A-53889, APRIL 4, 1934, 13 COMP. GEN. 260

A-53889: Apr 4, 1934

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DUAL PAYMENT OF EMPLOYEE'S DISABILITY COMPENSATION AND DISABILITY RETIREMENT ANNUITY A FORMER CIVILIAN EMPLOYEE OF THE GOVERNMENT WHO RECEIVED A LUMP-SUM AWARD OF DISABILITY COMPENSATION ON THE BASIS OF LIFE EXPECTANCY UNDER THE TERMS OF THE EMPLOYEES' COMPENSATION ACT IS PROHIBITED FROM RECEIVING DISABILITY RETIREMENT ANNUITY UNDER THE TERMS OF THE CIVIL RETIREMENT ACT. IS CONCERNED. THE QUESTION IS SUBMITTED TO YOUR OFFICE FOR DECISION. THE FACTS ARE AS FOLLOWS: THE APPELLANT FIRST ENTERED THE GOVERNMENT SERVICE ON FEBRUARY 15. HE WAS REEMPLOYED ON APRIL 24. PHYSICAL EXAMINATION REPORT REVEALS THAT THE APPLICANT IS AND HAS BEEN TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE SINCE AUGUST 19.

A-53889, APRIL 4, 1934, 13 COMP. GEN. 260

DUAL PAYMENT OF EMPLOYEE'S DISABILITY COMPENSATION AND DISABILITY RETIREMENT ANNUITY A FORMER CIVILIAN EMPLOYEE OF THE GOVERNMENT WHO RECEIVED A LUMP-SUM AWARD OF DISABILITY COMPENSATION ON THE BASIS OF LIFE EXPECTANCY UNDER THE TERMS OF THE EMPLOYEES' COMPENSATION ACT IS PROHIBITED FROM RECEIVING DISABILITY RETIREMENT ANNUITY UNDER THE TERMS OF THE CIVIL RETIREMENT ACT.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, APRIL 4, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 14, 1934, AS FOLLOWS:

A QUESTION HAS BEEN RAISED WITHIN THIS ADMINISTRATION RESPECTING THE RIGHT OF A CLAIMANT TO BENEFITS UNDER THE UNITED STATES CIVIL SERVICE RETIREMENT ACT, AS AMENDED, IN A CASE WHEREIN THE CLAIMANT ALREADY HAD ACCEPTED A LUMP-SUM SETTLEMENT, IN A MATERIAL AMOUNT, IN DISCHARGE OF THE LIABILITY OF THE UNITED STATES AS COMPENSATION TO HIM AS PROVIDED BY SECTION 14 OF THE UNITED STATES EMPLOYEES COMPENSATION ACT OF SEPTEMBER 7, 1916. IN VIEW OF SOME DOUBT RESPECTING THE LEGAL STATUS OF THE CLAIM, AND PARTICULARLY BECAUSE ANOTHER AGENCY OF THE GOVERNMENT, THE UNITED STATES EMPLOYEES COMPENSATION COMMISSION, IS CONCERNED, AS WELL AS THIS ADMINISTRATION, THE QUESTION IS SUBMITTED TO YOUR OFFICE FOR DECISION.

THE FACTS ARE AS FOLLOWS: THE APPELLANT FIRST ENTERED THE GOVERNMENT SERVICE ON FEBRUARY 15, 1910, AND SERVED CONTINUOUSLY UNTIL SEPTEMBER 8, 1920. HE WAS REEMPLOYED ON APRIL 24, 1925, SERVING CONTINUOUSLY IN DIFFERENT BRANCHES OF THE GOVERNMENT UP TO THE PRESENT, HIS LAST EMPLOYMENT BEING IN THE CAPACITY OF CLERK STENOGRAPHER AND TYPIST, LABOR DEPARTMENT. HIS ACTIVE SERVICE TERMINATED AUGUST 19, 1933.

HE FILED CLAIM FOR RETIREMENT ALLEGING TOTAL DISABILITY FOR USEFUL AND EFFICIENT SERVICE ON AUGUST 24, 1933. PHYSICAL EXAMINATION REPORT REVEALS THAT THE APPLICANT IS AND HAS BEEN TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE SINCE AUGUST 19, 1933, BY REASON OF EPILEPSY, GRAND AL; CHORODITIS, SEVERE, BILATERAL; MYOPIA ASTIGMATISM, RIGHT; MYOPIA, LEFT; PRESBYOPIA.

A REPORT FROM THE U.S. EMPLOYEES COMPENSATION COMMISSION REVEALS THAT MR. ROY R. HEAVRIN WAS INJURED ABOUT OCTOBER 24, 1918, WHILE EMPLOYED AS A STENOGRAPHER IN THE SURGEON GENERAL'S OFFICE, WASHINGTON, D.C., AND THAT HE WAS PAID COMPENSATION UNDER THE U.S. EMPLOYEES COMPENSATION ACT OF SEPTEMBER 7, 1916, AS FOLLOWS:

TABLE

RATE PAID PERIOD:

PER MONTH

OCT. 23, 1919, TO JUNE 30, 1920 ------------------------ $15.56

JULY 1 TO 31, 1920 ------------------------------------- 47.93

AUG. 1 TO OCT. 31, 1920 -------------------------------- 66.68

THE RECORDS FURTHER SHOW THAT MR. HEAVRIN WAS PAID A LUMP-SUM SETTLEMENT IN THE SUM OF $7,159.56 ON NOVEMBER 1, 1920. THIS REPRESENTS FIFTY PERCENT DISABILITY COMPENSATION AT THE RATE OF $33.34 PER MONTH LESS FOUR PERCENTUM TRUE DISCOUNT COMPOUNDED ANNUALLY, IN ACCORDANCE WITH SECTION 14 OF THE COMPENSATION ACT OF SEPTEMBER 7, 1916.

IN ADDITION TO THE FOREGOING IT IS ALSO POINTED OUT THAT THE LUMP SUM SETTLEMENT UNDER THE UNITED STATES EMPLOYEES COMPENSATION ACT WAS BASED ON LIFE EXPECTANCY AND ACCORDINGLY THE DIRECTOR OF INSURANCE UNDER WHOSE JURISDICTION LIES ORIGINAL DETERMINATION OF CLAIMS OF THIS NATURE DENIED THE CLAIM ON THE GROUND THAT THE CLAIMANT FOLLOWING THE ACCEPTANCE OF THE LUMP-SUM SETTLEMENT UNDER THE EMPLOYEES COMPENSATION ACT MUST BE CONSIDERED AS BEING IN RECEIPT OF COMPENSATION BENEFITS FOR THE REMAINDER OF HIS LIFE, WHEREAS EXISTING LAW PROHIBITS CONCURRENT PAYMENTS UNDER THE EMPLOYEES COMPENSATION ACT AND THE CIVIL SERVICE RETIREMENT ACT COVERING THE SAME PERIOD OF TIME.

SECTION 7 OF THE UNITED STATES EMPLOYEES COMPENSATION ACT OF SEPTEMBER 7, 1916, PROVIDES:

"THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER THIS ACT, OR IF HE HAS BEEN PAID A LUMP-SUM 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.'

SECTION 6 OF THE UNITED STATES CIVIL SERVICE RETIREMENT ACT, AS AMENDED, PROVIDES:

"NO PERSON SHALL BE ENTITLED TO RECEIVE AN ANNUITY UNDER THE PROVISIONS OF THIS ACT, AND COMPENSATION UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 7, 1916, ENTITLED "AN ACT TO PROVIDE COMPENSATION FOR EMPLOYEES OF THE UNITED STATES SUFFERING INJURIES WHILE IN THE PERFORMANCE OF THEIR DUTIES, AND FOR OTHER PURPOSES," COVERING THE SAME PERIOD OF TIME; BUT THIS PROVISION SHALL NOT BE SO CONSTRUED AS TO BAR THE RIGHT OF ANY CLAIMANT TO THE GREATER BENEFIT CONFERRED BY EITHER ACT FOR ANY PART OF THE SAME PERIOD OF TIME.'

ADVICE IS REQUESTED RESPECTING THE RIGHTS OF THIS CLAIMANT TO ANNUITY UNDER THE UNITED STATES CIVIL SERVICE RETIREMENT LAW, AS AMENDED. SHOULD IT BE FOUND THAT THE APPLICANT IN THIS CASE IS ENTITLED TO RECEIVE BENEFITS UNDER THE RETIREMENT LAW IT IS REQUESTED THAT ADVICE BE RENDERED WHETHER ANNUITY PAYMENTS MAY BE MADE CURRENTLY, THAT IS, FROM SEPTEMBER 1, 1933, AND IF SO, IN WHAT AMOUNT, OR WHETHER IT IS NECESSARY BEFORE ANY PAYMENTS OF ANNUITY BE MADE THAT THE ACCRUED ANNUITY PAYMENTS EQUAL IN VALUE THE LUMP-SUM AWARD.

BOTH SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, AND SECTION 6 OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED BY THE ACT OF MAY 29, 1930, 46 STAT. 474, QUOTED IN YOUR LETTER, PROHIBIT THE RECEIPT OF EMPLOYEES' DISABILITY COMPENSATION AND CIVIL RETIREMENT ANNUITY BY THE SAME PERSON FOR THE SAME PERIOD OF TIME, AND THE FIRST MENTIONED STATUTE SPECIFICALLY EXTENDS THIS PROHIBITION AGAINST DUAL PAYMENTS TO AN EMPLOYEE WHO "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," WHICH IN THIS CASE IS REPORTED TO BE FOR LIFE.

THE LUMP-SUM AWARD UNDER THE PROVISIONS OF SECTION 14 OF THE EMPLOYEES' COMPENSATION ACT FIXED A STATUS AS BENEFICIARY UNDER THE ACT FOR LIFE. THAT IS TO SAY, THE SAID LUMP SUM PAYMENT, WHICH WAS MADE OVER 13 YEARS AGO, COMPLETELY DISCHARGED THE LIABILITY OF THE GOVERNMENT UNDER THE ACT OF 1916. THE AMOUNT OF SAID PAYMENT WAS BASED ON A DETERMINATION OF THE THEN PRESENT VALUE, AT A DISCOUNT RATE OF 4 PERCENT COMPOUNDED ANNUALLY, OF THE TOTAL AMOUNT WHICH WOULD HAVE BEEN PAID IN MONTHLY INSTALLMENTS FOR THE PERIOD OF LIFE EXPECTANCY. WHEN SUCH A LUMP-SUM PAYMENT HAS BEEN MADE THERE EXISTS NO ACCURATE OR EVEN REASONABLE BASIS, AFTER A NUMBER OF YEARS --- IN THIS CASE OVER 13 YEARS--- FOR A DETERMINATION AS TO THE VALUE AT THE PRESENT TIME OF THAT PORTION OF THE LUMP-SUM AWARD MADE IN 1920 WHICH CAN BE SAID TO BE APPLICABLE TO THE PERIOD FROM NOW TO THE END OF THE EMPLOYEE'S LIFE. HENCE, THERE CAN BE NO PROPER BASIS FOR AN ELECTION TO RECEIVE THE GREATER BENEFIT PURSUANT TO SECTION 6 OF THE LATTER STATUTE. IN OTHER WORDS, THE EMPLOYEE HAVING ACTUALLY RECEIVED YEARS AGO THE FULL BENEFIT FOR THE REST OF HIS LIFE UNDER THE ONE ACT, HE CANNOT NOW ELECT TO SURRENDER SOME PART THEREOF AND RECEIVE THE BENEFITS OF THE OTHER ACT INSTEAD.

ATTENTION IS INVITED ALSO TO SECTION 4 OF THE EMPLOYEE'S COMPENSATION ACT, 39 STAT. 743, WHICH PROVIDES:

THAT IF THE DISABILITY IS PARTIAL THE UNITED STATES SHALL PAY TO THE DISABLED EMPLOYEE DURING SUCH DISABILITY A MONTHLY COMPENSATION EQUAL TO SIXTY-SIX AND TWO-THIRDS PERCENTUM OF THE DIFFERENCE BETWEEN HIS MONTHLY PAY AND HIS MONTHLY WAGE-EARNING CAPACITY AFTER THE BEGINNING OF SUCH PARTIAL DISABILITY. THE COMMISSION MAY, FROM TIME TO TIME, REQUIRE A PARTIALLY DISABLED EMPLOYEE TO MAKE AN AFFIDAVIT AS TO THE WAGES WHICH HE IS THEN RECEIVING. IN SUCH AFFIDAVIT THE EMPLOYEE SHALL INCLUDE A STATEMENT OF THE VALUE OF HOUSING, BOARD, LODGING, AND OTHER ADVANTAGES WHICH ARE RECEIVED FROM THE EMPLOYER AS A PART OF HIS REMUNERATION AND WHICH CAN BE ESTIMATED IN MONEY. IF THE EMPLOYEE, WHEN REQUIRED, FAILS TO MAKE SUCH AFFIDAVIT, HE SHALL NOT BE ENTITLED TO ANY COMPENSATION WHILE SUCH FAILURE CONTINUES, AND THE PERIOD OF SUCH FAILURE SHALL BE DEDUCTED FROM THE PERIOD DURING WHICH COMPENSATION IS PAYABLE TO HIM.

THE PROVISIONS OF THIS SECTION RELATIVE TO ADJUSTMENT OF MONTHLY DISABILITY COMPENSATION PAYMENTS ON THE BASIS OF THE EMPLOYEE'S INCREASED OR REDUCED WAGE EARNING CAPACITY STILL FURTHER DEMONSTRATE THE IMPOSSIBILITY OF PLACING AN EMPLOYEE WHO HAD RECEIVED A LUMP SUM SETTLEMENT SEVERAL YEARS PREVIOUS IN THE SAME POSITION HE WOULD HAVE BEEN IN IF HE HAD RECEIVED ONLY THE MONTHLY PAYMENTS TO WHICH ENTITLED WHEN AND AS THEY ACCRUED. CONSEQUENTLY IT MUST BE HELD THAT A LUMP SUM AWARD WHICH PRECLUDES THE EMPLOYEES' COMPENSATION COMMISSION FROM MAKING LATER ADJUSTMENTS IN THE RATE OF DISABILITY COMPENSATION OF A PARTIALLY DISABLED EMPLOYEE REGARDLESS OF THE RATE OF COMPENSATION RECEIVED DURING SUBSEQUENT ACTIVE SERVICE IS A COMPLETE ACQUITTANCE UNDER THE ACT AND PRECLUDES ANY LATER ADJUSTMENT OR VALUATION OF A PORTION OF SUCH AWARD AS A BASIS FOR ANY ELECTION TO RECEIVE ANOTHER BENEFIT INSTEAD.

I HAVE TO ADVISE, THEREFORE, THAT THE ACTION OF THE DIRECTOR OF INSURANCE OF THE VETERANS' ADMINISTRATION IN DISALLOWING THE CLAIM FOR RETIREMENT ANNUITY WAS CORRECT.