A-93847, APRIL 15, 1938, 17 COMP. GEN. 847

A-93847: Apr 15, 1938

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WHOSE COMPENSATION IS FIXED ON AN ANNUAL. IS A MEDICAL OFFICER OF THE UNITED STATES WITHIN THE MEANING OF SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT. IS NOT ENTITLED TO ADDITIONAL COMPENSATION FOR MEDICAL TREATMENT FURNISHED BENEFICIARIES UNDER THIS ACT BUT. HE IS NOT A MEDICAL OFFICER WITHIN THE MEANING OF THE SAID ACT. IS AS FOLLOWS: YOUR DECISION OF MAY 20. WHO WAS APPOINTED BY THE SECRETARY OF THE TREASURY FOR EMPLOYMENT. IS A MEDICAL OFFICER WITHIN THE MEANING OF SECTION 9 OF THE ACT OF SEPTEMBER 7. HE IS NOT ENTITLED TO PAY FOR MEDICAL SERVICES RENDERED A BENEFICIARY OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION. IT IS SUBMITTED. INDICATES THAT THEY WERE "PART-TIME EXAMINERS" AND "PART-TIME PHYSICIANS" AS DEFINED IN THE DECISION OF JULY 19.

A-93847, APRIL 15, 1938, 17 COMP. GEN. 847

MEDICAL TREATMENT - EMPLOYEES' COMPENSATION COMMISSION BENEFICIARIES - PUBLIC HEALTH SERVICE ACTING ASSISTANT SURGEON - ADDITIONAL COMPENSATION AN ACTING ASSISTANT SURGEON OF THE PUBLIC HEALTH SERVICE WHOSE APPOINTMENT OR CONTRACT OF EMPLOYMENT DOES NOT LIMIT THE SERVICE TO BE FURNISHED, WHETHER FOR FULL TIME OR FOR PART TIME, AND WHOSE COMPENSATION IS FIXED ON AN ANNUAL, MONTHLY, OR DAILY BASIS, IS A MEDICAL OFFICER OF THE UNITED STATES WITHIN THE MEANING OF SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 26, 1926, 44 STAT. 772, WHILE ENTITLED TO PAY AS AN ACTING ASSISTANT SURGEON, AND IS NOT ENTITLED TO ADDITIONAL COMPENSATION FOR MEDICAL TREATMENT FURNISHED BENEFICIARIES UNDER THIS ACT BUT, IF THE APPOINTMENT OR CONTRACT OF EMPLOYMENT LIMITS THE SERVICE TO BE PERFORMED AND PROVIDES FOR COMPENSATION ON A FEE BASIS, HE IS NOT A MEDICAL OFFICER WITHIN THE MEANING OF THE SAID ACT, AS AMENDED. 15 COMP. GEN. 1007, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, APRIL 15, 1938:

YOUR LETTER OF MARCH 24, 1938, IS AS FOLLOWS:

YOUR DECISION OF MAY 20, 1936, 15 COMP. GEN. 1007, HOLDS, IN EFFECT, THAT A PHYSICIAN, WHO WAS APPOINTED BY THE SECRETARY OF THE TREASURY FOR EMPLOYMENT, IN THE EVENT OF THE ABSENCE OF THE REGULARLY ASSIGNED EMPLOYEE, AS MEDICAL INSPECTOR OF ALIENS, IS A MEDICAL OFFICER WITHIN THE MEANING OF SECTION 9 OF THE ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 26, 1926, 44 STAT. 772 (U.S.C., TITLE 5, SEC. 759), AND THAT, WHILE HE MIGHT NOT RECEIVE ANY COMPENSATION UNDER HIS APPOINTMENT, HE IS NOT ENTITLED TO PAY FOR MEDICAL SERVICES RENDERED A BENEFICIARY OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION. IN THIS DECISION YOU CITE, AMONG OTHER DECISIONS, THE FOLLOWING: 15 COMP. GEN. 474; DECISION OF JULY 26, 1930, A-32665; AND DECISION OF MARCH 9, 1934, A-53206. IN VIEW OF CERTAIN POSSIBLE EFFECTS OF THE FOUR DECISIONS ABOVE MENTIONED, THE DEPARTMENT REQUESTS YOUR CONSIDERATION OF THE MORE COMPLETE INFORMATION HEREIN CONTAINED AS TO THE STATUS OF THE CLASS OF EMPLOYEES INVOLVED, WHICH, IT IS SUBMITTED, INDICATES THAT THEY WERE "PART-TIME EXAMINERS" AND "PART-TIME PHYSICIANS" AS DEFINED IN THE DECISION OF JULY 19, 1924, 4 COMP. GEN. 85.

IN THE LATTER DECISION IT IS STATED THAT THE PROPER DEFINITION OF "UNITED STATES MEDICAL OFFICERS," AS USED IN THE ABOVE-MENTIONED ACT,"IS THAT OF THOSE WHOSE PROFESSIONAL SERVICES ARE MAINLY TO THE GOVERNMENT UNDER REGULAR APPOINTMENT OR CONTRACT OF EMPLOYMENT.' THIS DECISION THEN HOLDS THAT PHYSICIANS WHO ARE EMPLOYED "UNDER "SPECIAL" CONTRACTS OR LETTERS OF APPOINTMENT FOR LIMITED OR SPECIAL PROFESSIONAL SERVICES" NEED NOT BE CLASSED AS "UNITED STATES MEDICAL OFFICERS" WITHIN THE MEANING OF THE ACT. IT IS NOTED THAT IN THIS DECISION THE SUBMITTING AGENCY STATED: ,THE LETTERS OF APPOINTMENT OF THESE MEDICAL OFFICERS OF THE BUREAU, AFTER GIVING THE APPOINTEES THE TITLES ABOVE INDICATED, READ PRECISELY THE SAME AS THE APPOINTMENT OF OTHER MEDICAL OFFICERS EXCEPT THAT THE WORDS "PART TIME" ARE INSERTED IN THE LETTERS OF APPOINTMENT.'

THE DEPARTMENT IS UNABLE TO SEE WHEREIN THERE IS ANY LEGALLY SIGNIFICANT DIFFERENCE IN THE STATUS OF THE PUBLIC HEALTH SERVICE EMPLOYEES WHO WERE THE SUBJECT OF THE FOUR DECISIONS FIRST MENTIONED ABOVE AND THE EMPLOYEES COVERED IN THE LAST MENTIONED DECISION. IN ACCEPTING EMPLOYMENT, THESE SERVICE PHYSICIANS DO NOT AGREE TO GIVE THE GOVERNMENT THEIR SERVICES MAINLY NOR ANY MINIMUM PROPORTION OF THEIR TIME. THEY ENGAGE IN PRIVATE PRACTICE AND AGREE TO RENDER TREATMENT TO ONLY A DESIGNATED GROUP OF PERSONS OR TO MAKE SPECIFIED INSPECTIONS OR EXAMINATIONS. NONE OF THESE PHYSICIANS OCCUPY GOVERNMENT PHYSICAL FACILITIES, THEIR ONLY "STATIONS" BEING THEIR OWN PRIVATE OFFICES. THE DEPARTMENT IS INCLINED TO FEEL, THEREFORE, THAT IN ALL THESE DECISIONS UNDUE EMPHASIS HAS BEEN PLACED UPON THE WORDS "ACTING ASSISTANT SURGEON," WHICH HAVE BEEN (FOR THE PURPOSE OF INTERNAL ADMINISTRATION) ASSIGNED AS THE TITLE OF THESE PART-TIME EMPLOYEES, AND INSUFFICIENT CONSIDERATION HAS BEEN GIVEN TO THE FACT THAT THEY ARE PRIVATE PHYSICIANS WHO ARE APPOINTED TO RENDER "LIMITED OR SPECIAL PROFESSIONAL SERVICES" WITHIN THE MEANING OF THE DECISION OF JULY 19, 1924, SUPRA.

YOUR ATTENTION IS INVITED TO THIS MATTER PRIMARILY BECAUSE OF THE POSSIBLE ADVERSE EFFECT OF THE FOUR DECISIONS, SUPRA, ON THE DEPARTMENT'S EFFORTS TO MAKE THE MOST ECONOMICAL ARRANGEMENT, FOR AUTHORIZED MEDICAL RELIEF IN THE VARIOUS AREAS, RELATIVE TO ESTABLISHMENT OF STATIONS, THE EMPLOYMENT OF FULL-TIME OR PART-TIME PHYSICIANS, AND AMOUNT OF COMPENSATION; AND, IN THIS CONNECTION, IT IS NOTED THAT THE DECISION OF NOVEMBER 11, 1922, 2 COMP. GEN. 320, STATES, IN EFFECT, THAT IT IS WITHIN THE DISCRETION OF THE HEAD OF A GOVERNMENT AGENCY TO RECEIVE PATIENTS OF THE EMPLOYEES' COMPENSATION COMMISSION INTO HOSPITALS UNDER HIS CONTROL WHENEVER, IN HIS JUDGMENT, SO RECEIVING THEM WILL NOT INTERFERE WITH THE HOSPITALIZATION OF THOSE BENEFICIARIES OF THE AGENCY FOR WHOSE USE THE FACILITIES WERE PROVIDED. THE DEPARTMENT DOES NOT QUESTION THE ELIGIBILITY OF PATIENTS OF THE COMMISSION TO TREATMENT IN ITS HOSPITALS OR BY ITS FULL-TIME EMPLOYEES, BUT TAKES THE VIEW THAT SUCH PATIENTS HAVE NO GREATER RIGHT TO MEDICAL TREATMENT BY THE PUBLIC HEALTH SERVICE THAN OTHER PERSONS WHO, ALSO BY LAW, ARE ITS BENEFICIARIES. THE SERVICE PROVIDES BY REGULATIONS AND INSTRUCTIONS THE EXTENT OF TREATMENT AND THE PARTICULAR STATIONS AT WHICH SUCH TREATMENT IS GIVEN ITS BENEFICIARIES, AND IT IS SUBMITTED THAT, IF, UNDER SUCH REGULATIONS AND INSTRUCTIONS, OTHER CLASSES OF BENEFICIARIES COULD NOT DEMAND THAT THEY BE GIVEN MEDICAL TREATMENT BY ITS PART-TIME PHYSICIANS, SUCH DEMAND WOULD NOT BE PROPER IN THE CASE OF COMPENSATION COMMISSION PATIENTS. IF ALL BENEFICIARIES OF THE SERVICE COULD, REGARDLESS OF DEPARTMENTAL REGULATIONS AND INSTRUCTIONS, DEMAND TREATMENT BY PART-TIME EMPLOYEES, THE ULTIMATE RESULT MIGHT WELL BE SUCH AN EXTENSION OF MEDICAL FACILITIES AS THE NOVEMBER 11, 1922, DECISION, SUPRA, STATES SHOULD NOT OCCUR.

THE DEPARTMENT WOULD, THEREFORE, APPRECIATE YOUR DECISION ON THE FOLLOWING:

(1) IS A PRIVATE PHYSICIAN WHO IS EMPLOYED ON A PART-TIME BASIS BY PUBLIC HEALTH SERVICE TO TREAT A SPECIFIED GROUP OF ITS BENEFICIARIES OR TO MAKE SPECIFIED EXAMINATIONS OR INSPECTIONS A ,UNITED STATES MEDICAL OFFICER" WITHIN THE MEANING OF SECTION 9 OF THE ACT OF SEPTEMBER 7, 1916, SUPRA, IF THE WORDS "PART TIME" DO NOT APPEAR IN HIS LETTER OF APPOINTMENT?

(2) IS SUCH A PRIVATE PHYSICIAN SUCH A "MEDICAL OFFICER" IF THE WORDS "PART TIME" DO APPEAR IN HIS LETTER OF APPOINTMENT?

IF THE ANSWERS TO THESE QUESTIONS ARE IN THE AFFIRMATIVE, THE DEPARTMENT WOULD ALSO APPRECIATE INFORMATION AS TO WHEREIN THE PHYSICIANS DIFFER IN STATUS FROM THOSE DEALT WITH IN THE DECISION OF JULY 19, 1924, SUPRA.

SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 26, 1926, 44 STAT. 772, PROVIDES IN PART AS FOLLOWS:

THAT FOR ANY INJURY SUSTAINED BY AN EMPLOYEE WHILE IN THE PERFORMANCE OF DUTY, WHETHER OR NOT DISABILITY HAS ARISEN, THE UNITED STATES SHALL FURNISH TO THE EMPLOYEE ALL SERVICES, APPLIANCES, AND SUPPLIES PRESCRIBED OR RECOMMENDED BY DULY QUALIFIED PHYSICIANS WHICH, IN THE OPINION OF THE COMMISSION, ARE LIKELY TO CURE OR TO GIVE RELIEF OR TO REDUCE THE DEGREE OR THE PERIOD OF DISABILITY OR TO AID IN LESSENING THE AMOUNT OF THE MONTHLY COMPENSATION. SUCH SERVICES, APPLIANCES, AND SUPPLIES SHALL BE FURNISHED BY OR UPON THE ORDER OF UNITED STATES MEDICAL OFFICERS AND HOSPITALS, BUT WHERE THIS IS NOT PRACTICABLE THEY SHALL BE FURNISHED BY OR UPON THE ORDER OF PRIVATE PHYSICIANS AND HOSPITALS DESIGNATED OR APPROVED BY THE COMMISSION. * * *

IN DECISION OF MAY 21, 1920, 26 COMP. DEC. 940--- APPARENTLY THE FIRST CASE IN WHICH THIS MATTER WAS GIVEN CONSIDERATION BY THE ACCOUNTING OFFICERS--- INVOLVING AN ACTING ASSISTANT SURGEON OF THE PUBLIC HEALTH SERVICE APPOINTED "FOR DUTY AT EL PASO, TEX., IN CONNECTION WITH THE EXAMINATION OF ALIENS, WITH COMPENSATION AT THE RATE OF $150 PER MONTH," IT WAS HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

ACTING ASSISTANT SURGEONS OF THE PUBLIC HEALTH SERVICE ARE UNITED STATES MEDICAL OFFICERS WITHIN THE MEANING OF SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, TO WHOM BENEFICIARIES OF THE EMPLOYEES' COMPENSATION COMMISSION MAY BE SENT FOR MEDICAL AND SURGICAL TREATMENT.

THE SAME RULE HAS SINCE BEEN APPLIED BY THIS OFFICE IN CASES WHERE THE ACTING ASSISTANT SURGEONS OF THE PUBLIC HEALTH SERVICE WERE APPOINTED EITHER FOR PART-TIME OR FULL-TIME SERVICE FOR MEDICAL TREATMENT OF ONE OR MORE CLASSES OF BENEFICIARIES OF THE PUBLIC HEALTH SERVICE WITH COMPENSATION FIXED ON A MONTHLY OR ANNUAL BASIS. THE THEORY FOR THIS RULE HAS BEEN THAT IF THE APPOINTMENT OR CONTRACT OF EMPLOYMENT REQUIRED AN ACTING ASSISTANT SURGEON TO TREAT BENEFICIARIES OF THE PUBLIC HEALTH SERVICE AT ANY TIME, THAT IS, IF THEY WERE ON CALL AND PAID A STIPULATED MONTHLY OR ANNUAL RATE, WHETHER FOR FULL TIME OR PART TIME, TO TREAT BENEFICIARIES OF THE PUBLIC HEALTH SERVICE, THEIR CONTRACTS CONSTITUTED THEM "MEDICAL OFFICERS OF THE UNITED STATES" WHO ARE REQUIRED BY LAW TO FURNISH MEDICAL TREATMENT TO BENEFICIARIES OF THE EMPLOYEES' COMPENSATION ACT WHO ARE ALSO BENEFICIARIES OF THE PUBLIC HEALTH SERVICE. IN OTHER WORDS, SINCE THE CONTRACTS WITH THE GOVERNMENT REQUIRED THEM TO TREAT BENEFICIARIES OF THE PUBLIC HEALTH SERVICE THEY WOULD NOT BE ENTITLED TO ADDITIONAL PAYMENT FOR TREATING SUCH BENEFICIARIES WHO ARE ALSO BENEFICIARIES OF THE EMPLOYEES' COMPENSATION ACT BECAUSE OF THE PROVISIONS OF SECTION 9 THEREOF. THAT IS, THE BENEFICIARIES OF THE PUBLIC HEALTH SERVICE ARE DESCRIBED IN THE ACT OF MARCH 3, 1919, 40 STAT. 1302 (24 U.S.C. 26), AS---

* * * MERCHANT MARINE SEAMEN, SEAMEN ON BOATS OF THE MISSISSIPPI RIVER COMMISSION, OFFICERS AND ENLISTED MEN OF THE UNITED STATES COAST GUARD, OFFICERS AND EMPLOYEES OF THE PUBLIC HEALTH SERVICE, CERTAIN KEEPERS AND ASSISTANT KEEPERS OF THE UNITED STATES LIGHTHOUSE SERVICE, SEAMEN OF THE ENGINEER CORPS OF THE UNITED STATES ARMY, OFFICERS AND ENLISTED MEN OF THE UNITED STATES COAST AND GEODETIC SURVEY, CIVILIAN EMPLOYEES ENTITLED TO TREATMENT UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT, AND EMPLOYEES ON ARMY TRANSPORTS NOT OFFICERS OR ENLISTED MEN OF THE ARMY, NOW ENTITLED BY LAW TO TREATMENT BY THE PUBLIC HEALTH SERVICE.

ACTING ASSISTANT SURGEONS HAVING BEEN APPOINTED FOR THE TREATMENT OF BENEFICIARIES OF THE PUBLIC HEALTH SERVICE MAY NOT BE PAID AS CIVILIAN PHYSICIANS FOR TREATMENT OF A PARTICULAR CLASS OF SUCH BENEFICIARIES MERELY BECAUSE SPECIAL PROVISION IS MADE IN THE LAW AND APPROPRIATIONS FOR THE EMPLOYEES' COMPENSATION COMMISSION FOR TREATMENT OF BENEFICIARIES OF THE COMMISSION, ANY MORE THAN ACTING ASSISTANT SURGEONS MAY BE PAID IN ADDITION TO THEIR REGULAR COMPENSATION FOR TREATMENT OF ANY OTHER CLASS OF BENEFICIARIES OF THE PUBLIC HEALTH SERVICE NAMED IN THE ACT. HOWEVER, IT IS BELIEVED THAT THE RULE, DUE LARGELY PERHAPS TO THE DECISION OF MAY 20, 1936, 15 COMP. GEN. 1007, CITED BY YOU, HAS BEEN MORE BROADLY APPLIED THAN IS JUSTIFIED.

IN LETTER TO THE EMPLOYEES' COMPENSATION COMMISSION DATED JANUARY 27, 1938, A-89742, IN THE CASE OF DR. WILLIAM N. MALONEY, IT WAS STATED IN PART AS FOLLOWS:

* * * THE PUBLIC HEALTH SERVICE HAS REPORTED THE TERMS OF HIS APPOINTMENT AS FOLLOWS:

"* * * AN ACTING ASSISTANT SURGEON, FOR THE U.S. PUBLIC HEALTH SERVICE IN CHARGE OF MEDICAL EXAMINATIONS OF ENTERING ALIENS AND ALIEN SEAMEN AT CAPE VINCENT, NEW YORK, WITH COMPENSATION AT THE RATE OF $2.00 FOR THE FIRST EXAMINATION AND 75 CENTS FOR EACH SUBSEQUENT EXAMINATION MADE AT THE SAME VISIT ON THE SAME VESSEL, WITH THE UNDERSTANDING THAT NO COMPENSATION IN EXCESS OF $10.00 WILL BE CLAIMED FOR THE EXAMINATION OF ALIENS UPON ANY ONE VESSEL OR AT ANY ONE VISIT TO THE IMMIGRATION STATION.'

ALTHOUGH THE APPOINTMENT OF DOCTOR MALONEY GIVES TO HIM THE TITLE OF ACTING ASSISTANT SURGEON FOR THE PUBLIC HEALTH SERVICE, THE DUTIES REQUIRED TO BE PERFORMED BY HIM ARE SO LIMITED (EXAMINATION OF ALIENS AND ALIEN SEAMEN AT CAPE VINCENT, NEW YORK) AS NOT TO INCLUDE MEDICAL TREATMENT OF BENEFICIARIES OF THE PUBLIC HEALTH SERVICE. THAT FACT AND THE FURTHER FACT THAT COMPENSATION FOR SUCH SPECIAL SERVICE IS ON A FEE BASIS DIFFERENTIATES HIS STATUS UNDER THE APPOINTMENT FROM THAT OF THE OFFICERS CONSIDERED IN 15 COMP. GEN. 1007. UNDER SAID APPOINTMENT DOCTOR MALONEY IS NOT CONSIDERED A "UNITED STATES MEDICAL OFFICER" WITHIN SECTION 9 OF THE ACT OF SEPTEMBER 7, 1916, 39 STAT. 743.

REFERRING TO YOUR SPECIFIC QUESTIONS, THE CONTROLLING FACTOR IN DETERMINING WHETHER ACTING ASSISTANT SURGEONS OF THE PUBLIC HEALTH SERVICE ARE OR ARE NOT "MEDICAL OFFICERS OF THE UNITED STATES" WITHIN THE MEANING OF THE EMPLOYEES' COMPENSATION ACT AND REQUIRED TO FURNISH MEDICAL TREATMENT FREE OF CHARGE TO THE BENEFICIARIES OF SAID ACT, IS NOT WHETHER THE WORDS "PART TIME" DO OR DO NOT APPEAR IN THE APPOINTMENTS OR CONTRACTS OF EMPLOYMENT, BUT WHETHER THE TERMS OF THE APPOINTMENT OR CONTRACT SPECIFICALLY SO LIMIT THE SERVICE TO BE FURNISHED AS RESULTS IN THEIR NOT BEING MEDICAL OFFICERS OF THE UNITED STATES WITHIN THE MEANING OF THE QUOTED SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT.

IF THE APPOINTMENT OR CONTRACT OF EMPLOYMENT OF AN ACTING ASSISTANT SURGEON OF THE PUBLIC HEALTH SERVICE DOES NOT LIMIT THE SERVICE TO BE FURNISHED, WHETHER FOR FULL TIME OR FOR PART TIME, AND THE COMPENSATION IS FIXED ON AN ANNUAL, MONTHLY, OR DAILY BASIS, HE IS TO BE REGARDED AS A MEDICAL OFFICER OF THE UNITED STATES WITHIN THE MEANING OF SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT, AS AMENDED, WHILE ENTITLED TO PAY AS AN ACTING ASSISTANT SURGEON. IF THE APPOINTMENT OR CONTRACT OF EMPLOYMENT OF AN ACTING ASSISTANT SURGEON OF THE PUBLIC HEALTH SERVICE LIMITS THE SERVICE TO BE PERFORMED AND PROVIDES FOR COMPENSATION ON A FEE BASIS, HE IS NOT TO BE REGARDED AS A MEDICAL OFFICER OF THE UNITED STATES WITHIN THE MEANING OF SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT, AS AMENDED.