A-61098, MAY 9, 1935, 14 COMP. GEN. 816

A-61098: May 9, 1935

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DUAL PAYMENT OF EMPLOYEES' DISABILITY COMPENSATION AND NON-SERVICE CONNECTED PENSION PAYMENT OF DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT TO A PERSON IN RECEIPT OF A VETERAN'S NON-SERVICE-CONNECTED PENSION FOR THE SAME OR RELATED DISABILITY IS NOT AUTHORIZED. 1935: THERE WAS RECEIVED YOUR LETTER OF MARCH 27. WHEN HE WAS CAUGHT IN A DIRT AND ROCK CAVE-IN WHILE EMPLOYED AS A LABORER BY THE FEDERAL CIVIL WORKS ADMINISTRATION ON PROJECT C-9 AT BARNESTON. COMPENSATION FOR TOTAL DISABILITY AT THE RATE OF $11.50 EACH TWO WEEKS IS BEING PAID BY THE COMMISSION TO MR. THE COMMISSION IS ADVISED BY THE VETERANS' ADMINISTRATION THAT MR. WHICH WAS ALLOWED IN THE SUM OF $30 PER MONTH BEGINNING JULY 17.

A-61098, MAY 9, 1935, 14 COMP. GEN. 816

DUAL PAYMENT OF EMPLOYEES' DISABILITY COMPENSATION AND NON-SERVICE CONNECTED PENSION PAYMENT OF DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT TO A PERSON IN RECEIPT OF A VETERAN'S NON-SERVICE-CONNECTED PENSION FOR THE SAME OR RELATED DISABILITY IS NOT AUTHORIZED.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN, UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, MAY 9, 1935:

THERE WAS RECEIVED YOUR LETTER OF MARCH 27, 1935, AS FOLLOWS:

THIS COMMISSION HAS PENDING BEFORE IT THE CLAIM FOR COMPENSATION OF JAMES P. MITCHELL, FILE NO. CW-12616, ON ACCOUNT OF DISABILITY RESULTING FROM INJURIES SUSTAINED BY HIM ON DECEMBER 18, 1933, WHEN HE WAS CAUGHT IN A DIRT AND ROCK CAVE-IN WHILE EMPLOYED AS A LABORER BY THE FEDERAL CIVIL WORKS ADMINISTRATION ON PROJECT C-9 AT BARNESTON, NEBR.

COMPENSATION FOR TOTAL DISABILITY AT THE RATE OF $11.50 EACH TWO WEEKS IS BEING PAID BY THE COMMISSION TO MR. MITCHELL UNDER THE ACT OF FEBRUARY 15, 1934 (U.S.C.A., TITLE 5, SECTION 796), WHICH EXTENDS, SO FAR AS THEY MAY BE APPLICABLE, TO EMPLOYEES OF THE FEDERAL CIVIL WORKS ADMINISTRATION THE PROVISIONS OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916 (U.S.C.A., TITLE 5, CH. 15, SECTIONS 751 ET SEQ.).

THE COMMISSION IS ADVISED BY THE VETERANS' ADMINISTRATION THAT MR. MITCHELL FILED WITH IT A CLAIM FOR NON-SERVICE-CONNECTED DISABILITY PENSION, WHICH WAS ALLOWED IN THE SUM OF $30 PER MONTH BEGINNING JULY 17, 1934, THE AWARD HAVING BEEN MADE UNDER THE PROVISIONS OF PUBLIC ACT NO. 2, 73D CONGRESS, REGULATION 1 (A), PART III, PARAGRAPH 1 (A) (U.S.C.A., TITLE 38, CH. 12, SECTION 703, AS AMPLIFIED BY EXECUTIVE ORDER NO. 6156--- VETERANS' REGULATION NO. 1 (A), PART III).

SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916 (U.S.C.A., TITLE 5, SECTION 757), READS AS FOLLOWS:

"SEC. 7. THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER THIS ACT, OR, IF HE HAS BEEN PAID A LUMP IN 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.'

THE PROVISIONS OF THE ACT OF MARCH 20, 1933 (U.S.C.A., TITLE 38, SECTIONS 701 ET SEQ.) RELATING TO PENSION AND VETERANS' RELIEF REORGANIZATION, UNDER WHICH THE VETERANS' ADMINISTRATION AWARDED BENEFITS TO MR. MITCHELL, PROVIDE THAT A "PENSION" MAY BE PAID TO PERSONS WHO SERVED IN THE ACTIVE MILITARY OR NAVAL SERVICE, AMONG OTHER THINGS, FOR PERMANENT TOTAL DISABILITY NOT INCURRED IN THE SERVICE.

IN VIEW OF YOUR DECISION OF JULY 12, 1929, IN THE CASE OF ARTHUR S. COLYER, A-27010, AND YOUR DECISION OF FEBRUARY 24, 1932 (11 COMP. GEN. 318), HOLDING THAT PAYMENTS LAWFULLY MAY NOT BE MADE UNDER BOTH THE EMPLOYEES' COMPENSATION ACT AND THE WORLD WAR VETERANS' ACT FOR THE SAME OR RELATED DISABILITIES, YOUR DECISION IS REQUESTED WHETHER THIS COMMISSION IS AUTHORIZED TO PAY COMPENSATION FOR DISABILITY SUSTAINED WHILE IN THE PERFORMANCE OF DUTY, UNDER THE ACT OF FEBRUARY 15, 1934, TO AN EMPLOYEE WHO IS ALSO RECEIVING A PENSION (AS SO STATED BY CONGRESS) FROM THE VETERANS' ADMINISTRATION UNDER THE ACT OF MARCH 20, 1933 (U.S.C.A., TITLE 38, SECTIONS 701 ET SEQ.).

IN THE DECISION OF JULY 12, 1929, A-27010, CASE OF ARTHUR L. COLYER, CITED BY YOU, IT WAS STATED AS FOLLOWS:

* * * SOUND REASONING WOULD IMPEL THE VIEW THAT THE SAME OR RELATED DISABILITIES MAY NOT BE COMPENSATED UNDER TWO UNRELATED STATUTES. EACH STATUTE HAS FIXED A MAXIMUM AMOUNT OF COMPENSATION PAYABLE BY THE GOVERNMENT FOR A DISABILITY, WHICH AMOUNT MAY NOT BE EXCEEDED BY AN AWARD UNDER ANOTHER STATUTE. IF A DISEASE OR DISABILITY IS DETERMINED BY THE VETERANS' BUREAU TO HAVE BEEN CONNECTED WITH, OR INCURRED DURING, MILITARY SERVICE PRIOR TO CIVIL EMPLOYMENT, AND COMPENSATION UNDER THE WORLD WAR VETERANS' ACT IS AWARDED ON THAT BASIS, IT FOLLOWS THAT THE SAME OR RELATED DISABILITY MAY NOT BE HELD TO HAVE BEEN DUE TO CIVIL EMPLOYMENT SUBSEQUENT TO DISCHARGE FROM THE MILITARY SERVICE.

IN DECISION OF FEBRUARY 24, 1932, 11 COMP. GEN. 318, 320, ALSO CITED BY YOU, IT WAS HELD, AS FOLLOWS:

THE DISABILITY ALLOWANCE IS IN THE FORM OF A PENSION, AND, ACCORDINGLY, THE BASIC REASONING OF THE DECISION OF JULY 12, 1929, A 27010, IN THE CASE OF ARTHUR L. COLYER, FROM WHICH YOU HAVE QUOTED, HOLDING THAT THERE MAY NOT BE PAID WAR-RISK-DISABILITY COMPENSATION AND COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT FOR THE SAME OR RELATED DISEASE OR DISABILITY, ALSO JUSTIFIES THE CONCLUSION THAT THERE IS PROHIBITED PAYMENT OF COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT AND THE DISABILITY ALLOWANCE UNDER THE ACT OF JULY 3, 1930, UNDER THE SAME CONDITIONS. SINCE THE DISABILITY ALLOWANCE IS PAYABLE ONLY FOR A PERMANENT DISABILITY, EITHER PARTIAL OR TOTAL, AND WITHOUT THE NECESSITY OF SHOWING SERVICE CONNECTION, THERE IS EVEN MORE REASON FOR DENYING DUAL PAYMENT OF DISABILITY ALLOWANCE AND COMPENSATION UNDER THE TWO STATUTES FOR THE SAME OR RELATED DISABILITIES INCURRED ENTIRELY AS A RESULT OF CIVIL EMPLOYMENT UNDER THE GOVERNMENT. IN THE ABSENCE OF AN EXPRESS STATUTORY PROVISION TO THAT EFFECT, I AM CONSTRAINED TO THE VIEW THAT THE CONGRESS HAD NO INTENTION OF SINGLING OUT THOSE CIVIL EMPLOYEES OF THE GOVERNMENT WHO ARE VETERANS AND INCREASING THE MAXIMUM AMOUNTS PAYABLE TO THEM BY $40 PER MONTH OR LESS FOR A DISABILITY INCURRED SOLELY AS THE RESULT OF THEIR CIVIL EMPLOYMENT.

YOU ARE ADVISED, THEREFORE, THAT PAYMENTS LAWFULLY MAY NOT BE MADE UNDER BOTH THE EMPLOYEES' COMPENSATION ACT AND THE WORLD WAR VETERANS' ACT FOR THE SAME OR RELATED DISABILITIES, AND, ACCORDINGLY, IN THE EVENT AWARD HAS BEEN MADE BY THE VETERANS' ADMINISTRATION UNDER WHICH PAYMENTS ARE BEING RECEIVED BY THE BENEFICIARY, THE EMPLOYEES' COMPENSATION COMMISSION MAY NOT MAKE AWARD TO THE SAME BENEFICIARY UNDER THE EMPLOYEES' COMPENSATION ACT FOR THE SAME OR RELATED DISABILITY, AND AWARDS HERETOFORE MADE TO SUCH BENEFICIARIES SHOULD BE DISCONTINUED. PAYMENTS HERETOFORE MADE TO EMPLOYEES RECEIVING SUCH BENEFITS UNDER THE TWO STATUTES NEED NOT NOW BE DISTURBED.

EXECUTIVE ORDER NO. 6156, DATED JUNE 6, 1933, PROMULGATING VETERANS' REGULATION NO. I (A), AS AMENDED, ISSUED PURSUANT TO THE ACT OF MARCH 20, 1933 (48 STAT. 9), PROVIDES UNDER PART III, AS FOLLOWS:

I. (A) ANY PERSON WHO SERVED IN THE ACTIVE MILITARY OR NAVAL SERVICE, FOR A PERIOD OF NINETY DAYS OR MORE, DURING EITHER THE SPANISH-AMERICAN WAR, THE BOXER REBELLION, THE PHILIPPINE INSURRECTION, OR THE WORLD WAR, WHO IS SHOWN TO HAVE BEEN IN ACTIVE SERVICE THEREIN BEFORE THE CESSATION OF HOSTILITIES AND TO HAVE BEEN HONORABLY DISCHARGED FROM SUCH SERVICE, SHALL BE ENTITLED TO RECEIVE A PENSION FOR PERMANENT TOTAL DISABILITY NOT THE RESULT OF HIS MISCONDUCT, AND WHICH IS NOT SHOWN TO HAVE BEEN INCURRED IN ANY PERIOD OF MILITARY OR NAVAL SERVICE: * * *

THE NONSERVICE CONNECTED "PENSION" AUTHORIZED BY THE EXECUTIVE ORDER IS GRANTED UNDER SUBSTANTIALLY THE SAME CONDITIONS AS THE NONSERVICE CONNECTED "DISABILITY ALLOWANCE" WHICH WAS PREVIOUSLY AUTHORIZED BY THE ACT OF JULY 3, 1930 (46 STAT. 996), GIVEN CONSIDERATION IN THE LAST QUOTED DECISION. HENCE, THE PRINCIPLES STATED IN THAT DECISION ARE EQUALLY AS APPLICABLE TO THE ,PENSION" AUTHORIZED UNDER EXISTING LAW AND REGULATIONS AS THEY WERE TO THE "DISABILITY ALLOWANCE" AUTHORIZED UNDER PRIOR STATUTE.

REFERRING TO SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT, QUOTED IN YOUR LETTER, THE EXCEPTION OF "PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES" MAY NOT REASONABLY BE CONSTRUED AS REFERRING TO PENSIONS OR ALLOWANCES GRANTED TO VETERANS UNDER OTHER LAWS FOR THE SAME OR RELATED DISABILITY FOR WHICH COMPENSATION IS GRANTED UNDER THE EMPLOYEES' COMPENSATION ACT, WHICH HAS NO CONNECTION WITH "SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES.'

PAYMENT OF COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT TO MR. MITCHELL SHOULD BE DISCONTINUED WHILE HE IS IN RECEIPT OF A VETERAN'S PENSION UNDER THE PRESIDENTIAL REGULATIONS, SUPRA. ..END :