Louis Teplitsky, Plaintiff-appellant, v. Bureau of Compensation, United States Department of Labor and United States of America, Defendants-appellees, 398 F.2d 820 (2d Cir. 1968)

Louis Teplitsky appeals from summary judgment entered in the United States District Court for the Southern District of New York, Lloyd F. MacMahon, Judge, dismissing his complaint and granting the government's motion for declaratory judgment that Teplitsky must choose which of two disability awards he will receive in the future. We find no error in the dismissal of the complaint and affirm the dismissal. The declaratory judgment order is modified, and as modified is affirmed.

Teplitsky in 1963 was receiving veteran's benefits of $107.00 per month on a 50% disability rating due to service-connected nervous disorder. In December 1963, while temporarily employed in the Post Office, he suffered a groin injury. After a series of administrative proceedings and various ratings, he was eventually rated 100% disabled both by the Bureau of Compensation and Veterans Administration, and required to make an election between F.E.C.A. benefits of $209.99 a month plus the $107.00 a month V.A. award prior to the groin injury, and the $250.00 a month 100% V. A. award. He rejected the tendered check for back F.E.C.A. benefits and brought action attacking the ruling on various grounds and seeking damages in large amounts. The government cross claimed for declaratory judgment requiring him to elect. On motion, the court granted summary judgment dismissing the complaint and ordering him to make an election.

Essentially for the reasons given in Judge MacMahon's opinion, 288 F. Supp. 310, we affirm the order dismissing the complaint.

We agree that an election of benefits is required if Teplitsky is to receive the maximum award presently available to him. However, the election should be not between the V.A. benefits of $250.00 a month and all F.E.C.A. disability benefits, but, as the government concedes, between (1) the V.A. benefits of $250.00 a month and (2) all F.E.C.A. disability benefits plus the $107.00 V.A. award for partial disability prior to the injury in the Post Office employment. 5 U.S.C. § 8116. (See Government brief and McLellan affidavit p. 25a.) The declaratory judgment may be modified in this respect and as modified, affirmed.