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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 commiputed fracture of right tibia and fibula, resulting in perinanent 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 $.30 a day or 391 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 con

tractors, 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 nian 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 hiin 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 2914 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 125working 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: 561 days at $3.20 per 8-hour day----

-------- $180. 80 69 days at $3.60 per 8-hour day-----

-

---- 248. 40

--- 248. 40 Total civilian pay----

429, 20

DEDUCTIONS. Soldier's pay, 4 2}/30 months, at $30 per month.

---------- $122. 50 Net amount due claimant.----------------..

-------- 306.70 The action of the auditor upon revision is reversed and a certifi. cate of differences will issue for the amount found due the claimant. In this connection see 27 Comp. Dec., 637.

Any decision of the accounting officers contrary to the views expressed herein is overruled.

WAR RISK DISABILITY COMPENSATION.

The degree of disability of a beneficiary of the Bureau of War Risk Insurance

and the permanency of a condition of total disability of any such beneficiary are matters of fact and medical opinion to be determined by the bureau and not by the General Acoounting Office. A regulation of the bureau which undertakes to establish conclusively by lapse of time alone and without regard to the actual facts a condition of total permanent disability which may not in fact exist is without authority of law and is not in itself sufficient to support payment of compensation or insurance in accordance with its arbitrary rule, and can not be approved by the Comptroller General.

Comptroller General McCarl to the Secretary of the Treasury, July 25, 1921:

I have your letter addressed to the Comptroller of the Treasury, June 15, 1921, requesting decision as to the legality of a proposed regulation of the Bureau of War Risk Insurance to be designated as Regulation No. 57-A. This regulation is an amendment of former Regulation No. 57, promulgated by the bureau November 26, 1920, and deals with the effective date of disability compensation awards other than those for total permanent disability, and with the procedure in making total permanent disability awards for compensation and insurance purposes, and with the rules for determining total permanent disability and the effective date thereof.

Section 302 of the war risk insurance act as amended by the act of December 24, 1919, 41 Stat., 373, provides compensation at varying monthly rates for disability which " is rated as total and temporary” or “ is rated as partial and temporary” or “is rated as total and permanent” or “is rated as partial and permanent.” The amended section provides also that,

A schedule of ratings of reduction in earning capacity from specific injuries or combinations of injuries of a permanent nature shall be adopted and applied by the bureau.

The said schedule is to be used as a basis for rating all disability for compensation purposes.

Broadly speaking, the purpose of the proposed regulation is to fix an arbitrary rule of general application for determining the effective date of a disability rating, either permanent or temporary, partial

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or total, and for determining and establishing the fact of permanency and degree of disability without regard to the facts of individual cases. I find no authority of law for the establishment of any such rule in so far as it relates to the permanency and degree of the disability. However, the only requirement of the law for payment of compensation is that the disability shall be “rated” at the degree necessary to establish the right to the rate of compensation to be paid, and section 13 of the war risk insurance act of October 6, 1917, 40 Stat., 399, authorizes the director, subject to the general direction of the Secretary of the Treasury, to administer, execute, and enforce the provisions of the act, and for that purpose to make rules and regulations, not inconsistent with the provisions of the act, necessary and appropriate to carry out its purposes; and further provides that he shall decide all questions arising under the act. Any general regulation of the matter, however, must under the terms of the statute be not inconsistent with its provisions, so that in my opinion any such regulation which undertakes, for instance, without specific authority of law, to establish a general rule for rating total permanent disability upon mere lapse of time and without regard to whether the applicant was in fact totally and permanently disabled, is contrary to law and therefore of no effect as a general regulation, and is not in itself sufficient to support payment of compensation in accordance with its arbitrary rule.

Subparagraph (c) of paragraph IV of the proposed regulation undertakes to establish a presumption of total permanent disability for disabled persons who have been inmates of hospitals or asylums during a continuous period of 12 months or more, who shall be found to require further hospitalization for an indefinite period, or who have been rated as totally disabled and have been unable for a like period to follow any gainful occupation, and are found to be in such physical or mental condition as to render them unable to follow continuously any substantially gainful occupation for an indefinite period.

It seems clear that the permanency of a condition of total disability is not dependent upon hospitalization or upon the mere existence of total disability for any limited period of time, but is dependent upon the facts and medical opinion in any given case. It is for the bureau to determine the condition of total permanent disability; not for the General Accounting Office. I can not, however, give my approval to a regulation which conclusively presupposes a permanent physical condition which in fact may not exist.

As regards the application of these regulations to the payment of insurance the situation is not materially different. The insurance provided for by section 400 of the act of October 6, 1917, 40 Stat., 409, is payable only in case of death or “total permanent disability,"

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