B-117690, NOVEMBER 25, 1953, 33 COMP. GEN. 231

B-117690: Nov 25, 1953

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1953: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 4. IN SUPPORT OF YOUR REQUEST THERE IS ATTACHED DR. IT IS STATED IN YOUR LETTER THAT FOR THE PAST SEVERAL YEARS THE BUREAU OF MINES HAS BEEN PRODUCING ZIRCONIUM METAL FOR THE ATOMIC ENERGY COMMISSION. THAT THE FEE IN QUESTION IS PROPOSED FOR PAYMENT FROM THE APPROPRIATION ACCOUNT "1433909.273 WORKING FUND. OREGON IS AS FOLLOWS: OCCASIONALLY EMPLOYEES HAVE EXPRESSED THE BELIEF THAT CONDITIONS UNDER WHICH THEY ARE WORKING MAY BE CAUSING IRRITATION OF THE RESPIRATORY TRACT. ALTHOUGH THERE IS NO KNOWLEDGE OF OCCUPATIONAL HAZARDS EXISTING WHICH WOULD CAUSE INJURY IT IS FELT THAT IT IS TO THE ADVANTAGE OF THE GOVERNMENT TO DETECT SUCH CONDITIONS AS SOON AS POSSIBLE SO THAT NECESSARY PREVENTION MEASURES MAY BE TAKEN BEFORE OTHERS BECOME INFECTED.

B-117690, NOVEMBER 25, 1953, 33 COMP. GEN. 231

PHYSICAL EXAMINATIONS - CIVILIAN EMPLOYEES - APPROPRIATIONS AVAILABILITY PHYSICAL EXAMINATIONS OF EMPLOYEES OF THE BUREAU OF MINES PRODUCING ZIRCONIUM METAL MAY NOT BE PAID FOR FROM APPROPRIATED FUNDS IN THE ABSENCE OF A SHOWING BY COMPETENT AUTHORITY THAT AN ACTUAL DANGER TO THE HEALTH OF THE EMPLOYEES EXISTS INCIDENT TO SUCH EMPLOYMENT.

COMPTROLLER GENERAL WARREN TO W. RULON LEE, DEPARTMENT OF THE INTERIOR, NOVEMBER 25, 1953:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 4, 1953, WHEREIN YOU REQUEST A DECISION AS TO THE LEGALITY OF A PROPOSED PAYMENT TO DR. HAROLD PATRICK O-NEIL, M.D., FOR A PHYSICAL EXAMINATION OF AN EMPLOYEE OF THE BUREAU OF MINES, ALBANY, OREGON. IN SUPPORT OF YOUR REQUEST THERE IS ATTACHED DR. O -NEIL'S ITEMIZED BILL STATED IN THE AMOUNT OF $35; COPY OF REQUEST FOR ISSUANCE OF PURCHASE ORDER; COPY OF PURCHASE ORDER NO. ALB 3994, DATED JUNE 12, 1953; BUREAU OF MINES POSTING SHEET, FORM NO. 6-271; AND A COPY OF A MEMORANDUM DATED APRIL 17, 1953, FROM THE CHIEF PERSONNEL OFFICER, BUREAU OF MINES, WASHINGTON, D.C., TO MR. R. D. LEITCH, BUREAU SAFETY ENGINEER, COLLEGE PARK, MARYLAND, REGARDING THE GENERAL SUBJECT OF PHYSICAL EXAMINATIONS OF PROSPECTIVE AND PRESENT EMPLOYEES OF THE GOVERNMENT.

IT IS STATED IN YOUR LETTER THAT FOR THE PAST SEVERAL YEARS THE BUREAU OF MINES HAS BEEN PRODUCING ZIRCONIUM METAL FOR THE ATOMIC ENERGY COMMISSION, AND THAT THE FEE IN QUESTION IS PROPOSED FOR PAYMENT FROM THE APPROPRIATION ACCOUNT "1433909.273 WORKING FUND, INTERIOR, MINES, 1953.' THE JUSTIFICATION FOR THE ISSUANCE OF THE PURCHASE ORDER, STATED IN YOUR LETTER AS FURNISHED BY THE CHIEF, RARE METALS BRANCH, ALBANY, OREGON IS AS FOLLOWS:

OCCASIONALLY EMPLOYEES HAVE EXPRESSED THE BELIEF THAT CONDITIONS UNDER WHICH THEY ARE WORKING MAY BE CAUSING IRRITATION OF THE RESPIRATORY TRACT. ALTHOUGH THERE IS NO KNOWLEDGE OF OCCUPATIONAL HAZARDS EXISTING WHICH WOULD CAUSE INJURY IT IS FELT THAT IT IS TO THE ADVANTAGE OF THE GOVERNMENT TO DETECT SUCH CONDITIONS AS SOON AS POSSIBLE SO THAT NECESSARY PREVENTION MEASURES MAY BE TAKEN BEFORE OTHERS BECOME INFECTED.

SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876, GRANTS A RIGHT TO CERTIFYING OFFICERS ,TO APPLY FOR AND OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON ANY QUESTION OF LAW INVOLVED IN A PAYMENT ON ANY VOUCHERS PRESENTED TO THEM FOR CERTIFICATION.' WHILE NO VOUCHER REQUIRING YOUR CERTIFICATION ACCOMPANIED YOUR PRESENT REQUEST FOR A DECISION, IT IS APPARENT FROM THE MATERIAL FURNISHED BY YOU THAT A CURRENT PAYMENT IS INVOLVED AND, ACCORDINGLY, THE SUBMISSION OF A VOUCHER IN THIS INSTANCE WILL NOT BE INSISTED UPON; BUT HEREAFTER ANY REQUEST FOR DECISION SHOULD BE ACCOMPANIED WITH THE SPECIFIC VOUCHER PRESENTED FOR CERTIFICATION.

THE WORKING FUND ACCOUNT PROPOSED TO BE CHARGED WAS ESTABLISHED WITH FUNDS ADVANCED FROM THE APPROPRIATION "8930101 OPERATING EXPENSES, ATOMIC ENERGY COMMISSION, 1953" AND IT DOES NOT APPEAR THAT SUCH APPROPRIATION IS SPECIFICALLY AVAILABLE FOR PAYMENT OF FEES FOR PHYSICAL EXAMINATIONS SUCH ARE HERE INVOLVED.

THE QUESTION FURNISHING PERIODIC PHYSICAL EXAMINATION TO CIVILIAN EMPLOYEES OF THE GOVERNMENT HAS BEEN CONSIDERED IN NUMEROUS DECISIONS OF THE ACCOUNTING OFFICERS AND THE GENERAL RULE HAS BEEN ESTABLISHED THAT SUCH EXPENSES ARE PERSONAL TO THE EMPLOYEE AND THAT THE PAYMENT THEREOF FROM APPROPRIATED FUNDS IS UNAUTHORIZED UNLESS PROVIDED FOR IN THE CONTRACT OF EMPLOYMENT OR BY STATUTORY ENACTMENT OR VALID REGULATION. SEE 22 COMP. GEN. 32, AND DECISIONS CITED THEREIN. EXCEPTIONS TO THE RULE HAVE BEEN RECOGNIZED WHERE THERE IS A SHOWING BY A QUALIFIED AUTHORITY THAT THE CONDITIONS OF EMPLOYMENT NECESSITATED PERIODIC PHYSICAL EXAMINATIONS TO PREVENT THE CONTRACTING OF DISEASE AND THE CONSEQUENT LOSS OF MANPOWER. SEE, FOR EXAMPLE, DECISION OF MARCH 29, 1951, 30 COMP. GEN. 387, WHEREIN APPROVAL WAS GIVEN TO PAYMENT FOR PERIODIC PHYSICAL EXAMINATIONS, IT HAVING BEEN DETERMINED BY THE ARMY EXPERIMENTAL HYGIENE LABORATORY THAT SUCH PHYSICAL EXAMINATIONS SHOULD BE MADE. HOWEVER, IN THE CASE HERE UNDER CONSIDERATION THERE IS NO SUCH SHOWING, THE JUSTIFICATION BEING BASED ONLY UPON THE MERE BELIEF OF SOME OF THE EMPLOYEES THAT THE WORKING CONDITIONS MAY BE CAUSING IRRITATION OF THE RESPIRATORY TRACT. CF. 15 COMP. GEN. 20.

ACCORDINGLY, IN THE ABSENCE OF A SHOWING BY COMPETENT AUTHORITY THAT AN ACTUAL DANGER TO THE HEALTH OF THE EMPLOYEE EXISTED, CERTIFICATION FOR PAYMENT OF A VOUCHER FOR THE PHYSICAL EXAMINATION HERE INVOLVED IS NOT AUTHORIZED.