A-12785, APRIL 9, 1926, 5 COMP. GEN. 811

A-12785: Apr 9, 1926

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IS ENTITLED TO BE REIMBURSED FOR LOSS OF WAGES WITHIN THE MAXIMUM AMOUNT AUTHORIZED BY REGULATION. IS ONLY ONE CIRCUMSTANCE TO BE CONSIDERED IN CONNECTION WITH ALL THE FACTS DISCLOSED TO DETERMINE WHETHER THERE WAS IN FACT A BONA FIDE LOSS OF WAGES OR WHETHER THE VETERAN WOULD HAVE TERMINATED HIS EMPLOYMENT IN ANY EVENT PRIOR TO ENTRANCE INTO THE HOSPITAL. CLAIMANT WAS ORDERED TO ENTER FITZSIMMONS GENERAL HOSPITAL FOR OBSERVATION FOR PULMONARY TUBERCULOSIS PENDING ADJUDICATION OF HIS CLAIM FOR COMPENSATION AND TREATMENT. WAS DISCHARGED FEBRUARY 16. THE CLAIM FOR LOSS OF WAGES WAS BASED ON AN EMPLOYMENT WITH THE F. IS SUPPORTED BY THE AFFIDAVIT OF F. WHICH IS AS FOLLOWS: THIS WILL CERTIFY THAT MR.

A-12785, APRIL 9, 1926, 5 COMP. GEN. 811

VETERANS' BUREAU - LOSS OF WAGES A VETERAN OF THE WORLD WAR WHO APPLIED FOR DISABILITY COMPENSATION AND MEDICAL TREATMENT FROM THE VETERANS' BUREAU AND WHO TERMINATED HIS EMPLOYMENT FOR THE EXPRESS PURPOSE OF UNDERGOING HOSPITALIZATION FOR OBSERVATION IN A VETERANS' BUREAU HOSPITAL TO DETERMINE THE MERITS OF HIS CLAIM PURSUANT TO AN ORDER OF THE BUREAU, IS ENTITLED TO BE REIMBURSED FOR LOSS OF WAGES WITHIN THE MAXIMUM AMOUNT AUTHORIZED BY REGULATION, NOTWITHSTANDING HE FAILED TO RETURN TO HIS FORMER POSITION IMMEDIATELY UPON DISCHARGE FROM THE HOSPITAL BECAUSE OF HIS PHYSICAL CONDITION. THE FAILURE OF A VETERAN OF THE WORLD WAR TO RETURN TO HIS FORMER EMPLOYMENT UPON DISCHARGE FROM A VETERANS' BUREAU HOSPITAL DOES NOT IPSO FACTO DEFEAT HIS RIGHT TO BE REIMBURSED FOR LOSS OF WAGES, BUT IS ONLY ONE CIRCUMSTANCE TO BE CONSIDERED IN CONNECTION WITH ALL THE FACTS DISCLOSED TO DETERMINE WHETHER THERE WAS IN FACT A BONA FIDE LOSS OF WAGES OR WHETHER THE VETERAN WOULD HAVE TERMINATED HIS EMPLOYMENT IN ANY EVENT PRIOR TO ENTRANCE INTO THE HOSPITAL.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 9, 1926:

JOE J. FRIEL HAS REQUESTED REVIEW OF SETTLEMENT NO. 0108553, DATED DECEMBER 18, 1925, DISALLOWING HIS CLAIM FOR $320, REPRESENTING LOSS OF WAGES WHILE REPORTING FOR MEDICAL EXAMINATION AND DURING HOSPITALIZATION FOR OBSERVATION PURSUANT TO AN ORDER OF THE VETERANS' BUREAU FOR THE PERIOD FROM OCTOBER 23, 1924, TO FEBRUARY 16, 1925. THE CLAIM HAS BEEN ADMINISTRATIVELY APPROVED AND CERTIFIED BY THE VETERANS' BUREAU TO THIS OFFICE FOR SETTLEMENT.

IT APPEARS THAT ON OR ABOUT OCTOBER 20, 1924, CLAIMANT APPLIED FOR DISABILITY COMPENSATION AND MEDICAL TREATMENT AT THE EXPENSE OF THE GOVERNMENT. AS A RESULT OF MEDICAL EXAMINATIONS BY A MEDICAL OFFICER OF THE UNITED STATES VETERANS' BUREAU IN THE PERIOD FROM OCTOBER 23 TO OCTOBER 27, 1924, CLAIMANT WAS ORDERED TO ENTER FITZSIMMONS GENERAL HOSPITAL FOR OBSERVATION FOR PULMONARY TUBERCULOSIS PENDING ADJUDICATION OF HIS CLAIM FOR COMPENSATION AND TREATMENT. HE ENTERED THE HOSPITAL PURSUANT TO THIS ORDER ON OCTOBER 28, 1924, AND WAS DISCHARGED FEBRUARY 16, 1925, THE OBSERVATION REVEALING NO PULMONARY TUBERCULOSIS TO BE PRESENT NOR ANY OTHER CONDITION AUTHORIZING HOSPITALIZATION AT THE EXPENSE OF THE GOVERNMENT. THE CLAIM FOR LOSS OF WAGES WAS BASED ON AN EMPLOYMENT WITH THE F. J. KIRCHHOF CONSTRUCTION CO. AND IS SUPPORTED BY THE AFFIDAVIT OF F. W. HAYS, OF THE F. J. KIRCHHOF CONSTRUCTION CO., WHICH IS AS FOLLOWS:

THIS WILL CERTIFY THAT MR. JOE J. FRIEL BEGAN WORK FOR ME ON OCTOBER 3D, 1924, AS A LABORER AT A DAILY WAGE SCALE OF $4.00 PER DAY.

MR. FRIEL ON OCTOBER 20TH, 1924, REPORTED TO ME THAT HE WAS FEELING SO BADLY THAT HE WOULD HAVE TO LAY OFF FOR THE BALANCE OF THE DAY. OCTOBER 23D, 1924, MR. FRIEL REPORTED TO ME THAT HE WAS HAVING A SERIES OF EXAMINATIONS MADE BY THE VETERANS' BUREAU AND WOULD PROBABLY RETURN TO WORK AS SOON AS THEY WERE COMPLETED. ON OCTOBER 25TH, 1924, HE AGAIN REPORTED TO ME, STATING THAT HE WOULD HAVE TO QUIT HIS JOB SO THAT HE COULD REPORT TO THE VETERANS' BUREAU HOSPITAL, AS THEY SUSPECTED HIM OF HAVING SOME LUNG CONDITION.

HE WAS PAID IN FULL TO INCLUDE OCTOBER 20, 1924; AS HE WAS EMPLOYED ON A DAILY WAGE BASIS OF $4 PER DAY, HE WAS NOT CARRIED ON OUR PAY ROLL AFTER THAT DATE. CONSEQUENTLY, HE RECEIVED NO PAY FROM THIS COMPANY AFTER THAT DATE.

HIS SERVICES WHILE EMPLOYED BY US WERE ENTIRELY SATISFACTORY, AND, HAD IT NOT BEEN FOR THE SHORT ATTACK OF ILLNESS AND THE REQUEST OF THE VETERANS' BUREAU FOR HIM TO GO TO THE HOSPITAL, HE COULD HAVE AND WOULD HAVE BEEN CONTINUOUSLY EMPLOYED BY ME, AT A DAILY WAGE OF $4 PER DAY, DURING THE PERIOD HE WAS IN THE HOSPITAL, AS IT WAS NECESSARY FOR ME TO REPLACE HIM WITH ANOTHER MAN. IF HIS PHYSICAL CONDITION WILL PERMIT HIM TO PERFORM THE ARDUOUS DUTIES REQUIRED AS COMMON LABORER, HE MAY RESUME HIS EMPLOYMENT WITH THIS COMPANY AT ANY TIME.

THE VETERANS' BUREAU HAS FOUND AND CERTIFIED THAT CLAIMANT TERMINATED HIS EMPLOYMENT WITH THE F. J. KIRCHHOF CONSTRUCTION CO. IN ORDER TO PERMIT COMPLIANCE WITH THE ORDER OF THE VETERANS' BUREAU, AND THAT CLAIMANT IS ENTITLED TO REIMBURSEMENT FOR WAGES LOST FOR THE PERIOD HE WAS IN THE HOSPITAL UNDER OBSERVATION TO AN AMOUNT WITHIN THE MAXIMUM AMOUNT AUTHORIZED BY THE REGULATIONS.

IT APPEARS THAT WHEN CLAIMANT WAS DISCHARGED FROM THE HOSPITAL HE WAS PHYSICALLY UNABLE TO RETURN TO HIS FORMER EMPLOYMENT AS A LABORER. IT IS NOT DISCLOSED WHETHER HE WAS OTHERWISE EMPLOYED. IT IS STATED THAT IN THE SUMMER FOLLOWING HIS DISCHARGE FROM THE HOSPITAL HE APPLIED FOR WORK WITH HIS FORMER EMPLOYER BUT WAS TOLD THAT HE WAS NOT NEEDED.

SECTION 203 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 622, PROVIDES AS FOLLOWS:

THAT EVERY PERSON, APPLYING FOR OR IN RECEIPT OF COMPENSATION FOR DISABILITY UNDER THE PROVISIONS OF THIS TITLE AND EVERY PERSON APPLYING FOR TREATMENT UNDER THE PROVISIONS OF SUBDIVISIONS (9) OR (10) OF SECTION 202 HEREOF, SHALL, AS FREQUENTLY AND AT SUCH TIMES AND PLACES AS MAY BE REASONABLY REQUIRED, SUBMIT HIMSELF TO EXAMINATION BY A MEDICAL OFFICER OF THE UNITED STATES OR BY A DULY QUALIFIED PHYSICIAN DESIGNATED OR APPROVED BY THE DIRECTOR. HE MAY HAVE A DULY QUALIFIED PHYSICIAN DESIGNATED AND PAID BY HIM PRESENT TO PARTICIPATE IN SUCH EXAMINATION. FOR ALL EXAMINATIONS HE SHALL, IN THE DISCRETION OF THE DIRECTOR, BE PAID HIS REASONABLE TRAVELING AND OTHER EXPENSES AND ALSO LOSS OF WAGES INCURRED IN ORDER TO SUBMIT TO SUCH EXAMINATION. IF HE SHALL NEGLECT OR REFUSE TO SUBMIT TO SUCH EXAMINATION, OR SHALL IN ANY WAY OBSTRUCT THE SAME, HIS RIGHT TO CLAIM COMPENSATION UNDER THIS TITLE SHALL BE SUSPENDED UNTIL SUCH NEGLECT, REFUSAL, OR OBSTRUCTION CEASES. NO COMPENSATION SHALL BE PAYABLE WHILE SUCH NEGLECT, REFUSAL, OR OBSTRUCTION CONTINUES, AND NO COMPENSATION SHALL BE PAYABLE FOR THE INTERVENING PERIOD.

PURSUANT TO THIS STATUTE, REGULATION NO. 78 WAS PROMULGATED SEPTEMBER 27, 1924, EFFECTIVE FROM OCTOBER 13, 1924, PRIOR TO THE TIME HERE INVOLVED. THE REGULATION ADDS TO OR AMENDS SECTIONS OF THE "REGULATIONS, UNITED STATES VETERAN'S BUREAU, 1923.' SECTIONS 9105 AND 9106 ARE IN EFFECT A RESTATEMENT OF THE ABOVE-QUOTED STATUTE. SECTION 8024 IS AS FOLLOWS:

REIMBURSEMENT FOR LOSS OF WAGES INCURRED IN REPORTING FOR PHYSICAL EXAMINATION WILL BE COMPUTED TO THE ACTUAL EXTENT THEREOF, FOR THE PERIOD OF ABSENCE FROM EMPLOYMENT FROM THE TIME OF DEPARTURE TO THAT OF RETURN TO EMPLOYMENT, AT THE RATE OF THE FIXED DAILY WAGE OR WEEKLY SALARY FOR WHICH THE CLAIMANT WAS EMPLOYED AT THAT TIME; BUT NO REIMBURSEMENT FOR LOSS OF WAGES IN EXCESS OF $80, IN ANY THIRTY-DAY PERIOD WILL BE ALLOWED. REIMBURSEMENT IS ALLOWED ONLY DURING THE PERIOD OF ACTUAL TRAVEL AND FOR THE TIME ACTUALLY REQUIRED BY THE PHYSICAL EXAMINATION AND OBSERVATION, HOSPITAL OR OTHERWISE, THAT MAY BE NECESSARY. REIMBURSEMENT IS TO BE MADE ONLY WHEN THE CLAIMANT IS AN EMPLOYEE OF ANOTHER PERSON OR FIRM, AND WHERE THE LOSS OF WAGES IS A DEFINITELY ASCERTAINABLE AMOUNT. PAYMENTS MAY NOT BE MADE TO COVER LOSS OF TIME SUSTAINED BY CLAIMANT IN BUSINESS FOR HIMSELF, OR TO AN APPLICANT WHOSE EMPLOYMENT IS NOT REGULAR. (V.B. REGULATION NO. 78, EFFECTIVE OCTOBER 13, 1924.)

AS CLAIMANT WAS AN APPLICANT FOR DISABILITY COMPENSATION AND FOR MEDICAL TREATMENT UNDER THE PROVISIONS OF SUBSECTIONS (9) OR (10) OF SECTION 202 OF THE WORLD WAR VETERANS' ACT, HE COMES WITHIN THE CLASSES OF PERSONS SPECIFICALLY MENTIONED IN THE CONTROLLING STATUTE. HE WAS ORDERED TO SUBMIT HIMSELF TO MEDICAL EXAMINATION AND OBSERVATION BY A DULY AUTHORIZED MEDICAL OFFICER OF THE UNITED STATES VETERANS' BUREAU FOR THE PURPOSE OF DETERMINING THE MERITS OF HIS CLAIM FOR COMPENSATION AND/OR TREATMENT. THE EVIDENCE SHOWS THAT IMMEDIATELY PRIOR TO THE DISABILITY WHICH FORMED THE BASIS OF THE CLAIM FOR DISABILITY COMPENSATION AND TREATMENT CLAIMANT WAS REGULARLY EMPLOYED AT A RATE OF COMPENSATION SUSCEPTIBLE OF DEFINITE ASCERTAINMENT, AND THAT HE "QUIT HIS JOB SO THAT HE COULD REPORT TO THE VETERANS' BUREAU HOSPITAL" FOR THE EXAMINATION AND OBSERVATION ORDERED BY THE BUREAU. THERE IS NO SHOWING THAT CLAIMANT WOULD HAVE TERMINATED HIS EMPLOYMENT IN ANY EVENT SIMPLY BECAUSE OF ILL HEALTH, OR FOR ANY OTHER REASON THAN TO ENABLE HIM TO COMPLY WITH THE ORDER OF THE VETERANS' BUREAU. IT IS TRUE HE FAILED TO RETURN TO HIS FORMER EMPLOYMENT IMMEDIATELY UPON DISCHARGE FROM THE HOSPITAL, BUT THIS IS EXPLAINED AS BEING IMPOSSIBLE ON ACCOUNT OF HIS PHYSICAL CONDITION AT THAT TIME. APPARENTLY HE APPLIED FOR A POSITION WITH HIS FORMER EMPLOYER AS SOON AS HIS PHYSICAL CONDITION WOULD PERMIT. HIS FAILURE TO RETURN TO HIS FORMER EMPLOYMENT UNDER SUCH CIRCUMSTANCES DID NOT NECESSARILY DEFEAT HIS RIGHT TO THE REGULATION ALLOWANCE FOR LOSS OF WAGES. IT MAY BE STATED GENERALLY THAT THE FAILURE OF A VETERAN TO RETURN TO HIS FORMER EMPLOYMENT UPON DISCHARGE FROM A VETERANS' BUREAU HOSPITAL DOES NOT IPSO FACTO DEFEAT HIS RIGHT TO BE REIMBURSED FOR LOSS OF WAGES, BUT IS ONLY ONE CIRCUMSTANCE TO BE CONSIDERED IN CONNECTION WITH ALL THE FACTS DISCLOSED TO DETERMINE WHETHER THERE WAS IN FACT A BONA FIDE LOSS OF WAGES OR WHETHER THE VETERAN WOULD HAVE TERMINATED HIS EMPLOYMENT IN ANY EVENT PRIOR TO HIS ENTRANCE INTO THE VETERANS' BUREAU HOSPITAL. IT IS NOT SHOWN, HOWEVER, AND CAN NOT BE ASSUMED, THAT HE WAS NOT, AT ANY TIME DURING THE PERIOD OF OBSERVATION, PHYSICALLY ABLE TO EARN WAGES. THEREFORE, IT MUST BE HELD THAT A LOSS OF WAGES DID RESULT FROM THE EXAMINATIONS AND OBSERVATION.

IN VIEW OF ALL FACTS AND CIRCUMSTANCES DISCLOSED IN THIS CASE, IT MAY BE CONCLUDED THAT THE CONDITIONS AND REQUIREMENTS OF THE CONTROLLING STATUTE AND REGULATIONS OF THE VETERANS' BUREAU PURSUANT THERETO HAVE BEEN MET, AND THAT CLAIMANT IS ENTITLED TO BE REIMBURSED FOR LOSS OF WAGES DURING PERIOD SPENT IN REPORTING FOR MEDICAL EXAMINATION AND FOR OBSERVATION NOT TO EXCEED $80 IN ANY 30-DAY PERIOD, THE MAXIMUM AMOUNT AUTHORIZED BY THE REGULATIONS.