A-95378, OCTOBER 3, 1938, 18 COMP. GEN. 308

A-95378: Oct 3, 1938

Additional Materials:

Contact:

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

 

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

WILL NOT BE QUESTIONED SOLELY BECAUSE OF THE DUAL PAYMENTS INVOLVED. DECISIONS TO THE CONTRARY WILL NOT BE FOLLOWED HEREAFTER. 1938: THERE WAS REFERRED TO THIS OFFICE BY LETTER OF MAY 26. IT IS STATED. REPLY WAS MADE HERE TO THE ATTORNEYS JUNE 22. A COPY OF WHICH WAS FURNISHED TO THE COMMISSION. WHEN HE WAS 74 YEARS OLD AND THAT THE WIDOW WAS PAID COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT FOR THE PERIOD FROM THE DATE OF THE DEATH OF HER HUSBAND TO JUNE 30. WHEN SUCH PAYMENTS WERE DISCONTINUED. IT IS UNDERSTOOD THE EMPLOYEES' COMPENSATION COMMISSION DISCONTINUED PAYMENTS TO THE WIDOW UNDER THE EMPLOYEES' COMPENSATION ACT BECAUSE OF CERTAIN DECISIONS OF THIS OFFICE TO THE EFFECT THAT PAYMENTS MAY NOT BE MADE TO ANY PERSON OVER THE SAME PERIOD FOR THE SAME DEATH OR THE SAME OR RELATED DISABILITY UNDER BOTH THE EMPLOYEES' COMPENSATION ACT AND LEGISLATION GRANTING A PENSION FOR DEATH OR DISABILITY COMPENSATION BASED ON MILITARY OR NAVAL SERVICE.

A-95378, OCTOBER 3, 1938, 18 COMP. GEN. 308

DUAL PAYMENTS UNDER EMPLOYEES' COMPENSATION ACT AND VETERANS' PENSION LAWS PAYMENTS UNDER THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, TO PERSONS ALSO RECEIVING, OR ENTITLED TO RECEIVE, A PENSION UNDER ANY LAW PROVIDING PENSIONS FOR VETERANS OR THEIR DEPENDENTS, WILL NOT BE QUESTIONED SOLELY BECAUSE OF THE DUAL PAYMENTS INVOLVED, EXCEPT WHERE, AS IN THE CASE OF MEMBERS OF THE ARMY OR NAVY NURSE CORPS (FEMALE), SUCH DUAL BENEFITS MAY BE SPECIFICALLY PROHIBITED BY STATUTE. DECISIONS TO THE CONTRARY WILL NOT BE FOLLOWED HEREAFTER.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, OCTOBER 3, 1938:

THERE WAS REFERRED TO THIS OFFICE BY LETTER OF MAY 26, 1938, OF THE CHIEF CLAIM EXAMINER OF THE COMMISSION, LETTER ADDRESSED TO THE COMMISSION MAY 18, 1938, BY CERTAIN ATTORNEYS ON BEHALF OF MRS. CLARA M. CLARK, WHO, IT IS STATED, HAD BEEN INFORMED BY THE COMMISSION BY LETTER OF MAY 6, 1938, OF A REQUIREMENT THAT SHE MADE AN ELECTION AS TO WHETHER SHE SHOULD RECEIVE A PENSION AS THE WIDOW OF A CIVIL WAR VETERAN OR COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, AS THE WIDOW OF AN EMPLOYEE WHO DIED AS THE RESULT OF INJURIES INCURRED IN THE LINE OF DUTY IN A CIVILIAN POSITION. REPLY WAS MADE HERE TO THE ATTORNEYS JUNE 22, 1938, A COPY OF WHICH WAS FURNISHED TO THE COMMISSION. A FURTHER COMMUNICATION, DATED AUGUST 4, 1938, HAS BEEN RECEIVED FROM THE ATTORNEYS, AS WELL AS A SUPPLEMENTAL LETTER OF THE SAME DATE INCLOSING A POWER OF ATTORNEY AUTHORIZING THEM TO ACT FOR MRS. CLARA M. CLARK.

THE EMPLOYEES' COMPENSATION COMMISSION HAS REPORTED THAT THE HUSBAND OF THE CLAIMANT DIED APRIL 1, 1919, AS THE RESULT OF INJURIES INCURRED IN CIVILIAN FEDERAL EMPLOYMENT JULY 29, 1918, WHEN HE WAS 74 YEARS OLD AND THAT THE WIDOW WAS PAID COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT FOR THE PERIOD FROM THE DATE OF THE DEATH OF HER HUSBAND TO JUNE 30, 1938, WHEN SUCH PAYMENTS WERE DISCONTINUED.

THE VETERANS' ADMINISTRATION REPORTS THAT CLAIMANT HAS BEEN RECEIVING A PENSION AS WIDOW OF A CIVIL WAR VETERAN SINCE APRIL 11, 1919, UNDER THE APPLICABLE STATUTES (SEE SECTION 4702, REVISED STATUTES; ACT OF AUGUST 7, 1882, 22 STAT. 345; SECTION 314 OF THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 408; SECTION 4 OF THE ACT OF MAY 1, 1920, 41 STAT. 586; ACT OF MAY 23, 1928, 45 STAT. 714; AND ACT OF MARCH 20, 1933, 48 STAT. 8), WHICH PENSION HAS NOT BEEN DISCONTINUED.

IT IS UNDERSTOOD THE EMPLOYEES' COMPENSATION COMMISSION DISCONTINUED PAYMENTS TO THE WIDOW UNDER THE EMPLOYEES' COMPENSATION ACT BECAUSE OF CERTAIN DECISIONS OF THIS OFFICE TO THE EFFECT THAT PAYMENTS MAY NOT BE MADE TO ANY PERSON OVER THE SAME PERIOD FOR THE SAME DEATH OR THE SAME OR RELATED DISABILITY UNDER BOTH THE EMPLOYEES' COMPENSATION ACT AND LEGISLATION GRANTING A PENSION FOR DEATH OR DISABILITY COMPENSATION BASED ON MILITARY OR NAVAL SERVICE. SEE DECISIONS OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES OF FEBRUARY 24, 1932, A-40369, 11 COMP. 318; MAY 9, 1935, A-61098, 14 ID. 816; AND MAY 11, 1935, A 61173, 14 ID 827 (INVOLVING A WIDOW); AND MY DECISION OF SEPTEMBER 29, 1937, A-88786 (INVOLVING A WIDOW). THE LAST CITED DECISION WAS NOT AN ORIGINAL CONSTRUCTION OF THE STATUTES INVOLVED BUT MERELY FOLLOWED THE RULE WHICH HAD BEEN STATED IN DECISIONS OF MY PREDECESSOR IN OFFICE.

IN VIEW OF THE NUMBER OF CASES OF THIS CHARACTER THAT ARE COMING BEFORE THE OFFICE FOR CONSIDERATION AND THE LONG PERIOD OVER WHICH BOTH CLASSES OF BENEFITS HAVE BEEN PAID IN SOME CASES, IT IS DEEMED NECESSARY TO GIVE FURTHER CONSIDERATION TO THE LEGAL QUESTION HERE INVOLVED, WHICH IS, WHETHER A DEPENDENT OF A VETERAN MAY BE PAID UNDER THE EMPLOYEES' COMPENSATION ACT AND, ALSO, UNDER VETERANS' LEGISLATION GRANTING A DEATH.

WITHOUT QUOTING THE PROVISIONS OF THE CITED STATUTES UNDER WHICH THIS CLAIMANT HAS BEEN RECEIVING A PENSION AS A WIDOW OF A CIVIL WAR VETERAN, IT IS SUFFICIENT TO STATE THAT AN EXAMINATION THEREOF SHOWS THAT THEY CONTAIN NO LANGUAGE, EXPRESSED OR IMPLIED, WHICH MAY BE CONSTRUED AS DENYING A PENSION BASED ON MILITARY OR NAVAL SERVICE TO A PERSON WHO IS A BENEFICIARY OF THE EMPLOYEES' COMPENSATION ACT. SEE 2 COMP. GEN. 582.

SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, PROVIDES THAT SO LONG AS THE EMPLOYEE WAS IN RECEIPT OF COMPENSATION UNDER THAT ACT---

* * * 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 BASIS FOR THE RULE DENYING PAYMENTS UNDER BOTH STATUTES AND REQUIRING AN ELECTION ON THE PART OF THE CLAIMANT, STATED IN THE PRIOR DECISIONS OF THE OFFICE, WAS THAT THE PAYMENTS UNDER BOTH THE EMPLOYEES' COMPENSATION ACT AND UNDER VETERANS' LEGISLATION WERE GRATUITIES AND THAT THE CONGRESS HAD CONSISTENTLY PROHIBITED DUAL PAYMENTS OF GRATUITIES FOR THE SAME DEATH OR DISABILITY.

SECTION 4715, REVISED STATUTES (38 U.S.C. 25), PROVIDES:

NOTHING IN THIS TITLE SHALL BE SO CONSTRUED AS TO ALLOW MORE THAN ONE PENSION AT THE SAME TIME TO THE SAME PERSON, OR TO PERSONS ENTITLED JOINTLY; BUT ANY PENSIONER WHO SHALL SO ELECT MAY SURRENDER HIS CERTIFICATE, AND RECEIVE, IN LIEU THEREOF, A CERTIFICATE FOR ANY OTHER PENSION TO WHICH HE WOULD HAVE BEEN ENTITLED HAD NOT THE SURRENDERED CERTIFICATE BEEN ISSUED. BUT ALL PAYMENTS PREVIOUSLY MADE FOR ANY PERIOD COVERED BY THE NEW CERTIFICATE SHALL BE DEDUCTED FROM THE AMOUNT ALLOWED BY SUCH CERTIFICATE.

THE ACT OF MARCH 3, 1891, 26 STAT. 1082 (38 U.S.C. 26), SUPERSEDING AN ANALOGOUS PROVISION BUT LESS COMPREHENSIVE CONTAINED IN SECTION 4724, REVISED STATUTES, PROVIDES:

* * * NO PENSION SHALL BE ALLOWED OR PAID TO ANY OFFICER, NONCOMMISSIONED OFFICER, OR PRIVATE IN THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES, EITHER ON THE ACTIVE OR RETIRED LIST. * * *

THE ACT OF JANUARY 28, 1915, 38 STAT. 802 (38 U.S.C. 27), CONTAINS A SIMILAR PROVISION APPLICABLE TO THE COAST GUARD.

THE WORLD WAR VETERANS' ACT OF 1924, AS CODIFIED IN TITLE 38 OF THE U.S.C. CONTAINS PROVISIONS AS QUOTED BELOW:

SEC. 422. THIS CHAPTER IS INTENDED TO PROVIDE A SYSTEM FOR THE RELIEF OF PERSONS WHO WERE DISABLED, AND FOR THE DEPENDENTS OF THOSE WHO DIED AS A RESULT OF DISABILITY SUFFERED IN THE MILITARY SERVICE OF THE UNITED STATES BETWEEN APRIL 6, 1917, AND JULY 2, 1921. FOR SUCH DISABILITIES AND DEATHS NO OTHER PENSION LAWS OR LAWS PROVIDING FOR GRATUITIES OR PAYMENTS IN THE EVENT OF DEATH IN THE SERVICE SHALL BE APPLICABLE: PROVIDED, HOWEVER, THAT THE LAWS RELATING TO THE RETIREMENT OF PERSONS IN THE REGULAR MILITARY OR NAVAL SERVICE SHALL NOT BE CONSIDERED TO BE LAWS PROVIDING FOR PENSIONS, GRATUITIES, OR PAYMENTS WITHIN THE MEANING OF THIS SECTION: AND PROVIDED FURTHER, THAT COMPENSATION UNDER PART II OF THIS CHAPTER SHALL NOT BE PAID WHILE THE PERSON IS IN RECEIPT OF ACTIVE-SERVICE OR RETIREMENT PAY, THIS PROVISO TO BE EFFECTIVE AS OF APRIL 6, 1917. * * *

HOWEVER, THE PROVISO CONTAINED IN SECTION 472 (7) AUTHORIZES A FORM OF DUAL COMPENSATION AS FOLLOWS:

THAT THE RECEIPT OF A GRATUITY, PENSION, OR COMPENSATION, INCLUDING ADJUSTED COMPENSATION, BY WIDOW, CHILD OR PARENT, ON ACCOUNT OF THE DEATH, DISABILITY, OR SERVICE OF ANY PERSON SHALL NOT BAR THE PAYMENT OF COMPENSATION ON ACCOUNT OF THE DEATH OR DISABILITY OF ANY OTHER PERSON. BEFORE COMPENSATION UNDER THIS SECTION SHALL BE PAID THE CLAIMANT SHALL FIRST SURRENDER ALL CLAIM TO ANY GRATUITY OR PENSION PAYABLE UNDER ANY OTHER LAW ON ACCOUNT OF THE DEATH OF THE SAME PERSON. * * *

SEC. 489. ANY PERSON WHO WAS ON JUNE 7, 1924, RECEIVING A GRATUITY OR PENSION FROM THE UNITED STATES UNDER THEN EXISTING LAW SHALL NOT RECEIVE COMPENSATION UNDER SECTIONS 473 TO 491, INCLUSIVE, OF THIS TITLE UNLESS HE SHALL FIRST HAVE SURRENDERED ALL CLAIM TO FURTHER PAYMENTS OF SUCH GRATUITY OR PENSION, EXCEPT AS HEREAFTER PROVIDED AND IN SUBDIVISION (7) OF SECTION 472 OF THIS TITLE: PROVIDED, THAT IN THE EVENT OF SURRENDER OF PENSION AS HEREINBEFORE SET FORTH, ANY DISABILITY INCURRED IN THE MILITARY SERVICE OF THE UNITED STATES, BY REASON OF WHICH SAID PENSION WOULD BE PAYABLE, SHALL BE EVALUATED IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 474 AND 477 OF THIS TITLE, AND SHALL BE PAYABLE AS COMPENSATION UNDER THIS CHAPTER: PROVIDED FURTHER, THAT SUCH COMPENSATION RATING SHALL BE COMBINED WITH ANY OTHER COMPENSATION RATING AWARDED BY REASON OF ACTIVE SERVICE IN THE WORLD WAR.

THE PENSIONS REFERRED TO IN THE ABOVE QUOTED LAWS OBVIOUSLY ARE THOSE AUTHORIZED UNDER THE LAWS PROVIDING FOR MILITARY AND NAVAL PENSIONS. THE GRATUITIES INCLUDE THE SIX MONTHS' DEATH GRATUITY FIRST AUTHORIZED BY THE ACTS OF MAY 11, 1908, 35 STAT. 108, AND MAY 13, 1908, ID. 128, SPECIFICALLY REPEALED BY SECTION 312 OF THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 408 (LATER REENACTED AS TO THE REGULAR FORCES ONLY); AND THE PROVISION IN SECTION 8 OF THE ACT OF MAY 4, 1882, 22 STAT. 57 (14 U.S.C. 106). THE DESIGN, IT IS CLEAR, IS TO LIMIT A PERSON OR HIS DEPENDENTS TO THE BENEFITS PROVIDED BY ONE STATUTE REWARDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES, AND THE ADMINISTRATIVE DEPARTMENTS, AND THE COURTS HAVE SO APPLIED THE LAWS. DECATUR V. PAULDING, 14 PETERS 496, STATEMENT OF FACTS, PAGE 497; UNITED STATES V. TELLER, 107 U.S. 64; HINES V. THE UNITED STATES EX REL CAVANAGH, 39 FED./2ND) 517; HINES V. THE UNITED STATES EX REL EASTON, ID. 519. THAT IS, THE INTENT APPEARS TO BE THAT FOR DISABILITY OR DEATH IN THE MILITARY OR NAVAL SERVICE BUT ONE PENSION OR ONE ALLOWANCE OF COMPENSATION IS TO BE PAID AT ANY GIVEN TIME. AND WHERE THE MEMBER IS PROVIDED FOR IN THOSE LAWS AND, ALSO, MAY BE WITHIN THE PROVISIONS OF THE EMPLOYEES' COMPENSATION ACT WHILE SERVING WITH THE ARMED FORCES, THE STATUTE HAS MADE PLAIN THAT ONLY THE PAYMENT PROVIDED UNDER THE WORLD WAR VETERANS' ACT SHOULD BE MADE. SEE SECTION 312 OF THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 408 (38 U.S.C. 500), PROVIDING:

COMPENSATION BECAUSE OF DISABILITY OR DEATH OF MEMBERS OF THE ARMY NURSE CORPS (FEMALE) OR OF THE NAVY NURSE CORPS (FEMALE) SHALL BE IN LIEU OF ANY COMPENSATION FOR SUCH DISABILITY OR DEATH UNDER THE ACT 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," APPROVED SEPTEMBER SEVENTH, NINETEEN HUNDRED AND SIXTEEN. THAT IS, THE ONE DISABILITY OCCURRING IN THE MILITARY SERVICE SHALL NOT GIVE RISE TO PAYMENTS UNDER THE WORLD WAR VETERANS' ACT AND THE EMPLOYEES' COMPENSATION ACT. BUT IT DOES NOT NECESSARILY FOLLOW THAT INJURIES RECEIVED OR DEATH OCCURRING OUTSIDE OF THE MILITARY SERVICE, EVEN THOUGH THE DISABILITY OR DEATH MAY ENTITLE TO PENSION OR COMPENSATION, MAY NOT, ALSO, IF THE INJURY OR DEATH OCCURS DURING CIVILIAN EMPLOYMENT UNDER THE GOVERNMENT, ENTITLE TO PAYMENT UNDER THE EMPLOYEES' COMPENSATION ACT. THE ACT OF SEPTEMBER 7, 1916, THE EMPLOYEES' COMPENSATION ACT, IS IN FORM AND PURPOSE SOMEWHAT SIMILAR TO THE EMPLOYERS' LIABILITY LAWS ENACTED BY VARIOUS STATES FOR THE BENEFIT OF EMPLOYEES INJURED IN THE COURSE OF THEIR EMPLOYMENT, AND BASICALLY THE PURPOSE IS TO PROVIDE COMPENSATION FOR INJURIES SUFFERED IN THE COURSE OF EMPLOYMENT. CERTAINLY, COMPENSATION PAID UNDER AN EMPLOYER'S LIABILITY ACT IS NOT A GRATUITY, AND THE PAYMENTS TO EMPLOYEES OF THE UNITED STATES INJURED IN THE COURSE OF THEIR EMPLOYMENT AUTHORIZED TO BE MADE BY THE EMPLOYEES' COMPENSATION ACT, BEING OF THE SAME NATURE, ARE NO MORE GRATUITIES THAN PAYMENTS UNDER AN EMPLOYER'S LIABILITY ACTS. THE FACT THAT IT WAS AN ACT OF GRACE FOR THE CONGRESS TO SO PROVIDE OR THAT THE SOVEREIGN COULD NOT BE COMPELLED TO MAKE SUCH A PROVISION DOES NOT CHANGE THE CHARACTER OF THE PAYMENT. AS SO UNDERSTOOD, IT IS CLEAR THAT A PAYMENT UNDER THE EMPLOYEES' COMPENSATION ACT, WHETHER TO THE INJURED EMPLOYEE OR TO HIS DEPENDENTS IN CASE OF DEATH, IS NOTA GRATUITY WITHIN THE MEANING OF THAT TERM AS USED IN THE STATUTES HEREINBEFORE QUOTED BUT IS EXACTLY WHAT THE STATUTE TERMS IT, "COMPENSATION" GROWING OUT OF CIVIL EMPLOYMENT UNDER THE GOVERNMENT.

I HAVE TO ADVISE, THEREFORE, THAT THIS OFFICE WILL NOT QUESTION PAYMENTS UNDER THE EMPLOYEES' COMPENSATION ACT IN THIS CASE OR ANY SIMILAR CASE SOLELY BECAUSE THE PERSON TO WHOM SUCH PAYMENTS ARE MADE IS RECEIVING OR IS ENTITLED TO RECEIVE A PENSION UNDER ANY LAW PROVIDING PENSIONS FOR VETERANS OR THEIR DEPENDENTS--- EXCEPT WHERE, AS IN THE CASE OF MEMBERS OF THE ARMY OR NAVY NURSE CORPS (FEMALE), SUCH DUAL BENEFITS MAY BE SPECIFICALLY PROHIBITED BY STATUTE.

ANY DECISIONS OF THIS OFFICE IN CONFLICT HEREWITH WILL NOT BE FOLLOWED HEREAFTER.

THE LETTER FROM THE ATTORNEYS FOR MRS. CLARK TRANSMITTED TO THIS OFFICE BY THE CHIEF CLAIM EXAMINER OF THE COMMISSION, AND THE LETTERS AND POWER OF ATTORNEY SUBSEQUENTLY RECEIVED HERE FROM SAID ATTORNEYS ARE INCLOSED HEREWITH FOR SUCH ACTION AS THE COMMISSION MAY DEEM APPROPRIATE.