B-137656, JUN. 2, 1961

B-137656: Jun 2, 1961

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PAUL LOWINGER: REFERENCE IS MADE TO YOUR LETTER OF APRIL 18. SINCE YOU BELIEVED THAT SUCH EVIDENCE WAS NOT NECESSARY. WAS RECONSIDERED AND IN OUR DECISION OF NOVEMBER 21. THAT ACTION WAS PREDICATED ON THE PREMISE THAT. SUCH AS THE MEDICAL OFFICER IN CHARGE OF THE HOSPITAL AT CARVILLE THAT YOU MADE 30 OR MORE VISITS TO THE HOSPITAL AND THAT YOUR DUTY WAS SUCH AS TO REQUIRE INTIMATE CONTACT WITH THE LEPER PATIENTS. WHICH DEFINES THE TERM "DUTY INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY" AS DUTY PERFORMED BY ANY MEMBER WHO IS ASSIGNED BY COMPETENT ORDERS TO A LEPROSARIUM FOR THE PERFORMANCE OF DUTY FOR 30 DAYS OR MORE OR FOR A PERIOD OF INSTRUCTION. HENCE UNDER THE LAW AND IMPLEMENTING REGULATIONS YOUR ENTITLEMENT TO THE INCENTIVE PAY IS DEPENDENT UPON A CLEAR SHOWING THAT YOU HAD PERFORMED DUTY AT THE CARVILLE HOSPITAL 30 OR MORE DAYS.

B-137656, JUN. 2, 1961

TO DR. PAUL LOWINGER:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 18, 1961, IN RESPONSE TO OUR LETTER OF APRIL 13, 1961, FURNISHING A PHOTOCOPY OF LETTER OF MARCH 23, 1961, FROM THE MEDICAL OFFICER IN CHARGE, UNITED STATES PUBLIC HEALTH SERVICE HOSPITAL, CARVILLE, LOUISIANA. IN YOUR PRIOR LETTER OF APRIL 6, 1961, YOU REQUESTED THAT IN CONSIDERATION OF THE INFORMATION CONTAINED IN THE LETTER OF MARCH 23, 1961, WE REOPEN YOUR CLAIM FOR INCENTIVE PAY FOR HAZARDOUS DUTY PERFORMED DURING THE PERIOD FROM OCTOBER 26, 1953, TO AUGUST 28, 1955, AT THE LEPROSARIUM AT CARVILLE, AS SENIOR ASSISTANT SURGEON AND LATER AS SURGEON, UNITED STATES PUBLIC HEALTH SERVICE RESERVE.

BY SETTLEMENT OF JULY 31, 1958, OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM ON SEVERAL GROUNDS, ONE BEING THAT NO EVIDENCE HAD BEEN SUBMITTED TO SHOW THAT YOUR DUTIES DID, IN FACT, REQUIRE INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY. YOU QUESTIONED THE PROPRIETY OF THE DISALLOWANCE ACTION BY YOUR LETTER OF SEPTEMBER 19, 1958, WHEREIN YOU ADVISED, AMONG OTHER THINGS, THAT YOU HAD SUBMITTED NO EVIDENCE WITH REGARD TO YOUR DUTY AT THE LEPROSARIUM, SINCE YOU BELIEVED THAT SUCH EVIDENCE WAS NOT NECESSARY. IN THE SAME LETTER YOU FURNISHED A DETAILED EXPLANATION OF THE DUTIES AND ACTIVITIES INVOLVED IN CONNECTION WITH YOUR EXAMINATION AND TREATMENT OF PATIENTS AT THE LEPROSARIUM TO SHOW THAT YOU HAD INTIMATE CONTACT WITH THEM. YOUR CLAIM, THEREFORE, WAS RECONSIDERED AND IN OUR DECISION OF NOVEMBER 21, 1958, B-137656, WE SUSTAINED THE DISALLOWANCE OF THE CLAIM. THAT ACTION WAS PREDICATED ON THE PREMISE THAT, NOTWITHSTANDING THE DOCUMENTS ON FILE WHICH ESTABLISHED YOUR PHYSICAL PRESENCE AT THE HOSPITAL ON CERTAIN DATES AND YOUR OWN STATEMENTS CONCERNING INTIMATE CONTACTS WITH LEPER PATIENTS, THERE COULD BE NO ENTITLEMENT TO THE INCENTIVE PAY IN THE ABSENCE OF EVIDENCE FROM OFFICIAL SOURCES, SUCH AS THE MEDICAL OFFICER IN CHARGE OF THE HOSPITAL AT CARVILLE THAT YOU MADE 30 OR MORE VISITS TO THE HOSPITAL AND THAT YOUR DUTY WAS SUCH AS TO REQUIRE INTIMATE CONTACT WITH THE LEPER PATIENTS.

THE MEDICAL OFFICER IN CHARGE, UNITED STATES PUBLIC HEALTH SERVICE HOSPITAL AT CARVILLE, IN HIS LETTER OF MARCH 23, 1961, TO YOU, HAS STATED THAT HIS EXAMINATION OF THE HOSPITAL RECORDS REVEALED THAT YOUR RESPONSIBILITY AS CONSULTING PSYCHIATRIST REQUIRED YOU TO MAKE PSYCHIATRIC AND NEUROLOGICAL EXAMINATIONS OF PATIENTS, INVOLVING QUESTIONING, DIAGNOSING AND TREATING LEPROSY PATIENTS AND THAT "DURING THE PERIOD OCTOBER 26, 1953, TO AUGUST 28, 1955, YOU DID IN FACT PERFORM SUCH DUTY AT THIS HOSPITAL ON THE OCCASION OF YOUR OFFICIAL VISITS.' THERE NOW APPEARS TO BE NO QUESTION THAT YOU CAME INTO INTIMATE CONTACT WITH LEPROSY PATIENTS AND THAT YOU OTHERWISE WOULD BE ENTITLED TO THE INCENTIVE PAY UNDER THE LAW AND REGULATIONS IF YOU MADE THE REQUISITE 30 OR MORE OFFICIAL VISITS TO THE CARVILLE HOSPITAL. HOWEVER, WE CANNOT ACCEPT THAT STATEMENT AS SUFFICIENT CORROBORATING EVIDENCE OF YOUR PREVIOUS ALLEGATION THAT YOU HAD MADE 30 VISITS TO THE CARVILLE HOSPITAL, SINCE IT DOES NOT CONFIRM SUCH ALLEGATION NOR DOES IT SPECIFY THE EXACT NUMBER OF VISITS TO THAT HOSPITAL.

IN OUR DECISION OF NOVEMBER 21, 1958, WE QUOTED SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 37 U.S.C. 235 (A), PROVIDING FOR THE PAYMENT OF INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTIES, SUBSECTION (6) OF WHICH COVERS DUTY INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY. WE ALSO QUOTED SECTION 9 (A) OF EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950 (15 F.R. 5489), WHICH DEFINES THE TERM "DUTY INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY" AS DUTY PERFORMED BY ANY MEMBER WHO IS ASSIGNED BY COMPETENT ORDERS TO A LEPROSARIUM FOR THE PERFORMANCE OF DUTY FOR 30 DAYS OR MORE OR FOR A PERIOD OF INSTRUCTION. HENCE UNDER THE LAW AND IMPLEMENTING REGULATIONS YOUR ENTITLEMENT TO THE INCENTIVE PAY IS DEPENDENT UPON A CLEAR SHOWING THAT YOU HAD PERFORMED DUTY AT THE CARVILLE HOSPITAL 30 OR MORE DAYS.

OUR FILE SHOWS THAT 28 OF THE ASSERTED 30 VISITS TO THAT HOSPITAL ARE SUPPORTED BY OFFICIAL RECORDS OF THE UNITED STATES PUBLIC HEALTH SERVICE. THE OTHER TWO VISITS ALLEGED TO HAVE BEEN MADE ON OCTOBER 27, 1953, AND FEBRUARY 15, 1955, HAVE NOT BEEN CORROBORATED BY SUCH RECORDS. IN AN ENDEAVOR TO ESTABLISH THOSE VISITS AS HAVING BEEN OFFICIALLY MADE, YOU CORRESPONDED WITH BOTH THE NEW ORLEANS AND CARVILLE HOSPITALS, BUT WITHOUT FAVORABLE RESULTS. YOU MAINTAINED IN YOUR LETTERS TO THE CARVILLE HOSPITAL THAT ON OCTOBER 27, 1953, YOU ACCOMPANIED DR. JAMES L. BAKER, THEN CHIEF, PSYCHIATRIC SERVICE OF THE NEW ORLEANS HOSPITAL, TO THE CARVILLE HOSPITAL IN A GOVERNMENT CAR. BY THEIR REPLY OF JANUARY 14, 1957, THE CARVILLE HOSPITAL INFORMED YOU, AMONG OTHER THINGS, THAT THEIR RECORDS AT THE GATEHOUSE INDICATE THAT DR. BAKER WAS ALONE ON THAT OCCASION AND THAT THEY COULD FIND NO EVIDENCE THAT YOU WERE AT CARVILLE ON THAT DATE. CONCERNING YOUR VISIT ON FEBRUARY 15, 1955, WHILE THE CARVILLE HOSPITAL ADVISED YOU THAT THEIR RECORDS DISCLOSED YOU WERE THERE ON THAT DATE, THE FINANCIAL MANAGEMENT OFFICER OF THE NEW ORLEANS HOSPITAL WROTE YOU ON MAY 2, 1957, AS FOLLOWS:

"WITH REFERENCE TO YOUR LETTER OF APRIL 23, 1957, I HAVE AGAIN REVIEWED THE FILES AND RECORDS OF THE FINANCE AND PERSONNEL SECTIONS, QUERIED MEMBERS OF THE PSYCHIATRIC SERVICE, AND OTHERS. THERE IS NO RECORD HERE OF THE OCTOBER 26, 1953, OR FEBRUARY 15, 1955, TRIPS TO CARVILLE. DEFINITELY, THERE IS NO RECORD OF PAYMENT TO YOU FOR THESE TRIPS. NEITHER IS THERE A RECORD OF A TRIP ORDER ISSUED TO YOU FOR A FEBRUARY 15, 1955, TRIP TO CARVILLE. I PERSONALLY CHECKED THE FILE OF ORDERS FOR THAT YEAR. THE SERIES NUMBERS FOR THE PERIOD DECEMBER 10, 1954 THRU APRIL 14, 1955 WERE CAREFULLY CHECKED TO ASCERTAIN THAT THERE WERE NO OMISSIONS. THE PRE -NUMBERED FORMS ARE ALL ACCOUNTED FOR AND NONE WAS ISSUED TO YOU FOR A FEBRUARY, 1955, TRIP TO CARVILLE. IT WOULD APPEAR, THEREFORE, THAT IF YOU DID MAKE THE FEBRUARY 15, 1955 TRIP IT WAS NOT ON ORDERS OF THIS STATION AND YOU WERE NOT REIMBURSED BY THIS STATION.'

SUBSEQUENT TO THE RECEIPT OF YOUR LETTER OF APRIL 18, 1961, WE REQUESTED THE NEW ORLEANS HOSPITAL TO CONDUCT A FURTHER SEARCH FOR ANY EVIDENCE TO ESTABLISH THAT YOU WERE PRESENT AT THE CARVILLE HOSPITAL ON OCTOBER 27, 1953, AND THAT YOU WERE AUTHORIZED TO BE THERE ON FEBRUARY 15, 1955. THEIR REPORT OF MAY 11, 1961, REVEALS THAT A FURTHER SEARCH OF THE HOSPITAL RECORDS AND DOCUMENTS WAS MADE BUT NO EVIDENCE WAS FOUND TO SUBSTANTIATE THE VISITS TO THE CARVILLE HOSPITAL ON THOSE DATES. THE REPORT FURTHER REVEALS THAT THE RECORDS AT THE CARVILLE GATEHOUSE DO NOT SHOW YOU WERE PRESENT ON OCTOBER 27, 1953, AND THAT THEIR RECORDS DO NOT REFLECT A PAYMENT TO YOU FOR THAT TRIP. WITH REGARD TO THE FEBRUARY 15, 1955, TRIP, IT IS STATED THAT THE FILE OF INDIVIDUAL TRAVEL ORDERS FOR THE PERIOD DECEMBER 10, 1954, TO APRIL 18, 1955, WAS CHECKED, BUT NO TRAVEL ORDER WAS ISSUED TO YOU FOR A TRIP TO CARVILLE FOR ANY TIME DURING THE MONTH OF FEBRUARY 1955, AND THAT THERE WAS NO VOUCHER MADE OR PROCESSED FOR PAYMENT FOR A FEBRUARY 1955 TRIP.

WE CONSISTENTLY HAVE HELD THAT WHERE THERE IS A CONFLICT BETWEEN THE ALLEGATIONS OF A CLAIMANT AND THE ADMINISTRATIVE REPORTS, AS VERIFIED FROM OFFICIAL RECORDS, OUR CONCLUSIONS NECESSARILY MUST BE BASED UPON THE OFFICIAL WRITTEN RECORD, WHICH RECORD IS PRESUMED TO BE CORRECT IN THE ABSENCE OF CLEAR EVIDENCE TO THE CONTRARY. YOU HAVE SUBMITTED NO EVIDENCE OTHER THAN YOUR OWN STATEMENT TO JUSTIFY A DETERMINATION AT THIS TIME THAT YOU ACTUALLY WERE PRESENT AND PERFORMED DUTY AT THE CARVILLE HOSPITAL ON OCTOBER 27, 1953, AND THE REPORTS OF BOTH HOSPITALS FAIL TO SUPPORT YOUR CONTENTION IN THAT MATTER.

WITH REGARD TO YOUR PRESENCE AT THE CARVILLE HOSPITAL ON FEBRUARY 15, 1955, THERE APPEARS TO BE NO DISAGREEMENT. NEVERTHELESS, RECOGNITION OF THE VISIT ON THAT DAY FOR THE PURPOSE OF ESTABLISHING ENTITLEMENT TO INCENTIVE PAY UNDER THE LAW AND REGULATIONS IS PRECLUDED BY THE REPORT OF MAY 11, 1961, FROM THE NEW ORLEANS HOSPITAL, WHICH DEFINITELY DISCLOSES THAT A TRAVEL ORDER WAS NOT ISSUED FOR THAT VISIT. YOU HAVE STATED THAT AFTER THE CANCELLATION OF JANUARY 24, 1955, OF YOUR GENERAL TRAVEL AUTHORIZATION DATED JULY 1, 1954, TO COVER YOUR TRAVEL TO THE CARVILLE HOSPITAL DURING THE FISCAL YEAR 1955 YOU RECEIVED VERBAL ORDERS FROM AUTHORITIES TO GO TO THE CARVILLE HOSPITAL EVERY OTHER WEEK ON TUESDAY AND THAT YOU WERE TOLD TO REQUEST INDIVIDUAL WRITTEN ORDERS FOR EACH SUCH TRIP. WE ALSO HAVE THE STATEMENT IN THE ABOVE REPORT OF MAY 11, 1961, THAT IT HAS NOT BEEN THE HOSPITAL'S PRACTICE TO ISSUE VERBAL ORDERS TO TRAVELERS EXCEPT IN RARE EMERGENT SITUATIONS AND IN THOSE INSTANCES THE VERBAL ORDERS CONFIRMED IN WRITING AT THE EARLIEST PRACTICABLE TIME. DOES NOT APPEAR, HOWEVER, THAT YOU OBTAINED THE REQUIRED WRITTEN ORDERS FOR THE VISIT TO CARVILLE ON FEBRUARY 15, 1955, AS YOU DID FOR THE PRECEDING VISIT ON JANUARY 31, 1955, WHICH WAS COVERED BY AN INDIVIDUAL TRAVEL ORDER OF JANUARY 27, 1955, AND THE FOLLOWING VISIT ON MARCH 8, 1955, WHICH WAS COVERED BY AN INDIVIDUAL TRAVEL ORDER OF THE SAME DATE. FURTHERMORE, IF A WRITTEN TRAVEL ORDER HAD BEEN ISSUED EITHER IMMEDIATELY BEFORE OR AFTER THE TRAVEL WAS PERFORMED, YOU SHOULD BE IN POSSESSION OF THE ORIGINAL TRAVEL ORDER AND THE NEW ORLEANS HOSPITAL SHOULD HAVE IN ITS FILES A RETAINED COPY. SINCE YOU CLAIMED REIMBURSEMENT OF TRAVEL EXPENSES IN CONNECTION WITH THE 28 VISITS WHICH HAVE BEEN SUBSTANTIATED BY OFFICIAL RECORDS, IT IS REASONABLE TO ASSUME THAT YOU WOULD HAVE SOUGHT REIMBURSEMENT IN CONNECTION WITH THE FEBRUARY 15, 1955, VISIT ON THE BASIS OF THE WRITTEN AUTHORIZATION, AND HENCE WOULD BE ABLE TO ESTABLISH THAT YOU IN FACT MADE AN OFFICIAL VISIT ON THAT DAY.

ACCORDINGLY, IN THE ABSENCE OF ADDITIONAL COMPETENT EVIDENCE TO ESTABLISH THAT YOU WERE AT THE CARVILLE HOSPITAL ON OCTOBER 27, 1953, AND THAT YOUR VISIT THERE ON FEBRUARY 15, 1955, WAS OFFICIALLY AUTHORIZED, WE MUST ADHERE TO OUR PRIOR HOLDING THAT THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

A COPY OF THIS LETTER IS BEING FURNISHED TO HONORABLE PHILIP A. HART, UNITED STATES SENATE, WHO HAS EXPRESSED AN INTEREST IN YOUR CASE.