A-51101, SEPTEMBER 26, 1933, 13 COMP. GEN. 86

A-51101: Sep 26, 1933

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WHERE SUCH AN EMPLOYEE RESIGNED OR WAS DROPPED FROM THE ROLLS. REGINA ESHLEMAN WAS APPOINTED AS GRADUATE NURSE AT THE TUBERCULOSIS HOSPITAL. AT WHICH TIME SHE WAS EXAMINED AND FOUND TO HAVE PULMONARY TUBERCULOSIS AND WAS COMPELLED TO LEAVE HER WORK TO TAKE THE TREATMENT RECOMMENDED. A CLAIM FOR COMPENSATION FOR DISABILITY WAS APPROVED BY THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION. SHE WAS GRANTED MONTHLY PAYMENTS. BASED ON THE SALARY SHE WAS RECEIVING AT THAT TIME. THIS EMPLOYEE WAS PAID ON THE REGULAR ROLL OF THE TUBERCULOSIS HOSPITAL UNTIL APRIL 11. WHEN THE FOLLOWING COMMISSIONER'S ORDERS WAS ISSUED: "THAT THE RESIGNATION OF REGINA ESHLEMAN (BU. 25-7-16. IS HEREBY ACCEPTED.

A-51101, SEPTEMBER 26, 1933, 13 COMP. GEN. 86

COMPENSATION - REINSTATEMENT OF BENEFICIARY OF EMPLOYEES' COMPENSATION ACT AN EMPLOYEE OF THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENTS HAS NO VESTED RIGHT TO REEMPLOYMENT IN ACTIVE SERVICE, EITHER IN THE SAME OR DIFFERENT POSITION, OR AT THE SAME OR DIFFERENT SALARY RATE, AFTER RECOVERING FROM A DISABILITY FOR WHICH COMPENSATION HAS BEEN PAID UNDER THE EMPLOYMENT COMPENSATION ACT; BUT WHERE SUCH AN EMPLOYEE RESIGNED OR WAS DROPPED FROM THE ROLLS, THE FIXING OF THE INITIAL SALARY RATE UPON REEMPLOYMENT WITHIN ADMINISTRATIVE DISCRETION SHOULD BE IN ACCORDANCE WITH THE RATES APPLICABLE TO REINSTATEMENTS.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, SEPTEMBER 26, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 16, 1933, AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA REQUEST YOUR DECISION AS TO THE QUESTION HEREINAFTER PRESENTED.

REGINA ESHLEMAN WAS APPOINTED AS GRADUATE NURSE AT THE TUBERCULOSIS HOSPITAL, UNDER THE BOARD OF PUBLIC WELFARE, ON DECEMBER 8, 1921. SHE WORKED CONTINUOUSLY IN THIS POSITION AT THE HOSPITAL ON WARD DUTY UNTIL FEBRUARY 13, 1931, AT WHICH TIME SHE WAS EXAMINED AND FOUND TO HAVE PULMONARY TUBERCULOSIS AND WAS COMPELLED TO LEAVE HER WORK TO TAKE THE TREATMENT RECOMMENDED.

A CLAIM FOR COMPENSATION FOR DISABILITY WAS APPROVED BY THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION; AND SHE WAS GRANTED MONTHLY PAYMENTS, BASED ON THE SALARY SHE WAS RECEIVING AT THAT TIME, AND ALL MEDICAL EXPENSES, FROM APRIL 15, 1931, TO JULY 31, 1933, UNDER THE ACT OF CONGRESS APPROVED JULY 11, 1919 (41 STAT. 104), EXTENDING TO DISTRICT GOVERNMENT EMPLOYEES THE BENEFITS OF THE ACT OF CONGRESS APPROVED SEPTEMBER 7, 1916 (39 STAT. 742).

THIS EMPLOYEE WAS PAID ON THE REGULAR ROLL OF THE TUBERCULOSIS HOSPITAL UNTIL APRIL 11, 1931, WHEN THE FOLLOWING COMMISSIONER'S ORDERS WAS ISSUED:

"THAT THE RESIGNATION OF REGINA ESHLEMAN (BU. 25-7-16; SP-4), GRADUATE NURSE AT $1,740 LESS $300 MAINTENANCE PER ANNUM, ON ACCOUNT OF DISABILITY, IS HEREBY ACCEPTED, TO TAKE EFFECT FROM AND AFTER APRIL 11, 1931.'

THERE IS ONLY A LIMITED NUMBER OF ANNUAL POSITIONS AT THE HOSPITAL; AND IT IS ABSOLUTELY NECESSARY, IN ORDER TO CARE FOR THE PATIENTS, THAT EACH AND EVERY SUCH POSITION BE FILLED AT ALL TIMES. THE ABOVE ORDER WAS HE DESIRED TO HAVE THE POSITION OFFICIALLY VACANT SO THAT HE COULD RECOMMEND THE APPOINTMENT OF A NEW INCUMBENT TO IT.

THE POSITION VACATED BY MRS. ESHLEMAN (BU. 25-7-16; SP-4) WAS FILLED ON MAY 5, 1931, BY THE APPOINTMENT OF HARRIET BLISS. SHE RESIGNED, AND THE POSITION IS NOW OCCUPIED BY HELEN P. KLINE. EMPLOYEES' COMPENSATION ROLL UNTIL JULY 31, 1933, AT WHICH TIME SHE WAS CERTIFIED BY PUBLIC HEALTH PHYSICIANS AS HAVING SUFFICIENTLY RECOVERED TO RETURN TO HER DUTIES AT THE HOSPITAL. ACCORDINGLY, ON JULY 28, 1933, THE FOLLOWING COMMISSIONERS' ORDER WAS ISSUED:

"THAT MRS. REGINA ESHLEMAN IS HEREBY REINSTATED IN THE SERVICE OF THE TUBERCULOSIS HOSPITAL, EFFECTIVE ON AND AFTER AUGUST 1, 1933, AS NURSE (BU. 25-7-16; SP-4) AT $1,620 LESS $300 FOR MAINTENANCE PER ANNUM, VICE FLORENCE G. COOMBS, RESIGNED. MRS. ESHLEMAN WAS SEPARATED FROM THE SERVICE ON FEBRUARY 13, 1931, BECAUSE OF PHYSICAL DISABILITY, AND CARRIED ON EMPLOYEES' COMPENSATION COMMISSION'S ROLL.

"THE FILLING OF THIS VACANCY WAS AUTHORIZED BY THE PRESIDENT OF THE UNITED STATES ON JOURNAL NO. 12, DATED JULY 12, 1933, DISTRICT OF COLUMBIA VACANCY NO. 1065.'

IT WILL BE NOTED THAT THIS EMPLOYEE WAS REINSTATED AT $1,620 PER ANNUM LESS $300 FOR MAINTENANCE, WHILE UP TO APRIL 11, 1931, SHE RECEIVED $1,740 PER ANNUM LESS $300 FOR MAINTENANCE. THE JUSTIFICATION SUBMITTED TO THE BUDGET BUREAU FOR FILLING THE VACANT POSITION, RESULTING FROM THE RESIGNATION OF FLORENCE G. COOMBS, STATED THE SALARY AT $1,620 LESS $300 PER ANNUM.

MRS. ESHLEMAN IS OF THE OPINION THAT SHE IS ENTITLED TO BE PAID AT $1,740 LESS $300 PER ANNUM ON THE THEORY THAT SHE WAS A CONTINUOUS EMPLOYEE. REFERENCE IS MADE IN THIS CONNECTION TO DECISION OF THE COMPTROLLER OF THE TREASURY (26 COMP. DEC. 764), READING IN PART AS FOLLOWS: EMPLOYEES SUFFERING INJURIES WHILE IN THE PERFORMANCE OF THEIR DUTIES. AN EMPLOYEE WHO IS INJURED IN THE PERFORMANCE OF HIS DUTIES AND IS PAID COMPENSATION UNDER THE ACT OF SEPTEMBER 7, 1916, CONTINUES TO BE AN EMPLOYEE OF THE UNITED STATES. HE RECEIVES COMPENSATION ON ACCOUNT OF HIS INJURY INSTEAD OF FOR SERVICES RENDERED, AS IN THE CASE OF AN EMPLOYEE WHO IS ENGAGED IN THE PERFORMANCE OF THE DUTIES CALLED FOR BY THE TERMS OF HIS EMPLOYMENT.

"SINCE HIS STATUS OF EMPLOYEE CONTINUES DURING THE PERIOD WHEN HIS COMPENSATION IS ON ACCOUNT OF INJURY, SUCH AN EMPLOYEE IS ENTITLED TO ALL THE RIGHTS CONFERRED BY LAW ON EMPLOYEES OF THE UNITED STATES NOT INCONSISTENT WITH ANY PROVISION OF THE ACT OF SEPTEMBER 7, 1916 * * *.'

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA REQUEST A RULING AS TO WHETHER MRS. ESHLEMAN MAY BE REAPPOINTED AND PAID AT THE RATE OF $1,740 1933.

THERE IS NOTHING IN THE ORIGINAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, NOR ANY OF ITS AMENDMENTS, 43 STAT. 389 AND 1356 AND 44 STAT. 1087, NOR IN ANY OTHER STATUTE, VESTING IN AN EMPLOYEE OF THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENTS A VESTED RIGHT TO REEMPLOYMENT IN ACTIVE SERVICE, EITHER IN THE SAME OR DIFFERENT POSITION OR AT THE SAME OR DIFFERENT SALARY RATE, AFTER RECOVERING FROM A DISABILITY FOR WHICH COMPENSATION HAS BEEN PAID UNDER THE EMPLOYEES' COMPENSATION ACT. IT IS A PROPER ADMINISTRATIVE POLICY, OF COURSE, TO REEMPLOY PERSONNEL AFTER RECOVERY FROM A DISABILITY INCURRED IN THE SERVICE; BUT WHERE THE EMPLOYEE HAD RESIGNED OR BEEN DROPPED FROM THE ROLLS, SUCH ACTION IS TO BE REGARDED AS IN THE NATURE OF A REINSTATEMENT, AND THE RULES FOR FIXING INITIAL SALARY RATES UPON REINSTATEMENT SHOULD BE APPLIED. THUS, IN THE INSTANT CASE, IT WOULD HAVE BEEN LAWFUL TO HAVE REINSTATED MRS. ESHLEMAN AT $1,740 PER ANNUM, THE THIRD SALARY RATE OF GRADE SP-4, INSTEAD OF $1,620 PER ANNUM, THE MINIMUM SALARY RATE OF THE GRADE. 3 COMP. GEN. 1001, 1004, QUESTION AND ANSWER 6. HOWEVER, SUCH ACTION WAS WITHIN ADMINISTRATIVE DISCRETION, AND THE EMPLOYEE WAS NOT ENTITLED THERETO AS A MATTER OF RIGHT. SINCE THE EMPLOYEE WAS REINSTATED AT THE MINIMUM SALARY RATE OF THE GRADE WITH PRESIDENTIAL APPROVAL, AN INCREASE IN HER SALARY RATE TO $1,740 PER ANNUM WITHIN HER GRADE WOULD NOW BE PROHIBITED AS AN "ADMINISTRATIVE PROMOTION" UNDER SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515.

ACCORDINGLY, THE QUESTION OF YOUR CONCLUDING PARAGRAPH IS ANSWERED IN THE NEGATIVE.