ments which had been made to him. 27 Comp. Dec., 547, 863. The vocational rehabilitation act of June 27, 1918, as amended by the act of July 11, 1919, 41 Stat., 158, substitutes, during the period of vocational rehabilitation, the allowance for vocational trainees provided by that act for the war risk compensation provided by the war risk insurance act which they would otherwise be entitled to receive. Such allowance is subject to deduction of any overpayment of war risk compensation which may have been made to the trainee by the Bureau of War Risk Insurance, 27 Comp. Dec., 212. The trainee allowance stands upon the same footing in its relation to receipt of a pension for the same period of time as the war risk compensation for which it is temporarily substituted.

There is no specific provision in the vocational rehabilitation act that a trainee shall surrender his pension while he is receiving the allowance of a trainee, as war risk compensation beneficiaries are required to do, but trainees are prohibited from receiving war risk compensation except as provided in their law, and the intention that the trainee allowance shall be substituted for any and all other forms of pension or compensation during the period of training is clear.

The general policy of the laws relating to pensions and war risk compensation prohibits receipt by one and the same person of both pension and war risk compensation. 27 Comp. Dec., 863, 866. This policy must be taken to apply to and prohibit receipt of a trainee's allowance, which is a form of temporary war risk compensation, running concurrently with any form of pension or war risk compensation not specifically authorized by law.

Having been paid a pension running concurrently, first with war risk compensation and later with his trainee's allowance, Mr. Spangler has been overpaid war risk compensation or war risk compensation and trainee's allowance to the amount of $355, the aggregate of pension payments made to him by the Bureau of Pensions. His allowance as trainee of the Federal Board for Vocational Education is accordingly subject to deduction of the amount of this overpayment.

This decision relates to a payment to be made under the Federal Board for Vocational Education, and in strictness should not be rendered except upon request by that board. However, the matter was presented to the board by the Bureau of Pensions, and it is upon the board's suggestion that the question raised be submitted to the Comptroller of the Treasury for decision that your submission is based. The only condition to such submission stipulated by the board is that the brief prepared by its legal adviser should accompany the submission. The brief is attached thereto, and the submission accordingly is treated as coming indirectly from the board as well as from the Secretary of the Interior.

EMPLOYEES' COMPENSATION COMMISSION-PARTIAL DISABILITY

COMPENSATION.

Under the act of September 7, 1916, 39 Stat., 743, authorizing the Employees' Compensation Commission to pay to employees partially disabled in the Government service a monthly compensation equal to two-thirds of the difference between their monthly pay received from the Government and their monthly wage-earning capacity after the beginning of the partial disability, the Commission may not resort to an equitable construction of the law for the purpose of establishing an hourly or daily earning capacity for comparison with the hourly or daily rate of pay, but the amount of partial disability compensation must be determined upon the basis of the authorized percentage of the difference between the total pay per month which the employee was receiving from the Government and the earning capacity per month under the partial disability.

Comptroller General McCarl to the Chairman United States Employees' Compensation Commission, July 21, 1921:

I have your letter of July 14, 1921, as follows:

There are submitted herewith for your decision the cases of Walter Richmond and William J. Wood.

For your assistance in arriving at the decision in these cases, I submit the following brief as an explanation: These cases are what is known under the law as partial disability cases, and Section 4 of the act of September 7, 1916, 39 Stat., 743, says that—

"If the disability is partial the United States shall pay to the disabled employee during such disability a monthly compensation equal to sixty-six and two-thirds per centum of the difference between his monthly pay and his monthly wage-earning capacity after the beginning of such partial disability." which means that this Commission is authorized to pay to the injured employee, who by virtue of his injury has been unable to return to his previous profession or vocation at a salary equal to that which obtained prior to the injury and has therefore been compelled to either accept lower pay at the same class of employment, or to seek employment of a lower grade and a lower rate of pay-two-thirds of the loss of earnings suffered as a result of such injury.

In most cases men injured in the Government service are working under the eight-hour day, and, as in these cases, after the injury they are unable to return to their vocation with the Government, and in securing employment in other lines, are compelled to work very much longer hours. There being no set standard of uniformity accepted as a working day, working week, or working month, the Commission felt that in order to deal justly with the injured employee a unit would have to be found that could be universally applied in determining the wage-earning capacity of injured employees. For that reason it was decided that the earning capacity would be more easily computed on the hour unit than upon the unit of the day, week, or month, which varies so greatly every time the employee might be compelled to change his line of employment.

So, on November 23, 1918, in the case of Nicolo Ciattei, the Commission rendered a decision to the effect that partial disability cases should be computed on an hourly basis. The disbursing officer has questioned this method of payment, and as a result a number of cases are being held up by the Commission awaiting your decision.

In the case of Walter Richmond, at the time of injury, January 23, 1920, he was employed as a skilled laborer at $4.50 a day for an 8-hour day, or .56 an hour. The claimant recovered from total disability and received employment March 1, 1921, as a watchman. The record shows that this man has been working 7 days a week, 12 hours a day, for which he receives $20 a week. According to the Commission's decision as to the method of computing these cases, his present wage was reduced to an 8-hour day which gives him $1.904 per diem or .238 per hour. As he was earning $4.50 for an 8-hour day or $135 a month, and as his present capacity for an 8-hour day is $57.12 per month.

he has been compensated at two-thirds of the difference which is $1.73 a day, or $51.92 a month.

The other case, that of William J. Wood, employed as a laborer in the Quartermaster Corps, Hoboken, New Jersey, at the time of injury, January 3, 1919, this man worked 8 hours per diem, 6 days per week, for which he was receiving $3.20 per diem or .40 per hour. The injury he suffered was a comminuted fracture of right tibia and fibula, resulting in permanent partial disability. On September 1, 1920, the attending physician certified that this claimant was able to perform light work, and on September 11 he secured employment as a cook on a tug. The record shows that he works 11 hours a day for which he receives $4.30 a day or 39 per hour. His present wage was reduced to an 8-hour day or $3.13 for the purpose of computing his compensation. As he was earning $3.20 for an 8-hour day at the time of the injury or $96 a month, and his present earning capacity for an 8-hour day is $93.90 a month, he has been compensated at two-thirds of the difference, or $1.40 per month.

The question involved is: Has this Commission the authority to compute an injured claimant's wage-earning capacity upon an hourly basis, and say that where a man was able to earn a set sum per hour previous to the injury, and has earned less per hour since the injury, the Commission may compensate him for the loss?

For our authority in making this decision we would call your attention to section 32 of the act which says that "The Commission is authorized to make necessary rules and regulations for the enforcement of this act, and shall decide all questions arising under this act."

The decision of these specific cases and determination of matters of fact involved in their decision is a function and duty imposed by law upon your commission. It is proper, however, for the Comptroller General upon your submission to render his decision on the general question of law raised by the cases and determine generally whether compensation which has been computed in the manner outlined in your submission is a lawful charge against the compensation appropriation.

The express provision of the statute makes the difference between monthly pay and the monthly earning capacity the measure for determining the rate of compensation for partial disability. No other unit of time than the month is recognized by the statute, and I find no authority of law for computing a monthly earning capacity upon an hourly basis or upon the basis of an 8-hour day. A man's monthly earning capacity is the amount he is capable of earning in a month, regardless of the number of days he works each. month or the number of hours he works each day.

The language of the statute is plain and does not warrant a resort to equitable construction for the purpose of establishing an hourly or daily earning capacity for comparison with the hourly or daily rate of pay.

I find no authority of law for adjusting partial disability compensation upon any other basis than the authorized percentage of the difference between the total pay per month which the employee was receiving and the earning capacity per month under the partial disability.

PAY OF ENLISTED MEN OF THE ARMY DETAILED TO ROAD WORK. In order to be entitled to the benefits of the act of February 28, 1919, 40 Stat., 1202, equalizing the pay of officers and enlisted men of the Army detailed to road work during the World War to conform to the compensation paid to civilian employees in the same or like employment, it was not necessarily essential that an enlisted man actually work with a pick and shovel, but time spent in other kinds of labor, such as driving a truck and loading cement, which was paid for at the same rate by the civilian contractors, may be included.

In the absence of any detailed records of the various classes of road work to which the personnel of the Army were detailed during the World War, the period they were engaged on road work for which they were entitled to the same pay given civilian employees in the same or like employment, under provisions of the act of February 28, 1919, 40 Stat., 1202, must be determined by deducting from the period they were present with their organization while engaged on road work the number of days it is now known they were not engaged on such work, including in such deductions Sundays and holidays, fatigue and kitchen-police duty, rainy days, and furlough. From the total civilian pay for the remaining days must also be deducted the man's pay as a soldier for the same period.

Decision by Comptroller General McCarl, July 22, 1921:

Roscoe C. Buckner applied February 11, 1921, for revision of the action of the Auditor for the State and Other Departments in disallowing by settlement, certificate No. 22277, dated June 21, 1920, his claim for $1,154.72, under section 9 of the act of February 28, 1919, 40 Stat., 1202, the alleged difference between the amount paid him as a private, 553d Company, Motor Transport Corps, U. S. Army, and the wages paid civilian employees rendering the same, or like, services as himself while the company was detailed for work on the Alexandria-Camp Humphreys (Va.), rural post road, August 25, 1918, to February 25, 1919. Claimant alleges he is entitled to this difference in pay because he worked with pick and shovel grading the road except for a period of two weeks when he was driving a truck and loading cement.

From data gleaned from the records and from information developed by this office it appears that the claimant actually performed road work as alleged and as distinguished from performance of the military duty of his grade, so that the questions at issue are the determination of the definite number of days he was so employed and the amount of extra pay he should be allowed therefor. While the records do not show that his work on the road included driving a truck and loading cement, yet this point may be conceded, as it does not affect the amount of time allowable, and as both kinds of labor were paid for at the same rate by the civilian contractors who constructed the road.

The act provides:

That when any officer or enlisted man in the Army, the Navy, or the Marine Corps shall have been or may be in the future detailed for labor in the building of roads or other highway construction or repair work (other than roads within the limits of cantonments or military reservations in the

several States), during the existing war, the pay of such officer or enlisted man shall be equalized to conform to the compensation paid to civilian employees in the same or like employment and the amount found to be due such officers, soldiers, sailors, and marines, less the amount of his pay as such officer, soldier, sailor, or marine, shall be paid to him from the 1920 appropriation herein allotted to the States wherein such highway construction or repair work was or will be performed.

The auditor in his letter of disallowance states that he disallowed the claim not because he believed that no extra compensation was due the claimant for work done on the road but because he (the auditor) was unable to determine from the facts before him the amount of such compensation. This was due to the fact that the act was made retroactive, and while the usual military records appear to have been kept by this unit, yet prior to the approval of the act no pretense was made by it, or by the War Department, of keeping a detailed record of the various classes of road work to which the members of this or similar units were assigned nor of the time they were employed thereon. The absence of such records necessarily requires that the time of the claimant be determined by deducting from the period he was present with his organization, while it was detailed on road work, the number of days it is now known he was not engaged on such work.

The claimant originally asked extra pay for work aggregating 291 days of eight hours each at $5 per day during the period August 15, 1918, to March 15, 1919, but later acknowledged that this was. merely an estimate on his part and changed the period to read August 25, 1918, to February 25, 1919, which is in accordance with the records. It has been found upon investigation that from the 185 calendar days contained in the latter period must be deducted 591 days on account of Sundays and holidays, fatigue and kitchen-police duty, rainy days, and furlough, leaving 125 working days, for which pay is allowable on the basis of an eight-hour day, since the records show that the claimant did not average more than eight hours per day "straight time."

There must also be deducted claimant's monthly pay as a soldier for the days he actually worked on the road, it being assumed that on the days he did not do road work he was engaged in the performance of his normal duties as a private of the military organization to which he belonged.

Inquiry has shown that the contractors' rate of pay for civilian labor on the road was 40 cents per hour to November 13, 1918, and 45 cents per hour after that date. The amount, therefore, properly due the claimant is as follows:

56 days at $3.20 per 8-hour day.. 69 days at $3.60 per 8-hour day

Total civilian pay----

$180.80 248. 40

429. 20