A-42618, JUNE 16, 1932, 11 COMP. GEN. 488

A-42618: Jun 16, 1932

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COMPENSATION - ABSENCES - PART-TIME AND FEE-BASIS EMPLOYEES DEDUCTIONS NEED NOT BE MADE FROM THE COMPENSATION OF A SO-CALLED PART- TIME EMPLOYEE OF THE VETERANS' ADMINISTRATION WHO WAS EMPLOYED UNDER APPOINTMENT TO MAKE ALL X-RAY AND LABORATORY EXAMINATIONS FOR A REGIONAL OFFICE. 1932: I HAVE YOUR LETTER OF MAY 24. WHICH HELD THAT PART-TIME AND FEE-BASIS EMPLOYEES OF THE VETERAN'S BUREAU ARE NOT ENTITLED TO THE COMPENSATION ATTACHED TO THEIR POSITIONS DURING THE TIME THEY ARE APPEARING AS WITNESSES AND BEING PAID A FEE THEREFOR UNDER THE PROVISIONS OF SECTION 19 OF THE WORLD WAR VETERANS' ACT. THE CASE SET FORTH IN YOUR LETTER IS THAT OF DR. WAS EMPLOYED UNDER APPOINTMENT TO MAKE ALL X-RAY AND LABORATORY EXAMINATIONS FOR THE REGIONAL OFFICE AT JACKSON.

A-42618, JUNE 16, 1932, 11 COMP. GEN. 488

COMPENSATION - ABSENCES - PART-TIME AND FEE-BASIS EMPLOYEES DEDUCTIONS NEED NOT BE MADE FROM THE COMPENSATION OF A SO-CALLED PART- TIME EMPLOYEE OF THE VETERANS' ADMINISTRATION WHO WAS EMPLOYED UNDER APPOINTMENT TO MAKE ALL X-RAY AND LABORATORY EXAMINATIONS FOR A REGIONAL OFFICE, FOR PERIODS OF ABSENCE WHILE ATTENDING COURT AS A GOVERNMENT WITNESS IN WAR RISK INSURANCE SUITS, IT APPEARING THAT HE HAD MADE SUITABLE ARRANGEMENT FOR THE FURNISHING, DURING HIS ABSENCE, OF THE X-RAY AND LABORATORY EXAMINATION SERVICE WHICH HE HAD AGREED TO FURNISH.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JUNE 16, 1932:

I HAVE YOUR LETTER OF MAY 24, 1932, REQUESTING DECISION WHETHER THERE SHOULD BE APPLIED TO A CASE SET FORTH IN YOUR LETTER THE DECISIONS OF FEBRUARY 10, 1931, A-35191, AND JANUARY 7, 1932, 11 COMP. GEN. 260, WHICH HELD THAT PART-TIME AND FEE-BASIS EMPLOYEES OF THE VETERAN'S BUREAU ARE NOT ENTITLED TO THE COMPENSATION ATTACHED TO THEIR POSITIONS DURING THE TIME THEY ARE APPEARING AS WITNESSES AND BEING PAID A FEE THEREFOR UNDER THE PROVISIONS OF SECTION 19 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY SECTION 4 OF THE ACT OF JULY 3, 1930, 46 STAT. 993, WHICH PROVIDES AS FOLLOWS:

PART-TIME AND FEE-BASIS EMPLOYEES OF THE BUREAU IN ADDITION TO THEIR REGULAR TRAVEL AND SUBSISTENCE ALLOWANCE, WHEN ORDERED IN WRITING BY THE DIRECTOR TO APPEAR AS WITNESSES IN SUITS UNDER THIS SECTION, MAY BE ALLOWED, WITHIN THE DISCRETION AND UNDER WRITTEN ORDERS OF THE DIRECTOR, A FEE IN AN AMOUNT NOT TO EXCEED $20 PER DAY.

THE CASE SET FORTH IN YOUR LETTER IS THAT OF DR. LITTLE B. NEAL, WHO, IT APPEARS, WAS EMPLOYED UNDER APPOINTMENT TO MAKE ALL X-RAY AND LABORATORY EXAMINATIONS FOR THE REGIONAL OFFICE AT JACKSON, MISS., WITH COMPENSATION FIXED AT THE RATE OR $3,000 PER ANNUM, FOUR HOURS PER DAY, USING HIS OWN EQUIPMENT AND ASSISTANTS.

DOCTOR NEAL HAVING BEEN DIRECTED TO APPEAR AS A WITNESS IN SUITS UNDER SECTION 4 OF THE ACT OF JULY 3, 1930, SUPRA, THE QUESTION HAS ARISEN WHETHER THERE MUST BE DEDUCTED FROM HIS COMPENSATION FOR X-RAY AND LABORATORY EXAMINATIONS, A PROPORTIONATE AMOUNT FOR EACH DAY FOR WHICH HE RECEIVED A WITNESS FEE.

THE DOCTOR HAS EXPLAINED THAT DURING HIS ABSENCE IN ATTENDANCE AT COURT AS A GOVERNMENT WITNESS, THE X-RAY AND LABORATORY WORK GOES ON THE SAME AS IF HE WERE PRESENT. IN OTHER WORDS, THE ARRANGEMENT SEEMS TO BE RATHER IN THE NATURE OF A CONTRACT TO FURNISH THE GOVERNMENT X RAY AND LABORATORY EXAMINATIONS NOT IN EXCESS OF FOUR HOURS PER DAY FOR A LUMP SUM OF $3,000 PER ANNUM AND IS ESSENTIALLY DIFFERENT FROM AN ARRANGEMENT UNDER WHICH A PHYSICIAN IS EMPLOYED ON A PART-TIME BASIS TO TREAT PATIENTS WHEN CALLED UPON TO DO SO--- MAKING IT NECESSARY FOR THE GOVERNMENT TO ENGAGE THE SERVICE OF SOME OTHER PHYSICIAN SHOULD THE NEED FOR TREATMENT ARISE DURING THE ABSENCE OR NONAVAILABILITY OF THE PART-TIME PHYSICIAN.

THE REASON FOR THE RULE SET FORTH IN THE DECISIONS OF FEBRUARY 10, 1931, AND JANUARY 7, 1932, SUPRA, WAS THAT IN THE CASES GIVING RISE TO SAID DECISIONS, NO SERVICE WAS RENDERED UNDER THE PART-TIME EMPLOYMENT DURING THE PERIODS FOR WHICH THE WITNESS FEES UNDER THE AUTHORITY OF SECTION FOUR OF THE ACT OF JULY 3, 1930, WERE PAID, RENDERING IT NECESSARY TO PAY SUBSTITUTES FOR SERVICE NEEDED DURING THE ABSENCE OF THE PART-TIME EMPLOYEES.

NO SUCH REASON APPEARS IN THE CASE PRESENTED IN YOUR LETTER. THE SERVICE UNDER THE SO-CALLED PART-TIME EMPLOYMENT GOES ON AS USUAL DURING THE ABSENCE OF DOCTOR NEAL AND THERE ARISES NO NECESSITY FOR THE EMPLOYMENT OF A SUBSTITUTE.

YOU ARE ADVISED THAT DEDUCTIONS NEED NOT BE MADE FROM THE COMPENSATION OF DOCTOR NEAL FOR X-RAY AND LABORATORY EXAMINATIONS FOR PERIODS OF HIS ABSENCE WHILE ATTENDING COURT AS A GOVERNMENT WITNESS IN WAR RISK INSURANCE SUITS, PROVIDED HE MAKES SUITABLE ARRANGEMENT FOR THE FURNISHING, DURING HIS ABSENCE, OF THE X-RAY AND LABORATORY EXAMINATION SERVICE WHICH HE HAS AGREED TO FURNISH.

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