A-33837, NOVEMBER 4, 1930, 10 COMP. GEN. 203

A-33837: Nov 4, 1930

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RETIREMENT - DISABILITY - HOSPITALIZATION TO DETERMINE ELIGIBILITY APPROPRIATIONS FOR ADMINISTERING THE CIVIL RETIREMENT ACT ARE AVAILABLE FOR HOSPITALIZATION OF CIVILIAN EMPLOYEES SOLELY FOR OBSERVATION. SUCH OBSERVATIONS ARE REQUIRED TO BE CONDUCTED PRIMARILY IN GOVERNMENT INSTITUTIONS. IF THE HOSPITALIZATION IS IN A GOVERNMENT INSTITUTION. THERE IS NO REQUIREMENT OR AUTHORITY FOR CHARGING THE APPROPRIATION FOR ADMINISTERING THE CIVIL RETIREMENT ACT AND CREDITING THE APPROPRIATION FOR MAINTAINING THE GOVERNMENT INSTITUTION. CONCERNING WHICH YOUR DECISION IS SOLICITED. WHICH WAS THE PREVIOUS LAW ON THE SUBJECT. WERE SIMILAR TO THE PROVISION IN THE PRESENT LAW REGARDING PHYSICAL EXAMINATION OF EMPLOYEES BEING CONSIDERED FOR RETIREMENT ON ACCOUNT OF DISABILITY.

A-33837, NOVEMBER 4, 1930, 10 COMP. GEN. 203

RETIREMENT - DISABILITY - HOSPITALIZATION TO DETERMINE ELIGIBILITY APPROPRIATIONS FOR ADMINISTERING THE CIVIL RETIREMENT ACT ARE AVAILABLE FOR HOSPITALIZATION OF CIVILIAN EMPLOYEES SOLELY FOR OBSERVATION, AS DISTINGUISHED FROM TREATMENT, TO DETERMINE ELIGIBILITY FOR DISABILITY RETIREMENT, AND FOR TRAVELING EXPENSES OF APPLICANTS FOR DISABILITY RETIREMENT WHEN DULY ORDERED BY PROPER AUTHORITY TO PROCEED FROM THEIR HOMES TO THE HOSPITALS AND RETURN FOR SUCH PURPOSE. SUCH OBSERVATIONS ARE REQUIRED TO BE CONDUCTED PRIMARILY IN GOVERNMENT INSTITUTIONS, BUT IF NOT REASONABLY AVAILABLE, THE SAME MAY BE AUTHORIZED IN PRIVATE INSTITUTIONS. IF THE HOSPITALIZATION IS IN A GOVERNMENT INSTITUTION, THERE IS NO REQUIREMENT OR AUTHORITY FOR CHARGING THE APPROPRIATION FOR ADMINISTERING THE CIVIL RETIREMENT ACT AND CREDITING THE APPROPRIATION FOR MAINTAINING THE GOVERNMENT INSTITUTION.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, NOVEMBER 4, 1930:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 16, 1930, AS FOLLOWS:

A QUESTION HAS ARISEN IN CONNECTION WITH THE ADMINISTRATION OF THE CIVIL SERVICE RETIREMENT LAW, PUBLIC 279, 71ST CONGRESS, CONCERNING WHICH YOUR DECISION IS SOLICITED.

THE PROVISIONS OF SECTION 6 OF PUBLIC NO. 522, 69TH CONGRESS, WHICH WAS THE PREVIOUS LAW ON THE SUBJECT, WERE SIMILAR TO THE PROVISION IN THE PRESENT LAW REGARDING PHYSICAL EXAMINATION OF EMPLOYEES BEING CONSIDERED FOR RETIREMENT ON ACCOUNT OF DISABILITY. THE APPLICABLE PROVISION OF PUBLIC NO. 279, READS, IN PART AS FOLLOWS:

"NO EMPLOYEE SHALL BE RETIRED UNDER THE PROVISIONS OF THIS SECTION UNLESS EXAMINED BY A MEDICAL OFFICER OF THE UNITED STATES, OR A DULY QUALIFIED PHYSICIAN OR SURGEON, OR BOARD OF PHYSICIANS OR SURGEONS, DESIGNATED BY THE COMMISSIONER OF PENSIONS FOR THAT PURPOSE, AND FOUND TO BE DISABLED IN THE DEGREE AND IN THE MANNER SPECIFIED HEREIN.'

PURSUANT TO THIS SIMILAR PROVISION CONTAINED IN THE EARLIER LAW, THE FOLLOWING REGULATIONS WERE ISSUED WITH REFERENCE TO THESE MEDICAL EXAMINATIONS:

"OFFICIAL MEDICAL EXAMINATION REQUIRED.--- WHEN AN APPLICANT FOR RETIREMENT ON ACCOUNT OF TOTAL DISABILITY HAS ESTABLISHED A PRIMA FACIE CASE AND NO LEGAL GROUNDS FOR REJECTION EXIST, SUCH APPLICANT SHALL BE ORDERED FOR A MEDICAL EXAMINATION BY A MEDICAL OFFICER OF THE UNITED STATES, OR A DULY QUALIFIED PHYSICIAN OR SURGEON, OR BOARD OF PHYSICIANS OR SURGEONS DESIGNATED BY THE COMMISSIONER OF PENSIONS FOR THAT PURPOSE. (PAR. 350, REGULATIONS, APPROVED JUNE 8, 1928.)"

"AMOUNT AND HOW PAID.--- FEES FOR MEDICAL EXAMINATIONS MADE UNDER THE PROVISIONS OF THE RETIREMENT ACT BY PHYSICIANS OR SURGEONS WHO ARE NOT MEDICAL OFFICERS OF THE UNITED STATES SHALL BE THE SAME AS ALLOWED UNDER THE LAWS AND REGULATIONS GOVERNING PENSION CASES. ALL SUCH FEES SHALL BE PAID OUT OF THE APPROPRIATIONS FOR THE COST OF ADMINISTERING THE RETIREMENT ACT, AND A SEPARATE ACCOUNT OF SUCH ITEMS SHALL BE KEPT AND REPORT THEREOF MADE BY THE COMMISSIONER OF PENSIONS. (PAR. 351, REGULATIONS, APPROVED JUNE 8, 1928.)"

ARRANGEMENTS ARE ALSO MADE TO HAVE THESE EXAMINATIONS MADE BY GOVERNMENT PHYSICIANS, INCLUDING EMPLOYEES OF THE UNITED STATES VETERANS' BUREAU, WHENEVER FEASIBLE, IN ACCORDANCE WITH YOUR DECISION DATED SEPTEMBER 16, 1921.)"

UNDER THE PROVISIONS OF THE AMENDMENT TO THE APPROPRIATION ACT OF MARCH 4, 1929, THE FEE ALLOWED FOR ORDINARY EXAMINATIONS AUTHORIZED BY THE COMMISSIONER OF PENSIONS IS $5.00. OF COURSE, THESE FEES ARE ALLOWABLE ONLY WHEN THE EXAMINATION IS MADE BY PHYSICIAN NOT EMPLOYED BY THE UNITED STATES GOVERNMENT.

PUBLIC NO. 217, 71ST CONGRESS, CONTAINS THE FOLLOWING PROVISIONS WITH REFERENCE TO THE APPROPRIATION MADE FOR THE PURPOSE OF CONDUCTING EXAMINATIONS UNDER THE RETIREMENT ACT:

"TO ENABLE THE BUREAU OF PENSIONS TO PERFORM THE DUTIES IMPOSED UPON IT BY THE ACT ENTITLED "AN ACT FOR THE RETIREMENT OF EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE, AND FOR OTHER PURPOSES" APPROVED MAY 22, 1920, AS AMENDED (U.S.C., TITLE 5, SECS. 706A, 707A), INCLUDING PERSONAL SERVICES, PURCHASE OF BOOKS, OFFICE EQUIPMENT, STATIONERY, AND OTHER SUPPLIES, TRAVELING EXPENSES, EXPENSES OF MEDICAL AND OTHER EXAMINATIONS, AND INCLUDING NOT TO EXCEED $2000 FOR COMPENSATION OF ONE ACTUARY, TO BE FIXED BY THE COMMISSIONER OF PENSIONS WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR, AND ACTUAL NECESSARY TRAVEL AND OTHER EXPENSES OF THREE MEMBERS OF THE BOARD OF ACTUARIES, $82,000.'

IT HAS COME TO MY ATTENTION THAT THERE ARE CERTAIN CASES, ONE OF WHICH IS NOW PENDING IN THIS OFFICE ON APPEAL, WHEREIN THE ORDINARY ROUTINE EXAMINATIONS MADE AND PAID FOR PURSUANT TO THE PROVISIONS OF THE LAW AND REGULATIONS QUOTED ABOVE ARE NOT SUFFICIENT TO ENABLE ME TO INTELLIGENTLY DETERMINE THE EXACT PHYSICAL OR MENTAL CONDITION OF THE APPLICANT, AND TO ASCERTAIN WHETHER OR NOT HE IS "TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE," WITHIN THE MEANING OF SECTION 6 OF PUBLIC NO. 279. SINCE THE LAW MAKES IT THE DUTY OF THE BUREAU CHARGED WITH THE ADMINISTRATION OF THIS LAW TO DETERMINE BY A PHYSICAL EXAMINATION, MADE BY PHYSICIANS CHOSEN TO ACT FOR THE COMMISSIONER, THE EXTENT OF THE DISABILITY, IT OCCURS TO ME THAT IN A CASE OF THIS TYPE THERE IS NO QUESTION BUT THAT UNDER THE LAW THE APPLICANT MAY BE HOSPITALIZED FOR THE NECESSARY OBSERVATION AS A PART OF A COMPLETE AND THOROUGH EXAMINATION IN ORDER THAT THE TRUE CONDITION MAY BE DETERMINED, AND I AM FURTHER OF THE OPINION THAT THE EXPENSE OF SUCH HOSPITALIZATION, INCLUDING SPECIAL LABORATORY TESTS, BEING A PART OF THE NECESSARY EXAMINATION, IS PAYABLE UNDER THE LAW. OBVIOUSLY, HOWEVER, TO DO SO WOULD NECESSITATE A CHANGE IN THE REGULATIONS NOW IN EFFECT QUOTED HEREINBEFORE. YOUR REACTION AS TO THE LEGAL SOUNDNESS OF SUCH A PROPOSED AMENDMENT OF REGULATIONS AS WOULD ENABLE THE COMMISSIONER OF PENSIONS OR THIS OFFICE TO AUTHORIZE THE EXPENSE INCIDENTAL TO SUCH AN EXAMINATION, INCLUDING HOSPITAL OBSERVATION, WHEN NECESSARY, IS SOLICITED.

ASSUMING THAT YOUR REACTION IS FAVORABLE TO THIS PROPOSITION, I SHOULD LIKE YOUR ADVICE ALSO REGARDING THE LEGAL PROPRIETY OF PAYING TRAVELING EXPENSES FROM THE HOME OF THE APPLICANT TO THE PLACE OF EXAMINATION (OR HOSPITALIZATION) AND RETURN, IF SUCH EXPENSES ARE A NECESSARY INCIDENT TO HIS OR HER REPORTING TO AN EXAMINER OR A HOSPITAL AT THE DIRECTION OF THE BUREAU; ALSO YOUR ADVICE REGARDING THE LEGAL PROPRIETY OF HAVING THESE EXAMINATIONS (INCLUDING MAINTENANCE DURING THE PERIOD OF HOSPITAL OBSERVATION WHERE NECESSARY), WHEREVER POSSIBLE, MADE EITHER IN A UNITED STATES VETERANS' HOSPITAL OR IN OTHER GOVERNMENT FACILITIES USED BY THE BUREAU UNDER EXISTING LAW. IN THIS CONNECTION YOUR ATTENTION IS RESPECTFULLY INVITED TO THE PROVISIONS OF PUBLIC NO. 536, 71ST CONGRESS, REGARDING THE DUTIES OF THE ADMINISTRATOR OF VETERANS' AFFAIRS.

OBVIOUSLY, IN MANY CASES IT WILL BE MUCH CHEAPER FOR THE GOVERNMENT TO PAY THE TRAVELING EXPENSES OF THE APPLICANT TO ONE OF THESE HOSPITALS, THERE CONDUCTING THE NECESSARY OBSERVATION AND EXAMINATION, THAN TO AUTHORIZE AND PAY FOR THIS HOSPITALIZATION IN A PRIVATE NONGOVERNMENTAL INSTITUTION, SINCE, AS YOU ARE NO DOUBT AWARE, THE PER DIEM EXPENSE FOR THE OPERATION OF BUREAU HOSPITALS ON THE AVERAGE IS CONSIDERABLY LOWER THAN THE COST OF HOSPITALIZATION IN CIVILIAN INSTITUTIONS. HOWEVER, THERE WOULD BE CERTAIN CASES IN WHICH THIS WOULD NOT APPLY, EITHER BY REASON OF THE PROXIMITY OF NONGOVERNMENTAL FACILITIES TO THE APPLICANT AT A REASONABLE PER DIEM RATE, OR BECAUSE OF THE KNOWN SHORT PERIOD OF OBSERVATION INVOLVED IN THE CASE.

IN CONCLUSION I MAY STATE THAT IT APPEARS TO ME THAT EACH EMPLOYEE WHO FEELS HIMSELF WITHIN THE PROVISIONS OF THE LAW WITH REFERENCE TO TOTAL DISABILITY, AND MAKES APPLICATION THEREFOR, IS ENTITLED TO AS COMPLETE A PHYSICAL OR MENTAL EXAMINATION AS MAY BE REASONABLY NECESSARY, NOT ONLY TO PROTECT HIS RIGHTS BUT LIKEWISE THOSE OF THE GOVERNMENT, AND IN MANY CASES A PROPER CONCLUSION CAN NOT BE REACHED BASED ON SINGLE PHYSICAL OR MENTAL EXAMINATIONS MADE BY INDIVIDUAL PHYSICIANS. LIKEWISE, SINCE THE LAW REQUIRES THAT THE BUREAU BE SATISFIED BEFORE CERTIFYING THE APPLICANT'S NAME TO THE ROLLS FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 6, IT SEEMS TO ME THAT ALL NECESSARY EXPENSES INCIDENT TO SUCH AN EXAMINATION, INCLUDING TRAVEL EXPENSES TO AND FROM THE PLACE THEREOF, AND THE PER DIEM HOSPITALIZATION COST, AS WELL AS X RAY, LABORATORY TESTS, ETC., SHOULD BE LOGICALLY BORNE BY THE GOVERNMENT.

YOUR OPINION IS RESPECTFULLY SOLICITED.

YOU HAVE QUOTED, FIRST, THE LAST SENTENCE OF THE FIRST PARAGRAPH OF SECTION 6 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 473. THE FIRST SENTENCE OF SAID PARAGRAPH PROVIDES FOR THE RETIREMENT, UNDER CERTAIN CONDITIONS, OF ANY EMPLOYEE WHO "BECOMES TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE IN THE GRADE OR CLASS OF POSITION OCCUPIED BY THE EMPLOYEE.' THE LAST PARAGRAPH OF THE SAME SECTION PROVIDES AS FOLLOWS:

FEES FOR EXAMINATIONS MADE UNDER THE PROVISIONS OF THIS SECTION, BY PHYSICIANS OR SURGEONS WHO ARE NOT MEDICAL OFFICERS OF THE UNITED STATES, SHALL BE FIXED BY THE COMMISSIONER OF PENSIONS, AND SUCH FEES, TOGETHER WITH THE EMPLOYEE'S REASONABLE TRAVELING AND OTHER EXPENSES INCURRED IN ORDER TO SUBMIT TO SUCH EXAMINATIONS, SHALL BE PAID OUT OF THE APPROPRIATIONS FOR THE COST OF ADMINISTERING THIS ACT.

RESPONSIBILITY IS THAT OF THE BUREAU OF PENSIONS AND THE VETERANS' ADMINISTRATION TO DETERMINE FINALLY ELIGIBILITY OF AN EMPLOYEE FOR DISABILITY RETIREMENT UNDER THE PROVISIONS OF THE ABOVE MENTIONED SECTION AND TO PROVIDE AT GOVERNMENT EXPENSE FOR THE NECESSARY MEDICAL AND OTHER EXAMINATIONS FOR THAT PURPOSE. HOSPITALIZATION SOLELY FOR OBSERVATION, AS DISTINGUISHED FROM TREATMENT, IS A RECOGNIZED MEANS OF DETERMINING THE NATURE AND DEGREE OF DISABILITY, AND HAS BEEN EMPLOYED WITHOUT QUESTION IN DETERMINING THE NATURE AND DEGREE OF THE DISABILITIES OF APPLICANTS FOR COMPENSATION AND MEDICAL TREATMENT UNDER THE TERMS OF THE WORLD WAR VETERANS' ACT. SECTION 203 OF THAT STATUTE, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 797, PROVIDES THAT EVERY APPLICANT FOR SUCH BENEFITS "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," WHICH PROVISION, IN ITS ESSENTIAL FEATURES, IS NOT MATERIALLY DIFFERENT FROM THE PROVISION IN SECTION 6 OF THE CIVIL RETIREMENT ACT REQUIRING MEDICAL EXAMINATION TO DETERMINE ELIGIBILITY FOR DISABILITY RETIREMENT.

THE PROVISION YOU QUOTE FROM THE ANNUAL APPROPRIATION ACT OF MAY 14, 1930, 46 STAT. 305, FOR ADMINISTERING THE CIVIL RETIREMENT ACT, IS EXPRESSLY AVAILABLE FOR "TRAVELING EXPENSES, EXPENSES OF MEDICAL AND OTHER EXAMINATIONS," AND IS THE APPROPRIATION PROVIDED PURSUANT TO THE DIRECTION IN THE LAST PARAGRAPH OF SECTION 6 OF THE CIVIL RETIREMENT ACT.

YOU ARE ADVISED, THEREFORE, THAT THE APPROPRIATIONS FOR ADMINISTERING THE CIVIL RETIREMENT ACT ARE AVAILABLE FOR HOSPITALIZATION OF EMPLOYEES SOLELY FOR OBSERVATION, AS DISTINGUISHED FROM TREATMENT, TO DETERMINE ELIGIBILITY FOR DISABILITY RETIREMENT, AND FOR TRAVELING EXPENSES OF APPLICANTS FOR DISABILITY RETIREMENT WHEN DULY ORDERED BY PROPER AUTHORITY TO PROCEED FROM THEIR HOMES TO THE HOSPITALS AND RETURN FOR SUCH PURPOSE. THE REGULATIONS PROVIDING FOR SUCH OBSERVATIONS SHOULD REQUIRE THAT THEY BE CONDUCTED PRIMARILY IN GOVERNMENT INSTITUTIONS, BUT THAT IF GOVERNMENT FACILITIES ARE NOT REASONABLY AVAILABLE, THE SAME MAY BE AUTHORIZED IN PRIVATE INSTITUTIONS.

IT IS TO BE UNDERSTOOD THAT IF HOSPITALIZATION FOR OBSERVATION IS IN A GOVERNMENT INSTITUTION, WHETHER UNDER THE VETERANS' BUREAU OR OTHERWISE, THERE IS NO REQUIREMENT OR AUTHORITY FOR CHARGING THE APPROPRIATION FOR ADMINISTERING THE CIVIL RETIREMENT ACT AND CREDITING THE APPROPRIATION FOR MAINTAINING THE GOVERNMENT INSTITUTION. THE SAME RULE IN THIS REGARD WOULD BE APPLICABLE AS THOUGH THE EXAMINATION WERE MADE ENTIRELY BY A UNITED STATES MEDICAL OFFICER. SEE DECISION OF SEPTEMBER 16, 1921, 1 COMP. GEN. 139, TO WHICH YOU REFER, AND ALSO, 6 COMP. GEN 78; ID. 372, AND DECISIONS THEREIN CITED.