B-148359, APRIL 3, 1962, 41 COMP. GEN. 639

B-148359: Apr 3, 1962

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PRISONS AND PRISONERS - INJURY OR DEATH BENEFITS - TIME FOR DETERMINATION UNDER THE PRISON INDUSTRIES ACCIDENT COMPENSATION PROVISIONS IN 18 U.S.C. 4126 WHICH WERE AMENDED BY THE ACT OF SEPTEMBER 26. THE TIME OF RELEASE OF THE PRISONER WHEN THE EFFECT OF THE INJURY ON HIS EARNING CAPACITY IS DETERMINED IS THE CONTROLLING FACTOR. A PRISONER WHO WAS INJURED IN OUTSIDE MAINTENANCE WORK PRIOR TO SEPTEMBER 26. WHO WAS NOT DISCHARGED UNTIL AFTER SEPTEMBER 26. IS REGARDED AS COVERED BY THE ACT AND PAYMENT OF A COMPENSATION AWARD IS PROPER. THE AWARD WAS MADE PURSUANT TO THE PROVISIONS OF SECTION 4126. THE ACCIDENT COMPENSATION PROVISIONS OF SECTION 4126 WERE LIMITED TO INJURIES SUFFERED IN PRISON INDUSTRIES.

B-148359, APRIL 3, 1962, 41 COMP. GEN. 639

PRISONS AND PRISONERS - INJURY OR DEATH BENEFITS - TIME FOR DETERMINATION UNDER THE PRISON INDUSTRIES ACCIDENT COMPENSATION PROVISIONS IN 18 U.S.C. 4126 WHICH WERE AMENDED BY THE ACT OF SEPTEMBER 26, 1961, TO EXTEND COVERAGE TO PERMIT COMPENSATION AWARDS FOR INJURIES SUSTAINED BY PRISONERS WHILE ENGAGED IN MAINTENANCE AND OPERATION WORK, SIMILAR TO INJURIES SUFFERED IN PRISON INDUSTRIES, THE TIME OF RELEASE OF THE PRISONER WHEN THE EFFECT OF THE INJURY ON HIS EARNING CAPACITY IS DETERMINED IS THE CONTROLLING FACTOR; THEREFORE, A PRISONER WHO WAS INJURED IN OUTSIDE MAINTENANCE WORK PRIOR TO SEPTEMBER 26, 1961, THE DATE OF THE AMENDATORY LEGISLATION, BUT WHO WAS NOT DISCHARGED UNTIL AFTER SEPTEMBER 26, 1961, IS REGARDED AS COVERED BY THE ACT AND PAYMENT OF A COMPENSATION AWARD IS PROPER.

TO E. L. BARTEET, DEPARTMENT OF JUSTICE, APRIL 3, 1962:

BY MEMORANDUM OF FEBRUARY 21, 1962, FORWARDED TO THIS OFFICE THROUGH THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL UNDER DATE OF MARCH 6, 1962, YOU REQUEST AN ADVANCE DECISION AS TO WHETHER YOU MAY PROPERLY CERTIFY FOR PAYMENT A VOUCHER DRAWN IN FAVOR OF ONE JAMES L. JOHNSON FOR AN INJURY HE SUSTAINED WHILE ENGAGED, AS A PRISONER, IN OUTSIDE MAINTENANCE WORK OF THE UNITED STATES PENITENTIARY AT TERRE HAUTE, INDIANA.

ON FEBRUARY 15, 1962, THE ASSOCIATE COMMISSIONER, FEDERAL PRISON INDUSTRIES, INC., WITH THE APPROVAL OF THE ACTING COMMISSIONER, RECOMMENDED AN AWARD OF ACCIDENT COMPENSATION IN THE AMOUNT OF $460 TO MR. JOHNSON FOR AN INJURY HE SUSTAINED ON FEBRUARY 1, 1961, WHILE ON AN OUTSIDE MAINTENANCE DETAIL OF THE PRISON. THE AWARD WAS MADE PURSUANT TO THE PROVISIONS OF SECTION 4126, AS AMENDED, OF TITLE 18, U.S.C. AND REGULATIONS ISSUED THEREUNDER. PRIOR TO SEPTEMBER 26, 1961, THE ACCIDENT COMPENSATION PROVISIONS OF SECTION 4126 WERE LIMITED TO INJURIES SUFFERED IN PRISON INDUSTRIES; BUT ON THAT DATE THE SECTION WAS AMENDED BY PUBLIC LAW 87-317, 75 STAT. 681, EXPANDING THE COVERAGE OF SECTION 4126 TO INCLUDE INJURIES SUFFERED IN ANY WORK ACTIVITY IN CONNECTION WITH THE MAINTENANCE OR OPERATION OF THE INSTITUTION WHERE THE INJURED PRISONER WAS CONFINED.

SINCE MR. JOHNSON'S INJURY OCCURRED ON FEBRUARY 1, 1961, AT WHICH TIME THERE WAS NO AUTHORITY FOR GRANTING HIM AN AWARD OF COMPENSATION DUE TO THE FACT THAT HIS INJURY WAS NOT SUSTAINED WHILE HE WAS ENGAGED IN A PRISON INDUSTRY, YOU QUESTION THE PROPRIETY OF THE AWARD MADE TO HIM ON THE BASIS OF THE EXPANDED COVERAGE EFFECTED IN SEPTEMBER OF 1961 BY PUBLIC LAW 87-317 ALMOST 9 MONTHS LATER. IN SHORT, YOU QUESTION WHETHER AN AWARD TO MR. JOHNSON IN THE DESCRIBED CIRCUMSTANCES CONSTITUTES A RETROACTIVE APPLICATION OF PUBLIC LAW 87-317 AND, IF SO, WHETHER SUCH RETROACTIVE APPLICATION IS PROPER.

SECTION 4126 OF TITLE 18, U.S.C. AS AMENDED BY PUBLIC LAW 87-317, PROVIDES, IN PERTINENT PART, THAT:

( FEDERAL PRISON INDUSTRIES) * * * IS AUTHORIZED TO EMPLOY THE ( PRISON INDUSTRIES FUND) * * * IN PAYING, UNDER RULES AND REGULATIONS PROMULGATED BY THE ATTORNEY GENERAL, * * * COMPENSATION TO INMATES OR THEIR DEPENDENTS FOR INJURIES SUFFERED IN ANY INDUSTRY OR IN ANY WORK ACTIVITY IN CONNECTION WITH THE MAINTENANCE OR OPERATION OF THE INSTITUTION WHERE CONFINED * * *. ( ITALICS SUPPLIED FOR THAT PORTION ADDED BY PUBLIC LAW 87 -317.)

SINCE MR. JOHNSON WOULD, IN NO EVENT, BE ENTITLED TO ACCIDENT COMPENSATION BUT FOR THE ENACTMENT OF PUBLIC LAW 87-317 AND THE INJURY UPON WHICH HIS CLAIM IS BASED OCCURRED PRIOR TO ITS ENACTMENT, IT WOULD APPEAR THAT ALLOWANCE OF HIS CLAIM UNDER THAT STATUTE INVOLVES APPLYING THE STATUTE RETROACTIVELY WITH RESPECT TO THE DATE OF INJURY BUT NOT WITH RESPECT TO THE DATE OF RELEASE. THE GENERAL RULE IS, OF COURSE, THAT STATUTES TAKE EFFECT AT THE TIME OF THEIR PASSAGE TO BE APPLIED PROSPECTIVELY AND THAT THEY ARE NOT RETROACTIVE UNLESS MADE SO BY EXPRESS LANGUAGE OR BY NECESSARY IMPLICATION. SEE 34 COMP. GEN. 404, AT PAGE 406, AND CASES CITED THEREIN. AN EXAMINATION OF THE STATUTE'S LEGISLATIVE HISTORY DISCLOSES THAT A FAILURE TO APPLY THE PROVISIONS OF PUBLIC LAW 87- 317 TO COVER THE INJURY SUSTAINED BY MR. JOHNSON AND OTHERS SIMILARLY SITUATED WOULD NULLIFY, TO A CONSIDERABLE EXTENT, THE VERY PURPOSES FOR WHICH CONGRESS SAW FIT TO ENACT THE LEGISLATION.

REPORT NO. 534, 87TH CONGRESS, ST SESSION, IN THE HOUSE OF REPRESENTATIVES CONTAINS THE FOLLOWING STATEMENTS BY THE COMMITTEE ON THE JUDICIARY IN CONNECTION WITH H.R. 7358, LATER ENACTED AS PUBLIC LAW 87- 317:

* * * PURSUANT TO (SECTION 4126 OF TITLE 18, UNITED STATES CODE) PRISONERS EMPLOYED IN ACTIVITIES OF THE CORPORATION ARE AFFORDED COMPENSATION FOR INJURIES, WHILE PRISONERS WORKING IN VARIOUS INSTITUTIONAL AND MAINTENANCE OPERATIONS ARE NOT GIVEN SIMILAR PROTECTION.

THE PROPOSED LEGISLATION WOULD AMEND THE SECTION TO ELIMINATE THIS DISCRIMINATORY DIFFERENCE IN TREATMENT. IT WOULD EXTEND TO INMATES EMPLOYED IN INSTITUTIONAL OPERATIONS THE SAME COMPENSATION PROVISIONS AS ARE APPLICABLE TO INMATES EMPLOYED BY FEDERAL PRISON INDUSTRIES * * *.

THIS COMMITTEE AGREES THAT IT IS ONLY JUST TO AFFORD EQUAL TREATMENT TO ALL PRISONERS WHO MAY BE INJURED INCIDENT TO WORK PERFORMED WHILE CONFINED IN FEDERAL PRISONS. THE DEPARTMENT OF JUSTICE IN THE COMMUNICATION OBSERVED THAT THE MEASURE WOULD HAVE THE DUAL EFFECT OF RELIEVING INEQUITIES AND ALSO SERVING TO IMPROVE MORALE AMONG INMATES NOT NOW COVERED BY THE PROVISIONS RELATING TO INJURY IN THE COURSE OF WORK IN PRISON. THIS IS IMPORTANT IN THE REHABILITATION PROCESS. IN THE LIGHT OF THESE FACTORS AND ALSO IN VIEW OF THE EXPERIENCE OF THIS COMMITTEE IN THE CONSIDERATION OF PRIVATE BILLS ON THIS SUBJECT, THE COMMITTEE FEELS THAT THERE IS A CLEARLY DEFINED NEED FOR THIS AMENDMENT.

SIMILAR LANGUAGE IS CONTAINED IN THE REPORT ON THE BILL BY THE SENATE COMMITTEE ON THE JUDICIARY, REPORT NO. 1056 OF THE SAME CONGRESS.

IT IS DIFFICULT TO PERCEIVE THAT THE CONGRESS IN ENACTING LEGISLATION DESIGNED TO RELIEVE ITSELF OF THE NECESSITY FOR CONSIDERING PRIVATE RELIEF MEASURES; TO REMEDY AN EXISTING INEQUITY IN A LAW AFFECTING A LIMITED BODY OF PERSONS; AND TO IMPROVE THE MORALE OF THAT LIMITED BODY, WOULD HAVE INTENDED THAT ANY NUMBER OF THE GROUP INVOLVED WOULD NOT BE COVERED BY SUCH REMEDIAL LEGISLATION. UNDER THESE CIRCUMSTANCES, ANY HOLDING LEADING TO THE EXCLUSION OF A RELATIVELY SMALL NUMBER OF PERSONS FROM THE BENEFITS INTENDED WOULD, IN FACT, AS TO THEM AGGRAVATE THE CONDITIONS PROMPTING THE REMEDIAL LEGISLATION IN THE FIRST INSTANCE.

IT IS PERTINENT THAT THE CITED PROVISION OF LAW AUTHORIZES THE PAYMENT OF COMPENSATION TO INMATES OR THEIR DEPENDENTS FOR INJURIES "UNDER RULES AND REGULATIONS PROMULGATED BY THE ATTORNEY GENERAL.' UNDER THE REGULATIONS BOTH PRIOR AND SUBSEQUENT TO SEPTEMBER 26, 1961, THE AMOUNT OF THE AWARD WAS BASED UPON THE PERMANENCY AND SEVERITY OF THE INJURY AND ITS RESULTING EFFECT ON THE EARNING CAPACITY OF THE INMATES IN CONNECTION WITH EMPLOYMENT, AFTER RELEASE. THE DETERMINATION OF THE AMOUNT WAS MADE AT THE TIME OF RELEASE AND THE PAYMENTS WERE MADE AFTER RELEASE GENERALLY ON A MONTHLY BASIS. NO RIGHT TO AN AWARD ACCRUED UNLESS THE INMATE WAS TOTALLY OR PARTIALLY DISABLED WHEN DISCHARGED.

IT THUS APPEARS THAT THE TIME OF RELEASE WAS THE CONTROLLING FACTOR WITH RESPECT TO INJURIES SUFFERED IN INDUSTRIES AND IT IS REASONABLE TO ASSUME THAT THE CONGRESS INTENDED THAT THE INMATES RELEASED AFTER THE DATE OF APPROVAL OF PUBLIC LAW 87-317 WOULD BE SIMILARLY COMPENSATED FOR ALL INJURIES COVERED BY THE ACT. THIS IS CONSISTENT WITH THE LEGISLATIVE HISTORY OF THE ACT, WHICH REPEATEDLY REFERS TO EQUALITY OF TREATMENT OF "INMATES" AND OF "PRISONERS.' OBVIOUSLY SUCH A STATUS CEASES AT THE TIME OF RELEASE.

WE, THEREFORE, ARE OF THE OPINION THAT THE PROVISIONS OF PUBLIC LAW 87- 317 TOGETHER WITH THEIR LEGISLATIVE HISTORY NECESSARILY IMPLY APPLICABILITY OF THE STATUE TO ANY OTHERWISE COVERED PRISON INMATE DISCHARGED ON OR AFTER SEPTEMBER 26, 1961, IRRESPECTIVE OF WHEN THE ACCIDENT CAUSING HIS INJURY OCCURRED.

ACCORDINGLY, THE VOUCHER DRAWN IN FAVOR OF JAMES L. JOHNSON IN THE AMOUNT OF $115 AS A FIRST INSTALLMENT ON HIS ACCIDENT COMPENSATION AWARD OF $460, SUBMITTED WITH YOUR REQUEST FOR DECISION AND RETURNED HEREWITH, MAY PROPERLY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.