B-169481, MAY 18, 1970

B-169481, MAY 18, 1970

OFFICERS AND EMPLOYEES--DEATH OR INJURY--DISABILITY COMPENSATION, ETC.- LEAVES OF ABSENCE SINCE $87.35 PAYMENT TO NAVY EMPLOYEE FOR ACCRUED LEAVE WHILE IN LEAVE- WITHOUT-PAY STATUS AND RECEIVING DISABILITY COMPENSATION IS SUBJECT TO FEDERAL EMPLOYEES COMPENSATION ACT PROHIBITION AGAINST CONCURRENT PAYMENTS OF PAY AND DISABILITY COMPENSATION, AND WAIVER BY NAVY UNDER PUB. L. 90- 616 WOULD NOT REMOVE SUCH PROHIBITION BECAUSE SUCH WAIVER IS CONSIDERED PAYMENT OF PAY FOR ALL PURPOSES, MATTER SHOULD BE SUBMITTED TO SEC. OF LABOR UNDER WAIVER AUTHORITY CONFERRED IN 5 U.S.C. 8129 (B), AND PRESERVED IN 5584 (F) FOR WAIVER OR RECOVERY. IF SO WAIVED, NO FURTHER WAIVER ACTION ON OVERPAYMENT WOULD BE REQUIRED.

TO CAPTAIN V. A. LASCARA:

THIS REFERS TO LETTER FROM YOUR OFFICE OF JANUARY 21, 1970, REFERENCE NAFC3121, WITH ENCLOSURES, CONCERNING THE OVERPAYMENT OF COMPENSATION TO MR. CATALDO TANZELLA AS AN EMPLOYEE OF THE NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA.

THE INFORMATION FURNISHED SHOWS THAT MR. TANZELLA WAS INJURED ON THE JOB ON FRIDAY, NOVEMBER 29, 1968, AND WAS PLACED IN A SICK LEAVE STATUS ON DECEMBER 10, 1968, FOR AN INDEFINITE PERIOD. HE HAD 64 HOURS OF SICK LEAVE AND 96 HOURS OF ANNUAL LEAVE TO HIS CREDIT AS OF NOVEMBER 30, 1968. THIS IN ADDITION TO CURRENT ACCRUAL OF LEAVE CARRIED HIM THROUGH JANUARY 11, 1969, LEAVING A BALANCE OF 6 HOURS ANNUAL AND 4 HOURS SICK LEAVE. WAS THEN CARRIED IN A LEAVE-WITHOUT-PAY STATUS ACCUMULATING 6 HOURS ANNUAL AND 4 HOURS SICK LEAVE EACH PAY PERIOD FOR WHICH HE WAS PAID AND WHICH WAS TERMINATED AFTER THE LEAVE WITHOUT PAY EXCEEDED 80 HOURS. YOUR OFFICE WAS NOT AWARE UNTIL APRIL 18, 1969, THAT MR. TANZELLA WAS RECEIVING DISABILITY COMPENSATION BEGINNING WITH 4 HOURS ON JANUARY 9, 1969. WHILE RECEIVING DISABILITY COMPENSATION, MR. TANZELLA ALSO RECEIVED COMPENSATION IN THE AMOUNT OF $87.35 FOR ACCRUED LEAVE WHILE IN A LEAVE-WITHOUT-PAY STATUS.

YOU ASK THAT WE CONSIDER THE MATTER RELATIVE TO ITS DUAL COMPENSATION ASPECTS AND RELATIVE TO ITS OVERPAYMENT OF PAY ASPECTS IN CONSIDERATION OF WAIVER UNDER THE AUTHORITY OF PUBLIC LAW 90-616. THE DUAL COMPENSATION ACT, 5 U.S.C. 5333, PROVIDES, WITH CERTAIN EXCEPTIONS NOT HERE APPLICABLE, THAT CIVILIAN PERSONNEL SHALL NOT BE ENTITLED TO RECEIVE BASIC COMPENSATION FROM MORE THAN ONE CIVILIAN OFFICE FOR MORE THAN AN AGGREGATE OF FORTY HOURS OF WORK IN ONE CALENDAR WEEK. THE QUESTION SUBMITTED IS NOT ONE REQUIRING APPLICATION OF THE DUAL COMPENSATION STATUTE. RATHER, IT INVOLVES AN OVERPAYMENT RESULTING FROM CONCURRENT RECEIPT OF PAY AND DISABILITY COMPENSATION CONTRARY TO THE PROVISIONS OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, 5 U.S.C. 8101, 8116.

PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, 5 U.S.C. 5584, AUTHORIZES THE WAIVER OF GOVERNMENT CLAIMS ARISING FROM ERRONEOUS PAYMENTS OF PAY. AN ERRONEOUS PAYMENT OF PAY, THE COLLECTION OF WHICH IS WAIVED UNDER THE ACT, IS DEEMED A VALID PAYMENT OF PAY FOR ALL PURPOSES. 5 U.S.C. 5584 (E).

SECTION 8129 (B) OF TITLE 5, U.S.C. CONCERNING OVERPAYMENTS UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, PROVIDES THAT UNDER REGULATIONS ISSUED BY THE SECRETARY OF LABOR ADJUSTMENTS OR RECOVERY BY THE UNITED STATES MAY NOT BE MADE WHEN INCORRECT PAYMENT HAS BEEN MADE TO AN INDIVIDUAL WHO IS WITHOUT FAULT AND WHEN ADJUSTMENT OR RECOVERY WOULD DEFEAT THE PURPOSE OF THE ACT OR WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE. SECTION 5584 (F) OF TITLE 5 PRESERVES SUCH INDEPENDENT WAIVER AUTHORITY.

IF THE OVERPAYMENT IS VIEWED INITIALLY AS ARISING OUT OF ERRONEOUS PAYMENTS OF COMPENSATION FOR INJURIES, ACTION BY THE SECRETARY OF LABOR EITHER TO COLLECT THE AMOUNT INVOLVED OR WAIVE ITS RECOVERY WOULD PUT AN END TO THE MATTER.

IF, ON THE OTHER HAND, THE OVERPAYMENT IS VIEWED INITIALLY AS AN OVERPAYMENT OF PAY, WAIVER OF ITS COLLECTION BY YOUR AGENCY--WHICH WOULD SERVE TO ESTABLISH THE OVERPAYMENT AS A VALID PAYMENT OF PAY- WOULD OF ITSELF OPERATE TO TRANSFER THE OVERPAYMENT FROM BEING ONE OF PAY TO AN OVERPAYMENT OF COMPENSATION FOR INJURIES THEREBY REQUIRING FURTHER ACTION BY THE SECRETARY OF LABOR.

IN THE CIRCUMSTANCES, WE BELIEVE THAT THE MOST REASONABLE PROCEDURE WOULD BE FOR YOU TO REFER THE MATTER TO THE SECRETARY OF LABOR FOR CONSIDERATION UNDER 5 U.S.C. 8129 (B) AND TO ADVISE THE CLAIMANT OF SUCH REFERRAL. THE ENCLOSURES WITH YOUR LETTER OF JANUARY 21 ARE RETURNED.