A-54173, APRIL 3, 1934, 13 COMP. GEN. 258

A-54173: Apr 3, 1934

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DUAL PAYMENT OF EMPLOYEE'S COMPENSATION AND DISABILITY RETIREMENT PAYMENT OF DEATH COMPENSATION TO A WIDOW ON ACCOUNT OF HER HUSBAND UNDER THE TERMS OF THE EMPLOYEES' COMPENSATION ACT AND DISABILITY RETIREMENT ANNUITY ON HER OWN ACCOUNT UNDER THE TERMS OF THE CIVIL SERVICE RETIREMENT ACT FOR THE SAME PERIOD OF TIME IS PROHIBITED. DURING THE TIME SHE IS RECEIVING COMPENSATION UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7. THE FACTS ARE THESE: MRS. THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION HAS ADVISED THE ADMINISTRATION THAT THE CLAIMANT IS RECEIVING COMPENSATION AS THE WIDOW OF JOHN J. COMPENSATION ON ACCOUNT OF DISABILITY IS PAYABLE ONLY TO THOSE EMPLOYEES WHO SUFFERED THE DISABILITY.

A-54173, APRIL 3, 1934, 13 COMP. GEN. 258

DUAL PAYMENT OF EMPLOYEE'S COMPENSATION AND DISABILITY RETIREMENT PAYMENT OF DEATH COMPENSATION TO A WIDOW ON ACCOUNT OF HER HUSBAND UNDER THE TERMS OF THE EMPLOYEES' COMPENSATION ACT AND DISABILITY RETIREMENT ANNUITY ON HER OWN ACCOUNT UNDER THE TERMS OF THE CIVIL SERVICE RETIREMENT ACT FOR THE SAME PERIOD OF TIME IS PROHIBITED.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, APRIL 3, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 3, 1934, AS FOLLOWS:

THERE HAS BEEN PRESENTED THE QUESTION WHETHER MRS. MARY A. MCKENNA MAY BE PAID AN ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 22, 1920, AS AMENDED, HEREINAFTER REFERRED TO AS THE RETIREMENT ACT, DURING THE TIME SHE IS RECEIVING COMPENSATION UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, AS AMENDED, HEREINAFTER REFERRED TO AS THE COMPENSATION ACT.

THE FACTS ARE THESE: MRS. MARY A. MCKENNA (R-58806) EMPLOYED AS A JUNIOR BLUEPRINT AND PHOTOSTAT OPERATOR, BOSTON NAVY YARD, NAVY DEPARTMENT, HAS FILED A CLAIM FOR AN ANNUITY UNDER THE PROVISIONS OF THE RETIREMENT ACT, SUPRA, AND HAS BEEN FOUND TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE. THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION HAS ADVISED THE ADMINISTRATION THAT THE CLAIMANT IS RECEIVING COMPENSATION AS THE WIDOW OF JOHN J. MCKENNA, A FORMER SHIP FITTER, BOSTON NAVY YARD, UNDER SECTION 10 OF THE COMPENSATION ACT, AS AMENDED, SUPRA.

PROVISION HAS BEEN MADE, UNDER THE COMPENSATION ACT, FOR THE PAYMENT OF COMPENSATION ON ACCOUNT OF THE DISABILITY OR DEATH OF AN EMPLOYEE. COMPENSATION ON ACCOUNT OF DISABILITY IS PAYABLE ONLY TO THOSE EMPLOYEES WHO SUFFERED THE DISABILITY, AND THIS MAY BE PROPERLY TERMED "DISABILITY COMPENSATION.' COMPENSATION ON ACCOUNT OF THE DEATH OF AN EMPLOYEE IS PAYABLE TO A LARGE CLASS OF DEPENDENTS OF AN EMPLOYEE, INCLUDING THE WIDOW, AND THE COMPENSATION PAYABLE TO THIS CLASS OF PERSONS MAY BE PROPERLY TERMED "DEATH COMPENSATION" (TITLE 5 U.S.C. 790). IT HAS BEEN PROVIDED UNDER THE COMPENSATION ACT, AMONG OTHER THINGS, THAT DEATH COMPENSATION SHALL BE PAYABLE TO A WIDOW "UNTIL HER DEATH OR MARRIAGE.' THERE IS NO OTHER RESTRICTION IN THIS ACT UPON THE PAYMENT OF DEATH COMPENSATION TO THE WIDOW.

IF THE CLAIMANT IS BARRED FROM RECEIVING CONCURRENTLY, AN ANNUITY UNDER THE RETIREMENT ACT, AND DEATH COMPENSATION UNDER THE COMPENSATION ACT, THE BAR COMES UNDER SECTION 6 OF THE RETIREMENT ACT, WHICH READS, IN PART, AS FOLLOWS:

"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 OR FOR ANY PART OF THE SAME PERIOD OF TIME.'

THIS PROVISION WAS ORIGINALLY A PART OF SECTION 5 OF THE RETIREMENT ACT (PUBLIC NO. 215, 66TH CONGRESS). IT DOES NOT APPEAR TO HAVE BEEN CHANGED OR AMENDED AND REMAINS NOW AS ORIGINALLY ENACTED, EXCEPT THAT IT IS NOW A PART OF SECTION 6 OF THE RETIREMENT ACT, AS AMENDED.

IT HAS BEEN SUGGESTED THAT A WIDOW WHO IS RECEIVING DEATH COMPENSATION UNDER THE COMPENSATION ACT ON ACCOUNT OF THE DEATH OF HER HUSBAND DOES NOT FALL WITHIN THAT CLASS OF PERSONS REFERRED TO IN SECTION 6, SUPRA, OF THE RETIREMENT ACT; AND THAT CONGRESS DID NOT INTEND TO BAR HER UNDER THE LANGUAGE OF THAT SECTION, WHEN IT PROVIDED THAT "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, * * *.' THERE IS NO QUESTION BUT THAT CONGRESS INTENDED TO BAR THE PAYMENT OF DISABILITY COMPENSATION UNDER THE COMPENSATION ACT AND DISABILITY ANNUITY TO THE SAME EMPLOYEE COVERING THE SAME PERIOD OF TIME. BUT THERE IS SOME DOUBT IF THE CONGRESS INTENDED TO EXTEND THIS BAR TO THOSE WHO ARE ENTITLED TO DEATH COMPENSATION UNDER THE COMPENSATION ACT. IF THIS BAR DOES EXTEND TO THIS CLASS OF PERSONS IT WILL UNDOUBTEDLY WORK A HARDSHIP IN THOSE CASES WHERE A PERSON HAS, BY REASON OF HIS OR HER SERVICE AND DISABILITY BECOME ENTITLED TO AN ANNUITY UNDER THE RETIREMENT ACT. IT IS TRUE THAT THE PROVISION CREATING THE BAR GRANTS ANY CLAIMANT THE RIGHT TO ELECT THE GREATER BENEFIT CONFERRED BY THE ACTS FOR ANY PART OF THE SAME PERIOD OF TIME. BUT EVEN SO, THERE SEEMS TO BE NO SOUND REASON WHY AN ANNUITANT UNDER THE RETIREMENT ACT SHOULD BE DEPRIVED OF DEATH COMPENSATION AS A QUALIFIED DEPENDENT UNDER THE COMPENSATION ACT JUST WHEN SHE HAS REACHED THE POINT IN LIFE WHEN FINANCIAL HELP AND ASSISTANCE ARE MOST NECESSARY. BUT BEFORE TAKING ACTION IN THIS CASE, IT IS THOUGHT THAT SINCE THIS IS THE FIRST CASE OF THIS CHARACTER TO ARISE UNDER THE TWO ACTS OF CONGRESS IN QUESTION, YOUR DECISION SHOULD BE SOUGHT.

IN VIEW OF THE FOREGOING, IT IS REQUESTED THAT YOU ADVISE ME WHETHER THE CLAIMANT, MRS. MARY A. MCKENNA, MAY BE PAID AN ANNUITY UNDER THE RETIREMENT ACT, AT THE SAME TIME THAT SHE IS RECEIVING DEATH COMPENSATION UNDER THE COMPENSATION ACT FROM THE EMPLOYEES COMPENSATION COMMISSION, AS WIDOW OF A FORMER EMPLOYEE.

SECTION 10 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 744, PROVIDES, INSOFAR AS HERE MATERIAL, AS FOLLOWS:

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.

THIS PAYMENT IS SPECIFICALLY DESIGNATED "COMPENSATION," THE TERM USED IN SECTION 6 OF THE CIVIL RETIREMENT ACT PROHIBITING PAYMENT OF ANNUITY AND "COMPENSATION" UNDER THE PROVISIONS OF THE EMPLOYEES' COMPENSATION ACT DURING THE SAME PERIOD OF TIME. THERE IS NO REASONABLE BASIS FOR MAKING THE DISTINCTION SUGGESTED BETWEEN DISABILITY AND DEATH COMPENSATION PAYMENTS UNDER THE EMPLOYEES' COMPENSATION ACT. THE EQUITIES ADVANCED WOULD APPEAR SUBSTANTIALLY THE SAME WHETHER THE APPLICANT FOR A RETIREMENT ANNUITY IS DRAWING DISABILITY OR DEATH COMPENSATION, BUT, IN ANY EVENT, THE SUPPOSED EQUITIES ALONE MAY NOT BE CONTROLLING, AND EFFECT MUST BE GIVEN TO THE PLAIN TERMS OF SECTION 6 OF THE CIVIL RETIREMENT ACT, SUPRA, WHICH HAS FOR ITS PURPOSE THE PROHIBITION OF DUAL PAYMENTS OF MONETARY BENEFITS UNDER THE TWO STATUTES.