B-163102, JANUARY 18, 1968, 47 COMP. GEN. 371

B-163102: Jan 18, 1968

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PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - BENEFICIARY ELIGIBILITY - CERTIFICATION ACCEPTABILITY A STATEMENT FROM A CHIROPRACTOR CERTIFYING THAT THE UNMARRIED DAUGHTER OF A MEMBER OF THE UNIFORMED SERVICES WHO IS OVER 18 YEARS OF AGE SUFFERS FROM A PARALYSIS MAY BE CONSIDERED "A CERTIFICATE OF THE ATTENDING PHYSICIAN" TO SUBSTANTIATE HER ELIGIBILITY AS A BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. THE CHIROPRACTOR IS QUALIFIED TO EXPRESS AN EXPERT OPINION AS TO THE EXTENT AND PERMANENCY OF THE DISABILITY TO WHICH HE IS CERTIFYING. 1968: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 17. IS CONSIDERED "A CERTIFICATE OF THE ATTENDING PHYSICIAN" TO SUBSTANTIATE HER ELIGIBILITY AS A BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN.

B-163102, JANUARY 18, 1968, 47 COMP. GEN. 371

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - BENEFICIARY ELIGIBILITY - CERTIFICATION ACCEPTABILITY A STATEMENT FROM A CHIROPRACTOR CERTIFYING THAT THE UNMARRIED DAUGHTER OF A MEMBER OF THE UNIFORMED SERVICES WHO IS OVER 18 YEARS OF AGE SUFFERS FROM A PARALYSIS MAY BE CONSIDERED "A CERTIFICATE OF THE ATTENDING PHYSICIAN" TO SUBSTANTIATE HER ELIGIBILITY AS A BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, THE "PRACTICE OF CHIROPRACTIC" CONSTITUTING THE PRACTICE OF MEDICINE WITHIN THE MEANING OF PARAGRAPH 8B (2) (C) BUPERS INSTRUCTION 1750.1D, WHICH PERMITS NOT ONLY THE ATTENDING PHYSICIAN BUT AN "APPROPRIATE OFFICIAL OF A HOSPITAL OR STITUTION,"WHO MAY OR MAY NOT BE A PRACTICING PHYSICIAN, TO CERTIFY TO THE PHYSICAL INCAPACITY OR MENTAL INCOMPETENCE OF A BENEFICIARY. THEREFORE, THE DISABILITY OF THE DEPENDENT WITHIN THE SCOPE OF CHIROPRACTIC ATTENTION, THE CHIROPRACTOR IS QUALIFIED TO EXPRESS AN EXPERT OPINION AS TO THE EXTENT AND PERMANENCY OF THE DISABILITY TO WHICH HE IS CERTIFYING.

TO COMMANDER D. G. SUNDBERG, DEPARTMENT OF THE NAVY, JANUARY 18, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 17, 1967, FORWARDED HERE BY SECOND ENDORSEMENT DATED DECEMBER 12, 1967, OF THE COMPTROLLER OF THE NAVY, REQUESTING AN ADVANCE DECISION WHETHER OR NOT A STATEMENT FROM A CHIROPRACTOR CERTIFYING TO THE PHYSICAL INCAPACITY OF BARBARA JOYCE SWENSON, DAUGHTER OF MALCOLM E. SWENSON, 328 77 52, MMC, USNFR F6, IS CONSIDERED "A CERTIFICATE OF THE ATTENDING PHYSICIAN" TO SUBSTANTIATE HER ELIGIBILITY AS A BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. YOUR REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-N-974 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT MR. SWENSON WAS TRANSFERRED TO THE FLEET RESERVE ON JUNE 10, 1960, IN ACCORDANCE WITH 10 U.S.C. 6330; THAT UNDER 10 U.S.C. 1431 HE MADE A VALID ELECTION OF OPTION 2 AT ONE-HALF REDUCED RETAINER PAY COMBINED WITH OPTION 4; AND THAT AS OF THE DATE OF HIS ELECTION ON SEPTEMBER 12, 1958, THE ONLY BENEFICIARY ELIGIBLE TO RECEIVE THE ANNUITY PROVIDED BY HIS ELECTION WAS A DAUGHTER, BARBARA JOYCE SWENSON, BORN OCTOBER 13, 1947.

BECAUSE THE BENEFICIARY BECAME 18 YEARS OF AGE ON OCTOBER 13, 1965, MONTHLY DEDUCTIONS OF $0.70 TO COVER THE COSTS OF ANNUITY UNDER THE ELECTION WERE TERMINATED OCTOBER 1, 1966, AND DEDUCTIONS MADE FROM NOVEMBER 1, 1965, THROUGH SEPTEMBER 30, 1966, WERE REFUNDED TO MR. SWENSON. WHEN HE RECEIVED NOTIFICATION OF THE TERMINATION OF DEDUCTIONS OF MONTHLY ANNUITY COST, MR. SWENSON ADVISED THAT HIS DAUGHTER HAS BEEN HANDICAPPED SINCE BIRTH WITH SPASTIC PARALYSIS AND BEING UNABLE TO WALK IS HOMEBOUND AND UNABLE TO SUPPORT HERSELF. ON BEING REQUESTED TO SUBSTANTIATE HIS DAUGHTER'S ELIGIBILITY AS A BENEFICIARY THERE WERE FURNISHED STATEMENTS FROM TWO CHIROPRACTORS WHICH DESCRIBE MISS SWENSON'S DISABILITY (STATED TO BE CEREBRAL PALSY) AND INDICATE THAT SHE WILL NEVER BE ABLE TO BE SELF-SUPPORTING.

PARAGRAPH 8B (2) (C), BUPERS INSTRUCTION 1750.1D PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"IN THE CASE OF A CHILD OVER 18 YEARS OF AGE AND UNMARRIED WHO IS INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING MENTALLY DEFECTIVE OR PHYSICALLY INCAPACITATED IF THAT CONDITION EXISTED PRIOR TO REACHING AGE 18, A CERTIFICATE OF THE ATTENDING PHYSICIAN OR APPROPRIATE OFFICIAL OF A HOSPITAL OR INSTITUTION CERTIFYING TO THE PHYSICAL INCAPACITY OR MENTAL INCOMPETENCE WILL BE REQUIRED.' YOU EXPRESS DOUBT AS TO WHETHER THE TERM "PHYSICIAN" AS USED IN THE QUOTED INSTRUCTION INCLUDES A CHIROPRACTOR.

SINCE THE INSTRUCTION PERMITS NOT ONLY THE ATTENDING PHYSICIAN BUT AN "APPROPRIATE OFFICIAL OF A HOSPITAL OR INSTITUTION" , WHO MAY OR MAY NOT BE A PRACTICING PHYSICIAN, TO CERTIFY AS TO THE PHYSICAL INCAPACITY OR MENTAL INCOMPETENCE OF A BENEFICIARY, IT IS OUR VIEW THAT THE WORDS ,ATTENDING PHYSICIAN" MUST BE CONSTRUED AS HAVING BEEN USED IN A BROAD SENSE. A PHYSICIAN IS DEFINED AS A PERSON SKILLED IN THE ART OF HEALING; A DOCTOR OF MEDICINE, AND IT HAS BEEN HELD THAT ANYONE ENGAGED IN THE PRACTICE OF ANY OF THE FIELDS IN THE HEALING ART, AFTER HAVING BEEN DULY LICENSED, STANDS FOR ALL PRACTICAL PURPOSES IN A POSITION OF A "PHYSICIAN" IN THE ORTHODOX FIELDS OF MEDICINE, AT LEAST TO THE EXTENT THAT HE LIMITS HIS ACTION IN THE RECOGNIZED SCOPE OF HIS PARTICULAR PROFESSION. SEE WILLIAMS V CAPITAL LIFE AND HEALTH INS. CO., 41 S.E. 2D 208 (1947).

A "CHIROPRACTOR" IS ONE WHO ENGAGES IN THE PRACTICE OF "CHIROPRACTIC," WHICH IS A SYSTEM OR METHOD OF ADJUSTING THE JOINTS, ESPECIALLY OF THE SPINE, BY HAND FOR THE CURING OF DISEASE. IT HAS BEEN HELD THAT THE "PRACTICE OF CHIROPRACTIC" CONSTITUTES THE "PRACTICE OF MEDICINE.' SEE WIDEMAN V STATE, 104 SO. 438 (1924); AND DEAN V STATE, 116 N.E. 2D 503 (1954).

SINCE MR. SWENSON'S DAUGHTER IS SUFFERING FROM A PARALYSIS, HER DISABILITY SEEMS TO BE ONE WITHIN THE SCOPE OF CHIROPRACTIC ATTENTION AND A CHIROPRACTOR SHOULD BE QUALIFIED TO EXPRESS AN EXPERT OPINION AS TO THE EXTENT AND PERMANENCY OF ITS DISABLING EFFECTS. WE HAVE NO OBJECTION TO THE ACCEPTANCE OF THE STATEMENTS OF THE CHIROPRACTORS CERTIFYING AS TO HER INCAPACITY IN THIS CASE. YOUR QUESTION IS ANSWERED ACCORDINGLY.