A-90297, JANUARY 5, 1938, 17 COMP. GEN. 541

A-90297: Jan 5, 1938

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IS ENTITLED TO SUCH BENEFITS ONLY UNTIL . IS NOT AUTHORIZED. 1938: THERE WAS RECEIVED BY YOUR INDORSEMENT OF OCTOBER 21. THE VOUCHERS ARE STATED AS FOLLOWS: CHART ST. WAS INJURED WHILE BATHING AS A RESULT OF DIVING INTO SHALLOW WATER STRIKING THE BOTTOM CAUSING A SPINAL INJURY DIAGNOSED IMMEDIATELY THEREAFTER AS FRACTURE OF THE FOURTH CERVICAL. THE INJURED MAN'S CONDITION WAS DESCRIBED ON M.B. THE REPORT OF A BOARD OF MEDICAL OFFICERS ASSEMBLED TO INQUIRE INTO THE INJURIES FOUND THAT THE INJURIES WERE CONTRACTED IN LINE OF DUTY. THE RECORD IS NOT ALTOGETHER CLEAR FROM THE SUBMISSION AS TO THE LENGTH OF TIME PRIVATE HOSPITALIZATION AND MEDICAL TREATMENT WAS FURNISHED IMMEDIATELY FOLLOWING THE INJURIES.

A-90297, JANUARY 5, 1938, 17 COMP. GEN. 541

MEDICAL TREATMENT - PUBLIC AND PRIVATE - NATIONAL GUARD - EXTENT OF GOVERNMENT OBLIGATION A NATIONAL GUARD ENLISTED MAN INJURED IN LINE OF DUTY WHILE AT AN ENCAMPMENT UNDER THE PROVISIONS OF SECTION 94 OF THE NATIONAL DEFENSE ACT, 39 STAT. 206, AND SUCCESSIVELY FURNISHED PRIVATE AND GOVERNMENT HOSPITALIZATION AND MEDICAL TREATMENT UNDER ACT, APRIL 26, 1928, 45 STAT. 460, AND SUBSTITUTED ACT, JUNE 15, 1936, 49 STAT. 1507, IS ENTITLED TO SUCH BENEFITS ONLY UNTIL ,FURTHER MATERIAL IMPROVEMENT CANNOT BE IMMEDIATELY ATTAINED" AS PROVIDED BY NATIONAL GUARD REGULATIONS, AND PAYMENT OF THE EXPENSES OF HIS HOSPITALIZATION, MEDICAL TREATMENT, AND BURIAL, INCURRED WITHOUT AUTHORITY FROM THE FEDERAL GOVERNMENT, AFTER A FINDING BY BOARD OF GOVERNMENT MEDICAL OFFICERS HE HAD ATTAINED "MAXIMUM IMPROVEMENT," AND AFTER HIS TRANSFER FROM A GOVERNMENT TO STATE HOSPITAL, IS NOT AUTHORIZED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHIEF, NATIONAL GUARD BUREAU, JANUARY 5, 1938:

THERE WAS RECEIVED BY YOUR INDORSEMENT OF OCTOBER 21, 1937, THE THIRD INDORSEMENT FROM THE ADJUTANT GENERAL, STATE OF PENNSYLVANIA, DATED SEPTEMBER 10, 1937, APPARENTLY FORWARDED AT THE REQUEST OF THE UNITED STATES PROPERTY AND DISBURSING OFFICER FOR THE STATE OF PENNSYLVANIA, RELATIVE TO PAYMENT OF HOSPITAL, MEDICAL, AND BURIAL EXPENSES INCIDENT TO THE TREATMENT AND BURIAL OF JOHN J. TIEHL, FORMERLY CORPORAL OF BATTERY G, 213TH COAST ARTILLERY, PENNSYLVANIA NATIONAL GUARD, AS A RESULT OF INJURIES SUFFERED AT BETHANY BEACH, DEL., WHILE UNDERGOING FIELD TRAINING WITH HIS ORGANIZATION.

THE VOUCHERS ARE STATED AS FOLLOWS:

CHART

ST. VINCENT'S HOSPITAL, ERIE, PA. HOSPITALIZATION, SERVICES

AND SUPPLIES. MARCH 28 TO JUNE 8, 1937 ------------------ $269.50

H. E. MCLAUGHLIN, M.D. SURGICAL ASST. APRIL 16, 1937 ----- 10.00

ELMER HESS, M.D. PROFESSIONAL SERVICES (MEDICAL AND

SURGICAL). MARCH 30 TO JUNE 8, 1937 --------------------- 231.00

EDWARD C. HANLEY AND SONS, ERIE, PA. FUNERAL EXPENSES.

JUNE 8, 1937 --------------------------------------------- 175.00

HUNTER HENNINGER (FUNERAL HOME) READING, PA. FUNERAL

EXPENSES. JUNE 12, 1937 --------------------------------- 144.50

IT APPEARS THAT CORPORAL JOHN J. TIEHL, WHILE ATTENDING AN ENCAMPMENT AT CAMP TREXLER, BETHANY BEACH, DEL., AS A MEMBER OF BATTERY G, 213TH COAST ARTILLERY, PENNSYLVANIA NATIONAL GUARD, AUTHORIZED FOR THE PERIOD JULY 13 TO JULY 27, 1935, WAS INJURED WHILE BATHING AS A RESULT OF DIVING INTO SHALLOW WATER STRIKING THE BOTTOM CAUSING A SPINAL INJURY DIAGNOSED IMMEDIATELY THEREAFTER AS FRACTURE OF THE FOURTH CERVICAL, TRANSVERSE PROCESS. THE INJURED MAN'S CONDITION WAS DESCRIBED ON M.B. FORM 60 AS PARALYSIS FROM THE HIPS DOWN, DIFFICULTY IN BREATHING, PARTIAL PARALYSIS OF THE HAND AND ARM, SEVERE PAIN IN NECK. THE REPORT OF A BOARD OF MEDICAL OFFICERS ASSEMBLED TO INQUIRE INTO THE INJURIES FOUND THAT THE INJURIES WERE CONTRACTED IN LINE OF DUTY; PLACE OF TREATMENT THE BEE BEE HOSPITAL, LEWES, DEL.; PROBABLY LENGTH OF TREATMENT INDEFINITE.

THE RECORD IS NOT ALTOGETHER CLEAR FROM THE SUBMISSION AS TO THE LENGTH OF TIME PRIVATE HOSPITALIZATION AND MEDICAL TREATMENT WAS FURNISHED IMMEDIATELY FOLLOWING THE INJURIES, BUT IT IS INDICATED THAT TOTAL EXPENDITURES FOR SUCH SERVICES IN THE SUM OF AT LEAST $3,314.39 WERE AUTHORIZED BY THE NATIONAL GUARD BUREAU AND IT IS NOT NECESSARY AT THIS TIME TO INQUIRE INTO WHETHER HOSPITALIZATION IN A GOVERNMENT HOSPITAL WAS AVAILABLE FOR ANY PART OF THE PERIOD FROM DATE OF INJURY TO NOVEMBER 29, 1935, THE DATE ON WHICH THE ENLISTED MAN WAS ADMITTED AS A PATIENT TO THE WALTER REED GENERAL HOSPITAL. THE RECORD INDICATES THAT THE INJURED MAN RECEIVED CONTINUOUS HOSPITALIZATION AND MEDICAL TREATMENT AT THE WALTER REED GENERAL HOSPITAL UNTIL ON OR ABOUT MARCH 11, 1937, WHEN HE WAS TRANSFERRED FOR DOMICILIARY CARE TO THE SOLDIERS' AND SAILORS' HOME AT ERIE, PA., UNDER JURISDICTION OF THE STATE OF PENNSYLVANIA.

ON MARCH 28, 1937, THE PATIENT WAS TRANSFERRED FROM THE SOLDIERS' AND SAILORS' HOME TO ST. VINCENT'S HOSPITAL, ERIE, PA., WHERE AN OPERATION WAS PERFORMED APRIL 16, 1937, AND IN THIS CONNECTION IT IS TO BE NOTED THE STATEMENT IS MADE THAT CORPORAL TIEHL REFUSED AN OPERATION WHEN IT WAS RECOMMENDED AT THE WALTER REED GENERAL HOSPITAL. THE MAN DIED ON OR ABOUT JUNE 8, 1937, AND THE VOUCHERS COVER EXPENSES INCURRED FOR PRIVATE HOSPITALIZATION, MEDICAL AND PROFESSIONAL SERVICES, AND BURIAL EXPENSES INCURRED ON AND AFTER MARCH 28, 1937.

IT HAVING BEEN HELD BY A BOARD OF OFFICERS ASSEMBLED FOR THE PURPOSE, JULY 24, 1935, THAT THIS ENLISTED MAN HAD INCURRED INJURIES WHILE AT AN ENCAMPMENT UNDER THE PROVISIONS OF SECTION 94 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 206, AND THE INJURIES HAVING BEEN FOUND TO HAVE BEEN SUSTAINED IN LINE OF DUTY, NOT DUE TO MISCONDUCT, THE QUESTION PRESENTED IS THE EXTENT OF THE OBLIGATION OF THE FEDERAL GOVERNMENT UNDER THE PROVISIONS OF THE ACT OF APRIL 26, 1928, 45 STAT. 461, AND THE AMENDATORY ACT OF JUNE 15, 1936, 49 STAT. 1507, 1508.

THE ACT OF APRIL 26, 1928, SO FAR AS HERE MATERIAL, PROVIDED:

THAT OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NATIONAL GUARD WHO SUFFER PERSONAL INJURY OR CONTRACT DISEASE IN LINE OF DUTY WHILE EN ROUTE TO OR FROM AND WHILE AT ENCAMPMENTS, MANEUVERS, OR OTHER EXERCISES, * * * UNDER THE PROVISIONS OF SECTIONS 94, * * * OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED; * * * SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, WHEN HOSPITAL TREATMENT IS NECESSARY FOR APPROPRIATE TREATMENT OF SUCH INJURY OR DISEASE, BE ENTITLED TO HOSPITAL TREATMENT, INCLUDING MEDICAL TREATMENT, AT GOVERNMENT EXPENSE, UNTIL THE DISABILITY RESULTING FROM SUCH INJURY OR DISEASE CANNOT BE MATERIALLY IMPROVED BY FURTHER HOSPITAL TREATMENT * * * AND TO TRANSPORTATION TO THEIR HOMES AT GOVERNMENT EXPENSE WHEN DISCHARGED FROM HOSPITAL; THEY SHALL ALSO BE ENTITLED TO SUCH FURTHER MEDICAL TREATMENT FOR SUCH INJURY OR DISEASE AS IS REASONABLY NECESSARY AFTER ARRIVAL AT THEIR HOMES UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT. * * * IF THE DEATH OF ANY PERSON MENTIONED HEREIN OCCURS WHILE HE IS UNDERGOING THE TRAINING OR HOSPITAL TREATMENT CONTEMPLATED BY THIS SECTION, THE UNITED STATES SHALL, UNDER REGULATIONS PRESCRIBED AS AFORESAID, PAY FOR BURIAL EXPENSES AND THE RETURN OF THE BODY TO HIS HOME A SUM NOT TO EXCEED $100.

THE ACT OF JUNE 15, 1936, 49 STAT. 1507, 1508, REPEALED THE ACT OF APRIL 26, 1928, BUT PROVIDED THAT ANY PERSON WHO ON THE DATE OF ITS APPROVAL WAS RECEIVING OR ENTITLED TO RECEIVE THE BENEFITS OF THE 1928 ACT SHALL BE ENTITLED TO THE BENEFITS OF THE ACT OF JUNE 15, 1936, IN LIEU THEREOF. THE LATTER ACT, SO FAR AS MATERIAL, PROVIDES:

* * * OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NATIONAL GUARD WHO SUFFER PERSONAL INJURY OR CONTRACT DISEASE IN LINE OF DUTY WHILE EN ROUTE TO OR FROM OR DURING THEIR ATTENDANCE AT ENCAMPMENTS, MANEUVERS, OR OTHER EXERCISES * * * UNDER THE PROVISIONS OF SECTIONS 94 * * * OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED; * * * AND MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES WHO SUFFER INJURY OR CONTRACT DISEASE IN LINE OF DUTY WHILE ON ACTIVE DUTY UNDER PROPER ORDERS IN TIME OF PEACE; AND PERSONS HEREINBEFORE DESCRIBED WHO MAY NOW BE UNDERGOING HOSPITAL TREATMENT AT GOVERNMENT EXPENSE FOR INJURIES SO SUSTAINED; SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED AT GOVERNMENT EXPENSE, TO SUCH HOSPITALIZATION, REHOSPITALIZATION, MEDICAL AND SURGICAL CARE, IN HOSPITAL AND AT THEIR HOMES, AS IS NECESSARY FOR THE APPROPRIATE TREATMENT OF SUCH INJURY OR DISEASE, UNTIL THE DISABILITY RESULTING FROM SUCH INJURY OR DISEASE CANNOT BE MATERIALLY IMPROVED BY FURTHER HOSPITALIZATION OR TREATMENT, * * * AND TO THE NECESSARY TRANSPORTATION INCIDENT TO SUCH HOSPITALIZATION AND REHOSPITALIZATION AND RETURN TO THEIR HOMES WHEN DISCHARGED FROM HOSPITAL; * * * IF THE DEATH OF ANY PERSON MENTIONED HEREIN OCCURS WHILE HE IS ON ACTIVE DUTY, OR UNDERGOING TRAINING OR HOSPITAL TREATMENT CONTEMPLATED BY THIS SECTION, THE UNITED STATES SHALL, UNDER REGULATIONS PRESCRIBED AS AFORESAID, PAY THE NECESSARY EXPENSES FOR RECOVERY OF THE BODY, ITS PREPARATION FOR BURIAL, INCLUDING THE USE OF SUCH OF THE UNIFORM AND ARTICLES OF CLOTHING ISSUED TO HIM AS MAY BE REQUIRED, INTERMENT (OR CREMATION IF REQUESTED BY HIS RELATIVES), AND TRANSPORTATION OF HIS REMAINS, INCLUDING ROUND-TRIP TRANSPORTATION AND SUBSISTENCE OF AN ESCORT, TO HIS HOME OR TO THE PLACE WHERE HE RECEIVED ORDERS FOR THE PERIOD OF TRAINING UPON WHICH ENGAGED AT THE TIME OF HIS DEATH, OR TO SUCH OTHER PLACE AS HIS RELATIVES MAY DESIGNATE PROVIDED THE DISTANCE TO SUCH OTHER PLACE BE NOT GREATER THAN THE DISTANCE TO HIS HOME: PROVIDED, THAT WHEN THE EXPENSES OF THE RECOVERY, PREPARATION, AND DISPOSITION OF REMAINS HEREIN AUTHORIZED, OR ANY PART THEREOF, ARE PAID BY INDIVIDUALS, SUCH INDIVIDUALS MAY BE REIMBURSED THEREFOR AT AN AMOUNT NOT EXCEEDING THAT ALLOWED BY THE GOVERNMENT FOR SUCH SERVICE. * * *

NATIONAL GUARD REGULATIONS 62, DATED MARCH 15, 1933, PROVIDED:

F. HOW LONG TREATMENT MAY BE CONTINUED.--- (1) TREATMENT MAY BE CONTINUED UNTIL THE DISABILITY RESULTING FROM SUCH INJURY OR DISEASE CANNOT BE MATERIALLY IMPROVED BY FURTHER HOSPITAL TREATMENT. IF THOSE UNDERGOING TREATMENT ARE RETURNED TO THEIR HOMES BY MILITARY AUTHORITY BEFORE MAXIMUM IMPROVEMENT IS ATTAINED, TREATMENT MAY BE CONTINUED AS LONG AS IS REASONABLY NECESSARY.

(2) THE TERM "REASONABLY NECESSARY" WILL BE INTERPRETED TO MEAN IN ACUTE CASES RECOVERY AND ABILITY TO RESUME ONE'S OCCUPATION, AND IN CHRONIC CASES UNTIL ABLE TO RESUME ONE'S OCCUPATION OR UNTIL FURTHER MATERIAL IMPROVEMENT CANNOT BE IMMEDIATELY ATTAINED. PERMANENT HOSPITAL OR INSTITUTIONAL TREATMENT IS NOT CONTEMPLATED.

AFTER CORPORAL TIEHL HAD RECEIVED TREATMENT AT THE WALTER REED GENERAL HOSPITAL FOR APPROXIMATELY A YEAR, A REQUEST APPEARS TO HAVE BEEN MADE BY THE CHIEF, NATIONAL GUARD BUREAU, FOR CONSIDERATION OF THE PROPRIETY OF A CONTINUATION OF SUCH HOSPITALIZATION THEREAT. IN PURSUANCE OF THAT REQUEST A BOARD OF MEDICAL OFFICERS WAS CONVENED DECEMBER 11, 1936, WHICH BOARD AFTER CONSIDERATION OF THE HISTORY OF THE CASE FROM THE DATE OF ADMISSION AT WALTER REED GENERAL HOSPITAL REACHED THE CONCLUSION THAT MAXIMUM HOSPITAL BENEFITS HAD BEEN REACHED AND THAT FURTHER HOSPITALIZATION AT EITHER THAT HOSPITAL OR AT THE ARMY AND NAVY GENERAL HOSPITAL, HOT SPRINGS, K., WOULD NOT IMPROVE THE PATIENT'S CONDITION.

IT APPEARS, THEREFORE, THAT FOLLOWING THE INJURY OF CORPORAL TIEHL AT THE ENCAMPMENT IN JULY 1935, HE WAS HOSPITALIZED IN A PRIVATE INSTITUTION AT GOVERNMENT EXPENSE UNTIL NOVEMBER 1935, FROM WHENCE HE WAS TRANSFERRED TO THE WALTER REED GENERAL HOSPITAL WHERE HE REMAINED UNTIL MARCH 11, 1937. WHILE AT WALTER REED GENERAL HOSPITAL AN OPERATION WAS PROFFERED BY THE RESPONSIBLE OFFICERS OF THE GOVERNMENT, WHICH OFFER APPARENTLY WAS REFUSED; MAXIMUM IMPROVEMENT WAS ATTAINED THEREAT SEVERAL MONTHS PRIOR TO HIS DISCHARGE THEREFROM, AFTER WHICH HE WAS TRANSFERRED TO AN INSTITUTION UNDER CONTROL OF THE STATE OF PENNSYLVANIA FOR DOMICILIARY CARE FOLLOWED BY TRANSFER TO A CIVILIAN HOSPITAL WITHOUT AUTHORIZATION FROM THE FEDERAL GOVERNMENT WHERE AN OPERATION AND MEDICAL AND HOSPITAL TREATMENT WAS THEREAFTER ACCORDED HIM AND WHERE APPARENTLY THE PATIENT DIED JUNE 8, 1937.

THE ASSUMPTION BY THE FEDERAL GOVERNMENT OF THE OBLIGATION TO FURNISH HOSPITAL AND MEDICAL TREATMENT TO ENLISTED MEN OF THE NATIONAL GUARD INJURED AS AFORESAID IS NOT AN UNLIMITED ONE BUT IS CIRCUMSCRIBED BY THE LIMITATIONS CONTAINED IN THE LAW. THE STATUTORY PROVISIONS QUOTED ARE NOT SELF-EXECUTING AND THE PROMULGATION OF REGULATIONS NOT INCONSISTENT THEREWITH ARE NECESSARY.

IN THE CONSIDERED OPINION OF THE BOARD OF MEDICAL OFFICERS OF WALTER REED GENERAL HOSPITAL AND PRESUMABLY IN VIEW OF THE REFUSAL OF THE PROFFERED OPERATION THE PHYSICAL CONDITION OF THIS FORMER ENLISTED MAN HAD ATTAINED MAXIMUM IMPROVEMENT; UNDER THE LANGUAGE OF THE LAW AND REGULATIONS CITED THERE WAS AND IS NO AUTHORITY FOR HOSPITAL TREATMENT AT THE EXPENSE OF THE GOVERNMENT THEREAFTER. WHILE THE MEDICAL CONCLUSION THAT MAXIMUM BENEFITS FROM HOSPITALIZATION HAD BEEN ATTAINED WAS OPEN TO FURTHER CONSIDERATION ON APPLICATION TO THE PROPER OFFICIALS OF THE WAR DEPARTMENT, THE HOSPITALIZATION AND OPERATION AFTER RELEASE FROM THE WALTER REED GENERAL HOSPITAL WAS ACCOMPLISHED AT THE INSTANCE APPARENTLY OF STATE AUTHORITIES WITHOUT NOTICE TO OR AUTHORIZATION OF ANY KIND FROM THE FEDERAL GOVERNMENT; IT WAS NOT THEREFORE THE HOSPITAL TREATMENT CONTEMPLATED BY LAW AND REGULATIONS AND THE VOUCHERING OF THE EXPENSES INCURRED INCIDENT THERETO, INCLUDING FUNERAL EXPENSES, AS A CHARGE AGAINST THE FEDERAL GOVERNMENT CREATES NO OBLIGATION WHICH MAY BE LAWFULLY RECOGNIZED. PAYMENT OF THE VOUCHERS, RETURNED HEREWITH, IS NOT AUTHORIZED.