B-150885, MARCH 19, 1963, 42 COMP. GEN. 498

B-150885: Mar 19, 1963

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WHERE NO PROFESSIONAL SERVICES ARE PERFORMED BECAUSE THE EMPLOYEE FAILED TO KEEP A FITNESS-FOR-DUTY EXAMINATION MADE BY THE POST OFFICE DEPARTMENT. AS A PHYSICIAN IS ONLY ENTITLED TO RECOVER FOR HIS SERVICES AS ANY OTHER PERSON WHO PERFORMS SERVICES FOR ANOTHER. THERE IS NO IMPLIED CONTRACT AND HE. 1963: WE HAVE YOUR LETTER OF FEBRUARY 19. THE FILE TRANSMITTED TO THIS OFFICE IS NOT COMPLETE AS TO ALL OF THE FACTS AND CIRCUMSTANCES GIVING RISE TO THE CLAIM. UPON DETERMINATION THAT A FITNESS-FOR-DUTY EXAMINATION WAS REQUIRED IN THE CASE OF THE EMPLOYEE INVOLVED. THE EMPLOYEE'S WIFE ADVISED HIM THAT THE APPOINTMENT WAS BEING IGNORED AND WAS NOT NECESSARY. WHEREIN IT WAS STATED THAT A PARTY WHO HAD DONE ALL THAT COULD BE REASONABLY EXPECTED OF HIM TO PERFORM HIS PART OF AN AGREEMENT WILL BE CONSIDERED TO HAVE PERFORMED IT.

B-150885, MARCH 19, 1963, 42 COMP. GEN. 498

MEDICAL TREATMENT - OFFICERS AND EMPLOYEES - EXAMINATIONS, ETC. WHERE NO PROFESSIONAL SERVICES ARE PERFORMED BECAUSE THE EMPLOYEE FAILED TO KEEP A FITNESS-FOR-DUTY EXAMINATION MADE BY THE POST OFFICE DEPARTMENT, THE GOVERNMENT HAS NO OBLIGATION TO PAY THE PSYCHIATRIST A FEE FOR THE VALUE OF HIS TIME RESERVED IN CONNECTION WITH THE SCHEDULED EXAMINATION, THE PROFESSIONAL SERVICES NOT HAVING BEEN RENDERED, THE CONTRACT CONTEMPLATED DID NOT MATERIALIZE, AND AS A PHYSICIAN IS ONLY ENTITLED TO RECOVER FOR HIS SERVICES AS ANY OTHER PERSON WHO PERFORMS SERVICES FOR ANOTHER, THERE IS NO IMPLIED CONTRACT AND HE, THEREFORE, MAY NOT BE PAID COMPENSATION ON THE BASIS OF THE RESERVATION OF HIS TIME.

TO JOHN W. HALL, POST OFFICE DEPARTMENT, MARCH 19, 1963:

WE HAVE YOUR LETTER OF FEBRUARY 19, 1963, AND ENCLOSURES REQUESTING A DECISION AS TO WHETHER PAYMENT MAY BE MADE TO DR. HENRY GOLDHIRSCH IN THE AMOUNT OF $20 REPRESENTING THE VALUE OF HIS TIME RESERVED IN CONNECTION WITH A SCHEDULED FITNESS-FOR-DUTY EXAMINATION OF A POSTAL EMPLOYEE.

THE FILE TRANSMITTED TO THIS OFFICE IS NOT COMPLETE AS TO ALL OF THE FACTS AND CIRCUMSTANCES GIVING RISE TO THE CLAIM. THE RECORD BEFORE THIS OFFICE SHOWS THE POSTMASTER, CLEVELAND, OHIO, UPON DETERMINATION THAT A FITNESS-FOR-DUTY EXAMINATION WAS REQUIRED IN THE CASE OF THE EMPLOYEE INVOLVED, REFERRED THE MATTER TO THE LOCAL PUBLIC HEALTH SERVICE FACILITY FOR ARRANGEMENT. THE POST OFFICE REGIONAL DIRECTOR, CINCINNATI, OHIO, APPROVED THE PROFESSIONAL EXAMINATION OF THE EMPLOYEE AND THEREAFTER APPARENTLY THE LOCAL PUBLIC HEALTH SERVICE OFFICE CONTACTED DR. GOLDHIRSCH AND MADE AN APPOINTMENT FOR THE POSTAL EMPLOYEE INVOLVED FOR THE HOUR BETWEEN 9 AND 10 A.M. ON DECEMBER 22, 1962. ON THE DATE RESERVED THE POST OFFICE EMPLOYEE DID NOT APPEAR AND UPON INQUIRY BY THE DOCTOR AT 9:40 A.M. OF THE DAY, THE EMPLOYEE'S WIFE ADVISED HIM THAT THE APPOINTMENT WAS BEING IGNORED AND WAS NOT NECESSARY. THEREFORE, THE DOCTOR SUBMITTED HIS BILL IN THE AMOUNT OF $20 FOR HIS TIME.

YOUR LETTER OF FEBRUARY 19, 1963, CITES CERTAIN DECISIONS OF THIS OFFICE IN SUPPORT OF THE PAYMENT. FIRST YOU CALL ATTENTION TO 29 COMP. GEN. 468 WHICH SETS FORTH THE RULE IN DOLTON V. CAIN, 14 WALL. 472, WHEREIN IT WAS STATED THAT A PARTY WHO HAD DONE ALL THAT COULD BE REASONABLY EXPECTED OF HIM TO PERFORM HIS PART OF AN AGREEMENT WILL BE CONSIDERED TO HAVE PERFORMED IT. SECOND YOU REFER TO B-148550, MAY 24, 1962, 41 COMP. GEN. 780, WHERE OUR OFFICE APPROVED A PAYMENT FOR HOTEL RESERVATIONS IN SYDNEY, AUSTRALIA, WHICH WERE NOT UTILIZED BY GOVERNMENT PERSONNEL DUE TO UNAVOIDABLE TRAVEL DELAY. YOU ALSO CALL ATTENTION TO THE CLAIMS DISALLOWANCE BY OUR CLAIMS DIVISION IN Z 2124093, AUGUST 7, 1961, CONCERNING CIRCUMSTANCES SIMILAR TO THE ONE PRESENTED. DISALLOWANCE IN THIS CASE WAS BASED ON THE LACK OF PROFESSIONAL SERVICE AND THE LAW, SECTION 3678, REVISED STATUTES, 31 U.S.C. 628, RESTRICTING THE PAYMENT OF APPROPRIATED MONEY TO THE OBJECTS FOR WHICH THEY ARE MADE.

THE TWO CASES CITED IN SUPPORT OF PAYMENT ARE DISTINGUISHABLE FROM THE CASE AT HAND. IN APPLYING THE PRINCIPLE SET FORTH IN DOLTON V. CAIN, SUPRA, THERE WAS INVOLVED AN UNCONDITIONAL PROMISE (OFFER) BY THE GOVERNMENT TO PAY FOR AMBULANCE TRANSPORTATION FOR AN ILL VETERAN FROM HIS HOME TO THE VETERANS' ADMINISTRATION HOSPITAL. THE CLAIMANT PROVIDED THE AMBULANCE BUT BECAUSE THE VETERAN HAD OBTAINED OTHER TRANSPORTATION THE SERVICE CONTRACTED FOR COULD NOT BE ACCOMPLISHED. IN PROVIDING THE AMBULANCE FOR SERVICE UNDER THIS ARRANGEMENT THERE WOULD BE CREATED AN IMPLIED CONTRACT AND AN OBLIGATION FOR COMPENSATION FOR THE VALUE OF THE SERVICES ACTUALLY PERFORMED UNDER THE DOCTRINE OF QUANTUM MERUIT. IN B- 148550 THE PAYMENT WAS AUTHORIZED ON THE BASIS OF A FIRM UNCONDITIONAL RESERVATION (CONTRACT) TO PAY FOR THE HOTEL ROOMS. THE RESERVATION HAVING BEEN MADE THERE REMAINED NOTHING FOR THE HOTEL TO DO AND THE CONTRACT WAS THUS FULLY PERFORMED EXCEPT FOR THE PAYMENT BY THE GOVERNMENT FOR THE HOTEL ROOMS SO RESERVED.

THE CASE FOR DISCUSSION HERE INVOLVES A CONTRACT FOR THE PROFESSIONAL SERVICES OF A PSYCHIATRIST. THE CONTRACT IN ITS ESSENCE WAS A PROMISE BY THE GOVERNMENT TO PAY THE PROFESSIONAL FEE (OFFER) UPON THE RENDITION OF THE PROFESSIONAL SERVICES ON BEHALF OF THE POST OFFICE EMPLOYEE. SINCE THE PROFESSIONAL SERVICES WERE NOT RENDERED IT FOLLOWS THAT THE CONTRACT CONTEMPLATED DID NOT MATERIALIZE. THERE HAS BEEN OFFERED NO EVIDENCE THAT THERE WAS ANY AGREEMENT TO PAY THE FEE ON THE BASIS OF THE RESERVATION OF TIME, I.E., WHETHER OR NOT THE EMPLOYEE KEPT THE APPOINTMENT AND THE PROFESSIONAL SERVICES WERE RENDERED, AND NONE WILL BE INFERRED.

FAILING TO FIND AN OBLIGATION OF THE GOVERNMENT TO PAY FOR THE PROFESSIONAL TIME OF DR. GOLDHIRSCH UNDER THE TERMS OF THE EXPRESS AGREEMENT WE MUST DETERMINE WHETHER AN IMPLIED AGREEMENT SO TO DO MAY BE RECOGNIZED UNDER THE CIRCUMSTANCES. WE HAVE BEEN UNABLE TO FIND A SINGLE COURT CASE CONCERNING THE RIGHT OF A PHYSICIAN TO COLLECT COMPENSATION ON THE BASIS OF THE RESERVATION OF HIS TIME. A PHYSICIAN IS ENTITLED TO RECOVER FOR HIS SERVICES IN THE SAME MANNER AS ANY OTHER PERSON WHO PERFORMS SERVICES FOR ANOTHER. 70 C.J.S. PHYSICIANS AND SURGEONS, SECTION 68. THUS THE RIGHT TO COMPENSATION OF A PHYSICIAN HAS BEEN RECOGNIZED ONLY IN THE CASES INVOLVING THE RENDITION OF SERVICES AND ACCORDINGLY NO BASIS APPEARS PROPER FOR THE RECOGNITION OF THE OBLIGATION BY THE GOVERNMENT ON THE THEORY OF AN IMPLIED OBLIGATION TO PAY FOR THE TIME RESERVED WHERE NO PROFESSIONAL SERVICES WERE RENDERED.

SINCE THE RECORD BEFORE US IN THE INSTANT CASE FAILS TO INDICATE A CONTRACTUAL UNDERTAKING BY THE GOVERNMENT FOR THE PAYMENT OF THE DOCTOR'S FEE ON THE BASIS SUBMITTED, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF THE BILL ENCLOSED.