A-91508, JANUARY 21, 1938, 17 COMP. GEN. 590

A-91508: Jan 21, 1938

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THE MANNER IN WHICH DETERMINATIONS ARE MADE BY THE COMMISSION WILL NOT BE QUESTIONED PROVIDED SUCH COMPETENT EVIDENCE IS FURNISHED THEREUNDER AS WILL MAKE POSSIBLE A PROPER AUDIT TO DETERMINE THAT NO UNLAWFUL PAYMENTS HAVE BEEN MADE. WHILE THERE IS NO AUTHORITY IN THE GENERAL ACCOUNTING OFFICE TO QUESTION A GENERAL DETERMINATION OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION AS TO WHEN DISABILITY COMPENSATION PAYMENTS ARE TO COMMENCE IN THE CASE OF INJURED SECURITY WAGE WORKERS. NEVERTHELESS THERE WILL BE REQUIRED SUCH EVIDENCE IN CONNECTION WITH THESE PAYMENTS AS IS NECESSARY TO A PROPER AUDIT AND DETERMINATION THAT THE PAYMENTS MADE ARE NOT IN VIOLATION OF THE STATUTORY INHIBITION AGAINST PAYMENT OF SUCH COMPENSATION DURING THE FIRST THREE DAYS OF DISABILITY.

A-91508, JANUARY 21, 1938, 17 COMP. GEN. 590

EMPLOYEES' COMPENSATION COMMISSION - DISABILITY COMPENSATION - JURISDICTION AND EVIDENCE REQUIREMENTS FINDINGS OF FACTS AND DECISIONS OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION NOT BEING SUBJECT TO REVIEW BY THE GENERAL ACCOUNTING OFFICE IN THE ABSENCE OF FRAUD OR MISTAKE IN MATHEMATICAL CALCULATION, THE MANNER IN WHICH DETERMINATIONS ARE MADE BY THE COMMISSION WILL NOT BE QUESTIONED PROVIDED SUCH COMPETENT EVIDENCE IS FURNISHED THEREUNDER AS WILL MAKE POSSIBLE A PROPER AUDIT TO DETERMINE THAT NO UNLAWFUL PAYMENTS HAVE BEEN MADE. WHILE THERE IS NO AUTHORITY IN THE GENERAL ACCOUNTING OFFICE TO QUESTION A GENERAL DETERMINATION OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION AS TO WHEN DISABILITY COMPENSATION PAYMENTS ARE TO COMMENCE IN THE CASE OF INJURED SECURITY WAGE WORKERS, NEVERTHELESS THERE WILL BE REQUIRED SUCH EVIDENCE IN CONNECTION WITH THESE PAYMENTS AS IS NECESSARY TO A PROPER AUDIT AND DETERMINATION THAT THE PAYMENTS MADE ARE NOT IN VIOLATION OF THE STATUTORY INHIBITION AGAINST PAYMENT OF SUCH COMPENSATION DURING THE FIRST THREE DAYS OF DISABILITY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, JANUARY 21, 1938:

YOUR LETTER OF NOVEMBER 13, 1937, IS AS FOLLOWS:

REFERENCE IS MADE TO NOTICES OF EXCEPTIONS ON D.O. VOUCHER NOS. 2027044, 2036388, 2037144, 2079695, AND 2099035, JUNE 1 TO 10, 1937, ACCOUNTS OF G. F. ALLEN, SYMBOL 39-01-56, APPROPRIATION 026079 EMERGENCY RELIEF EMPLOYEES' COMPENSATION FUND 1937; AND D.O. VOUCHER NO. 2380, JULY 1 TO 10, 1937, ACCOUNTS OF G. F. ALLEN, SYMBOL 39-01-56, APPROPRIATION 026089 EMERGENCY RELIEF EMPLOYEES' COMPENSATION FUND 1938.

THE AUDIT DIVISION OF THE GENERAL ACCOUNTING OFFICE APPARENTLY IS UNDER THE IMPRESSION THAT THE DATE ON WHICH AN INJURY OCCURS SHALL NOT BE COUNTED AS THE FIRST DAY OF DISABILITY. THIS IMPRESSION IS INCORRECT. THE FIRST DAY ON WHICH AN INJURED EMPLOYEE LOSES ANY PAY BY REASON OF DISABILITY RESULTING FROM THE INJURY IS PROPERLY COUNTED AS THE FIRST DAY OF DISABILITY. THERE IS NO UNIFORM PRACTICE AMONG FEDERAL ESTABLISHMENTS IN THE MATTER OF TERMINATING PAY WHEN AN EMPLOYEE BECOMES INCAPACITATED AS THE RESULT OF AN INJURY. REGULATIONS OF THE WORKS PROGRESS ADMINISTRATION ARE SUCH THAT EMPLOYEES ENGAGED ON RELIEF WORK ARE PAID FOR A FULL DAY ON THE DATE OF INJURY. IT MAY BE STATED GENERALLY THAT THE PRACTICE IN OTHER FEDERAL ESTABLISHMENTS IS JUST THE OPPOSITE, PARTICULARLY WHEN THE INJURED PERSON IS EMPLOYED ON AN HOURLY OR PER DIEM BASIS, OR WHERE SUCH EMPLOYEE IS NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY. MANY OF THE COMMISSION'S WORKS PROGRESS ADMINISTRATION BENEFICIARIES ARE EMPLOYED UNDER FEDERAL ESTABLISHMENTS.

IT IS REQUESTED THAT APPROPRIATE INSTRUCTIONS BE ISSUED TO YOUR AUDIT DIVISION EXPLAINING THAT THE PAYMENT OF COMPENSATION FOR THE FOURTH DAY FOLLOWING THE DATE OF INJURY IS NOT EVIDENCE OF AN ERRONEOUS PAYMENT, AND THAT SUCH PAYMENT SHOULD BE ACCEPTED WITHOUT FURTHER QUESTION IF OTHERWISE IN PROPER ORDER.

YOU ARE FURTHER ADVISED THAT THIS SAME QUESTION HAS BEEN RAISED RECENTLY ON QUITE A NUMBER OF THE COMMISSION'S VOUCHERS BUT AN EXPLANATION HAS BEEN FORWARDED IN THE ROUTINE MANNER THROUGH THE DIVISION OF DISBURSEMENTS. VIEW OF THE INCREASING NUMBER OF EXCEPTIONS IN THIS PARTICULAR, THIS LETTER IS DIRECTED FOR YOUR ATTENTION.

SECTION 2 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, PROVIDES AS FOLLOWS:

THAT DURING THE FIRST THREE DAYS OF DISABILITY THE EMPLOYEE SHALL NOT BE ENTITLED TO COMPENSATION EXCEPT AS PROVIDED IN SECTION NINE. COMPENSATION SHALL AT ANY TIME BE PAID FOR SUCH PERIOD.

SECTION 32 OF THE SAME ACT, 39 STAT. 749, AUTHORIZES THE COMMISSION TO MAKE NECESSARY RULES AND REGULATIONS FOR THE ENFORCEMENT OF THE ACT. UNDER SUCH AUTHORITY THE COMMISSION, ON JULY 15, 1935, AS AMENDED APRIL 1, 1936, PROMULGATED THE FOLLOWING REGULATIONS GOVERNING SECURITY WAGE WORKERS:

67. IN COMPUTING THE PERIOD FOR WHICH COMPENSATION ON ACCOUNT OF DISABILITY IS TO BE PAID LOCALLY, DO NOT IN ANY CASE INCLUDE THE FIRST 3 CALENDAR DAYS OF DISABILITY ON WHICH PAY IS LOST.

68. IT IS UNDERSTOOD IN ALL WORKS PROGRESS ADMINISTRATION INJURY CASES THAT THE INJURED EMPLOYEE WILL BE PAID HIS REGULAR WAGE IN FULL FOR THE DATE OF INJURY. THE WAITING PERIOD WILL BE THE FIRST 3 DAYS OF DISABILITY AFTER PAY HAS STOPPED, REGARDLESS OF WHETHER OR NOT THE INJURED EMPLOYEE MAY HAVE NORMALLY BEEN SCHEDULED TO WORK ON SUCH DAYS. THE PERIOD FOR WHICH COMPENSATION MAY BE PAID WILL NOT IN ANY CASE COMMENCE UNTIL THE FOURTH DAY AFTER THE DATE ON WHICH THE PAY STOPPED, AND THE 3 INTERVENING CALENDAR DAYS WILL BE THE 3-DAY WAITING PERIOD REQUIRED BY LAW.

THE RATES OF PAY STATED ON THE VOUCHERS LISTED IN YOUR LETTER INDICATE THE BENEFICIARIES WERE SECURITY WAGE WORKERS AND AS SUCH, THOUGH THEY MAY HAVE BEEN EMPLOYED ON PROJECTS PROSECUTED BY THE REGULAR ESTABLISHMENTS OF THE GOVERNMENT WITH EMERGENCY FUNDS, WERE SUBJECT TO WORKS PROGRESS ADMINISTRATION REGULATIONS. PAYMENT TO AN INJURED PERSON FOR THE BALANCE OF THE DAY OR SHIFT ON WHICH THE DISABILITY ACCIDENT OCCURS IS DIRECTED IN THE NOTE UNDER SECTION 16 OF WORKS PROGRESS ADMINISTRATION BULLETIN NO. 13, DATED JUNE 27, 1935.

THE EXCEPTIONS TO THE PAYMENTS TO THE INDIVIDUALS ON THE VOUCHERS WERE PREDICATED UPON THE FACT THAT THE RECORD INDICATES PAYMENT HAD BEGUN LESS THAN 3 DAYS FROM THE DATE OF INJURY, OR BEFORE COMPLETION OF THE 3-DAY WAITING PERIOD REQUIRED BY THE STATUTE AND REGULATIONS. WHILE IT IS CONCEDED THAT PAYMENT OF DISABILITY COMPENSATION FOR THE FOURTH DAY FOLLOWING THE DATE OF INJURY (COUNTING THE DATE OF INJURY AS THE FIRST DAY) IS NOT CONCLUSIVE EVIDENCE OF AN ERRONEOUS PAYMENT, IT CANNOT BE DENIED, IN VIEW OF THE PROVISION IN THE REGULATIONS FOR PAYMENT TO THE INJURED SECURITY WAGE WORKER OF HIS REGULAR WAGE IN FULL FOR THE DAY OF INJURY, THAT SUCH RECORD DOES NOT CONCLUSIVELY ESTABLISH THAT SUCH PAYMENT WAS LAWFUL, THAT IS, THAT FOR THE FIRST 3 DAYS OF DISABILITY NO PAYMENT WAS MADE.

THE ACT OF JUNE 5, 1924, 43 STAT. 389, PROVIDES THAT IN THE ABSENCE OF FRAUD OR MISTAKE IN MATHEMATICAL CALCULATION THE FINDING OF FACTS AND THE DECISIONS OF THE COMMISSION SHALL NOT BE SUBJECT TO REVIEW BY THIS OFFICE IF SUPPORTED BY COMPETENT EVIDENCE. THIS OFFICE IS NOT CONCERNED AS TO HOW THE DETERMINATIONS OF THE COMMISSION ARE MADE PROVIDED SUCH COMPETENT EVIDENCE IS FURNISHED AS WILL MAKE POSSIBLE A PROPER AUDIT TO DETERMINE THAT NONE BUT LAWFUL PAYMENTS HAVE BEEN MADE AND NO FRAUD OR ERRORS IN CALCULATION ARE INDICATED ON THE VOUCHER REPRESENTING SUCH PAYMENTS. THE STATUTE AND REGULATIONS CONTAIN A SPECIFIC INHIBITION AGAINST PAYMENT OF DISABILITY COMPENSATION DURING THE FIRST 3 DAYS OF DISABILITY. IT IS THE DUTY AND RESPONSIBILITY OF THIS OFFICE IN THE AUDIT OF ACCOUNTS TO DETERMINE UPON THE INFORMATION ON THE PAY-ROLL VOUCHER, OR OTHERWISE FURNISHED WITH THE ACCOUNTS THAT THE STATUTORY INHIBITION HAS NOT BEEN VIOLATED. IF THE PAY-ROLL RECORD IS COMPLETE, OR THERE IS SHOWN A PERIOD OF AT LEAST 3 DAYS BETWEEN DATE OF INJURY AND DATE PAYMENT OF DISABILITY COMPENSATION BEGINS, SUCH DETERMINATION MAY BE MADE WITHOUT ADDITIONAL INFORMATION. IN THE CASES HERE INVOLVED THE PAY-ROLL RECORD, SHOWING ONLY 2 DAYS INTERVAL BETWEEN DATE OF INJURY AND DATE PAYMENTS BEGAN, COUPLED WITH THE PROVISIONS OF THE REGULATIONS, IMPLIES THAT DISABILITY COMPENSATION WAS PAID BEFORE THE EXPIRATION OF THE PRESCRIBED 3-DAY WAITING PERIOD IN CONTRAVENTION OF THE ACT AND THE REGULATIONS ISSUED PURSUANT THERETO. CONSEQUENTLY A QUESTION ARISES AS TO THE LEGALITY OR CORRECTNESS OF THE PAYMENTS UNDER THE LAW AND THIS OFFICE, BEING REQUIRED BY LAW TO DETERMINE THE LEGALITY OF EXPENDITURES OF APPROPRIATED FUNDS INDEPENDENTLY OF THE ADMINISTRATIVE OFFICE, MAY NOT ACCEPT THE UNSUPPORTED CONCLUSIONS OF THE ADMINISTRATIVE OFFICERS AS TO THE CORRECTNESS OR LEGALITY OF THE PAYMENTS IN QUESTION. HENCE, THIS OFFICE IS REQUIRED TO CALL FOR SUCH ADDITIONAL EVIDENCE OR EXPLANATION AS MAY APPEAR NECESSARY TO ENABLE A FINAL AUDIT OF THE VOUCHERS.

I AM UNABLE TO UNDERSTAND WHY THERE IS NOT, AS STATED BY YOU, OR CANNOT BE, A UNIFORM PRACTICE AMONG THE FEDERAL ESTABLISHMENTS IN THE MATTER OF TERMINATING PAY WHEN AN EMPLOYEE BECOMES INCAPACITATED AS THE RESULT OF AN INJURY. AN EMPLOYEE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY WHO IS INJURED IN THE PERFORMANCE OF HIS WORK MUST HAVE WORKED SOME PART OF THE DAY ON WHICH INJURED AND CONSEQUENTLY IS ENTITLED AS A MATTER OF RIGHT TO HIS REGULAR WAGE FOR AT LEAST THAT PORTION OF THAT DAY. FURTHERMORE, THE GENERAL RULE OF LAW IS THAT THE DAY OF AN ACT FROM WHICH A FUTURE TIME IS TO BE ASCERTAINED IS TO BE EXCLUDED. SECTION 2 OF THE ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, PROVIDES THAT NO COMPENSATION SHALL BE PAID DURING THE FIRST 3 DAYS OF DISABILITY, WHICH CONSIDERED IN THE LIGHT OF THE GENERAL RULE OF LAW TOGETHER WITH SECTION 8 OF THE ACT, SUPRA, REASONABLY JUSTIFIES THE CONCLUSION THAT THE DAY OF INJURY IS TO BE EXCLUDED AND THAT DISABILITY COMPENSATION IS TO BEGIN ON THE FOURTH DAY AFTER THE DATE OF INJURY. BUT BE THAT AS IT MAY, IF THE PRESENT ADMINISTRATIVE PRACTICE IS TO CONTINUE, THE LACK OF UNIFORMITY IN THIS RESPECT MAKES IT THE MORE OBVIOUS THAT THERE SHOULD BE INFORMATION ON THE PAY ROLLS AS TO WHETHER PAYMENT OF THE REGULAR WAGE HAD OR HAD NOT BEEN PAID IN THOSE CASES WHERE DISABILITY COMPENSATION HAS BEEN PAID BEFORE THE FOURTH DAY AFTER DATE OF INJURY.

IN THE CIRCUMSTANCES IT MUST BE APPARENT THAT THERE MUST BE UPHELD THE ACTION TAKEN IN THE AUDIT OF THE VOUCHERS IN THE ABSENCE OF EVIDENCE REBUTTING OR EXPLAINING THE PAY-ROLL RECORDS AND THAT IN THE FUTURE THERE MUST BE REQUIRED THE FURNISHING WITH THE VOUCHERS IN ALL SUCH CASES SUCH INFORMATION AS WILL CONSTITUTE A PROPER BASIS FOR THE COMPUTATION OF THE EARNINGS OF THE BENEFICIARIES.