such child or children; or

(C) If there is no such widow or widower but such a child or children, then to such child or children; or

(D) if there is no survivor in the above classes, then to the parent or parents wholly or partly dependent for support upon the decedent, or to other wholly or partly dependent relatives listed in section 760(F) of this title, or to both, in such proportions as may be provided by regulation; or

(E) if there is no survivor in any of the above classes, and no burial allowance is payable under section 761 of this title, then such amount, not exceeding the amount which would be expendable under said section if such section were applicable, shall be paid to reimburse any person or persons, equitably entitled thereto, to the extent and in the proportions that they shall have paid the expenses of burial of such disabled individual, but no compensated insurer or other person obligated by law or contract to pay such expenses, and no State or political subdivision or entity, shall be deemed so equitably entitled.

(2) Except for the amount of such compensation payable with respect to any period preceding the disabled individual's death, the payments to be made under paragraph (1) of this subsection shall be at the basic rate of compensation for permanent disability specified in subsection (a) of this section, even if at the time of such death the decedent was entitled to the augmented rate specified in section 756(a) of this title.

(3) (A) The right of any surviving beneficiary listed in paragraph (1) of this subsection to any payment pursuant to this subsection, except a beneficiary under clause (E) thereof, shall be conditioned upon his being alive to receive such payment and no such beneficiary shall have a vested right to any such payment.

(B) The entitlement of any beneficiary to payments under clauses (A) to (D) of paragraph (1) of this subsection shall cease upon the happening of any event which would terminate the right of such beneficiary to compensation for death under section 760 of this title. Upon the cessation of the entitlement of any beneficiary under such clauses (A)-(D), the compensation remaining unpaid under paragraph (1) of this subsection which would have been payable to him had such entitlement continued shall be payable to the surviving beneficiary or beneficiaries, if any, within the same class, or, if there are none, then to the beneficiary or beneficiaries next entitled to priority under such paragraph. (As amended Oct. 14, 1949, ch. 691, Title I, § 104, 63 Stat.-.)

1949 Amendment.-Act Oct. 14, 1949, cited to text, amended section generally to provide entirely new provisions consisting of a schedule of compensation for the total or partial loss or loss of use of a member or function of the body. Prior provisions of this section are now covered by section 754 (b) of this title.

Retroactive effect of 1949 amendment.-Section 303 (d) of Act Oct. 14, 1949, cited to text, provided that:

"(1) The amendments made by section 104 of this Act to section 5 of the Federal Employees' Compensation Act [this section], establishing special provisions for permanent disability involving the loss, or loss of use, of a member or function of the body, shall (A) in cases within the purview of section 5(b) [this section] or in cases of disfigurement apply retroactively to any case where the injury occurred on or after January 1, 1940, and (B) in other cases, apply retro

actively to injuries which occurred within one year prior to the enactment of this Act [Oct. 14, 1949]: Provided, That where the injury occurred before such enactment, except in cases specified in subsection (b) of section 5 of such Act, as so amended [this section], the injured employee shall not be entitled to compensation under the schedule unless within one year after such date of enactment he elects to receive compensation under the schedule if so entitled: Provided further, That in the event of such election, all amounts theretofore paid on the basis of loss of wage-earning capacity as compensation for permanent disability involving a loss, or loss of use, of a member or function, or disfigurement, as specified in the schedule shall be credited against any compensation awarded by reason of such amendment: And provided further, That any award made under the provisions of this subsection shall be payable prospectively in the same manner as though the injury occurred after the enactment of this Act [Oct. 14, 1949].

"(2) No payment upon death pursuant to section 5(d) of the Federal Employees' Compensation Act, as amended by this Act [this section], shall be made unless death occurs after such enactment. In the event of such death, the election required by paragraph (1) of this subsection shall be deemed to have been made."

8756. Monthly compensation for disability.-(a) Augmentation for dependent; definition of dependents.-(1) While the disabled employee has one or more dependents, his basic compensation for disability payable under section 753 or section 755 (a) of this title (including compensation payable under the schedule to section 755(a) of this title by virtue of section 755(b) of this title) shall be augmented at the rate of 83 per centum of his monthly pay, and his basic compensation for disability payable under section 754 (a) of this title shall be augmented at the rate of 8/3 per centum of the difference between his monthly pay and his monthly wage-earning capacity: Provided, That for any period of temporary total disability the augmentation of his basic compensation for disability payable under section 753 of this title shall be limited to that part of his monthly pay which is not in excess of $420.

(2) As used in this subsection, the term "dependent" shall mean any of the following:

(A) A wife, if (i) she is a member of the same household as the employee or is receiving regular contributions from him toward her support, or (ii) he has been ordered by any court to contribute to her support.

(B) A husband, if wholly dependent by reason of his own physical or mental disability upon the employee for support.

(C) An unmarried child (as defined in section 760 (H) of this title), while such child (i) is under eighteen years of age, or, if over eighteen, is incapable of self-support by reason of mental or physical disability, and (ii) is living with his employee or receiving regular contributions toward his support from the employee.

(D) A parent (as defined in section 760 (H) of this title), while wholly dependent upon and supported by the employee.

(b) Additional compensation for services of attendant or vocational rehabilitation.-(1) In addition to the monthly compensation otherwise specified in sections 751-756, 757-791, and 793 of this title, the Administrator may pay an injured employee, who has been awarded compensation, an additional sum of not more than $75 a month, as the Administrator may deem necessary, when the Administrator shall find that the service of an attendant is necessary constantly to be used by reason of the employee's being totally blind, or

having lost both hands or both feet or the use thereof, or being paralyzed and unable to walk, or by reason of other disability resulting from the injury actually rendering him so helpless as to require constant attendance.

(2) The Administrator may pay to any disabled individual who is undergoing vocational rehabilitation pursuant to the Administrator's direction under section 759 (b) of this title additional compensation necessary for his maintenance, but not to exceed $50 per month.

(c) Maximum and minimum monthly payments.-Except as otherwise authorized under section 793 of this title, the monthly rate of compensation for disability, including any augmented compensation payable by reason of subsection (a) of this section but not including any sum payable by reason of subsection (b) of this section, shall not be more than $525 per month and in cases of total disability shall not be less than $112.50 per month, unless the employee's monthly pay is less in which case his monthly rate of compensation for total disability shall be equal to his full monthly pay.

(d) Increase or decrease on basis of productive capacity.-(1) In the case of any person who at the time of the injury was a minor or employed in a learner's capacity and who, prior to the injury, was not physically or mentally handicapped, the Administrator shall, on any review under section 787 of this title after the time when the wage-earning capacity of such person would probably, but for the injury, have increased, prospectively recompute the monetary compensation payable for disability on the basis of an assumed monthly pay corresponding to such probable increased wage-earning capacity. The Administrator may, on any review under section 787 of this title after a disabled employee has attained the age of seventy years and the wage-earning capacity of the disabled employee would probably, aside from and independently of the effects of the injury, have decreased on account of old age, prospectively recompute the monetary compensation payable for disability on the basis of an assumed monthly pay corresponding to such probable decreased wage-earning capacity.

(2) If a disabled individual, without good cause, fails to apply for and undergo vocational rehabilitation when so directed pursuant to section 759 (b) of this title, and the Administrator, upon review under section 787 of this title, finds that in the absence of such failure the individual's wage-earning capacity would probably have substantially increased, the Administrator may prospectively reduce the individual's monetary compensation in accordance with what would probably have been his wage-earning capacity in the absence of such failure, until the individual in good faith complies with the Administrator's direction. (As amended Feb. 12, 1927, ch. 110, § 1, 44 Stat. 1086; May 13, 1936, ch. 382, 49 Stat. 1270; 1946 Reorg. Plan No. 2, § 3, eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095; Oct. 14, 1949, ch. 691, Title I, § 105, 63 Stat. -.)

Amendments.-Act Oct. 14, 1949, cited to text, completely reversed section by amending existing provisions and adding new provisions.

Act of May 13, 1936, cited to the text, added last paragraph to section. Transfer of functions.-"Administrator" was substituted for "Commission'' and "Federal Security Administrator" for "Employee's Compensation Commission" by 1946 Reorg. Plan No. 2, 3, cited to text. See note under section 778 of this title.

Retroactive effect of 1949 amendment.-Amendment of section by Act Oct. 14, 1949, cited to text, to apply retroactively in certain cases, see note set out under section 753 of this title.

§ 756a. Increase of computation base where injury occurred prior to July 1, 1946.-Notwithstanding any other provision of this Act or of the Federal Employees' Compensation Act, the monthly pay upon the basis of which compensation for disability or death is computed under the Federal Employees' Compensation Act, as amended, shall, effective on the first day of the first calendar month following October 14, 1949, be increased by 40 per centum if the injury (or injury causing death) occurred before May 1, 1943, in the cases of persons employed in the postal service whose compensation was affected by sections 835 and 836 of Title 39, or before January 1, 1941, in all other cases, or by 10 per centum if the injury (or injury causing death) occurred on or after such date but before July 1, 1946, except that such increase shall in no event exceed $50. This section shall apply to any case of death caused by such an injury, regardless of whether such death occurs or occurred before or after October 14, 1949. (Oct. 14, 1949, ch. 691, Title I, § 109, 63 Stat. -.)

References in text. This Act referred to in the text is Act Oct. 14, 1949, cited to text, and is classified to sections 752-764, 767-769, 771–774, 776, 778–790, 791–1 to 791-4, 793, and 796 of this title.

The Federal Employees' Compensation Act, as amended, referred to in the text, is classified to sections 751-756, 751–791, and 793 of this title.

8757. Persons receiving compensation not to be paid for other services; pensions; election; right to compensation as exclusive; exception. (a) As long as the employee is in receipt of compensation under sections 751-791, 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: Provided, That whenever any person is entitled to receive any benefits under sections 751-791 and 793 of this title by reason of his injury, or by reason of the death of an employee, as defined in section 790 of this title, and is also entitled to receive from the United States any payments or benefits (other than the proceeds of any insurance policy), by reason of such injury or death under any other Act of Congress, because of service by him (or in the case of death, by the deceased) as an employee, as so defined, such person shall elect which benefits he shall receive. Such election shall be made within one year after the injury or death, or such further times as the Administrator may for good cause allow, and when made shall be irrevocable unless otherwise provided by law.

(b) The liability of the United States or any of its instrumentalities under sections 751-756, 757-791, and 793 of this title or any extension thereof with respect to the injury or death of an employee shall be exclusive, and in place, of all other liability of the United States or such instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and anyone otherwise entitled to recover damages from the United States or such instrumentality, on account of such injury or death, in any direct judicial proceedings in a civil action

or in admiralty, or by proceedings, whether administrative or judicial under any other workmen's compensation law or under any Federal tort liability statute: Provided, however, That this subsection shall not apply to a master or a member of the crew of any vessel. (As amended July 1, 1944, ch. 373, Title VII, § 705(a), 58 Stat. 312; 1946 Reorg. Plan No. 2, § 3, eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095; Aug. 13, 1946, ch. 958, § 5, 60 Stat. 1049; Oct. 14, 1949, ch. 691, Title II, 201, 63 Stat.-.)

Amendments.-Act Oct. 14, 1949, cited to text, amended section by designating former section as subsec. (a), and by adding subsec. (b).

Retroactive effect of 1949 amendments. Section 303(g) of Act Oct. 14, 1949, provided that: "The amendment made by section 201 of this Act to section 7 of the Federal Employees' Compensation Act [section 757 of this title], making the remedy and liability under such Act [sections 751-756, 757-791, and 793 of this title] exclusive except as to masters or members of the crew of any vessel, shall apply to any case of injury or death occurring prior to the date of enactment of this Act [Oct. 14, 1949]: Provided, however, That any person who has commenced a civil action or an action in admiralty with respect to such injury or death prior to such date, shall have the right at his election to continue such action notwithstanding any provision of this Act to the contrary, or to discontinue such action within six months after such date before final judgment and file claim for compensation under the Federal Employees' Compensation Act, as amended, within the time limited by sections 15 to 20 of such Act (including any extension of such time limitations by any provision of this Act), or within one year after enactment of this Act, whichever is later. If any such action is not discontinued and is decided adversely to the claimant on the ground that the remedy or liability under the Federal Employees' Compensation Act is exclusive, or on jurisdictional grounds, or for insufficiency of the pleadings, the claimant shall, within the time limited by sections 15 to 20 of such Act (including any extension of such time limitations by any provision of this Act), or within one year after final determination of such cause, whichever is later, be entitled to file a claim under such Act."

Act Aug. 13, 1946, cited to text, renumbered title and section of Act July 1, 1944, cited to text, without otherwise affecting section.

Act July 1, 1944, cited to text, amended section by adding proviso.

Transfer of functions.-"Administrator" was substituted for "Commission'' by 1946 Reorg. Plan No. 2, § 3, cited to text. See note under section 778 of this title.

Cross references.-Public Health Service commissioned officers, application of chapter to, see sections 799 and 800 of this title.

8758. Employee having annual or sick leave to his credit.-If at the time the disability begins the employee has annual or sick leave to his credit he may use such leave until it is exhausted, in which case his compensation for disability shall not begin, and the time periods specified in section 752 of this title shall not begin to run, until the annual or sick leave has ceased. (As amended Oct. 14, 1949, ch. 691, Title I, § 101 (b), 63 Stat. —.)

1949 Amendment.-Act Oct. 14, 1949, cited to text, amended section to permit payment for the first 3 days if the disability lasted longer than 21 days, and to omit the reference to approval by head of the department in order to use up sick or annual leave before drawing disability compensation.

Retroactive effect of 1949 amendment.-Amendment by section 101(b) of Act Oct. 14, 1949, cited to text, not to apply retroactively, see note set out under section 752 of this title.

8759. Medical, surgical, and hospital service; transportation expenses; initial furnishing of services; certification; vocational rehabilitation. (a) For any injury sustained by an employee while in the performance of duty, whether or not disability has arisen, the United