A-45640, NOVEMBER 25, 1932, 12 COMP. GEN. 454

A-45640: Nov 25, 1932

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IS TO BE DETERMINED BY THE REGULAR RATE OF HIS COMPENSATION WITHOUT REGARD TO DEDUCTIONS REQUIRED BY THE ECONOMY ACT. THE EMPLOYEES' COMPENSATION COMMISSION NEED NOT CONCERN ITSELF WITH THE QUESTION WHETHER SAID THREE WAITING DAYS ARE TO BE REGARDED AS LEGISLATIVE FURLOUGH. AS FOLLOWS: YOUR DECISION IS REQUESTED ON CERTAIN QUESTIONS ARISING IN CONNECTION WITH THE PAYMENT BY THIS COMMISSION OF COMPENSATION FOR DISABILITY CAUSED BY INJURIES TO CIVIL EMPLOYEES OF THE UNITED STATES IN THE PERFORMANCE OF DUTY. USE SUCH LEAVE UNTIL IT IS EXHAUSTED. THAT THIS VIEW IS CORRECT SEEMS CLEAR FROM THE FOLLOWING CONSIDERATIONS: 1. MAY EXTEND INTO LATER YEARS AND HENCE SHOULD BE BASED EQUITABLY ON THE INJURED EMPLOYEE'S PERMANENT RATE OF PAY WITHOUT REGARD TO THE REDUCTIONS WHICH ARE EXPRESSLY DESCRIBED IN THE ECONOMY ACT (SEC. 205) AS TEMPORARY. 3.

A-45640, NOVEMBER 25, 1932, 12 COMP. GEN. 454

ECONOMY ACT - EMPLOYEES' DISABILITY COMPENSATION THE MONTHLY RATE OF PAY OF AN EMPLOYEE INJURED DURING THE CURRENT FISCAL YEAR, FOR THE PURPOSE OF COMPUTING DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT, AS AMENDED, IS TO BE DETERMINED BY THE REGULAR RATE OF HIS COMPENSATION WITHOUT REGARD TO DEDUCTIONS REQUIRED BY THE ECONOMY ACT. IF A BENEFICIARY UNDER THE EMPLOYEES' COMPENSATION ACT HAS HAD DISABILITY COMPENSATION WITHHELD FOR THE THREE WAITING DAYS AFTER ALL SICK LEAVE HAS BEEN EXHAUSTED DURING THE CURRENT FISCAL YEAR, AS REQUIRED BY SECTION 8 OF THE EMPLOYEES' COMPENSATION ACT, THE EMPLOYEES' COMPENSATION COMMISSION NEED NOT CONCERN ITSELF WITH THE QUESTION WHETHER SAID THREE WAITING DAYS ARE TO BE REGARDED AS LEGISLATIVE FURLOUGH, LEAVE WITHOUT PAY, OR OTHERWISE.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, NOVEMBER 25, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF NOVEMBER 3, 1932, AS FOLLOWS:

YOUR DECISION IS REQUESTED ON CERTAIN QUESTIONS ARISING IN CONNECTION WITH THE PAYMENT BY THIS COMMISSION OF COMPENSATION FOR DISABILITY CAUSED BY INJURIES TO CIVIL EMPLOYEES OF THE UNITED STATES IN THE PERFORMANCE OF DUTY, AS AFFECTED BY THE PROVISIONS OF THE ECONOMY ACT.

THE ACT OF SEPTEMBER 7, 1916, AS AMENDED (39 STAT. 746; PUBLIC NO. 267--- SIXTY-FOURTH CONGRESS) PROVIDES IN SECTION 3 FOR COMPENSATION DURING TOTAL DISABILITY EQUAL TO 66 2/3 PERCENTUM OF A DISABLED EMPLOYEE'S MONTHLY PAY, AND IN SECTION 4 FOR COMPENSATION DURING PARTIAL DISABILITY EQUAL TO 66 2/3 PERCENTUM OF THE DIFFERENCE BETWEEN HIS MONTHLY PAY AND HIS MONTHLY WAGE-EARNING CAPACITY, SUBJECT IN BOTH CASES TO CERTAIN LIMITATIONS FIXED IN SECTION 6 AND ELSEWHERE. SECTION 2 PROVIDES THAT NO COMPENSATION SHALL BE PAID FOR THE FIRST THREE DAYS OF DISABILITY, AND SECTION 8 PROVIDES AS FOLLOWS:

"THAT IF AT THE TIME THE DISABILITY BEGINS THE EMPLOYEE HAS ANNUAL OR SICK LEAVE TO HIS CREDIT HE MAY, SUBJECT TO THE APPROVAL OF THE HEAD OF THE DEPARTMENT, USE SUCH LEAVE UNTIL IT IS EXHAUSTED, IN WHICH CASE HIS COMPENSATION SHALL BEGIN ON THE FOURTH DAY OF DISABILITY AFTER THE ANNUAL OR SICK LEAVE HAS CEASED.'

SECTION 40 PROVIDES THAT THE TERM "MONTHLY PAY" SHALL BE TAKEN TO REFER TO THE MONTHLY PAY AT THE TIME OF THE INJURY.

IN THE CASE OF EMPLOYEES INJURED ON OR AFTER JULY 1, 1932, THE COMMISSION HAS CONSIDERED THAT THEIR DISABILITY COMPENSATION SHOULD BE BASED ON THE REGULAR RATES OF PAY FOR THEIR POSITIONS, WITHOUT REGARD TO THE DEDUCTIONS REQUIRED TO BE MADE DURING THE CURRENT FISCAL YEAR BY THE TERMS OF THE ACT OF JUNE 30, 1932, PUBLIC NO. 212. THAT THIS VIEW IS CORRECT SEEMS CLEAR FROM THE FOLLOWING CONSIDERATIONS:

1. THE DEDUCTIONS REQUIRED BY THE ECONOMY ACT DO NOT BY THE TERMS OF THE ACT CONSTITUTE A REDUCTION IN THE RATES OF PAY, BUT TAKE THE FORM OF TEMPORARY SUBTRACTIONS ON ACCOUNT OF EITHER FURLOUGH OR CURTAILMENT OF WEEKLY WORKING TIME.

2. BENEFITS OF THE COMPENSATION ACT, ON ACCOUNT OF AN INJURY OCCURRING DURING THE CURRENT FISCAL YEAR, MAY EXTEND INTO LATER YEARS AND HENCE SHOULD BE BASED EQUITABLY ON THE INJURED EMPLOYEE'S PERMANENT RATE OF PAY WITHOUT REGARD TO THE REDUCTIONS WHICH ARE EXPRESSLY DESCRIBED IN THE ECONOMY ACT (SEC. 205) AS TEMPORARY.

3. THE INTENTION OF THE ECONOMY ACT THAT EMPLOYEES' RATES OF PAY SHOULD NOT BE CONSIDERED AS ALTERED BY ITS PROVISIONS IS CLEARLY INDICATED IN SECTION 205, PROVIDING THAT THE RATES UPON RETIREMENT BENEFITS ARE BASED SHALL NOT BE REDUCED, AND THAT RETIREMENT DEDUCTION SHALL BE BASED ON THE "REGULAR" RATE OF PAY,"INSTEAD OF ON THE RATE AS TEMPORARILY REDUCED UNDER THE PROVISIONS OF THIS ACT.'

THE COMMISSION HAS TAKEN THE VIEW THAT SECTION 8 OF THE COMPENSATION ACT, QUOTED ABOVE, IS IN NO WAY NULLIFIED OR REPEALED BY THE ECONOMY ACT AND THEREFORE STILL REQUIRES THE PAYMENT OF COMPENSATION TO A DISABLED EMPLOYEE, WHOSE CLAIM ON ACCOUNT OF INJURY HAS BEEN APPROVED, BEGINNING WITH THE FOURTH DAY OF ABSENCE WITHOUT PAY, AND THAT ANY QUESTION WHETHER SUCH ABSENCE SHOULD BE COUNTED AS PART OF THE FURLOUGH OF 24 WORKING DAYS REQUIRED BY THE ECONOMY ACT, OR SHOULD BE CHARGED AS ADDITIONAL LEAVE WITHOUT PAY, MUST REMAIN FOR THE DECISION OF THE ESTABLISHMENT IN WHICH HE IS EMPLOYED. THERE APPEARS TO BE NOTHING IN THE ECONOMY ACT WHICH WOULD WARRANT THE COMMISION IN WITHHOLDING COMPENSATION FROM SUCH AN EMPLOYEE AFTER THE THIRD DAY OF ABSENCE WITHOUT PAY, EVEN THOUGH THE LOSS OF PAY ON THE DAYS IN QUESTION IS A PART OF THE LOSS THAT THE ACT REQUIRES THE EMPLOYEE TO SUFFER DURING THE CURRENT FISCAL YEAR. IF THIS POSITION IS CORRECT, HOWEVER, THE FURTHER QUESTION ARISES WHETHER A PERIOD OF ABSENCE ON ACCOUNT OF WHICH DEDUCTIONS HAVE ALREADY BEEN MADE FOR PREVIOUS PAY PERIODS, UNDER YOUR DECISION OF JULY 8, 1932 (A-43276), IS A PERIOD OF ABSENCE WITHOUT PAY, REQUIRING TO BE COUNTED IN DETERMINING THE THREE ,WAITING DAYS" STIPULATED IN THE COMPENSATION ACT, OR REQUIRING PAYMENT OF DISABILITY COMPENSATION FROM THE FOURTH DAY. DURING SUCH A PERIOD COVERED BY PREVIOUSLY ACCUMULATED DEDUCTIONS, NO DEDUCTION IS MADE FROM THE EMPLOYEE'S CURRENT PAY, EXCEPT THE REGULAR DEDUCTION OF 1 1/4 DAYS' PAY EACH HALF MONTH. TO JUSTIFY AN AWARD OF COMPENSATION FOR SUCH A FURLOUGH PERIOD THE COMMISSION WOULD BE OBLIGED TO ASSUME THAT THE PREVIOUS DEDUCTIONS WERE MADE ON ACCOUNT OF THE LATER ABSENCES IN QUESTION, AND THAT THE AMOUNT RECEIVED BY THE EMPLOYEE, THOUGH NOMINALLY PAID FOR THE PERIOD OF ABSENCE, WAS ACTUALLY PAID FOR SERVICES PREVIOUSLY PERFORMED.

THE COMMISSION DOES NOT DEEM IT WISE TO ACT ON SUCH AN ASSUMPTION WITHOUT YOUR ASSENT. ON THE OTHER HAND, THE COMMISSION DOES NOT FEEL THAT IT MAY PROPERLY DENY COMPENSATION DURING PERIODS OF ABSENCE WITHOUT PAY ON ACCOUNT OF LEGISLATIVE FURLOUGH, UNLESS IT SHOULD BE HELD THAT THE EFFECT OF SECTION 8 OF THE COMPENSATION ACT IS IN SOME WAY MODIFIED BY THE TERMS OF THE ECONOMY ACT. IT IS TRUE THAT UNDER THE ECONOMY ACT AN ANNUAL EMPLOYEE IS BOUND TO LOSE ONE-TWELFTH OF HIS PAY IN THE COURSE OF THE FISCAL YEAR, WHETHER INJURED OR NOT, AND HENCE IT MAY BE ARGUED THAT AN ABSENCE CAUSED BY INJURY AND CHARGED TO LEGISLATIVE FURLOUGH DOES NOT INVOLVE ANY LOSS OF PAY. BUT AN INJURED EMPLOYEE IS DEPRIVED BY HIS DISABILITY OF OPPORTUNITIES FOR EARNING OUTSIDE OF THE GOVERNMENT SERVICE DURING FURLOUGH, AND IN CASE OF SEPARATION FROM THE SERVICE DURING THE FISCAL YEAR HE MAY HAVE LOST MORE PAY, ON ACCOUNT OF ABSENCE DUE TO INJURY AND CHARGED TO FURLOUGH, THAN HE WOULD HAVE LOST IF HE HAD NOT BEEN INJURED. IT HAS APPEARED TO THE COMMISSION, IN VIEW OF THE BENEFICIAL CHARACTER OF THE ACT OF SEPTEMBER 7, 1916, THAT ITS BENEFITS MAY NOT BE CONSIDERED AS ANNULLED OR SUSPENDED BY THE ECONOMY ACT IN THE ABSENCE OF ANY EXPRESS PROVISION TO THAT EFFECT.

PENDING YOUR DECISION THE COMMISSION IS PROCEEDING ON THE ASSUMPTION THAT THE THREE "WAITING DAYS" AND DISABILITY COMPENSATION MAY RUN CONCURRENTLY WITH LEGISLATIVE FURLOUGH FOR WHICH DEDUCTIONS ARE MADE CURRENTLY FROM AN EMPLOYEE'S PAY, BUT NOT WITH LEGISLATIVE FURLOUGH FOR WHICH THE EMPLOYEE RECEIVES HIS USUAL PAY BECAUSE OF PREVIOUSLY ACCUMULATED DEDUCTIONS. THIS PROCEDURE MAKES IT NECESSARY IN MOST CASES TO OBTAIN ADDITIONAL REPORTS FROM THE OFFICIAL SUPERIORS OF INJURED PER ANNUM EMPLOYEES, BEFORE THEIR COMPENSATION CAN BE COMPUTED. IT SHOULD BE OBSERVED HERE THAT NOTICE IS SENT TO THE OFFICIAL SUPERIORS OF ALL COMPENSATION PAYMENTS, SHOWING THE PERIODS FOR WHICH PAYMENT IS MADE.

IN THE CASE OF REGULAR PER DIEM EMPLOYEES THE COMMISSION'S PRESENT PROCEDURE IS TO TAKE THE DAILY RATE OF PAY FOR A SIX-DAY WEEK (WITHOUT THE DEDUCTION OF ONE-ELEVENTH OF A WEEK'S PAY) AS THE BASIS FOR COMPUTING COMPENSATION, AND TO PAY COMPENSATION FOR SIX DAYS A WEEK DURING DISABILITY, BEGINNING WITH THE FOURTH DAY OF PAY LOSS. IF IT SHOULD BE HELD THAT COMPENSATION IS NOT PAYABLE DURING LEGISLATIVE FURLOUGH IN THE CASE OF PER ANNUM EMPLOYEES, A STRICT ANALOGY, APPLIED TO THE CASE OF PER DIEM EMPLOYEES, WOULD REQUIRE PAYMENT OF COMPENSATION FOR ONLY LOSES SIX- ELEVENTHS OF A DAY'S PAY FOR EACH WEEK BY OPERATION OF THE ECONOMY ACT. MORE PRACTICABLE METHOD IS SUGGESTED IN CONNECTION WITH QUESTION NO. 5 BELOW.

IN THE LIGHT OF THE FOREGOING EXPLANATIONS, THE FOLLOWING SPECIFIC QUESTIONS ARE PRESENTED:

1. IN THE CASE OF AN EMPLOYEE WHO IS INJURED DURING THE CURRENT FISCAL YEAR, IS HIS MONTHLY RATE OF PAY, FOR THE PURPOSE OF COMPUTING DISABILITY COMPENSATION UNDER THE ACT OF SEPTEMBER 7, 1916, AS AMENDED, TO BE DETERMINED BY THE RATE OF PAY OF HIS POSITION WITHOUT REGARD TO DEDUCTIONS REQUIRED BY THE ECONOMY ACT? IF NOT, WHAT RATE SHOULD BE USED FOR (A) EMPLOYEES PAID ON AN ANNUAL BASIS AND (B) EMPLOYEES PAID ON AN HOURLY OR DAILY BASIS?

2. IN THE CASE OF AN EMPLOYEE PAID ON AN ANNUAL BASIS, IS DISABILITY COMPENSATION PAYABLE DURING ANY PART OF THE FURLOUGH OF 24 WORKING DAYS REQUIRED BY THE ECONOMY ACT?

3. IF THE ANSWER TO QUESTION 2 IS AFFIRMATIVE, IS DISABILITY COMPENSATION PAYABLE DURING A FURLOUGH ON ACCOUNT OF WHICH DEDUCTIONS HAVE ALREADY BEEN MADE IN ONE OR MORE PREVIOUS PAY ERIODS?

4. WHETHER THE ANSWER TO QUESTION 2 IS AFFIRMATIVE OR NEGATIVE, MAY THE FIRST THREE DAYS OF ABSENCE WITHOUT PAY, REQUIRED BY THE COMPENSATION ACT BEFORE DISABILITY COMPENSATION BEGINS, BE CONSIDERED AS RUNNING CONCURRENTLY WITH ANY PERIOD OF LEGISLATIVE FURLOUGH? IF SO, DOES THIS INCLUDE FURLOUGH DAYS ON ACCOUNT OF WHICH DEDUCTIONS HAVE BEEN MADE IN PREVIOUS PAY PERIODS?

5. IF YOU ANSWER QUESTION 1 IN THE AFFIRMATIVE BUT QUESTION 2 IN THE NEGATIVE, WHAT IS THE PROPER METHOD OF COMPUTING DISABILITY COMPENSATION FOR A REGULAR PER DIEM EMPLOYEE WHOSE WEEKLY PAY HAS BEEN TEMPORARILY REDUCED ONE-ELEVENTH? IT WOULD BE DIFFICULT OR IMPRACTICABLE TO PAY HIM COMPENSATION FOR FIVE AND SIX-ELEVENTHS DAYS PER WEEK, WHICH WOULD BE THE PROCEDURE CORRESPONDING TO THE ELIMINATION OF LEGISLATIVE FURLOUGH FROM COMPENSATION PERIODS FOR ANNUAL EMPLOYEES. WOULD THE REQUIREMENTS OF LAW BE SATISFIED BY CONSIDERING THE PAY LOSS TEN-ELEVENTHS OF THE BASIC RATE OF PAY FOR EACH DAY OF DISABILITY, INCLUDING SATURDAYS? IN THAT CASE THE COMPENSATION FOR TOTAL DISABILITY (SUBJECT TO THE MAXIMUM AND MINIMUM LIMITATIONS OF THE COMPENSATION ACT) WOULD BE TWO-THIRDS OF TEN ELEVENTHS OF THE BASIC RATE OF PAY, SIX DAYS A WEEK. APPROVAL OF THIS METHOD IS SUGGESTED IF COMPENSATION IS HELD NOT TO BE PAYABLE DURING LEGISLATIVE FURLOUGH OF ANNUAL EMPLOYEES.

THE BENEFITS PROVIDED BY THE EMPLOYEES' COMPENSATION ACT, AS AMENDED, DO NOT CONSTITUTE ,COMPENSATION" AS DEFINED IN SECTION 104 OF THE ECONOMY ACT, NOR HAVE THEY BEEN ANNULLED OR SUSPENDED BY THE ECONOMY ACT. THE MEASURE FOR COMPUTING DISABILITY COMPENSATION IS FIXED IN SECTION 3 OF THE ORIGINAL EMPLOYEES' COMPENSATION ACT AS A "MONTHLY COMPENSATION EQUAL TO SIXTY-SIX AND TWO-THIRDS PER CENTUM OF HIS MONTHLY PAY," SUBJECT TO THE MAXIMUM LIMITATION OF $116.66 AND THE MINIMUM LIMITATION OF $58.33 PER MONTH, UNLESS THE MONTHLY PAY IS LESS THAN $58.33, IN WHICH CASE, THE DISABILITY COMPENSATION IS THE FULL AMOUNT OF THE MONTHLY PAY, AS FIXED IN SECTION 6 OF THE EMPLOYEES' COMPENSATION ACT, AS AMENDED BY THE ACT OF FEBRUARY 12, 1927, 44 STAT. 1086. UNDER SECTION 40 OF THE EMPLOYEES' COMPENSATION ACT, AS AMENDED BY THE ACT OF JUNE 5, 1924, 43 STAT. 389, THIS MEASURE IS REQUIRED TO BE COMPUTED AS OF THE TIME OF THE INJURY.

THE ECONOMY ACT PROVIDES FOR THREE METHODS OF TEMPORARILY DEDUCTING AND IMPOUNDING COMPENSATION DURING THE FISCAL YEAR 1933, VIZ, 5-DAY WEEK, LEGISLATIVE FURLOUGH, AND 8 1/3 PERCENT REDUCTION IN COMPENSATION. CLEARLY, NEITHER THE 5-DAY WEEK NOR THE LEGISLATIVE FURLOUGH PLAN MENTIONED IN YOUR SUBMISSION REDUCES THE REGULAR RATE OF THE "MONTHLY PAY" WITHIN THE MEANING OF SECTION 3 OF THE EMPLOYEES' COMPENSATION ACT ON THE BASIS OF WHICH THE RATE OF DISABILITY COMPENSATION IS TO BE COMPUTED. IS TO BE NOTED, ALSO, THAT SECTION 205 OF THE ECONOMY ACT REQUIRES RETIREMENT BENEFITS AND COMPENSATION DEDUCTIONS THEREFOR TO BE BASED ON THE REGULAR RATE OF COMPENSATION INSTEAD OF THE RATE AS TEMPORARILY REDUCED UNDER THE PROVISIONS OF THE ECONOMY ACT. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

SECTION 8 OF THE ORIGINAL EMPLOYEES' COMPENSATION ACT, PROVIDES AS FOLLOWS:

THAT IF AT THE TIME THE DISABILITY BEGINS THE EMPLOYEE HAS ANNUAL OR SICK LEAVE TO HIS CREDIT HE MAY, SUBJECT TO THE APPROVAL OF THE HEAD OF THE DEPARTMENT, USE SUCH LEAVE UNTIL IT IS EXHAUSTED, IN WHICH CASE HIS COMPENSATION SHALL BEGIN ON THE FOURTH DAY OF DISABILITY AFTER THE ANNUAL OR SICK LEAVE HAS CEASED.

DURING THE FISCAL YEAR 1933, THE RIGHT TO RECEIVE ANNUAL LEAVE WITH PAY HAS BEEN SUSPENDED BY SECTION 103 OF THE ECONOMY ACT. THEREFORE, NO "ANNUAL" LEAVE COULD BE TO THE CREDIT OF AN EMPLOYEE DURING THE CURRENT FISCAL YEAR, AND IT IS ONLY SICK LEAVE THAT IS FOR CONSIDERATION IN APPLYING SECTION 8 OF THE EMPLOYEES' COMPENSATION ACT. LEGISLATIVE FURLOUGH WITHOUT PAY UNDER SECTION 101 (B) OF THE ECONOMY ACT, IS NOT TO BE REGARDED OR CONSIDERED AS "ANNUAL OR SICK LEAVE" WITHIN THE MEANING OF SAID SECTION 8 OF THE EMPLOYEES' COMPENSATION ACT. THE COMMISSION MAY LEAVE ENTIRELY TO THE ADMINISTRATIVE OFFICE THE MATTER OF LEGISLATIVE FURLOUGH DURING THE THREE ,WAITING DAYS" AFTER ALL SICK LEAVE WITH PAY HAS BEEN EXHAUSTED.

REFERRING TO QUESTIONS 2, 3, AND 4, THERE WOULD SEEM TO BE NO ACTION BY THE COMMISSION REQUIRED OR AUTHORIZED DURING PERIOD OF LEGISLATIVE FURLOUGH PRIOR TO THE TIME THE EMPLOYEE IS SEPARATED FROM THE ACTIVE ROLL AND PLACED ON THE DISABILITY COMPENSATION ROLL, OTHER THAN THE NECESSITY TO WAIT THREE DAYS AFTER SICK LEAVE HAS CEASED. REFERRING TO QUESTION 4, THEREFORE, IF THE EMPLOYEE HAS HAD DISABILITY COMPENSATION WITHHELD FOR THE THREE WAITING DAYS, THE COMMISSION NEED NOT CONCERN ITSELF WITH THE QUESTION WHETHER SAID THREE WAITING DAYS ARE TO BE REGARDED AS LEGISLATIVE FURLOUGH, LEAVE WITHOUT PAY, OR OTHERWISE. IN VIEW OF THE ABOVE, IT WOULD APPEAR UNNECESSARY TO ANSWER YOUR 5TH QUESTION.