A-59052, DECEMBER 13, 1934, 14 COMP. GEN. 461

A-59052: Dec 13, 1934

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ACCORDINGLY NEITHER THE PERIOD DURING WHICH DISABILITY COMPENSATION IS PAID UNDER THE EMPLOYEES' COMPENSATION ACT. NOR THE PERIOD AN EMPLOYEE IS CARRIED ON THE ROLLS WITH A LEAVE-WITHOUT-PAY STATUS MAY BE COUNTED TOWARD RETIREMENT. WAS RETIRED UNDER THE PROVISIONS OF THE LIGHTHOUSE RETIREMENT ACT (SEC. 6. LEBAHN SUFFERED A BROKEN LEG IN THE LINE OF DUTY AS A RESULT OF WHICH HE WAS CARRIED ON THE ROLLS OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION UNTIL NOVEMBER 30. LEBAHN WAS ON LEAVE WITHOUT PAY. THE PERIOD DURING WHICH HE WAS RECEIVING COMPENSATION FROM THE EMPLOYEES' COMPENSATION COMMISSION BECAUSE OF HIS INJURY WAS NOT COUNTED. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THIS LATTER PERIOD SHOULD HAVE BEEN COUNTED IN FIXING HIS RETIREMENT PAY.

A-59052, DECEMBER 13, 1934, 14 COMP. GEN. 461

RETIREMENT - LIGHTHOUSE SERVICE - LONGEVITY LIMITED TO ACTIVE SERVICE IN COMPUTING LONGEVITY UNDER THE LIGHTHOUSE RETIREMENT ACT, SECTION 6 OF THE ACT OF JUNE 20, 1918, 40 STAT. 608, ONLY ACTIVE SERVICE MAY BE INCLUDED, AND ACCORDINGLY NEITHER THE PERIOD DURING WHICH DISABILITY COMPENSATION IS PAID UNDER THE EMPLOYEES' COMPENSATION ACT, NOR THE PERIOD AN EMPLOYEE IS CARRIED ON THE ROLLS WITH A LEAVE-WITHOUT-PAY STATUS MAY BE COUNTED TOWARD RETIREMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, DECEMBER 13, 1934:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF NOVEMBER 26, 1934, AS FOLLOWS:

ON MARCH 1, 1934, MR. ERNEST LEBAHN, A FORMER LIGHTHOUSE KEEPER IN THE 11TH LIGHTHOUSE DISTRICT, DETROIT, MICHIGAN, WAS RETIRED UNDER THE PROVISIONS OF THE LIGHTHOUSE RETIREMENT ACT (SEC. 6, ACT OF JUNE 20,1918, AS AMENDED, U.S.C. TITLE 33, SEC. 763), AT THE RATE OF PAY OF $306.43 PER ANNUM, HE HAVING ATTAINED THE AGE OF SEVENTY YEARS.

IT APPEARS THAT ON DECEMBER 8, 1924, MR. LEBAHN SUFFERED A BROKEN LEG IN THE LINE OF DUTY AS A RESULT OF WHICH HE WAS CARRIED ON THE ROLLS OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION UNTIL NOVEMBER 30, 1933, AT WHICH TIME THE COMMISSION REPORTED HIM AS HAVING NO FURTHER DISABILITY RESULTING FROM THE INJURY IN QUESTION. FROM THAT DATE UNTIL THE DATE OF HIS RETIREMENT MR. LEBAHN WAS ON LEAVE WITHOUT PAY.

IN COMPUTING MR. LEBAHN'S TOTAL SERVICE FOR FIXING HIS RATE OF PAY, THE PERIOD DURING WHICH HE WAS RECEIVING COMPENSATION FROM THE EMPLOYEES' COMPENSATION COMMISSION BECAUSE OF HIS INJURY WAS NOT COUNTED. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THIS LATTER PERIOD SHOULD HAVE BEEN COUNTED IN FIXING HIS RETIREMENT PAY.

THERE ACCOMPANIES YOUR LETTER THE FOLLOWING ADMINISTRATIVE MEMORANDUM DATED NOVEMBER 9, 1934, FROM THE BUREAU OF LIGHTHOUSES:

THE BUREAU HAS RECEIVED A LETTER FROM MR. ERNEST LEBAHN, A FORMER LIGHTHOUSE KEEPER IN THE 11TH DISTRICT, WHO WAS RETIRED BY THE DEPARTMENT BEGINNING MARCH 1, 1934, AT THE RATE OF $306.43 PER ANNUM. MR. LEBAHN WRITES IN REGARD TO THE AMOUNT OF HIS RETIRED PAY AND INQUIRES WHETHER IT WOULD NOT BE POSSIBLE TO INCREASE IT. HIS RETIREMENT WAS ON ACCOUNT OF HIS HAVING ATTAINED THE AGE OF 70, AND IN EXAMINING THE MATTER THE BUREAU NOTES THAT IN COMPUTING HIS TOTAL SERVICE THE PERIOD DURING WHICH HE WAS RECEIVING COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT ON ACCOUNT OF AN INJURY SUSTAINED IN LINE OF DUTY WAS NOT COUNTED IN TOTALING HIS LENGTH OF SERVICE. FROM A DECISION OF THE ASSISTANT COMPTROLLER OF THE UNITED STATES TREASURY QUOTED AT THE BOTTOM OF PAGE 39 OF THE CIVIL SERVICE ACT AND RULES AMENDED TO JULY 25, 1933, IT APPEARS THAT AN EMPLOYEE INJURED IN LINE OF DUTY AND RECEIVING COMPENSATION THEREFOR FROM THE EMPLOYEES' COMPENSATION COMMISSION CONTINUES IN THE STATUS OF AN EMPLOYEE DURING THE PERIOD HE RECEIVES SUCH COMPENSATION. IT THEREFORE APPEARS THAT THIS PERIOD IN MR. LEBAHN'S CASE IS PROPERLY INCLUDED IN TOTALING HIS SERVICE, AND IT IS THEREFORE RECOMMENDED THAT THE RATE OF HIS RETIRED PAY BE AMENDED FROM $306.43 PER ANNUM (BASED ON 10 YEARS 4 MONTHS AND 16 DAYS' SERVICE) TO $569.75 PER ANNUM (BASED ON 19 YEARS 3 MONTHS AND 16 DAYS' SERVICE).

THIS DECISION IS RENDERED ON THE BASIS OF THE UNDERSTANDING THAT THIS EMPLOYEE WAS NEVER ACTUALLY SEPARATED FROM THE SERVICE PRIOR TO RETIREMENT, BUT CARRIED IN A LEAVE-WITHOUT-PAY STATUS DURING THE ENTIRE PERIOD OF OVER 8 YEARS HE WAS RECEIVING DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT; AND THAT THE 10 YEARS 4 MONTHS AND 16 DAYS' SERVICE ON WHICH THE ANNUITY OF $306.43 WAS BASED DID NOT INCLUDE ANY OF THE PERIOD DURING WHICH HE RECEIVED DISABILITY COMPENSATION. IT IS NOT CLEAR WHETHER THERE WAS INCLUDED IN COMPUTING THE ANNUITY THE PERIOD OF 3 MONTHS, DECEMBER 1, 1933, TO FEBRUARY 28, 1934, INCLUSIVE, BETWEEN TERMINATION OF PAYMENTS OF DISABILITY COMPENSATION AND RETIREMENT, DURING WHICH THE EMPLOYEE WAS CARRIED IN A LEAVE WITHOUT-PAY STATUS.

THE DECISION OF THE ASSISTANT COMPTROLLER OF THE TREASURY REFERRED TO IN THE ADMINISTRATIVE MEMORANDUM, SUPRA, IS DATED MARCH 20, 1920, 26 COMP. DEC. 763, 764, WHEREIN IT WAS STATED:

THE ACT OF SEPTEMBER 7, 1916, WAS AN ACT TO PROVIDE COMPENSATION FOR EMPLOYEES SUFFERING INJURIES WHILE IN THE PERFORMANCE OF THEIR DUTIES. 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 RECEIVED 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. THEREFORE, SUCH AN EMPLOYEE, IF HE WAS WITHIN THE CLASS OF EMPLOYEES NAMED IN THE ACT OF AUGUST 29, 1916, SHOULD BE REGARDED AS EARNING LEAVE DURING THE PERIOD WHILE HE IS DISABLED AND BEING PAID COMPENSATION UNDER THE ACT OF SEPTEMBER 7, 1916.

SECTION 6 OF THE ACT OF JUNE 20, 1918, 40 STAT. 608, PROVIDES AS FOLLOWS:

THAT HEREAFTER ALL OFFICERS AND EMPLOYEES ENGAGED IN THE FIELD SERVICE OR ON VESSELS OF THE LIGHTHOUSE SERVICE, EXCEPT PERSONS CONTINUOUSLY EMPLOYED IN DISTRICT OFFICES OR SHOPS, WHO SHALL HAVE REACHED THE AGE OF SIXTY-FIVE YEARS, AFTER HAVING BEEN THIRTY YEARS IN THE ACTIVE SERVICE OF THE GOVERNMENT, MAY AT THEIR OPTION BE RETIRED FROM FURTHER PERFORMANCE OF DUTY; AND ALL SUCH OFFICERS AND EMPLOYEES WHO SHALL HAVE REACHED THE AGE OF SEVENTY YEARS SHALL BE COMPULSORILY RETIRED FROM FURTHER PERFORMANCE OF DUTY: PROVIDED, THAT THE ANNUAL COMPENSATION OF PERSONS SO RETIRED SHALL BE A SUM EQUAL TO ONE FORTIETH OF THE AVERAGE ANNUAL PAY RECEIVED FOR THE LAST FIVE YEARS OF SERVICE FOR EACH YEAR OF ACTIVE SERVICE IN THE LIGHTHOUSE SERVICE OR IN A DEPARTMENT OR BRANCH OF THE GOVERNMENT HAVING A RETIREMENT SYSTEM, NOT TO EXCEED IN ANY CASE THIRTY-FORTIETHS OF SUCH AVERAGE ANNUAL PAY RECEIVED: PROVIDED FURTHER, THAT SUCH RETIREMENT PAY SHALL NOT INCLUDE ANY AMOUNT ON ACCOUNT OF SUBSISTENCE OR OTHER ALLOWANCE.

LATER AMENDMENTS DO NOT AFFECT THE QUESTION HERE INVOLVED (ACTS OF NOVEMBER 14, 1918, 40 STAT. 1036; MARCH 4, 1921, 41 STAT. 1367, 1417; AND MARCH 4, 1925, 43 STAT. 1261).

THIS OFFICE CANNOT ENTIRELY AGREE WITH THE BROAD PRINCIPLE STATED IN THE QUOTED DECISION OF THE ASSISTANT COMPTROLLER OF THE TREASURY. PAYMENT OF DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT DOES NOT, IPSO FACTO, DETERMINE WHETHER THE BENEFICIARY IS OR IS NOT AN EMPLOYEE OF THE UNITED STATES, BUT SUCH A STATUS DEPENDS ON WHETHER THERE HAS BEEN TAKEN ADMINISTRATIVE ACTION TO SEPARATE THE EMPLOYEE FROM THE SERVICE OR TO RETAIN HIM IN THE SERVICE IN A NONPAY, NONDUTY STATUS. SEE 13 COMP. GEN. 86. IN ANY EVENT, THE QUOTED PROVISION OF THE LIGHTHOUSE RETIREMENT ACT SPECIFICALLY LIMITS LONGEVITY TO "ACTIVE SERVICE," AND THE FIRST PROVISO THEREOF BASES COMPUTATION OF THE ANNUITY ONLY ON THE COMPENSATION RATE RECEIVED DURING "ACTIVE SERVICE.' TOTAL DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT MAY BE PAID ONLY DURING A PERIOD NO ACTIVE SERVICE IS, OR CAN BE, PERFORMED, AND, ACCORDINGLY, SUCH PERIOD MAY NOT BE REGARDED AS CONSTITUTING ONE OF "ACTIVE SERVICE.' YOU ARE ADVISED, THEREFORE, THAT IN COMPUTING THE ANNUITY OF THIS FORMER EMPLOYEE, IF OTHERWISE ENTITLED TO RETIREMENT, THERE SHOULD BE EXCLUDED BOTH THE PERIOD DURING WHICH DISABILITY COMPENSATION WAS PAID AND THE PERIOD OF 3 MONTHS SUBSEQUENT THERETO WHILE CARRIED IN A LEAVE WITHOUT-PAY STATUS.