A-6031, DECEMBER 5, 1924, 4 COMP. GEN. 515

A-6031: Dec 5, 1924

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VETERANS' BUREAU BENEFICIARIES - LOSS OF WAGES WHERE A BENEFICIARY OF THE VETERANS' BUREAU IS REGULARLY EMPLOYED AND HIS COMPENSATION OR WAGES ARE REGULARLY COMPUTED ON THE BASIS OF THE AMOUNT OF WORK PERFORMED BY A CREW OF WHICH HE IS A MEMBER. MAY BE COMPUTED ON THE BASIS OF WHAT HIS WAGES WOULD HAVE BEEN HAD HE WORKED THE FULL TIME THE CREW WORKED DURING HIS ABSENCE. THE CLAIM WAS ADMINISTRATIVELY APPROVED FOR PAYMENT BY THE BUREAU. STATES THAT $69.94 REPRESENTS THE AMOUNT OF WAGES CLAIMANT WOULD HAVE RECEIVED HAD HE WORKED THE REGULAR NUMBER OF "TURNS" WITH THE CREW. IS PARTLY AS FOLLOWS: PLEASE BE ADVISED THAT WILLIAM OLSEN WAS ABSENT FROM DUTY FROM AUGUST 14TH TO 31ST. WAS NOT PAID ANY PART OF THIS TIME.

A-6031, DECEMBER 5, 1924, 4 COMP. GEN. 515

VETERANS' BUREAU BENEFICIARIES - LOSS OF WAGES WHERE A BENEFICIARY OF THE VETERANS' BUREAU IS REGULARLY EMPLOYED AND HIS COMPENSATION OR WAGES ARE REGULARLY COMPUTED ON THE BASIS OF THE AMOUNT OF WORK PERFORMED BY A CREW OF WHICH HE IS A MEMBER, THE AMOUNT TO BE REIMBURSED HIM BY THE VETERANS' BUREAU FOR LOSS OF WAGES OCCASIONED BY HIS ABSENCE FROM EMPLOYMENT, INCIDENT TO MEDICAL EXAMINATION OR HOSPITALIZATION ORDERED BY THE BUREAU, MAY BE COMPUTED ON THE BASIS OF WHAT HIS WAGES WOULD HAVE BEEN HAD HE WORKED THE FULL TIME THE CREW WORKED DURING HIS ABSENCE.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 5, 1924:

THE DIRECTOR OF THE VETERANS' BUREAU HAS REQUESTED REVIEW OF SETTLEMENT 042228, DATED JULY 14, 1924, DISALLOWING THE CLAIM OF WILLIAM OLSEN FOR $69.94, LOSS OF WAGES WHILE HOSPITALIZED FOR OBSERVATION IN HOSPITAL NO. 69, FORT THOMAS, KY., FROM AUGUST 14 TO AUGUST 31, 1923. THE CLAIM WAS ADMINISTRATIVELY APPROVED FOR PAYMENT BY THE BUREAU.

THE PAYMASTER OF THE CENTRAL STEEL CO., MASSILLON, OHIO, EMPLOYING THE CLAIMANT, STATES THAT $69.94 REPRESENTS THE AMOUNT OF WAGES CLAIMANT WOULD HAVE RECEIVED HAD HE WORKED THE REGULAR NUMBER OF "TURNS" WITH THE CREW. HIS STATEMENT IN LETTER DATED APRIL 25, 1924, IS PARTLY AS FOLLOWS:

PLEASE BE ADVISED THAT WILLIAM OLSEN WAS ABSENT FROM DUTY FROM AUGUST 14TH TO 31ST, 1923, INCLUSIVE, AND WAS NOT PAID ANY PART OF THIS TIME.

INASMUCH AS THIS MAN DID NOT WORK DURING THE ABOVE STATED PERIOD THERE WERE NO WAGES PAID TO HIM. HAD MR. OLSEN WORKED DURING THE ABOVE STATED PERIOD, THE AMOUNT OF WAGES HE WOULD HAVE RECEIVED WOULD HAVE BEEN SIXTY- NINE DOLLARS, NINETY-FOUR CENTS. ($69.94).

THE AMOUNT OF HOURS WORKED PER TURN ARE EIGHT HOURS. THE NUMBER OF TURNS WORKED, THIRTEEN, THEREFORE, HE WOULD HAVE WORKED 104 HOURS. INASMUCH AS THIS IS A STRAIGHT TONNAGE PROPOSITION AND THE MEN RECEIVE PAY ACCORDING TO THE VARIOUS GAUGES OF STEEL WORKED THERE IS NO RATE PER HOUR PAID.

IN YOUR COMMUNICATION YOU ASK US TO VERIFY THE STATEMENT THAT THIS AMOUNT WAS ACTUALLY DEDUCTED FROM HIS WAGES. PLEASE BE ADVISED THAT INASMUCH AS HE DID NOT WORK DURING THE ABOVE STATED PERIOD THERE WAS NO AMOUNT TO BE DEDUCTED FROM HIS WAGES, BUT AS BEFORE STATED, HAD HE WORKED HIS REGULAR TURN WITH THE CREW, HE WOULD HAVE DRAWN THE AMOUNT OF MONEY HERETOFORE STATED.

THE DAILY EARNINGS ARE NOT COMPUTED ON A PIECEWORK BASIS AS IS ORDINARILY UNDERSTOOD, DEPENDING ON THE EFFORTS OF THE INDIVIDUAL EMPLOYEE, BUT GOVERNED BY THE AMOUNT OF WORK PERFORMED BY THE CREW AS A WHOLE. ACCORDINGLY, THE AMOUNT OF $69.94 IS CLAIMED ON THE PRESUMPTION THAT THE CLAIMANT WOULD HAVE WORKED THE FULL NUMBER OF HOURS WORKED BY THE CREW DURING HIS ABSENCE. IN LETTER DATED MAY 10, 1924, FROM THE PAYMASTER OF THE EMPLOYER, THERE IS GIVEN THE NUMBER OF DAYS WORKED BY CLAIMANT AND THE AMOUNT RECEIVED EACH DAY DURING JULY AND SEPTEMBER, 1923, THE MONTHS IMMEDIATELY PRECEDING AND FOLLOWING THE MONTH IN WHICH THE ABSENCE OCCURRED AND THE STATEMENT MADE THAT CLAIMANT DID NOT WORK FULL TIME DURING EITHER MONTH, BUT THIS FACT IS NOT SUFFICIENT TO RAISE PRESUMPTION THAT HE WOULD NOT HAVE WORKED FULL TIME DURING THE PERIOD OF HIS ABSENCE INCIDENT TO HOSPITALIZATION. IN OTHER WORDS, THE FACT THAT HE TOOK LEAVE OF ABSENCE DURING OTHER MONTHS DOES NOT CREATE A PRESUMPTION THAT HE WOULD HAVE BEEN ABSENT DURING THE PERIOD IN QUESTION.

THE AUTHORITY FOR REIMBURSING CLAIMANT IS FOUND IN SECTION 303 OF THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 406, PROVIDING FOR "LOSS OF WAGES INCURRED" REIMBURSABLE "IN THE DISCRETION OF THE DIRECTOR.' SECTION 8024, REGULATIONS 1923, SUPPLEMENT NO. 1, SEPTEMBER 30, 1923, AUTHORIZES REIMBURSEMENT OF LOSS OF WAGES "COMPUTED TO THE ACTUAL EXTENT THEREOF, FOR THE PERIOD OF ABSENCE FROM EMPLOYMENT FROM THE TIME OF DEPARTURE TO THAT OF RETURN, AT THE RATE OF THE FIXED DAILY WAGE OR WEEKLY SALARY FOR WHICH THE CLAIMANT WAS EMPLOYED AT THAT TIME, BUT NO REIMBURSEMENT FOR LOSS OF WAGES IN EXCESS OF $80 IN ANY ONE MONTH SHALL BE ALLOWED.'

WHILE IN THE PRESENT CASE THE EMPLOYEE HAD NO "FIXED DAILY WAGE OR WEEKLY SALARY" HE WAS A REGULAR EMPLOYEE AND THERE WAS A DEFINITE BASIS FOR COMPUTING HIS DAILY WAGE. APPLYING THE LEGAL MAXIM--- "THAT IS CERTAIN WHICH CAN BE RENDERED CERTAIN," IT MAY BE HELD THAT THE LOSS OF WAGES IN THIS CASE IS SUSCEPTIBLE OF DEFINITE ASCERTAINMENT AND REIMBURSABLE IN ACCORDANCE WITH THE GOVERNING LAW AND REGULATIONS.

THIS CASE IS TO BE DISTINGUISHED FROM THE DECISION REPORTED IN 3 COMP. GEN. 549, WHERE THE CLAIM OF A SUBSTITUTE OR EMPLOYEE ON THE EXTRA LIST WAS DENIED. IN THAT CASE IT WAS NOT WAGES THAT WERE LOST BUT THE POSSIBLE OPPORTUNITY TO EARN WAGES. IN PRESENT CASE THE EMPLOYEE WAS REGULARLY EMPLOYED AND ACTUALLY LOST WAGES AND IN VIEW OF ALL THE CIRCUMSTANCES THE EVIDENCE PRESENTED IS DEEMED SUFFICIENT TO ESTABLISH THE AMOUNT OF SUCH LOSS.