B-146262, AUG. 8, 1961

B-146262, AUG. 8, 1961

TO FIRST LIEUTENANT ROBERT T. MOTHER WAY, USMC:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1961, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED MAY 24, 1961,WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF COST OF PRIVATE MEDICAL TREATMENT OBTAINED BY YOU DURING THE PERIOD JULY 26 TO AUGUST 1, 1959.

IN REFERRING TO A STATEMENT IN THE SETTLEMENT TO THE EFFECT THAT YOUR BELIEF THAT GOVERNMENT MEDICAL SERVICES WERE NOT AVAILABLE OR ADEQUATE DOES NOT ESTABLISH THE NONAVAILABILITY OR INADEQUACY OF SUCH SERVICE, YOU STATE THAT SUCH FACILITIES WERE AVAILABLE AND WERE ADEQUATE, BUT THAT IT WAS YOUR MISFORTUNE TO HAVE AN INADEQUATE PHYSICIAN EXAMINE YOU AT ST. ALBANS NAVAL HOSPITAL WHO WAS DELINQUENT IN HIS DUTIES. IN THAT REGARD YOU MENTIONED A COMMENT BY A SENIOR MEDICAL OFFICER AT THE U.S. NAVAL AIR STATION, BRUNSWICK, MAINE, THAT YOUR DECISION TO ENTER A CIVILIAN HOSPITAL WAS MOST PRUDENT UNDER THOSE CIRCUMSTANCES. YOU STATE FURTHER THAT THE ORIGINAL REFUSAL OF YOUR CLAIM WAS ON THE BASIS THAT YOUR COMMAND FAILED TO NOTIFY THE NAVAL DISTRICT OF YOUR HOSPITALIZATION IN A CIVILIAN INSTITUTION AND THEREAFTER NO ONE ALTERED THAT DECISION. YOU ASSERT THAT YOU CANNOT ACCEPT A DISALLOWANCE ON THE SOLE BASIS THAT THE RECORD IS INSUFFICIENT TO SUBSTANTIATE THE CLAIM AND REQUEST THAT SOMEONE TAKE THE TIME TO READ THE FACTS AND RENDER A DECISION IN YOUR FAVOR.

THE RECORD BEFORE US INDICATES THAT ON JULY 22, 1959, WHILE YOU WERE ON LEAVE OF ABSENCE, YOU ATTENDED SICK CALL AT ST. ALBANS NAVAL HOSPITAL, NEW YORK, ON ACCOUNT OF PAIN AND SWELLING IN YOUR LEFT HAND. YOU RETURNED TO THAT HOSPITAL ON JULY 24 BUT YOUR PAIN PERSISTED AND ON JULY 25 YOU WENT TO A PRIVATE PHYSICIAN WHO, UPON EXAMINATION TREATED YOUR HAND AND RECOMMENDED THAT IF THE INFECTION WAS NOT BETTER YOU SHOULD BE HOSPITALIZED. THE NEXT DAY YOUR CONDITION WORSENED AND YOU WERE PLACED BY YOUR CIVILIAN DOCTOR IN A CIVILIAN HOSPITAL (ST. JOSEPH'S HOSPITAL, FAR ROCKAWAY, NEW YORK) WHERE YOU REMAINED UNTIL AUGUST 1, 1959.

ON OCTOBER 26, 1959, YOUR CLAIM WAS DISAPPROVED BY THE COMMANDANT, THIRD NAVAL DISTRICT, NEW YORK, NEW YORK, FOR THE REASON THAT THE TREATMENT RECEIVED FROM A CIVILIAN SOURCE WAS NOT CONSIDERED A BONA FIDE EMERGENCY REQUIRING PROLONGED TREATMENT IN A CIVILIAN HOSPITAL. ALSO, NECESSARY FEDERAL MEDICAL CARE WAS AVAILABLE AND NAVAL AMBULANCE SERVICE WAS AVAILABLE ON A 24 HOUR BASIS WITHIN THE AREA. BY LETTER OF DECEMBER 16, 1959, YOU REQUESTED RECONSIDERATION OF YOUR CLAIM AND BY LETTER OF FEBRUARY 1, 1960, YOUR CLAIM WAS RETURNED BY THE COMMANDANT DISAPPROVED. THE COMMANDANT'S LETTER STATED THAT AN INVESTIGATION REVEALED THAT WHEN YOU REPORTED AT ST. ALBANS JULY 22, 1959, THERE WASA SWELLING OF YOUR LEFT HAND BUT "THERE WAS NO EVIDENCE OF LYMPHADENITIS, NOR WAS FLUCTUATION ELICITED.' YOU WERE THEN ADVISED TO USE HOT SOAKS AND TO RETURN IF THE SWELLING DID NOT SUBSIDE OR IF IT WORSENED. YOU RETURNED JULY 24 BUT THERE APPEARS TO BE NO RECORD OF ANY TREATMENT AT THAT TIME. THE COMMANDANT'S LETTER FURTHER STATED THAT HOSPITAL RECORDS DO NOT INDICATE THAT YOU OR YOUR DOCTOR MADE ANY ATTEMPT TO CONTACT THE HOSPITAL OR THE HEADQUARTERS REGARDING YOUR CONDITION AND YOUR TRANSFER TO ST. ALBANS FOR TREATMENT.

ON FEBRUARY 9, 1960, YOU APPEALED TO THE CHIEF, BUREAU OF MEDICINE AND SURGERY, REQUESTING THAT THE NAVY MEDICAL DEPARTMENT REIMBURSE THE HOSPITAL AND DOCTOR. BY SECOND ENDORSEMENT DATED MARCH 22, 1960, THE COMMANDANT, THIRD NAVAL DISTRICT FURNISHED THE CHIEF, BUREAU OF MEDICINE AND SURGERY, THE FOLLOWING REPORT:

"2. BY REFERENCE (B), AND ENCLOSURE (3) TO REFERENCE (A), THIS CLAIM WAS PREVIOUSLY DISAPPROVED BY THIS OFFICE. THE RECORDS OF THE HOSPITAL AND THIS HEADQUARTERS DO NOT INDICATE THAT LT. MOTHER WAY OR DR. FRASER MADE ANY ATTEMPT TO CONTACT THE HOSPITAL OR THIS HEADQUARTERS THAT THE LIEUTENANTS CONDITION WAS SUCH AS TO REQUIRE IMMEDIATE ADMISSION TO A CIVILIAN HOSPITAL, AND FURTHER, NO ATTEMPT WAS MADE TO TRANSFER (SIC) LT. MOTHER WAY TO A FEDERAL INSTITUTION.

"3. IT IS TO BE NOTED THAT LT. MOTHER WAY WAS FIRST SEEN BY DR. FRASER ON 25 JULY 1959, AND WAS ADMITTED TO THE CIVILIAN HOSPITAL ON 26 JULY AS AN EMERGENCY. THE HOSPITALIZATION COULD AS WELL HAVE BEEN MADE AT ST. ALBANS SINCE A PERIOD OF TWENTY-FOUR HOURS HAD ELAPSED SINCE BEING SEEN BY DR. FRASER AND ADMISSION TO HOSPITAL. IN THE INTERIM, LT. MOTHER WAY OR DR. FRASER, COULD HAVE CONTACTED THE NAVAL HOSPITAL ST. ALBANS, AND ARRANGED FOR ADMISSION. HIS ADMISSION TO ST. ALBANS COULD HAVE BEEN MADE ON THE 26TH OF JULY JUST AS WELL AS IN THE CIVILIAN HOSPITAL AS AMBULANCE SERVICE WAS AVAILABLE HAD HE DESIRED TO AVAIL HIMSELF OF SAME.

"4. THIS HEADQUARTERS WAS NOT AWARE OF LT. MOTHER WAY'S HOSPITALIZATION IN A CIVILIAN INSTITUTION, NOR WAS ANY REQUEST MADE BY ANY ONE TO EFFECT HIS TRANSFER TO A FEDERAL ACTIVITY FOR MEDICAL CARE. THE ONLY KNOWLEDGE THIS OFFICE HAD IN THIS CASE WAS REFERENCE (D), REPORTING HIS ADMISSION ON 8 AUGUST 1959 WITH DIAGNOSIS UNDETERMINED (PENICILLIN REACTION) NO. 7955. THIS ADMISSION TO ST. ALBANS WAS SEVEN (7) DAYS FROM DATE OF DISCHARGE FROM ST. JOSEPH'S HOSPITAL.

"5. IN VIEW OF THE CIRCUMSTANCES IN THIS CASE, DISAPPROVAL OF CLAIM IS RECOMMENDED.' THE BUREAU OF MEDICINE AND SURGERY CONCURRED IN THAT REPORT, AND YOUR CLAIM WAS AGAIN DENIED MAY 26, 1960.

THIS ACTION WAS TAKEN EVEN THOUGH THE MEDICAL OFFICER AT YOUR INSTALLATION, U.S. NAVAL AIR STATION, BRUNSWICK, MAINE, RECOMMENDED FAVORABLE CONSIDERATION OF YOUR CLAIM AND THE COMMANDING OFFICER AT THAT INSTALLATION RECOMMENDED REIMBURSEMENT ON A PRO RATA BASIS BECAUSE THAT COMMAND, UPON RECEIPT OF NOTIFICATION ON JULY 27 THAT YOU WAS ADMITTED TO A CIVILIAN HOSPITAL, FAILED TO MAKE PROPER NOTIFICATION IN ACCORDANCE WITH CURRENT DIRECTIVES.

ON JUNE 20, 1960, YOU WROTE TO THE COMMANDANT OF THE MARINE CORPS FOR ACTION TO RECTIFY THE SITUATION AND AGAIN THE CLAIM WAS DISAPPROVED BY THE CHIEF, BUREAU OF MEDICINE AND SURGERY. THIS ACTION WAS BASED ON THE FACT THAT UNDER THE PROVISIONS OF 10 U.S.C. 6203 REIMBURSEMENT IS LIMITED TO THOSE CASES WHERE A FEDERAL MEDICAL FACILITY IS NOT AVAILABLE AND SINCE A NAVAL HOSPITAL WAS AVAILABLE TO YOU BUT YOU ELECTED TO OBTAIN CARE FROM A CIVILIAN SOURCE, THERE WAS NO AUTHORITY FOR REIMBURSEMENT.

SECTION 6203 OF TITLE 10 OF THE U.S.C. PROVIDES IN MATERIAL PART AS FOLLOWS:

"THE SECRETARY OF THE NAVY SHALL PRESCRIBE REGULATIONS FOR REIMBURSING MEMBERS OF THE NAVAL SERVICE FOR EXPENSES OF EMERGENCY OR NECESSARY MEDICAL SERVICE, INCLUDING HOSPITALIZATION AND MEDICINES, WHEN THE MEMBER WAS IN A DUTY STATUS AT THE TIME HE RECEIVED THE SERVICE AND THE SERVICE WAS NOT AVAILABLE FROM A FEDERAL SOURCE. FOR THE PURPOSE OF THIS SECTION, A MEMBER ON LEAVE OR LIBERTY IS IN A DUTY STATUS.'

ARTICLE 20-5, MANUAL OF THE MEDICAL DEPARTMENT, U.S. NAVY, PROVIDES GENERALLY THAT PERSONNEL WHO REQUIRE EMERGENCY MEDICAL TREATMENT WHILE ON AUTHORIZED LEAVE SHALL APPLY, IF PRACTICABLE, TO THE NEAREST NAVAL ACTIVITY IN THE VICINITY OR TO ANY OTHER FEDERAL AGENCY FOR MEDICAL SERVICES. WHEN FEDERAL FACILITIES ARE NOT AVAILABLE THE INDIVIDUAL CONCERNED SHOULD, IF PRACTICABLE, CONTACT HIS COMMANDING OFFICER AND REQUEST PERMISSION TO OBTAIN CIVILIAN MEDICAL AID. THE MANUAL ALSO PROVIDES THAT WHEN THE URGENCY OF THE SITUATION DOES NOT PERMIT OBTAINING TREATMENT FROM FEDERAL FACILITIES OR AUTHORITY TO OBTAIN TREATMENT FROM OTHER SOURCES, NECESSARY EMERGENCY TREATMENT MAY BE OBTAINED FROM CIVILIAN SOURCES AND REASONABLE EXPENSES MAY BE ALLOWED AS A CHARGE AGAINST THE NAVY, PROVIDED THAT A REPORT IS MADE TO THE COMMANDING OFFICER WITHIN A REASONABLE TIME SO AS TO PERMIT INVESTIGATION AND SUITABLE ARRANGEMENTS FOR TRANSFER TO A FEDERAL INSTITUTION OR OTHER APPROPRIATE ACTION. THE EXPENSE OF ELECTIVE CIVILIAN MEDICAL TREATMENT MAY NOT BE ALLOWED UNDER ANY CIRCUMSTANCES.

IT HAS BEEN DETERMINED BY THE APPROPRIATE APPROVING AUTHORITY THAT THE NECESSARY MEDICAL AND HOSPITAL SERVICES IN YOUR CASE COULD HAVE BEEN FURNISHED BY GOVERNMENT MEDICAL TREATMENT FACILITIES AND THAT THE PRIVATE MEDICAL SERVICES YOU RECEIVED WERE ELECTED BY YOU. WHEN AN ADMINISTRATIVE DETERMINATION OF THE FACTS IN A CASE IS MADE, OUR OFFICE NECESSARILY MUST RELY ON SUCH DETERMINATION IN THE SETTLEMENT OF THE CLAIM INVOLVED IN THE ABSENCE OF EVIDENCE OF SUFFICIENT WEIGHT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVELY REPORTED FACTS.

IN THIS CONNECTION, THERE SEEMS TO BE NO DOUBT THAT THE FACILITIES AT ST. ALBANS NAVAL HOSPITAL WERE FULLY ADEQUATE TO CARE FOR YOUR ILLNESS AND THE NATURE OF YOUR ILLNESS WAS NOT SUCH THAT IT WOULD NOT HAVE PERMITTED YOU OR YOUR CIVILIAN DOCTOR TO CONTACT THE NAVAL AUTHORITIES PRIOR TO THE USE OF THE CIVILIAN FACILITY AS REQUIRED BY THE REGULATIONS. IN SUCH CIRCUMSTANCES THE FACT THAT YOU CHOSE TREATMENT BY A CIVILIAN DOCTOR BECAUSE YOU CONSIDERED THE MEDICAL OFFICER AT ST. ALBANS WHO EXAMINED YOU PREVIOUSLY WAS "DELINQUENT IN HIS DUTIES," AFFORDS NO BASIS UPON WHICH WE MAY DISREGARD THE ACTION AND RECOMMENDATIONS OF THE APPROPRIATE NAVAL AUTHORITIES ON YOUR CLAIM.

ACCORDINGLY, THE DISALLOWANCE OF MAY 24, 1961, WAS PROPER AND IS SUSTAINED.