOT BEEN SUFFICIENTLY STRESSED. APPEARS TO ME THAT IT WAS THE CLEAR INTENTION IN THE CANAL ZONE RETIREMENT ACT THAT CERTAIN CLASSES OF DISABILITY CASES WERE TO BE FINALLY PASSED ON BY THE GOVERNOR OF THE PANAMA CANAL IN THE SENSE THAT THE DATE OF RETIREMENT AND TAKING OUT OF THE SERVICE OF CERTAIN CLASSES OF DISABILITY CASES IS LEFT ENTIRELY TO THE JUDGMENT OF THE GOVERNOR, LEAVING IN THE HANDS OF THE VETERANS' ADMINISTRATION, OF COURSE, SUCH DETAILS AS FIXING THE AMOUNT OF COMPENSATION AND ARRANGING FOR THE PENSION TO BE PAID.

3. IT WILL BE NOTED THAT IN SECTION 4 (A), MAKING PROVISION FOR RETIREMENT AT THE AGE OF 55 AFTER RENDERING 15 YEARS OF SERVICE ON THE ISTHMUS OF PANAMA, SUCH RETIREMENT IS TO BE UPON THE REQUEST OR ORDER OF THE GOVERNOR OF THE PANAMA CANAL WHERE THE SERVICE IS IN POSITIONS OF A STRENUOUS OR HAZARDOUS NATURE. THE INTENTION OF THIS SECTION WAS THAT THE GOVERNOR SHOULD HAVE AUTHORITY TO REMOVE EMPLOYEES FROM POSITIONS WHERE ADVANCING AGE INCAPACITATED THEM FOR THE PERFORMANCE OF EXACTING DUTIES WHERE ESPECIALLY ALERT MENTAL OR PHYSICAL QUALIFICATIONS ARE NECESSARY. THIS HAS REFERENCE TO SUCH POSITIONS AS PILOTS, LOCOMOTIVE OPERATORS AT THE LOCKS, OR OTHER SIMILAR POSITIONS WHERE IT OCCASIONALLY HAPPENS THAT AFTER PASSING THE AGE OF ABOUT 55 YEARS EMPLOYEES BECOME LESS MENTALLY ACTIVE AND ALERT, WHICH MIGHT RESULT IN SERIES DAMAGE TO THE CANAL OR LOSS OF PROPERTY AND LIFE.

4. LIKEWISE, IN SECTION 4 (B) PROVIDING FOR RETIREMENT AFTER 5 YEARS' SERVICE OF EMPLOYEES WHO BECOME TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE IN THE GRADE OR CLASS OF POSITION OCCUPIED BY THE EMPLOYEE, THERE ARE TWO METHODS OF RETIREMENT, ONE BEING UPON THE EMPLOYEE'S OWN APPLICATION AND THE OTHER UPON REQUEST OR ORDER OF THE GOVERNOR OF THE PANAMA CANAL. IT SEEMS TO ME THAT IN THESE CASES WHERE THE EMPLOYEE HIMSELF DOES NOT MAKE A CLAIM FOR RETIREMENT BUT IS ORDERED TO RETIRE BY THE GOVERNOR OF THE PANAMA CANAL UPON REACHING A STATE OF TOTAL DISABILITY THAT THE FINAL DECISION IS LEFT IN THE HANDS OF THE GOVERNOR AS TO THE DATE HE SHOULD BE RETIRED.

5. IT APPEARS TO ME THAT THE COMPTROLLER'S DECISION REFERRED TO BY THE VETERANS' ADMINISTRATION HAS NOT TAKEN THIS POINT INTO CONSIDERATION, AND THAT INASMUCH AS THE RULING WAS MADE ON THE GENERAL CIVIL RETIREMENT ACT AND NOT ON THE CANAL ZONE RETIREMENT ACT IT SHOULD NOT BE BINDING ON US AT LEAST UNTIL SUCH TIME AS A SPECIFIC RULING IS OBTAINED ON THE CANAL ZONE RETIREMENT ACT.

SECTION 4 OF THE PANAMA CANAL ACT OF MARCH 2, 1931, 46 STAT. 1471, 1472, PROVIDES IN PART AS FOLLOWS:

(A) ANY EMPLOYEE TO WHOM THIS ACT APPLIES WHO SHALL HAVE ATTAINED THE AGE OF FIFTY-FIVE YEARS AND SHALL HAVE RENDERED AT LEAST FIFTEEN YEARS OF SERVICE ON THE ISTHMUS OF PANAMA, AND WHO SHALL HAVE BECOME PHYSICALLY OR MENTALLY DISQUALIFIED TO PERFORM SATISFACTORILY AND EFFICIENTLY THE DUTIES OF HIS POSITION OR OF ANY OTHER POSITION OF APPROXIMATELY EQUAL COMPENSATION TO WHICH HE MIGHT BE ASSIGNED, BECAUSE OF THE STRENUOUS OR HAZARDOUS NATURE OF SUCH POSITION, SHALL, UPON THE REQUEST OR ORDER OF THE GOVERNOR OF THE PANAMA CANAL, BE RETIRED ON AN ANNUITY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6 HEREOF: PROVIDED, THAT NO SUCH EMPLOYEES SHALL BE SO RETIRED EXCEPT AFTER AN EXAMINATION AND FINDING AS TO HIS MENTAL OR PHYSICAL DISQUALIFICATIONS AS HEREINAFTER PROVIDED.

(B) ANY EMPLOYEE TO WHOM THIS ACT APPLIES WHO SHALL HAVE SERVED FOR A TOTAL PERIOD OF NOT LESS THAN FIVE YEARS, AND WHO, BEFORE BECOMING ELIGIBLE FOR RETIREMENT UNDER THE CONDITIONS DEFINED IN SECTION 2 HEREOF, SHALL HAVE BECOME 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 REQUEST OR ORDER OF THE GOVERNOR OF THE PANAMA CANAL, BE RETIRED ON AN ANNUITY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6 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 EMPLOYEE SHALL BE RETIRED UNDER THE PROVISIONS OF THIS SECTION UNLESS HE OR SHE SHALL HAVE BEEN EXAMINED BY A MEDICAL OFFICER OF THE UNITED STATES, OR A DULY QUALIFIED PHYSICIAN OR SURGEON OR BOARD OF PHYSICIANS OR SURGEONS, DESIGNATED BY THE COMMISSIONER OF PENSIONS FOR THAT PURPOSE, AND FOUND TO BE DISABLED IN THE DEGREE AND IN THE MANNER SPECIFIED HEREIN.

IN THE REMAINDER OF THE PROVISIONS OF SECTION 4 THE COMMISSIONER OF PENSIONS IS AUTHORIZED AND REQUIRED TO PROVIDE FOR ANNUAL MEDICAL EXAMINATIONS OF PERSONS RETIRED UNDER THE ACT AND IS AUTHORIZED TO ORDER OR DIRECT "AT ANY TIME SUCH MEDICAL OR OTHER EXAMINATION AS HE SHALL DEEM NECESSARY TO DETERMINE THE FACTS RELATIVE TO THE NATURE AND DEGREE OF DISABILITY OF AN EMPLOYEE RETIRED ON AN ANNUITY UNDER THIS SECTION.'

THESE AND OTHER PROVISIONS IMPOSING IN THE COMMISSIONER OF PENSIONS, OR HIS SUCCESSOR, THE ADMINISTRATOR OF VETERANS' AFFAIRS, THE DUTY AND RESPONSIBILITY OF DETERMINING FINALLY ELIGIBILITY OF EMPLOYEES FOR RETIREMENT ON ACCOUNT OF DISABILITY ARE PRACTICALLY IDENTICAL WITH THOSE APPEARING IN THE CIVIL RETIREMENT ACT, AS AMENDED BY THE ACT OF MAY 29, 1930, 46 STAT. 472, WHICH WAS INVOLVED IN THE DECISION OF JULY 1, 1931, THE SYLLABUS OF WHICH IS QUOTED IN YOUR SUBMISSION. THERE CAN BE NO DOUBT BUT THAT THE CONGRESS CLEARLY INTENDED THE FINAL AUTHORITY TO DETERMINE ELIGIBILITY FOR DISABILITY RETIREMENT TO BE IN THE ADMINISTRATOR OF VETERANS' AFFAIRS UNDER EITHER STATUTE. BOTH STATUTES AUTHORIZE APPLICATIONS FOR DISABILITY RETIREMENT (1) BY THE HEAD OF THE DEPARTMENT OR OFFICE CONCERNED, AND (2) BY THE EMPLOYEE. IN EITHER EVENT, THE PHYSICAL OR MENTAL CONDITION ON WHICH THE APPLICATION FOR RETIREMENT IS BASED IS FOR FINAL DETERMINATION BY THE VETERANS' ADMINISTRATION. UNQUESTIONABLY, SUBSECTION (A) OF SECTION 4 OF THE PANAMA CANAL RETIREMENT ACT, QUOTED ABOVE, CREATES A CONDITION ON WHICH THE GOVERNOR OF THE PANAMA CANAL, BUT NOT THE EMPLOYEE, MAY BASE APPLICATION TO RETIRE AN EMPLOYEE WHICH IS NOT FOUND IN THE CIVIL RETIREMENT ACT. NEVERTHELESS, FINAL DETERMINATION OF ELIGIBILITY FOR RETIREMENT, EVEN UNDER SAID SUBSECTION, IS WITH THE ADMINISTRATOR OF VETERANS' AFFAIRS. OF COURSE, IT IS EVIDENT THAT A LESS IMPAIRED PHYSICAL OR MENTAL CONDITION OF AN EMPLOYEE WOULD JUSTIFY RETIREMENT UNDER SUBSECTION (A) OF SECTION 4 OF THE PANAMA CANAL ACT THAN UNDER SUBSECTION (B) OF THE SAME ACT OR UNDER THE PROVISIONS OF THE CIVIL RETIREMENT ACT, AND SUCH DIFFERENCE SHOULD BE RECOGNIZED IN THE ADMINISTRATION OF THE STATUTES, BUT THAT CAN NOT OPERATE TO VEST IN THE GOVERNOR OF THE PANAMA CANAL THE AUTHORITY TO DETERMINE FINALLY THE TIME WHEN AN EMPLOYEE SHALL BE RETIRED.

THE CONGRESSIONAL HEARINGS AND COMMITTEE REPORTS TO WHICH THE GOVERNOR OF THE PANAMA CANAL REFERS DO NOT DISCUSS THE RESPECTIVE JURISDICTION OR AUTHORITY OF THE GOVERNOR OF THE PANAMA CANAL AND THE COMMISSIONER OF PENSIONS, OR HIS SUCCESSOR, THE ADMINISTRATOR OF VETERANS' AFFAIRS, BUT THERE WAS STRESSED THE IMPORTANCE OF THE PROVISION IN THE BILL WHICH IS NOW SUBSECTION (A) OF SECTION 4 OF THE PANAMA CANAL RETIREMENT ACT PERMITTING RETIREMENT UNDER THE CONDITIONS THEREIN PRESCRIBED.

YOU ARE ADVISED, THEREFORE, THAT THE PRINCIPLE STATED IN THE DECISION OF JULY 1, 1931, 11 COMP. GEN. 1, IS APPLICABLE TO ALL RETIREMENTS FOR DISABILITY UNDER THE PANAMA CANAL RETIREMENT ACT.