B-169562, MAY 22, 1970, 49 COMP. GEN 794

B-169562: May 22, 1970

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HOSPITALIZED FOR PERSONAL CONVENIENCE AN EMPLOYEE AUTHORIZED TO TRAVEL AWAY FROM HIS DUTY STATION TO UNDERGO A PHYSICAL EXAMINATION TO DETERMINE IF HE IS QUALIFIED TO PERFORM THE DUTIES OF HIS POSITION WHO IS HOSPITALIZED IMMEDIATELY AND REMAINS AWAY FROM HIS DUTY STATION 9-1/2 DAYS IS ONLY ENTITLED TO THE 1 1/2 DAYS' PER DIEM CONSIDERED THE NORMAL TIME TO TRAVEL AND RECEIVE THE REQUIRED PHYSICAL EXAMINATION. THE EMPLOYEE IS NOT CONSIDERED INCAPACITATED WHILE AWAY FROM HIS DUTY STATION AND HE IS NOT ENTITLED TO PER DIEM FOR THE PERIOD OF HOSPITALIZATION. 1970: THIS IS IN REPLY TO YOUR LETTER OF APRIL 10. MISSING WAS DIRECTED TO PROCEED BY GOVERNMENT VEHICLE FROM HIS DUTY STATION AT SALIDA.

B-169562, MAY 22, 1970, 49 COMP. GEN 794

SUBSISTENCE -- PER DIEM -- ILLNESS, ETC. -- HOSPITALIZED FOR PERSONAL CONVENIENCE AN EMPLOYEE AUTHORIZED TO TRAVEL AWAY FROM HIS DUTY STATION TO UNDERGO A PHYSICAL EXAMINATION TO DETERMINE IF HE IS QUALIFIED TO PERFORM THE DUTIES OF HIS POSITION WHO IS HOSPITALIZED IMMEDIATELY AND REMAINS AWAY FROM HIS DUTY STATION 9-1/2 DAYS IS ONLY ENTITLED TO THE 1 1/2 DAYS' PER DIEM CONSIDERED THE NORMAL TIME TO TRAVEL AND RECEIVE THE REQUIRED PHYSICAL EXAMINATION. THE PER DIEM AUTHORIZED BY SECTION 6.5 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS FOR AN EMPLOYEE INCAPACITATED DUE TO ILLNESS BEYOND HIS CONTROL DOES NOT INCLUDE HOSPITALIZATION FOR PERSONAL CONVENIENCE WHILE IN A TRAVEL STATUS. THEREFORE, THE TRAVEL OF THE EMPLOYEE NOT INVOLVING OFFICIAL BUSINESS IN THE USUAL SENSE AND ABSENT AN URGENCY FOR IMMEDIATE HOSPITALIZATION, THE EMPLOYEE IS NOT CONSIDERED INCAPACITATED WHILE AWAY FROM HIS DUTY STATION AND HE IS NOT ENTITLED TO PER DIEM FOR THE PERIOD OF HOSPITALIZATION.

TO HAROLD J. FARRALL, UNITED STATES DEPARTMENT OF THE INTERIOR, MAY 22, 1970:

THIS IS IN REPLY TO YOUR LETTER OF APRIL 10, 1970, REFERENCE 7-360, REQUESTING A DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER FOR $237.50 IN FAVOR OF MR. GEORGE T. MISSING, AN EMPLOYEE OF YOUR AGENCY, UNDER THE CIRCUMSTANCES STATED BELOW.

MR. MISSING WAS DIRECTED TO PROCEED BY GOVERNMENT VEHICLE FROM HIS DUTY STATION AT SALIDA, COLORADO, TO DENVER, COLORADO, TO RECEIVE A PHYSICAL EXAMINATION TO DETERMINE IF HE WAS QUALIFIED TO PERFORM THE DUTIES OF HIS POSITION. MR. MISSING TRAVELED TO DENVER ON MARCH 2, 1970. HE RECEIVED HIS EXAMINATION THAT DAY AND ORDINARILY WOULD HAVE RETURNED TO HIS DUTY STATION THE FOLLOWING DAY. HOWEVER, THE EXAMINING DOCTOR SENT HIM TO SURGERY. AS A RESULT THEREOF HE WAS HOSPITALIZED AND DID NOT RETURN TO HIS DUTY STATION UNTIL MARCH 11, 1970. SECTION 6.5 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PERMITS PAYMENT OF PER DIEM UP TO 14 DAYS WHEN AN EMPLOYEE IS INCAPACITATED DUE TO ILLNESS AND MR. MISSING IS CLAIMING PER DIEM FOR THE FULL 9-1/2 DAYS HE WAS AWAY FROM HIS PERMANENT DUTY STATION. YOU QUESTION THE PROPRIETY OF PAYING THE AMOUNT CLAIMED SINCE MR. MISSING NORMALLY WOULD HAVE BEEN ALLOWED ONLY 1-1/2 DAYS PER DIEM.

AN AGENCY MAY USE APPROPRIATED FUNDS TO DEFRAY THE COSTS OF PHYSICAL EXAMINATIONS OF ITS EMPLOYEES WHEN SUCH EXAMINATIONS ARE PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT RATHER THAN FOR THE BENEFIT OF THE EMPLOYEES. 41 COMP. GEN. 531 (1962), AND B-155489, DECEMBER 10, 1964. ALSO, WHEN PHYSICAL EXAMINATIONS ARE PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT, THE EMPLOYEES MAY BE GRANTED ADMINISTRATIVE LEAVE FOR REASONABLE AMOUNTS OF TIME REQUIRED FOR SUCH EXAMINATIONS BUT NOT FOR PERIODS OF HOSPITALIZATION RESULTING THEREFROM. 44 COMP. GEN. 333 (1964). LIKEWISE TRAVEL EXPENSES AND PER DIEM MAY BE ALLOWED WHEN TRAVEL IS REQUIRED IN CONNECTION WITH PHYSICAL EXAMINATIONS OF EMPLOYEES PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT.

SECTION 6.5 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS STEMS FROM THE PROVISIONS OF PUBLIC LAW 482, 81ST CONGRESS, APPROVED APRIL 26, 1950, NOW CODIFIED AT 5 U.S.C. 5702(B) WHICH READS AS FOLLOWS:

UNDER REGULATIONS PRESCRIBED UNDER SECTION 5707 OF THIS TITLE, AN EMPLOYEE WHO, WHILE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY, BECOMES INCAPACITATED BY ILLNESS OR INJURY NOT DUE TO HIS OWN MISCONDUCT IS ENTITLED TO THE PER DIEM ALLOWANCES, AND TRANSPORTATION EXPENSES TO HIS DESIGNATED POST OF DUTY.

IN EXPLAINING THE QUOTED PROVISIONS THE HOUSE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS STATED IN H. REPT. NO. 1332, AUGUST 25, 1949, THAT:

IT IS NOT CONTEMPLATED THAT CIVILIAN OFFICERS AND EMPLOYEES SHOULD BE DEPRIVED OF PER DIEM ALLOWANCES AND TRANSPORTATION EXPENSES BECAUSE THEY HAVE HAD THE MISFORTUNATE TO BECOME ILL OR INJURED, NOT DUE TO THEIR OWN MISCONDUCT, WHILE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY. ***

INHERENT IN THE LAW AND ITS EXPLANATION IS THE CONCEPT THAT THE ABSENCE FROM DUTY ON ACCOUNT OF ILLNESS OR INJURY WHILE IN A TRAVEL STATUS MUST BE AN ABSENCE OVER WHICH THE EMPLOYEE REASONABLY HAS NO CONTROL. THE STATUTE SPEAKS IN TERMS OF ONE WHO "BECOMES INCAPACITATED BY ILLNESS OR INJURY." SECTION 6.5 OF THE REGULATION LIKEWISE IS RESTRICTED TO SITUATIONS OF INCAPACITY. IT IS NOT CONSISTENT WITH THIS CONCEPT TO ALLOW PER DIEM TO AN EMPLOYEE WHO CHOOSES FOR REASONS OF PERSONAL CONVENIENCE TO HOSPITALIZE HIMSELF WHILE IN A TRAVEL STATUS, BUT WHO REASONABLY WOULD BE EXPECTED TO ATTEND TO HIS MEDICAL NEEDS AT HIS DESIGNATED POST OF DUTY.

IN THE INSTANT CASE, WHILE THE TRAVEL WAS PERFORMED FOR AN OFFICIAL PURPOSE, IT WAS NOT PERFORMED TO TRANSACT OFFICIAL BUSINESS IN THE USUAL SENSE OF CARRYING OUT A WORK ASSIGNMENT, BUT RATHER WAS FOR THE EXPRESS PURPOSE OF ASCERTAINING THE EMPLOYEE'S PHYSICAL CONDITION. THE RECORD DOES INDICATE THAT THE SURGERY INVOLVED WAS "URGENT," BUT THERE IS NO INDICATION THAT IT WAS REQUIRED AS AN IMMEDIATE EMERGENCY MEASURE DUE TO CIRCUMSTANCES THAT AROSE AFTER MR. MISSING ARRIVED IN DENVER AND THAT IT COULD NOT REASONABLY HAVE BEEN POSTPONED. IN SHORT, IT DOES NOT APPEAR THAT MR. MISSING WAS INCAPACITATED WHILE IN DENVER IN THE SENSE CONTEMPLATED BY THE GOVERNING AUTHORITIES. UNDER SUCH CIRCUMSTANCES WE ARE OF THE OPINION THAT THERE IS NO AUTHORITY TO PAY PER DIEM AFTER 1 1/2 DAYS WHICH YOU STATE IS THE NORMAL TIME TO TRAVEL AND RECEIVE THE REQUIRED PHYSICAL EXAMINATION.

IN VIEW OF THE ABOVE, THE VOUCHER WHICH IS RETURNED HEREWITH SHOULD BE ADJUSTED AND CERTIFIED FOR PAYMENT IN ACCORDANCE WITH THE ABOVE.