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DEDUCTIONS.

Soldier's pay, 4 21/30 months, at $30 per month.......

Net amount due claimant..

$122.50

306. 70

The action of the auditor upon revision is reversed and a certificate 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 Accounting 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

7920°-22-Vol. 1-4

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,"

and may not lawfully be paid for any disabled condition which is not in fact permanently total according to the medical opinion and award of the bureau. As in the case of compensation the director is authorized and empowered by law to decide when a condition of permanent total disability exists. The same legal restriction upon his power to make general regulations which applies to compensation applies with equal force to insurance, and I can not approve a regulation which undertakes to establish conclusively by lapse of time a condition of permanent disability which can be determined to exist only by competent medical opinion based upon the facts of any given case.

I see no objection to those parts of the regulation which undertake to establish an effective date for the different ratings of disability. No doubt the date upon which a certain degree of disability commenced is not, generally speaking, a matter of exact knowledge, and any finding of such date may be more or less arbitrary. But the existence of a condition of total disability of any applicant for compensation or insurance and the temporary or permanent character of the disability is a matter which I think can not properly and lawfully be determined by general regulation. However, as hereinbefore stated, the duty and responsibility of determining these conditions rests upon the director.

EMPLOYMENT UNDER LUMP-SUM APPROPRIATIONS.

The provisions of section 7 of the act of October 6, 1917, 40 Stat., 383, prohibiting transfer of employees from one department of the Government to another at an increased rate of compensation within one year under a lump-sum appropriation, is applicable to transfers from the General Accounting Office, created by the act of June 10, 1921, 42 Stat., 23, to the Treasury Department.

Comptroller General McCarl to the Secretary of the Treasury, July 25, 1921: I have your letter of July 16, 1921, requesting decision whether the transfer is permissible under the act of October 6, 1917, 40 Stat., 383, of Frederic A. Shumaker, clerk in the General Accounting Office at $1,600 per annum to clerk at $1,800 per annum in the Bureau of War Risk Insurance.

There are two provisions in the act of October 6, 1917, concerning the transfer of employees, one-section 6-imposing a restriction that no such transfer shall be made until after a service of three years in the department or establishment from which transferred and the other-section 7-that a transfer shall not be made at an increased rate of compensation within one year under a lump-sum appropriation.

The act of June 10, 1921, 42 Stat., 23, establishing the General Accounting Office, provides in section 317 that the prohibition upon

transfer of employees until after service of three years shall not apply during the fiscal year 1922 to the transfer of employees to the General Accounting Office. It would appear that the specific removal of this restriction was because the restrictions of the act of 1917 were considered as otherwise applicable and as the removal of the restriction goes only to transfers into the office there must be considered as remaining the restriction upon transfers therefrom. Likewise the clause as to the increase of compensation, there being no specific authority to transfer from the General Accounting Office at an increased compensation under a lump-sum appropriation, the restrictions of the act of 1917, must be considered applicable in this

case.

I may say that as to the question of transfer within the period of three years it is not strictly a question for the consideration of this office but more for enforcement in connection with approval by the Civil Service Commission. There may be reason why such restrictions should not be considered applicable, particularly where the transfer involved is in the Treasury Department, the General Accounting Office having been in the past a part of that department and the question of service rendered at this time could properly be considered a matter relating to that department rather than here. However this may be, I am constrained to think that the restriction upon the increase of compensation must be applied and that therefore the transfer of the employee at an increased compensation would not be authorized.

BAILMENTS-PROPERTY LEFT ON TRIAL.

Where articles of office equipment are left with a Government office on trial under an agreement that the Government will not be liable for loss or damage, and upon removal it is found that some of the articles are missing and others damaged, no payment for such loss or damage is authorized.

Decision by Comptroller General McCarl, July 26, 1921:

Line-a-Time Manufacturing Co. (Inc.), Rochester, N. Y., applied June 13, 1921, for a revision of the action of the Auditor for the War Department in disallowing by settlement No. 783775, dated May 20, 1921, its claim for $157.65 for loss of and repairing Linea-Time machines which it had on trial at quartermaster's offices located in the Candler warehouses, Atlanta, Ga., stated in its bill dated October 20, 1920, as follows:

January 15, 1920, our representative, Mr. J. S. Blotzer, made placement of 102 Line-a-Times at the Candler warehouse, and after eight months of continuous use he was forced to pull these machines. The following is damage to machines:

1 Model 12____

1 Model 12_

Lost.

Damaged beyond repair.

1 Elliott Fisher model 12, aluminum backs broken, paper clips, lever, enamel line guides and springs, total damage to machines amounts to $157.65.

The auditor's reasons for disallowing the claim are stated as follows:

From the evidence on file it appears that claimants desiring to advertise and promote the interests of their firm placed the machines in the different offices at their own risk. The Government under the circumstances is under no obligation or responsibility for damages or loss to said machines.

It appears that the Line-a-Time machine is a device for the use of stenographers and typists in transcribing; that a representative of the manufacturing company obtained permission to place in the said quartermaster offices 105 Line-a-Time machines for demonstration purposes, with the distinct understanding that under no circumstances would the Government be held responsible for any loss or damage to the machines, the company installing them doing so at its own risk and for demonstration purposes only, that no purchase of them by the said offices could be made without authority from the Quartermaster General's office, and that in the event a requisition was made to cover the purchase of the machines and it was not approved, the machines would be removed from said offices by the company without making any claim; that a requisition for the purchase of the machines was disapproved by the Quartermaster General for the reason that similar machines were available in excess stocks in Washington and at the supply points in the United States; and that after the removal of the machines by the company it presented its bill for $157.65, the claim in question, which it alleges covers a part of the expense of repairs necessary to put its machines in salable condition and also the loss of a "machine or two which could not be located when the decision to reduce the force at Atlanta was reached.”

Appellant states that had it not been for the reasonable assurance of those in charge that the machines would be purchased for said offices it would not have kept them there six months, its usual trial period being only from ten days to two weeks; that the saving of time to the Government through the use of these machines during this long period was of a value many times in amount the sum it is claiming; that this loss to it was brought about by its desire to comply with the wishes of

Mr. Feagan and others in charge of the Candler Warehouse, who were insistent that this equipment remain as installed, assuring our Mr. Blotzer over and over again that the order sent to Washington would be favorably acted upon,

and in this connection submits copies of letters as indicated in the following copy of letter addressed to it by " J. F. Feagan, Principal Clerk, Distribution Division," under date of July 2, 1920, about six months after the machines were installed:

In compliance with request of representative from your office several days ago, attached are copies of letters of recommendation prepared by the stenographers and typists in the Distribution Division, Office of the Depot Officer.

These Line-a-Times have now become a part of this office, and we sincerely hope the new requisition will be approved.

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