B-134344, DEC. 19, 1957

B-134344, DEC. 19, 1957

TO MRS. M. C. THOMPSON, AUTHORIZED CERTIFYING OFFICER, BUREAU OF EMPLOYEES' COMPENSATION:

YOUR LETTERS OF NOVEMBER 6 AND 13, 1957, RELATE TO THE CLAIM OF MAURICE E. MCCOY, A FEDERAL HOUSING ADMINISTRATION EMPLOYEE WHO, WHILE IN A TRAVEL STATUS, BECAME DISABLED AND WAS HOSPITALIZED FOR THE PERIOD JANUARY 6-26, 1956.

THE HOSPITAL EXPENSES OF MR. MCCOY AMOUNTED TO $594.35 OF WHICH $401.82 WAS PAID DIRECTLY TO THE HOSPITAL BY THE ARKANSAS MEDICAL HOSPITAL SERVICE, INC., UNDER A BLUE CROSS--- BLUE SHIELD INSURANCE POLICY CARRIED AND PAID FOR BY MR. MCCOY. THE REMAINDER OF THE BILL, NAMELY, $192.53, WAS PAID BY MR. MCCOY WHICH AMOUNT WAS SUBSEQUENTLY REIMBURSED TO HIM BY YOUR BUREAU UNDER PROVISIONS OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, 39 STAT. 742, AS AMENDED, 5 U.S.C. 751 793.

MR. MCCOY NOW HAS MADE CLAIM UNDER THE AFOREMENTIONED ACT FOR THE SUM OF $401.82 ON THE BASIS THAT HE HAS CARRIED THE BLUE CROSS--- BLUE SHIELD INSURANCE POLICY FOR MORE THAN SEVEN YEARS AND HAS PAID OVER $600 IN PREMIUMS. IN CONNECTION THEREWITH YOU REQUEST OUR DECISION AS TO WHETHER MR. MCCOY MAY BE PAID THE AMOUNT OF $401.82.

SECTION 9 OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED, 5 U.S.C. 759, THE BENEFITS OF WHICH THE EMPLOYEE HAS CLAIMED, PROVIDES THAT FOR ANY INJURY SUSTAINED BY AN EMPLOYEE WHILE IN THE PERFORMANCE OF DUTY--

"* * * 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 SECRETARY, 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 MONTHLY COMPENSATION. * * *"

FOR THE PURPOSES OF THAT SECTION REGULATIONS HAVE BEEN PROMULGATED WHICH PROVIDE FOR REIMBURSING THE INJURED EMPLOYEE FOR THE COST OF MEDICAL SERVICES WHICH HE HAD PAID, AND ALSO PROVIDES FOR REIMBURSING AN INSURANCE COMPANY, SUCH AS THE ARKANSAS MEDICAL AND HOSPITAL SERVICE, INC., FOR THE COST OF MEDICAL SERVICES RENDERED TO THE INJURED EMPLOYEE WHICH THE CORPORATION HAS PAID. SEE 20 C.F.R. 2. 1, 2. 11, AND 2. 12.

THE AFOREMENTIONED REGULATIONS PROVIDE THAT AN INJURED EMPLOYEE MAY BE REIMBURSED ONLY THE COST OF MEDICAL SERVICES FOR WHICH HE ACTUALLY PAID, AND NO PROVISION IS MADE FOR REIMBURSING THE EMPLOYEE FOR THE COST OF MEDICAL SERVICES PAID BY AN INSURANCE COMPANY, REGARDLESS OF WHETHER THE SAID INSURANCE COMPANY PRESENTS A CLAIM FOR REIMBURSEMENT. SEE 32 COMP. GEN. 113, AND 31 ID. 534. THE PREMIUMS PAID BY THE CLAIMANT WERE IN CONSIDERATION OF THE PROTECTION AFFORDED HIM BY THE INSURANCE POLICY, AND SINCE THE CORPORATION HAS AFFORDED THE PROTECTION AND IN ONE INSTANCE PERFORMED UNDER THE INSURANCE CONTRACT WE SEE NO BASIS FOR A PAYMENT TO THE CLAIMANT BY THE GOVERNMENT OF ANY PART OF SUCH PREMIUMS OR OF THAT PORTION OF THE HOSPITAL BILL PAID PURSUANT TO THE CONTRACT.

SINCE MR. MCCOY HAS BEEN PROPERLY REIMBURSED, IN THE AMOUNT OF $192.52, FOR THE COST OF MEDICAL SERVICES WHICH HE ACTUALLY PAID, YOU ARE ADVISED THAT HE IS NOT ENTITLED TO BE REIMBURSED THE COST OF MEDICAL SERVICES PAID FOR BY THE ARKANSAS MEDICAL AND HOSPITAL SERVICE, INC., IN THE AMOUNT OF $401.82.

DURING THE PERIOD OF HOSPITALIZATION, JANUARY 6-26, 1956, MR. MCCOY RECEIVED A PER DIEM ALLOWANCE IN THE AMOUNT OF $240 AS PROVIDED UNDER PARAGRAPH 45C (IN EFFECT AT THAT TIME) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS FROM THE FEDERAL HOUSING ADMINISTRATION. IN THAT REGARD YOU REQUEST OUR DECISION WHETHER MR. MCCOY MUST REFUND THE FULL AMOUNT OF PER DIEM TO THE FEDERAL HOUSING ADMINISTRATION, OR WHETHER HE MAY REFUND $100, THE AMOUNT HE WAS REIMBURSED BY YOUR BUREAU FOR ROOM AND BOARD DURING HOSPITALIZATION.

SECTION 7 OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED, 5 U.S.C. 757 (A), QUOTED IN PERTINENT PART FROM THE U.S.C. PROVIDES AS FOLLOWS:

"* * * THAT WHENEVER ANY PERSON IS ENTITLED TO RECEIVE ANY BENEFITS UNDER SECTIONS 751-756, 757-791 AND 793 OF THIS TITLE BY REASON OF HIS INJURY * * * AND IS ALSO ENTITLED TO RECEIVE FROM THE UNITED STATES ANY PAYMENTS OR BENEFITS * * * BY REASON OF SUCH INJURY OR DEATH UNDER ANY OTHER ACT OF CONGRESS, BECAUSE OF SERVICE BY HIM AS AN EMPLOYEE, AS SO DEFINED, SUCH PERSON SHALL ELECT WHICH BENEFITS HE SHALL RECEIVE.'

SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949, 63 STAT. 166, AS AMENDED, 5 U.S.C. 836, PROVIDES IN PERTINENT PART AS FOLLOWS:

"* * * CIVILIAN OFFICERS AND EMPLOYEES WHO BECOME INCAPACITATED DUE TO ILLNESS OR INJURY, NOT DUE TO THEIR OWN MISCONDUCT, WHILE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY, SHALL BE ALLOWED SUCH PER DIEM ALLOWANCES * * *.'

THE PER DIEM ALLOWANCES WHICH AN OFFICER OR EMPLOYEE MAY BE ALLOWED BECAUSE OF AN INJURY UNDER THE ABOVE-QUOTED SECTION PROPERLY MAY BE REGARDED AS CONSTITUTING BENEFITS WITHIN THE PURVIEW OF SECTION 7 OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED, 5 U.S.C. 757 (A), HERETOFORE QUOTED IN PERTINENT PART.

HERE, MR. MCCOY WAS ENTITLED TO RECEIVE HOSPITAL LODGING AND SUBSISTENCE BENEFITS UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OR THE TRAVEL EXPENSE ACT OF 1949, AND IN ACCORDANCE WITH SECTION 7 OF THE FEDERAL EMPLOYEES' COMPENSATION ACT HE HAD TO ELECT WHICH BENEFITS HE WOULD RECEIVE. THE RECORD SHOWS THAT AFTER MR. MCCOY HAD RECEIVED PER DIEM ALLOWANCES HE SUBSEQUENTLY FILED A CLAIM AND WAS REIMBURSED BY YOUR BUREAU UNDER PROVISIONS OF THE FEDERAL EMPLOYEES' COMPENSATION ACT. THIS SUBSEQUENT ACTION BY MR. MCCOY IS TANTAMOUNT TO AN ELECTION TO RECEIVE BENEFITS UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT IN LIEU OF BENEFITS UNDER THE TRAVEL EXPENSE ACT OF 1949.

PARAGRAPH 45C OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDED:

"* * * REFUND OF THE PER DIEM ALLOWANCE SHALL BE REQUIRED FROM THE EMPLOYEE IN ANY CASE WHERE HE RECEIVES HOSPITALIZATION UNDER ANY FEDERAL STATUTE OR RECEIVES REIMBURSEMENT UNDER SUCH STATUTE FOR HOSPITAL EXPENSES PAID BY HIM.'

THEREFORE, YOU ARE ADVISED THAT THE ENTIRE PER DIEM ALLOWANCE RECEIVED BY THE EMPLOYEE FOR THE PERIOD OF HOSPITALIZATION INVOLVED IS FOR REFUNDING UNDER PARAGRAPH 45C OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. COMP. GEN. 113.