B-145934, JUNE 23, 1961, 40 COMP. GEN. 711

B-145934, JUNE 23, 1961, 40 COMP. GEN. 711

MILITARY PERSONNEL - DUAL COMPENSATION - FEDERAL EMPLOYEES' COMPENSATION ACT - MEDICAL AND HOSPITAL EXPENSES AND RETIRED PAY THE PAYMENT OF MEDICAL AND HOSPITAL EXPENSES UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT, 5 U.S.C. 751, ET SEQ., FOR AN INJURY SUSTAINED BY A CIVILIAN EMPLOYEE WHO IS IN RECEIPT OF RETIRED PAY AS A RETIRED MEMBER OF THE UNITED STATES COAST GUARD IS TO BE DISTINGUISHED FROM THE COMPENSATION PAYABLE TO THE EMPLOYEE IN INSTALLMENTS, OR A COMMUTATION THEREOF, OVER THE PERIOD OF DISABILITY SO THAT THE DUAL COMPENSATION PROHIBITION IN 5 U.S.C. 757 (A) AGAINST RECEIPT OF ANY OTHER PAY DURING THE PERIOD INSTALLMENT PAYMENTS ARE BEING MADE FOR THE DISABILITY IS NOT FOR APPLICATION, AND PAYMENT OF THE EMPLOYEE'S HOSPITAL AND MEDICAL EXPENSES DOES NOT REQUIRE A WITHHOLDING OF THE MEMBER'S RETIRED PAY.

TO C. C. GORDON, UNITED STATES COAST GUARD, JUNE 23, 1961:

BY FIRST ENDORSEMENT DATED MAY 22, 1961, THE CHIEF, PAYMENTS AND CLAIMS DIVISION, OFFICE OF THE COMMANDANT, HEADQUARTERS, UNITED STATES COAST GUARD, FORWARDED YOUR LETTER OF THE SAME DATE REQUESTING AN ADVANCE DECISION AS TO THE RIGHT OF NORMAN R. TINGLE (100-342) MMC, UNITED STATES COAST GUARD, RETIRED, TO RETIRED PAY FOR THE PERIOD HE WAS PAID MEDICAL EXPENSES BY THE BUREAU OF EMPLOYEES' COMPENSATION. THE REQUEST FOR ADVANCE DECISION WAS ASSIGNED NO. CO-CG-581 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

FROM THE INFORMATION FURNISHED IN YOUR LETTER, IT APPEARS THAT MR. TINGLE RETIRED FROM THE UNITED STATES COAST GUARD FOR PHYSICAL DISABILITY ON FEBRUARY 1, 1949. HE WAS INJURED WHILE ENGAGED IN THE PERFORMANCE OF HIS DUTY AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT IN JUNE 1960, AT WHICH TIME HE WAS RECEIVING RETIRED PAY AT THE RATE OF $195.20 PER MONTH AS A RETIRED MEMBER OF THE COAST GUARD. MEDICAL AND HOSPITAL EXPENSES IN THE AMOUNT OF $323.60 INCURRED IN CONNECTION WITH HIS INJURY HAVE BEEN PAID BY THE BUREAU OF EMPLOYEES' COMPENSATION. WHILE IT APPEARS THAT HE SUBMITTED A CLAIM FOR COMPENSATION ON ACCOUNT OF HIS INJURY, HE LATER REQUESTED THAT SUCH CLAIM BE CANCELED. YOU SAY YOUR CHIEF COUNSEL RULED THAT SUCH MEDICAL EXPENSES SHOULD BE CONSIDERED COMPENSATION AND THAT AS A RESULT MR. TINGLE WAS OVERPAID RETIRED PAY. SINCE MR. TINGLE HAS QUESTIONED THAT RULING AND HAS REQUESTED DELAY IN WITHHOLDING ANY OF HIS RETIRED PAY PENDING FURTHER INVESTIGATION, YOU REQUEST DECISION ON THE FOLLOWING QUESTIONS:

(A)IS THE $323.60 PAID BY THE BUREAU OF EMPLOYEES' COMPENSATION FOR MEDICAL EXPENSES FOR MR. TINGLE TO BE CONSIDERED DISABILITY COMPENSATION EVEN THOUGH IT WAS NOT PAID DIRECTLY TO MR. INGLE?

(B) IF THE ANSWER TO (A) IS IN THE AFFIRMATIVE AM I AUTHORIZED TO CONTINUE PAYMENT OF NORMAL RETIRED PAY WITHOUT DEDUCTION OF RETIRED PAY RECEIVED FOR THE PERIOD 25 JUNE THROUGH 24 JULY 1960?

SECTION 7 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, AS AMENDED, 5 U.S.C. 757, PROVIDES IN PART AS FOLLOWS:

(A) AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER SECTIONS 751-756, 757-781, 783-791 AND 793 OF THIS TITLE, OR, IF HE HAS BEEN PAID A LUMP SUM 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: * * *

SECTION 40 (H) OF THE 1916 ACT, AS AMENDED, 5 U.S.C. 790 (H), PROVIDES:

(H) THE TERM "COMPENSATION" INCLUDES THE MONEY ALLOWANCE PAYABLE TO AN EMPLOYEE OR HIS DEPENDENTS AND OTHER BENEFITS PAID OUT OF THE COMPENSATION FUND: PROVIDED, HOWEVER, THAT THIS SHALL NOT IN ANY WAY REDUCE THE AMOUNT OF THE MONTHLY COMPENSATION PAYABLE IN CASE OF DISABILITY OR DEATH.

THE ACT PROVIDES FOR THE PAYMENT TO THE DISABLED EMPLOYEE DURING THE PERIOD OF HIS PERMANENT OR PARTIAL DISABILITY OF A MONTHLY MONETARY COMPENSATION AND IN ANY CASE OF PERMANENT DISABILITY WHICH INVOLVES SOLELY THE LOSS, OR LOSS OF USE, OF A MEMBER OR A FUNCTION OF THE BODY, OR INVOLVES DISFIGUREMENT, BASIC COMPENSATION FOR SUCH DISABILITY WHICH, IN ADDITION TO COMPENSATION FOR ANY TEMPORARY TOTAL OR TEMPORARY PARTIAL DISABILITY, IS PAYABLE TO THE DISABLED EMPLOYEE FOR THE PERIOD SPECIFIED IN THE SCHEDULE CONTAINED IN 5 U.S.C. 755.

SECTION 9 (A) OF THE ACT, AS AMENDED, 5 U.S.C. 759 (A) PROVIDES, IN PART, THAT:

(A) FOR ANY INJURY SUSTAINED BY AN EMPLOYEE WHILE IN THE PERFORMANCE OF DUTY, WHETHER OR NOT DISABILITY HAS ARISEN, THE UNITED STATES SHALL FURNISH TO THE EMPLOYEE ALL SERVICES, APPLIANCES, AND SUPPLIES PRESCRIBED OR RECOMMENDED BY DULY QUALIFIED PHYSICIANS WHICH, IN THE OPINION OF THE SECRETARY, ARE LIKELY TO CURE OR TO GIVE RELIEF OR TO REDUCE THE DEGREE OR THE PERIOD OF DISABILITY OR TO AID IN LESSENING THE AMOUNT OF THE MONTHLY COMPENSATION. * * * ALL SUCH EXPENSES WHEN AUTHORIZED OR APPROVED BY THE SECRETARY SHALL BE PAID FROM THE EMPLOYEES' COMPENSATION FUND. * * *

PROVISION IS ALSO MADE IN THAT SECTION FOR PAYMENT OF THE MEDICAL AND OTHER BENEFITS THERE AUTHORIZED, UPON A CERTIFICATION BY THE PERSON AND IN THE MANNER THERE PRESCRIBED, THAT "THE EXPENSE WAS INCURRED WITH REGARD TO AN INJURY WHICH WAS ACCEPTED BY THE EMPLOYING ESTABLISHMENT AS PROBABLY COMPENSABLE" UNDER THAT ACT.

IT IS CLEAR THAT WHILE THE ACT DEFINES "COMPENSATION" AS ANY BENEFIT PAID OUT OF THE COMPENSATION FUND, IT ALSO DISTINGUISHES BETWEEN AND PROVIDES FOR TWO KINDS OF RELIEF TO FEDERAL EMPLOYEES FOR INJURIES SUSTAINED IN THE PERFORMANCE OF DUTY, (1) DISABILITY COMPENSATION OR PAYMENT FOR INJURY ON THE BASIS OF MONTHLY MONETARY PAYMENTS OR A LUMP SUM IN COMMUTATION THEREOF AND (2) FREE MEDICAL, SURGICAL AND HOSPITAL SERVICE NECESSARY FOR TREATMENT OF AN INJURY SO SUSTAINED. THE PROHIBITION CONTAINED IN THE QUOTED PORTION OF 5 U.S.C. 757 (A) BY ITS OWN TERMS RELATES TO A PERIOD OF TIME "1AS LONG AS" THE EMPLOYEE IS "IN RECEIPT OF" COMPENSATION UNDER THE ACT AS INSTALLMENT PAYMENTS OR A COMMUTATION THEREOF FOR THE PERIOD OF DISABILITY OR THE "PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED.' NORMALLY, PAYMENTS FOR MEDICAL, SURGICAL AND HOSPITAL SERVICES ARE NOT MADE TO THE EMPLOYEE AND THERE IS NO PROVISION FOR THEIR PAYMENT IN INSTALLMENTS OVER A PERIOD OF TIME WHICH HAS ANY RELATIONSHIP TO THE NATURE AND EXTENT OF THE INJURY INVOLVED. WHERE THE ONLY BENEFITS PAID FROM THE COMPENSATION FUND ARE FOR MEDICAL AND HOSPITAL SERVICES, THERE IS NO BASIS FOR DETERMINING THE PERIOD FOR WHICH THE PAYMENT OF DUAL COMPENSATION IS BARRED. CLEARLY, 5 U.S.C. 757 REFERS TO TYPE (1) COMPENSATION MENTIONED ABOVE. ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE NEGATIVE AND QUESTION (B) REQUIRES NO ANSWER.