B-162901, NOVEMBER 29, 1967, 47 COMP. GEN. 316

B-162901, NOVEMBER 29, 1967, 47 COMP. GEN. 316

PROPERTY - PRIVATE - DAMAGE, LOSS, ETC. - PERSONAL PROPERTY - CLAIMS ACT OF 1964 THE CLAIM OF A CIVILIAN EMPLOYEE OF THE DEFENSE SUPPLY AGENCY FOR REIMBURSEMENT OF THE COST OF REPAIRING THE DAMAGE TO HIS HEARING AID, WHICH OCCURRED WITHOUT NEGLIGENCE IN THE NORMAL EXECUTION OF THE EMPLOYEE'S DUTIES AS A TEST DRIVER WHILE USING A GOVERNMENT-FURNISHED CRASH HELMET AND SAFETY GLASSES, IS FOR THE CONSIDERATION OF THE SECRETARY OF DEFENSE OR HIS DESIGNEE UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, AND ANY SETTLEMENT UPON APPROVAL BY THE SECRETARY OR HIS DESIGNEE OF THE EMPLOYEE'S CLAIM FOR THE PERSONAL PROPERTY DAMAGE WOULD BE FINAL AND CONCLUSIVE AS IT IS NOT WITHIN THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE TO CONSIDER DAMAGE CLAIMS FOR THE LOSS OF OR DAMAGE TO THE PERSONAL PROPERTY OF DEFENSE DEPARTMENT EMPLOYEES.

TO LIEUTENANT COMMANDER P. J. MASON, DEFENSE SUPPLY AGENCY, NOVEMBER 29, 1967:

BY LETTER DATED NOVEMBER 8, 1967 (REFERENCE DSAH-CFF), THE DEPUTY COMPTROLLER, DEFENSE SUPPLY AGENCY, FORWARDED TO OUR OFFICE YOUR LETTER OF OCTOBER 30, 1967 (YOUR REFERENCE DCRC-FRT), AND ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $52.50 IN FAVOR OF MR. CLYDE S. GIGGEY, COVERING COSTS HE INCURRED FOR THE REPAIR OF HIS HEARING AID.

THE FACTS AND CIRCUMSTANCES GIVING RISE TO MR. GIGGEY'S CLAIM, AS DISCLOSED BY THE RECORD, ARE SET FORTH BELOW.

ON AUGUST 30, 1967, MR. GIGGEY, AN AUTOMOTIVE EQUIPMENT QUALITY CONTROL REPRESENTATIVE AT FOOD MACHINERY CORPORATION, SAN JOSE, CALIFORNIA, EMPLOYED AS A CIVILIAN EMPLOYEE BY THE DEFENSE SUPPLY AGENCY, WAS PREPARING TO TEST DRIVE THE FIRST VULCAN C-1XM741 VEHICLE FOR FINAL ACCEPTANCE BY THE GOVERNMENT. HE WORE HIS PRIVATELY OWNED BELT ONE HEARING AID AND GOVERNMENT-FURNISHED SAFETY GLASSES. AS HE PLACED THE GOVERNMENT-FURNISHED BELL-TOPTEX CRASH HELMET ON HIS HEAD, THE EAR MOLD OF HIS HEARING AID WAS PULLED FROM HIS LEFT EAR. HE PUSHED THE HEARING AID BACK IN ITS PLACE IN HIS EAR AND IMMEDIATELY EXPERIENCED A LOUD RINGING NOISE. BELIEVING THAT THE VOLUME CONTROL WAS ADVANCED, HE LOWERED THIS CONTROL UNTIL THE RINGING NOISE DISAPPEARED. UPON COMPLETION OF TEST DRIVING THE VEHICLE HE PROCEEDED TO HIS PLACE OF WORK TO COMPLETE THE REQUIRED WRITTEN TEST REPORTS, AND AT THAT TIME NOTICED THAT HE COULD NOT HEAR WELL ENOUGH TO UNDERSTAND WHAT HIS SUPERVISOR AND OTHER EMPLOYEES WERE SAYING. HE INCREASED THE VOLUME CONTROL OF HIS HEARING AID AND, ONCE AGAIN, EXPERIENCED A RINGING NOISE. AT THIS POINT HE REMOVED THE HEARINGAID AND DISCOVERED THAT THE CASE OF THIS DEVICE WAS COMPLETELY BROKEN IN TWO PIECES AND WAS BEING HELD TOGETHER WITH THE INTERNAL RECEIVING TUBE. ON SEPTEMBER 1, 1967, HE TOOK THE DAMAGED HEARING AID TO JACK B. TAYLOR AND ASSOCIATES, INC., OAKLAND, CALIFORNIA, FOR REPAIR, AND WAS INFORMED THAT THE RECEIVING TUBE WAS SEPARATED FROM THE RECEIVER AND WOULD REQUIRE COMPLETE OVERHAUL BY THE MANUFACTURER OF THIS DEVICE, BELT ONE MFG. CO. A WRITTEN STATEMENT WAS MADE BY W. L. PERRY, COMMANDER, USN, CHIEF, DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE, FOOD MACHINERY CORPORATION PLANT OFFICE, WHERE MR. GIGGEY IS EMPLOYED, THAT THE DAMAGE TO MR. GIGGEY'S HEARING AID OCCURRED IN THE NORMAL EXECUTION OF HIS (MR. GIGGEY-S) DUTIES AS TEST DRIVER WHILE USING GOVERNMENT-FURNISHED EQUIPMENT (CRASH HELMET), AND THAT THERE WAS NO INDICATION OF NEGLIGENCE OR MISUSE OF THE HELMET WHICH WOULD HAVE CAUSED DAMAGE TO THE HEARING AID.

IN THE ADMINISTRATIVE REPORT ENCLOSED WITH YOUR LETTER THERE APPEARS THE FOLLOWING:

"SINCE NO INJURY WAS SUSTAINED BY MR. GIGGEY BUT ONLY MINOR DAMAGE TO HIS PERSONAL PROPERTY; VIZ., HEARING AID, THE CLAIM IS NOT ONE WHICH PROPERLY COMES UNDER THE PURVIEW OF THE UNITED STATES EMPLOYEES COMPENSATION ACT, AS AMENDED, AND SINCE THE DAMAGE CAUSED TO HIS HEARING AID WAS NOT THE RESULT OF ANY NEGLIGENT OR WRONGFUL ACT AND/OR OMISSION OF ANY OTHER GOVERNMENT EMPLOYEE, THE FEDERAL TORT CLAIMS ACT IS NOT FOR APPLICATION AND, ACCORDINGLY, THERE IS NO KNOWN LEGAL BASIS AVAILABLE FOR THE PAYMENT OF THIS CLAIM.

"RECOMMENDATION IS MADE THAT THE CLAIM BE DISALLOWED IN VIEW OF THE FACT THAT THE DAMAGE WAS CAUSED BY THE CLAIMANT AND WAS NOT THE RESULT OF ANY NEGLIGENCE BY THE GOVERNMENT EITHER BY THE USE OF GOVERNMENT EQUIPMENT OR AN EMPLOYEE.'

SECTION 3 (A) OF THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, PUB. L. 88-558, 78 STAT. 767, AUTHORIZES THE HEAD OF AN AGENCY (OR HIS DESIGNEE), UNDER SUCH REGULATIONS AS HE (THE AGENCY HEAD) MAY PRESCRIBE, TO SETTLE AND PAY CLAIMS BY AN EMPLOYEE OF THAT AGENCY FOR DAMAGE TO, OR LOSS OF, PERSONAL PROPERTY INCIDENT TO HIS SERVICE. SECTION 3 (C) (3) OF THE SAME ACT PROVIDES, THAT A CLAIM MAY BE ALLOWED UNDER SECTION 3 (A) FOR DAMAGE TO, OR LOSS OF, PERSONAL PROPERTY ONLY IF IT WAS NOT CAUSED WHOLLY OR PARTLY BY THE NEGLIGENT OR WRONGFUL ACT OF THE CLAIMANT, HIS AGENT, OR HIS EMPLOYEE. SECTION 4 OF THE ACT PROVIDES THAT NOTWITHSTANDING ANY OTHER PROVISION OF LAW THE SETTLEMENT OF A CLAIM UNDER THE ACT (PUBLIC LAW 88-558) IS FINAL AND CONCLUSIVE.

IN VIEW OF THE ABOVE PROVISIONS OF LAW, IT IS NOT WITHIN THE JURISDICTION OF OUR OFFICE TO CONSIDER CLAIMS FOR DAMAGES FOR LOSS OF, OR DAMAGE TO, PERSONAL PROPERTY OF EMPLOYEES OF THE DEPARTMENT OF DEFENSE. ANY SUCH CLAIMS WOULD BE FOR CONSIDERATION BY THE SECRETARY OF DEFENSE, OR HIS DESIGNEE, AND SETTLEMENT THEREOF, IF MADE IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE CITED ACT AND APPLICABLE REGULATIONS, WOULD BE FINAL AND CONCLUSIVE.

ACCORDINGLY, THE ALLOWANCE OR DISALLOWANCE OF MR. GIGGEY'S CLAIM IS A MATTER FOR DETERMINATION BY THE SECRETARY OF DEFENSE, OR HIS DESIGNEE, IN ACCORDANCE WITH THE PROVISIONS OF THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964. SINCE THERE IS NOTHING IN THE RECORD BEFORE US TO INDICATE THAT MR. GIGGEY'S CLAIM WAS CONSIDERED OR ALLOWED BY THE SECRETARY OF DEFENSE, OR HIS DESIGNEE, ON THE PRESENT RECORD, THE VOUCHER SUBMITTED BY YOU MAY NOT BE PAID. HOWEVER, IF MR. GIGGEY'S CLAIM IS SUBSEQUENTLY PRESENTED TO, AND ALLOWED BY, A PROPERLY DESIGNATED AUTHORITY, PURSUANT TO THE PROVISIONS OF THE ABOVE CITED ACT, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID; OTHERWISE THERE WOULD BE NO AUTHORITY TO PAY THE CLAIM.