B-193764, AUG 6, 1979

B-193764: Aug 6, 1979

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A MEMBER OF THE ARMY RESERVE IS NOT ENTITLED TO REIMBURSEMENT FOR MEDICAL EXPENSES FOR SURGERY PERFORMED BY A PRIVATE PHYSICIAN WHERE PROPER AUTHORIZATION FOR SUCH SURGERY WAS NOT OBTAINED. 2. A MEMBER OF THE ARMY RESERVE IS NOT ENTITLED TO RESUMPTION OF DISABILITY PAY AND ALLOWANCES WHERE MEMBER WAS NOT DETERMINED BY MILITARY MEDICAL AUTHORITY TO BE INCAPABLE OF PERFORMING MILITARY DUTY. 3. A MEMBER RECEIVING DISABILITY PAY UNDER 37 U.S.C. 204(G) IS NOT IN AN ACTIVE DUTY STATUS. ACCORDINGLY MEDICAL CARE FOR DEPENDENTS IS NOT AUTHORIZED. FITZGERALD: THIS ACTION IS IN RESPONSE TO AN APPEAL BY WILLIAM D. FITZGERALD IS ALSO CLAIMING REIMBURSEMENT FOR MEDICAL EXPENSES INCURRED BY HIS WIFE DURING THE PERIOD HE WAS RECEIVING DISABILITY PAY.

B-193764, AUG 6, 1979

DIGEST: 1. A MEMBER OF THE ARMY RESERVE IS NOT ENTITLED TO REIMBURSEMENT FOR MEDICAL EXPENSES FOR SURGERY PERFORMED BY A PRIVATE PHYSICIAN WHERE PROPER AUTHORIZATION FOR SUCH SURGERY WAS NOT OBTAINED. 2. A MEMBER OF THE ARMY RESERVE IS NOT ENTITLED TO RESUMPTION OF DISABILITY PAY AND ALLOWANCES WHERE MEMBER WAS NOT DETERMINED BY MILITARY MEDICAL AUTHORITY TO BE INCAPABLE OF PERFORMING MILITARY DUTY. 3. A MEMBER RECEIVING DISABILITY PAY UNDER 37 U.S.C. 204(G) IS NOT IN AN ACTIVE DUTY STATUS. ACCORDINGLY MEDICAL CARE FOR DEPENDENTS IS NOT AUTHORIZED.

WILLIAM D. FITZGERALD:

THIS ACTION IS IN RESPONSE TO AN APPEAL BY WILLIAM D. FITZGERALD OF A SETTLEMENT BY OUR CLAIMS DIVISION DENYING HIS CLAIM FOR PAY AND ALLOWANCES AND MEDICAL EXPENSES FOR THE PERIOD OCTOBER 21, 1972, TO APRIL 1, 1974, ARISING OUT OF AN INJURY HE INCURRED WHILE ON ACTIVE DUTY FOR TRAINING. MR. FITZGERALD IS ALSO CLAIMING REIMBURSEMENT FOR MEDICAL EXPENSES INCURRED BY HIS WIFE DURING THE PERIOD HE WAS RECEIVING DISABILITY PAY. THE CLAIMS DIVISION DENIED THE CLAIM, FINDING THAT MR. FITZGERALD FAILED TO EMPLOY PROPER CHANNELS IN SEEKING PAY AND ALLOWANCES AND CIVILIAN MEDICAL ATTENTION. FOR THE REASONS SET FORTH BELOW, WE AGREE.

WILLIAM D. FITZGERALD WHILE PERFORMING ACTIVE DUTY FOR TRAINING SUFFERED A SERIOUS ANKLE INJURY IN A PARACHUTING INCIDENT ON JANUARY 19, 1972. THE MEMBER WAS TREATED FOR THE INJURY AT LONG BEACH NAVAL HOSPITAL. IN ORDER TO FACILITATE THE HEALING OF THE ANKLE, MILITARY DOCTORS INSERTED THREE METAL PINS INTO THE INJURED ANKLE. THE MEMBER WAS TREATED AS AN OUTPATIENT FROM THE DATE OF INJURY THROUGH OCTOBER 20, 1972.

IN OCTOBER 1972 THE MEMBER ELECTED TO UNDERGO AN ELECTIVE MINOR SURGICAL PROCEDURE IN A MILITARY FACILITY IN ORDER TO HAVE THE PINS REMOVED FROM HIS ANKLE. HOWEVER, THE MEMBER SUFFERED AN ALLERGIC REACTION TO THE ANESTHESIA ADMINISTERED TO HIM AND THE OPERATION WAS CANCELLED. AT THIS TIME, THE MEMBER REFUSED TO HAVE THE OPERATION RESCHEDULED FOR THE FOLLOWING WEEK.

ON OCTOBER 20, 1972, A MILITARY DOCTOR DISCHARGED THE MEMBER, STATING THAT NO FURTHER MEDICAL TREATMENT WAS NECESSARY AND THAT THE MEMBER WAS "FIT FOR FULL, UNRESTRICTED DUTY INCLUDING AIRBORNE TRAINING." THE DOCTOR CONCLUDED THAT THE PINS "DID NOT COMPROMISE THE HEALED FRACTURE AND WERE IN NO WAY DISABLING." HE INDICATED THAT THE PINS COULD BE RETAINED OR REMOVED, IF DESIRED, AS AN ELECTIVE MINOR PROCEDURE.

THE RECORD INDICATES THAT THE MEMBER WAS DETERMINED TO BE FIT FOR DUTY ON THE DATE OF HIS DISCHARGE FROM THE HOSPITAL ON OCTOBER 20, 1972. IN MAY 1973, MILITARY MEDICAL OFFICIALS AGAIN STATED THAT HE WAS "FIT FOR AIRBORNE TRAINING"; HE SUCCESSFULLY COMPLETED 2 WEEKS' AIRBORNE TRAINING ON AUGUST 21, 1973; AND HE CONTINUED PERFORMING INACTIVE DUTY FOR TRAINING UNTIL DECEMBER 1973.

THERE IS EVIDENCE IN THE RECORD THAT THE MEMBER WAS INFORMED DURING THIS PERIOD THAT IF HIS PHYSICAL CONDITION CHANGED HE WAS TO NOTIFY HIS UNIT COMMANDER FOR APPROPRIATE MEDICAL REFERRAL.

ON DECEMBER 16, 1973, THE MEMBER REPORTED TO GENERAL HOSPITAL, BELL CALIFORNIA, FOR A DIVER-AIRBORNE PHYSICAL. AT THIS TIME, IT WAS DETERMINED BY MILITARY DOCTORS THAT THE MEMBER WAS QUALIFIED FOR RETENTION IN THE ARMY RESERVE, BUT THAT HE WAS NOT QUALIFIED FOR AIRBORNE OR DIVING DUTIES UNTIL THE PINS IN HIS ANKLE WERE REMOVED.

THE MEMBER HAD THE PINS SURGICALLY REMOVED BY A PRIVATE PHYSICIAN ON DECEMBER 26, 1973. IN REQUESTING COMPENSATION FOR MEDICAL EXPENSES, PAY AND ALLOWANCES, THE MEMBER TOLD HIS UNIT COMMANDER THAT HE HAD THE SURGERY PERFORMED BY A PRIVATE PHYSICIAN BECAUSE HE FELT THAT MILITARY FACILITIES WERE SUBSTANDARD.

THE MEMBER WAS NEVER FORMALLY RELEASED BY THE PRIVATE PHYSICIAN. HIS LAST TREATMENT WAS ON MARCH 13, 1974.

THERE ARE TWO DISTINCT ISSUES FOR DETERMINATION IN THIS CASE. FIRST, WHETHER MR. FITZGERALD IS ENTITLED TO REIMBURSEMENT FOR EXPENSES HE INCURRED IN HAVING SURGERY PERFORMED BY A PRIVATE PHYSICIAN; SECOND, WHETHER MR. FITZGERALD IS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD AFTER IT WAS DETERMINED HE WAS FIT FOR DUTY.

PURSUANT TO 10 U.S.C. SEC. 3721(2) A MEMBER OF THE ARMY RESERVE IS ENTITLED TO HOSPITAL BENEFITS PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY IF SUCH MEMBER IS DISABLED IN THE LINE OF DUTY BY INJURY WHILE SO EMPLOYED.

ARMY REGULATION (AR) 40-3, CHAPTER 17, IN EFFECT AT THE TIME, PROVIDES THAT MEMBERS OF THE ARMY RESERVE MAY OBTAIN MEDICAL CARE FROM CIVILIAN SOURCES AT ARMY EXPENSE WHEN SUCH CARE IS PROPERLY AUTHORIZED. PROPER AUTHORIZATION MUST BE OBTAINED, EXCEPT IN EMERGENCIES OR WHEN THERE IS NO GOVERNMENT MEDICAL FACILITY AVAILABLE.

IN THE INSTANT CASE, THE MEMBER DID NOT OBTAIN PROPER AUTHORIZATION TO HAVE SURGERY CONDUCTED BY A CIVILIAN PHYSICIAN. THE OPERATION WAS NOT "AN EMERGENCY" BECAUSE THE MEMBER HAD SUFFICIENT TIME TO REQUEST PROPER AUTHORIZATION BEFORE HIS SURGERY. FURTHER, THERE IS NO EVIDENCE THAT A GOVERNMENT MEDICAL FACILITY WAS UNAVAILABLE. CONSEQUENTLY, THE EXPENSES AND HOSPITAL CHARGES INCURRED IN HAVING SURGERY PERFORMED BY A PRIVATE PHYSICIAN MAY NOT BE REIMBURSED. SEE B-185887, OCTOBER 15, 1977.

MR. FITZGERALD RECEIVED PAY AND ALLOWANCES FROM THE DATE OF HIS INJURY THROUGH OCTOBER 20, 1972, WHEN HE WAS RELEASED FROM CARE BY A MILITARY DOCTOR. HIS CLAIM FOR PAY AND ALLOWANCES IS FOR THE PERIOD FROM OCTOBER 21, 1972, THROUGH APRIL 1, 1974.

UNDER 37 U.S.C. 204(G)(2) A MEMBER OF THE ARMY RESERVE IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY IF SUCH MEMBER IS DISABLED FROM INJURY IN THE LINE OF DUTY WHILE SO EMPLOYED. SEE ALSO 10 U.S.C. 3687(2).

PARAGRAPH 80254(D)(3) OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM) IN EFFECT AT THE TIME, PROVIDES THAT A MEMBER'S ENTITLEMENT TO PAY AND ALLOWANCES WHILE DISABLED TERMINATES UPON RELEASE OR RESTORATION TO MILITARY DUTY. ALSO, IN OUR DECISION 52 COMP.GEN. 99 (1972), WE HELD THAT DISABILITY PAY TERMINATES UPON A DETERMINATION BY PROPER MEDICAL AUTHORITY THAT THE MEMBER HAS RECOVERED SUFFICIENTLY TO PERFORM NORMAL MILITARY DUTIES OR WHEN ACTUALLY RESTORED TO NORMAL MILITARY DUTIES, WHICHEVER OCCURS FIRST.

IN THIS CASE, A MILITARY PHYSICIAN DETERMINED THAT THE MEMBER WAS ABLE TO RETURN TO DUTY ON OCTOBER 21, 1972, AND THIS FINDING WAS SUFFICIENT TO TERMINATE DISABILITY PAY AND ALLOWANCE IN ACCORDANCE WITH THE DODPM CITED ABOVE.

NO EVIDENCE HAS BEEN PRESENTED INDICATING THAT MR. FITZGERALD REQUIRED ANY ADDITIONAL MEDICAL ATTENTION IN CONNECTION WITH HIS ANKLE INJURY BETWEEN OCTOBER 22, 1972, AND DECEMBER 16, 1973. WE HAVE LONG HELD THAT MEMBERS HAVE AN OBLIGATION TO KEEP THE MILITARY INFORMED OF THEIR DISABILITY STATUS IF THEY EXPECT TO CONTINUE ENTITLEMENT TO PAY AND ALLOWANCES FOR INCAPACITATION. SEE 47 COMP.GEN. 716 (1968); 52 COMP. GEN. 99 (1972). THE RECORD DOES NOT REVEAL THAT THE MEMBER EVER NOTIFIED HIS UNIT COMMANDER DURING THIS PERIOD THAT HE WAS HAVING PHYSICAL PROBLEMS. IN FACT, AS NOTED ABOVE, THE RECORD INDICATES THAT THE MEMBER ENGAGED IN RESERVE ACTIVITIES DURING THIS TIME. THUS, HIS CLAIM FOR COMPENSATION FOR THIS PERIOD MUST BE DENIED.

IN CONNECTION WITH MR. FITZGERALD'S CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 16, 1973, TO MARCH 13, 1974, TABLE 8-2-4 OF THE DODPM PROVIDES IN PART THAT IF THERE IS A SUBSEQUENT REOCCURRENCE OF A DISABILITY, AND THE MEMBER IS UNFIT FOR HIS NORMAL MILITARY DUTY PER MEDICAL AUTHORITY, HE IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES AND MEDICAL BENEFITS COMMENSURATE WITH THE REGULAR FORCES.

WE HAVE HELD THAT RESUMPTION OF DISABILITY PAYMENTS AND ALLOWANCES IS PROPER IF A MEMBER SUFFERS A RECURRENCE OF ANY INJURY AND IT IS DETERMINED THAT THE MEMBER'S CONDITION RELATES TO AN ORIGINAL IN LINE OF DUTY INJURY SO AS TO REQUIRE HOSPITALIZATION OR IF HIS DISABILITY IS OTHERWISE CONTEMPORANEOUSLY DETERMINED BY PROPER MEDICAL AUTHORITY TO BE SUCH AS TO CLEARLY PRECLUDE THE PERFORMANCE OF MILITARY DUTY. 52 COMP.GEN. 667 (1973).

IN THIS REGARD, WE HAVE ALSO HELD THAT WHERE A RECORD FAILS TO ESTABLISH THAT A MEMBER PROMPTLY NOTIFIED THE PROPER MILITARY AUTHORITIES AND KEPT THEM ADVISED CURRENTLY CONCERNING HIS CONDITION, A BASIS FOR DENIAL OF PAY AND ALLOWANCES MAY EXIST. SEE 52 COMP.GEN. 99 (1972).

IN MR. FITZGERALD'S CASE, HE NOTIFIED HIS UNIT COMMANDER AFTER THE SURGERY HAD BEEN PERFORMED BY A CIVILIAN DOCTOR. WHILE IT APPEARS THAT ARMY PERSONNEL INVOLVED COULD HAVE BEEN MORE SPECIFIC IN DIRECTING AND PROCESSING HIS CASE, HE DID NOT MAKE ANY ATTEMPT TO HAVE HIS CASE EVALUATED BY THE PROPER SERVICE MEDICAL AUTHORITIES. UNDER THESE CIRCUMSTANCES IT IS OUR VIEW THAT PAYMENT OF PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 17, 1973, THROUGH MARCH 13, 1974, MAY NOT BE AUTHORIZED.

CORRESPONDENCE FROM MR. FITZGERALD'S COUNSEL INDICATES THAT HE IS ALSO CLAIMING REIMBURSEMENT FOR MEDICAL EXPENSES INCURRED BY HIS WIFE. THIS CLAIM IS BASED ON THE ASSUMPTION THAT THE MEMBER WAS IN AN ACTIVE DUTY STATUS DURING THE PERIOD JANUARY 19 THROUGH OCTOBER 21, 1972, SINCE HE WAS RECEIVING PAY AND ALLOWANCES. IF HE HAD BEEN IN THAT STATUS HIS WIFE WOULD HAVE BEEN ENTITLED TO MEDICAL BENEFITS.

ALTHOUGH A RESERVE MEMBER WHO IS INJURED IN THE LINE OF DUTY IS ENTITLED TO PAY AND ALLOWANCES DURING THE PERIOD OF HIS DISABILITY BY VIRTUE OF 37 U.S.C. 204(G)(2), SUCH ENTITLEMENT DOES NOT CONFER AN ACTIVE DUTY STATUS ON THE MEMBER. SEE 54 COMP.GEN. 33, 37 (1974). THUS, SINCE MR. FITZGERALD IS NOT CONSIDERED TO BE IN AN ACTIVE DUTY STATUS WHILE RECEIVING PAY AND ALLOWANCES UNDER 37 U.S.C. 204(G)(2) HIS DEPENDENTS ARE NOT ENTITLED TO THE MEDICAL BENEFITS UNDER CHAPTER 55, TITLE 10, UNITED STATES CODE.

ACCORDINGLY THE SETTLEMENT OF OUR CLAIMS DIVISION DENYING HIS CLAIM MUST BE SUSTAINED.