A-12272, MARCH 3, 1926, 5 COMP. GEN. 685

A-12272: Mar 3, 1926

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" IS NOT AVAILABLE TO AFFORD RELIEF TO POLICEMEN AND FIREMEN OF THE DISTRICT OF COLUMBIA FOR INJURY OR DISEASE NOT SHOWN TO HAVE BEEN INCURRED IN THE ACTUAL DISCHARGE OF DUTY. THE FACT THAT THE POLICEMAN OR FIREMAN MAY HAVE BEEN IN AN ACTIVE DUTY STATUS WHEN THE DISABILITY AROSE IS NOT SUFFICIENT TO WARRANT RELIEF. WILL NOT BE DISTURBED. THE CERTIFICATES OF THE BOARD OF POLICE AND FIRE SURGEONS ACCOMPANYING THE VOUCHERS WERE SIGNED BY ONLY ONE MEMBER OF THE BOARD. SEVERAL OF THE VOUCHERS DISCLOSED THAT THE DISABILITY INVOLVED WAS A DISEASE OR INJURY NOT ORDINARILY RESULTING FROM DUTY AS A POLICEMAN OR A FIREMAN. IT IS STATED THAT THE SIGNATURE OF THE SECRETARY IN EVERY INSTANCE REPRESENTED THE ACTION OF THE BOARD.

A-12272, MARCH 3, 1926, 5 COMP. GEN. 685

MEDICAL TREATMENT - DISTRICT OF COLUMBIA POLICEMEN AND FIREMEN THE APPROPRIATION "POLICEMEN AND FIREMEN'S RELIEF FUND, D.C., " IS NOT AVAILABLE TO AFFORD RELIEF TO POLICEMEN AND FIREMEN OF THE DISTRICT OF COLUMBIA FOR INJURY OR DISEASE NOT SHOWN TO HAVE BEEN INCURRED IN THE ACTUAL DISCHARGE OF DUTY, AS REQUIRED BY THE ACT OF SEPTEMBER 1, 1916, 39 STAT. 718. THE FACT THAT THE POLICEMAN OR FIREMAN MAY HAVE BEEN IN AN ACTIVE DUTY STATUS WHEN THE DISABILITY AROSE IS NOT SUFFICIENT TO WARRANT RELIEF. PAST PAYMENTS MADE UNDER A MISUNDERSTANDING OF THE LAW, HOWEVER, WILL NOT BE DISTURBED.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 3, 1926:

JAMES R. LUSBY, DISBURSING OFFICER OF THE DISTRICT OF COLUMBIA, REQUESTED OCTOBER 21, 1925, REVIEW OF THE DISALLOWANCES OF CREDIT IN HIS ACCOUNTS FOR PAYMENTS MADE FROM THE APPROPRIATION ,POLICEMEN AND FIREMEN'S RELIEF FUND, D.C., " ON VOUCHERS NOS. 41075, 42285, 43237, 44920, 47919, 49151, AND 49333. THE CERTIFICATES OF THE BOARD OF POLICE AND FIRE SURGEONS ACCOMPANYING THE VOUCHERS WERE SIGNED BY ONLY ONE MEMBER OF THE BOARD, TO WIT, THE SECRETARY, AND SEVERAL OF THE VOUCHERS DISCLOSED THAT THE DISABILITY INVOLVED WAS A DISEASE OR INJURY NOT ORDINARILY RESULTING FROM DUTY AS A POLICEMAN OR A FIREMAN.

WITH RESPECT TO THE QUESTION OF SIGNING THE CERTIFICATES, IT IS STATED THAT THE SIGNATURE OF THE SECRETARY IN EVERY INSTANCE REPRESENTED THE ACTION OF THE BOARD, OR A QUORUM THEREOF, AS ALL BILLS ARE ACTED UPON AT THE DAILY SESSION OF THE BOARD, BUT THAT SINCE THE OBJECTION RAISED BY THE GENERAL ACCOUNTING OFFICE TO A CERTIFICATE SIGNED BY ONLY ONE MEMBER ALL CERTIFICATES ARE NOW BEING SIGNED BY TWO MEMBERS OF THE BOARD. AS THE CERTIFICATES NOW IN QUESTION ARE ALL OVER TWO YEARS OLD AND WERE SIGNED IN ACCORDANCE WITH THE PRACTICE AT THAT TIME, WHICH HAS NOW BEEN CORRECTED, NO FURTHER OBJECTION WILL BE MADE AS TO INSUFFICIENCY OF THESE PARTICULAR CERTIFICATES IN SO FAR AS THE SIGNATURES ARE CONCERNED.

THE POLICEMEN'S FUND WAS FIRST CREATED BY THE ACT OF AUGUST 6, 1861, 12 STAT. 325, WHICH PROVISION WAS CARRIED INTO SECTION 354 OF THE REVISED STATUTES OF THE DISTRICT OF COLUMBIA (1873). SECTION 12, OF THE ACT OF SEPTEMBER 1, 1916, 39 STAT. 718, COMBINED THE POLICEMEN AND FIREMEN'S FUNDS INTO ONE FUND TO BE KNOWN AS THE POLICEMEN AND FIREMEN'S RELIEF FUND, D.C., AND PROVIDED FOR PAYMENTS THEREFROM UNDER THE FOLLOWING CONDITIONS:

WHENEVER ANY MEMBER OF THE POLICE DEPARTMENT OR THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA SHALL BECOME TEMPORARILY DISABLED BY INJURY RECEIVED OR DISEASE CONTRACTED IN THE ACTUAL DISCHARGE OF HIS DUTY, TO SUCH AN EXTENT AS TO REQUIRE MEDICAL OR SURGICAL SERVICES OTHER THAN SUCH AS CAN BE RENDERED BY THE BOARD OF POLICE AND FIRE SURGEONS OF SAID DISTRICT, OR TO REQUIRE HOSPITAL TREATMENT, THE EXPENSES OF SUCH MEDICAL OR SURGICAL SERVICES, OR HOSPITAL TREATMENT, SHALL BE PAID FROM THE POLICEMEN AND FIREMEN'S RELIEF FUND, DISTRICT OF COLUMBIA, PROVIDED FOR IN THIS ACT; BUT NO SUCH EXPENSES SHALL BE PAID EXCEPT UPON A CERTIFICATE OF THE SAID BOARD OF POLICE AND FIRE SURGEONS, OR TWO MEMBERS THEREOF, SETTING FORTH THE NECESSITY FOR SUCH SERVICES OR TREATMENT AND THE NATURE OF THE INJURY OR DISEASE WHICH RENDERED THE SAME NECESSARY, AND UPON THE APPROVAL OF THE SAID CERTIFICATE BY THE SUPERINTENDENT OF THE METROPOLITAN POLICE OR THE CHIEF ENGINEER OF THE FIRE DEPARTMENT, AS THE CASE MAY BE, AND THE APPROVAL OF THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA.

WHILE THE FUND IS LARGELY DERIVED FROM DEDUCTIONS FROM PAY, FINES UPON MEMBERS OF THE POLICE AND FIRE DEPARTMENTS, REWARDS, GIFTS, DONATIONS, ETC., ANY DEFICIENCY IS MADE UP OUT OF DISTRICT OF COLUMBIA GENERAL REVENUE, AND THE CONGRESS IN THE ACT APPROVED SEPTEMBER 1, 1916, 39 STAT. 718, NOT ONLY SPECIFICALLY STATED THE USES TO WHICH THE FUND MAY BE APPLIED BUT PROVIDED FURTHER AS FOLLOWS:

* * * THE MONEYS TO THE CREDIT OF THE SAID FUND SHALL BE AVAILABLE FOR APPROPRIATION BY CONGRESS ANNUALLY ONLY FOR EXPENDITURE ON REQUISITIONS OF THE SAID COMMISSIONERS FOR THE PURPOSES SET FORTH IN THIS ACT, AND ALL EXPENDITURES FROM SAID FUND SHALL BE MADE AND ACCOUNTED FOR IN THE SAME MANNER AS OTHER EXPENDITURES OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA ARE MADE AND ACCOUNTED FOR.

THUS, IT IS THE DUTY OF THE ACCOUNTING OFFICERS OF THE UNITED STATES TO ENFORCE SUCH LIMITATIONS UPON THE USES AS THE CONGRESS HAS SEEN FIT TO PRESCRIBE FOR THE PROTECTION AND CONSERVATION OF SAID FUND.

WHEN A MEMBER OF THE POLICE DEPARTMENT OR THE FIRE DEPARTMENT IS "TEMPORARILY DISABLED BY INJURY RECEIVED OR DISEASE CONTRACTED * * * TO SUCH AN EXTENT AS TO REQUIRE MEDICAL OR SURGICAL SERVICES OTHER THAN SUCH AS CAN BE RENDERED BY THE BOARD OF POLICE AND FIRE SURGEONS OF SAID DISTRICT, OR TO REQUIRE HOSPITAL TREATMENT * * *" THE CONGRESS HAS INTERPOSED AS A CONDITION TO THE USE OF THIS FUND FOR PAYMENTS THAT THE INJURY WAS RECEIVED OR THE DISEASE CONTRACTED "IN THE ACTUAL DISCHARGE OF HIS DUTY.' CLEARLY THIS PHRASE IS NOT IN MEANING SYNONYMOUS WITH "WHILE IN THE SERVICE" OR "IN THE LINE OF DUTY" APPEARING IN OTHER PARTS OF THE ENACTMENT.

THE WISDOM OF SUCH A LIMITATION, IN VIEW OF THE NATURE OF THE FUND, IS NOT A MATTER THAT MAY PROPERLY BE TAKEN INTO CONSIDERATION IN DETERMINING ITS EFFECT ON THE AVAILABILITY OF THE FUND FOR PAYMENTS. IT IS THE LAW AND MUST BE GIVEN EFFECT, AND TO SUPPORT PAYMENTS FROM THE FUND THERE MUST APPEAR THE FACTS NECESSARY TO ENABLE THIS OFFICE TO ASCERTAIN WHETHER CREDIT MAY BE GIVEN.

IT IS URGED IN SUPPORT OF THE REQUEST FOR REVIEW THAT POLICE AND FIREMEN ARE ON DUTY 24 HOURS DAILY AND EVERY DAY IN THE YEAR, BEING EXCUSED FROM ACTIVE PARTICIPATION IN DUTIES FOR NECESSARY REST, SLEEP, AND FOOD, AND THAT CONSEQUENTLY ANY DISABILITY MUST OF NECESSITY HAVE DEVELOPED WHILE ON ACTIVE DUTY. THE TERM "ACTIVE DUTY" WHEN SO USED AS TO INCLUDE PERIODS WHEN EXCUSED FOR SLEEP, REST, ETC., IS CLEARLY TOO BROAD IN SCOPE TO MEET THE REQUIREMENTS OF THE STATUTORY LIMITATION "IN THE ACTUAL DISCHARGE OF HIS DUTY.' BUT IN SUCH CONNECTION SEE THE ACT OF MAY 27, 1924, 43 STAT. 175, WHICH PROVIDES IN SECTION 3 THAT ALL POLICEMEN AND FIREMEN "SHALL BE GRANTED" ONE DAY OFF OUT OF EACH WEEK OF SEVEN DAYS IN ADDITION TO THE ANNUAL LEAVE AND SICK LEAVE ALLOWED BYLAW. HOWEVER, FOR THE PURPOSES OF THE MATTER AT PRESENT HERE INVOLVED IT IS NOT MATERIAL WHETHER THE POLICEMEN AND FIREMEN ARE CONSIDERED AS BEING ON CONTINUOUS DUTY. THE STATUTORY LIMITATION PRECLUDES PAYMENT FOR MEDICAL OR SURGICAL SERVICES, OTHER THAN SUCH AS CAN BE RENDERED BY THE BOARD OF POLICE AND FIRE SURGEONS, ALSO HOSPITAL TREATMENT, EXCEPT IN CASES OF "INJURY RECEIVED OR DISEASE CONTRACTED IN THE ACTUAL DISCHARGE OF HIS DUTY," AND IT APPEARS CLEAR THAT BY NO PROPER CONSTRUCTION OF THE PHRASE "IN THE ACTUAL DISCHARGE OF HIS DUTY" COULD IT BE MADE TO INCLUDE EATING, SLEEPING, OR REST PERIODS, OR PERIODS OF ANNUAL LEAVE, SICK LEAVE, DAYS OFF DUTY, ETC. 10 COMP. DEC. 789.

A CERTIFICATE WHICH MERELY STATES THAT THE DISABILITY WAS "INCURRED IN THE LINE OF DUTY" OR "IN THE PERFORMANCE OF DUTY," WITHOUT ANY EXPLANATION OF THE FACTS AND THE CIRCUMSTANCES UNDER WHICH THE DISABILITY OCCURRED, IS NOT SUFFICIENT TO ENABLE THIS OFFICE TO DETERMINE WHETHER THE PAYMENT WAS AUTHORIZED IN VIEW OF THE PROVISIONS OF THE STATUTE. AS SUGGESTED ABOVE, THE FACTS AS TO WHEN, WHERE, AND HOW THE INJURY WAS RECEIVED OR THE DISEASE CONTRACTED MUST NECESSARILY BE SHOWN IN EACH CASE IN ORDER THAT THIS OFFICE MAY FIND THAT THE LIMITATION OF THE LAW HAS BEEN COMPLIED WITH, THAT THE DISABILITY WAS RECEIVED OR CONTRACTED "IN THE ACTUAL DISCHARGE OF HIS DUTY" AND THE EXPENDITURE IS OTHERWISE WITHIN THE SCOPE OF THE ACT. THE NATURE OF THE SERVICE RENDERED FOR WHICH PAYMENT IS MADE AND THE REASON WHY SUCH SERVICE COULD NOT HAVE BEEN RENDERED BY THE POLICE AND FIRE SURGEONS, SHOULD ALSO APPEAR, AS THE ACT PERMITS PAYMENTS FROM THE FUND IN SUCH CASES ONLY FOR "MEDICAL OR SURGICAL SERVICES OTHER THAN SUCH AS CAN BE RENDERED BY THE BOARD * * *.'

VOUCHER NO. 42285, IN FAVOR OF MISS HAZEL L. CROWE, IS STATED TO BE FOR SERVICES TO A FIREMAN IN CONNECTION WITH AN INJURED HIP, CERTIFIED AS "INJURED IN THE PERFORMANCE OF DUTY," FAILING TO STATE THE FACTS AS TO THE TIME, PLACE, AND NATURE OF THE INJURY, AND FAILING ALSO TO STATE THE NATURE AND EXTENT OF THE SERVICES RENDERED.

VOUCHERS NOS. 41075, 43237, 44920, 47919, 49151, 49333, COVER SPECIALIST AND HOSPITAL SERVICES RENDERED IN CONNECTION WITH THE FOLLOWING CLASSES OF DISABILITY, CERTIFIED AS INCURRED "IN THE LINE OF DUTY; " ACUTE GALLSTONE COLIC, DEFECTIVE VISION RESULT OF TOXEMIA, KIDNEY TROUBLE, INGUINAL HERNIA, APPENDICITIS, PNEUMONIA, INFECTED HAND, SEPTIC INFECTION, ACUTE APPENDICITIS, TUMOR OF NECK, TUMOR OF HAND, SUSPECTED APPENDICITIS, TONSILLECTOMY, AND HEMORRHOIDS. THESE VOUCHERS ARE ALL INCOMPLETE FOR THE REASONS HEREINBEFORE STATED, BUT IN VIEW OF THE MISUNDERSTANDING IN PROCEDURE THAT HAS HERETOFORE MAINTAINED THESE AND OTHER SIMILAR VOUCHERS HERETOFORE PAID WILL BE PASSED FOR CREDIT IN THE DISBURSING ACCOUNT WITHOUT REQUIRING A FURTHER SHOWING OF FACT--- THE PROCEDURE HEREAFTER TO BE AS HEREIN OUTLINED.