B-28703, SEPTEMBER 18, 1942, 22 COMP. GEN. 243

B-28703, SEPTEMBER 18, 1942, 22 COMP. GEN. 243

MEDICAL EXAMINATIONS - APPLICANTS FOR POSITIONS - COST LIABILITY THE COST OF MEDICAL EXAMINATIONS TO DETERMINE THE PHYSICAL ELIGIBILITY OR FITNESS FOR APPOINTMENT TO CIVILIAN FEDERAL POSITIONS IS A PERSONAL EXPENSE OF THE APPLICANTS FOR POSITIONS AND IS NOT CHARGEABLE TO THE GOVERNMENT UNLESS PROVIDED FOR BY STATUTE OR IN AN APPROPRIATION ACT. COMP. GEN. 32, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO COL. RAY H. LARKINS, U.S. ARMY, SEPTEMBER 18, 1942:

BY SECOND ENDORSEMENT DATED AUGUST 31, 1942, THE DIRECTOR, FISCAL DIVISION, SERVICES OF SUPPLY, WAR DEPARTMENT, FORWARDED TO THIS OFFICE YOUR LETTER DATED MAY 23, 1942, AS FOLLOWS:

1. THE ENCLOSED VOUCHER HAS BEEN PRESENTED TO THE UNDERSIGNED DISBURSING OFFICER OF THE ARMY FOR PAYMENT.

2. THIS VOUCHER, BUREAU VOUCHER NO. 68, COVERS CLAIM OF F. E. KIBLER, M.D., FOR SERVICES RENDERED IN CONDUCTING THE PHYSICAL EXAMINATION OF CIVILIAN EMPLOYEES OF THE AREA ENGINEER AT COLORADO SPRINGS, COLORADO.

3. DOUBT IS ENTERTAINED AS TO THE PROPRIETY OF PAYMENT OF THE ENCLOSED CLAIM FOR THE REASON THAT WHILE SUCH EXPENDITURES MAY BE ALLOWED FROM FUNDS APPROPRIATED FOR RIVERS AND HARBORS, THIS OFFICER KNOWS OF NO SUCH AUTHORITY FOR THE EXPENDITURE OF FUNDS APPROPRIATED FOR THE WAR DEPARTMENT.

THE INVOLVED VOUCHER IS IN THE AMOUNT OF $33 FOR PROFESSIONAL SERVICES RENDERED BY DR. F. E. KIBLER UNDER CONTRACT W643 ENG 2495, DATED FEBRUARY 4, 1942. THERE IS ATTACHED TO THE VOUCHER AN ITEMIZED BILL, DATED MARCH 1, 1942, SHOWING THAT PROFESSIONAL SERVICES WERE RENDERED IN FEBRUARY 1942, TO 33 INDIVIDUALS AT $1 PER PERSON.

ARTICLE 1 OF THE REFERRED-TO CONTRACT PROVIDES:

THE CONTRACTOR IS HEREBY EMPLOYED BY THE GOVERNMENT AS PHYSICIAN, IN CONNECTION WITH THE PHYSICAL EXAMINATION OF EMPLOYEES OF THIS OFFICE PRIOR TO THEIR ENTRANCE ON DUTY, AND SHALL PERFORM SERVICES SATISFACTORY TO THE GOVERNMENT, ON SUCH DAYS, CONTINUOUS OR INTERMITTENT, AS SUCH SERVICES ARE REQUIRED UNTIL JUNE 30, 1942, FOR THE CONSIDERATION OF ONE DOLLAR AND NO CENTS ($1.00) FOR EACH PHYSICAL EXAMINATION.

THE STATEMENT AND CERTIFICATE OF AWARD ( STANDARD FORM 1036), DATED FEBRUARY 4, 1942, ALLEGES THAT " THIS CONTRACT WAS AWARDED IN ACCORDANCE WITH PARAGRAPH 9, SUBDIVISION IV, SCHEDULE A, CIVIL SERVICE RULES.' SAID RULES AUTHORIZED THE APPOINTMENTS WITHOUT EXAMINATION OF " PHYSICIANS AND SURGEONS EMPLOYED ON A FEE BASIS OR UNDER CONTRACT WHEN IN THE OPINION OF THE COMMISSION THE ESTABLISHMENT OF REGISTER IS IMPRACTICABLE.' IT IS STATED IN THE PAPERS FORWARDED WITH YOUR LETTER THAT THE "SERVICES RENDERED WERE TO DETERMINE THE PHYSICAL FITNESS OF CIVILIAN EMPLOYEES FOR TEMPORARY DUTY," QUOTING FROM SEVENTH ENDORSEMENT DATED AUGUST 12, 1942, FROM U.S. ENGINEER OFFICE, CAMP CARSON, COLORADO SPRINGS, COLO., TO THE FINANCE OFFICE, U.S. ARMY, DENVER, COLO. THE AMOUNT OF THE VOUCHER IS PROPOSED TO BE CHARGED TO THE APPROPRIATION," CONSTRUCTION OF BUILDINGS, UTILITIES, AND APPURTENANCES AT MILITARY POSTS, 1942-1943.'

IT IS INFERRED FROM THE PAPERS ACCOMPANYING YOUR LETTER THAT THE AUTHORITY FOR PAYMENT OF THE VOUCHER MAY BE FOUND IN DECISION OF THIS OFFICE, B-27022, DATED JULY 14, 1942, 22 COMP. GEN. 32, TO LT. COL. C. H. FARISH, FINANCE DEPARTMENT, U.S. ARMY, WHEREIN IT WAS STATED, IN PART, AS FOLLOWS:

IT HAS BEEN LONG RECOGNIZED THAT THE EXPENSE OF MEDICAL TREATMENT FOR CIVILIAN EMPLOYEES OF THE GOVERNMENT IS PERSONAL TO THE EMPLOYEE AND THAT THERE IS NO AUTHORITY FOR THE PAYMENT THEREOF FROM PUBLIC FUNDS UNLESS PROVIDED FOR IN THE CONTRACT OF EMPLOYMENT OR BY STATUTORY ENACTMENT OR VALID REGULATION. 6 COMP. DEC. 955; 8 ID. 296, 11 ID. 177; 16 ID. 99; 3 COMP. GEN. 111; 18 ID. 533.

THERE HAS BEEN FOUND NO PROVISION EITHER OF STATUTE OR REGULATION SPECIFICALLY AUTHORIZING PAYMENT OF THE COST OF THESE EXAMINATIONS FROM PUBLIC FUNDS, AND, PRESUMABLY, THE CONTRACTS OF EMPLOYMENT OF THE EMPLOYEES CONTAIN NO SUCH PROVISION.

HOWEVER, THIS OFFICE HAS HELD THAT WHERE THE CIRCUMSTANCES ARE SUCH THAT MEDICAL ATTENTION TO AN EMPLOYEE--- INCLUDING INOCULATION OR VACCINATION TO WHICH THESE EXAMINATIONS SEEM MORE OR LESS AKIN IN VIEW OF THEIR PRECAUTIONARY NATURE--- MAY BE CONSIDERED AS PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT RATHER THAN THE EMPLOYEE, THE EXPENSE THEREOF MAY PROPERLY BE PAID FROM APPROPRIATED FUNDS. 2 COMP. DEC. 347; 6 ID. 447; 60 MS COMP. DEC. 1425; A-29752, DECEMBER 17, 1929; A 32786, AUGUST 8, 1930; A-97344, AUGUST 26, 1938. CF. 15 COMP. GEN. 20.

THE MATTER INVOLVED IN THAT DECISION CONSISTED OF PERIODIC MEDICAL EXAMINATIONS OF EMPLOYEES OF THE CHEMICAL WARFARE SERVICE TO PREVENT ARSENIC POISONING. IN THE INSTANT CASE THERE IS INVOLVED THE QUESTION WHETHER THE GOVERNMENT MAY BE CHARGED WITH THE COST OF DETERMINING THE PHYSICAL ELIGIBILITY OF PERSONS FOR FEDERAL POSITIONS IN THE ABSENCE OF A PROVISION OF LAW AUTHORIZING SUCH PAYMENTS.

THERE APPEARS NOTHING IN THE APPROPRIATION PROPOSED TO BE CHARGED (AS MADE BY THE ACT OF JUNE 30, 1941, 55 STAT. 375, AND AS SUPPLEMENTAL AND EXTENDED TO JUNE 30, 1943, BY THE FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1942, APPROVED AUGUST 25, 1941, 55 STAT. 670), MAKING IT AVAILABLE FOR THE COST OF MEDICAL EXAMINATION OF APPLICANTS FOR FEDERAL POSITIONS TO DETERMINE THEIR PHYSICAL FITNESS. NEITHER DOES THERE APPEAR TO BE ANY SUCH AUTHORITY IN ANY OTHER STATUTE OR APPROPRIATION ACT. COMPARE TERMS OF THE APPROPRIATION PROVIDED FOR UNDER THE HEADING," MEDICAL DEPARTMENT, ARMY, MEDICAL AND HOSPITAL DEPARTMENTS," MAKING IT AVAILABLE "FOR THE PAY OF CIVILIAN PHYSICIANS EMPLOYED TO EXAMINE PHYSICALLY APPLICANTS FOR ENLISTMENT AND ENLISTED MEN AND TO RENDER OTHER PROFESSIONAL SERVICES FROM TIME TO TIME," QUOTING FROM THE ACT OF JUNE 30, 1941, 55 STAT. 379.

THE FOLLOWING IS QUOTED FROM CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR 240, DATED OCTOBER 24, 1940:

EXISTING AUTHORIZATION TO ACT AS REPRESENTATIVES OF THE COMMISSION IN ORDERING PHYSICAL EXAMINATIONS BY FULL-TIME FEDERAL MEDICAL OFFICERS IS HEREBY WITHDRAWN FROM NOMINATING AND APPOINTING OFFICERS AS OF OCTOBER 21, 1940. APPOINTEES HERETOFORE REQUIRED BY THE CIVIL SERVICE COMMISSION TO BE PHYSICALLY EXAMINED BY FEDERAL MEDICAL OFFICERS (SEE ITEMS 1 AND 2 OF ATTACHMENT 1 TO DEPARTMENTAL CIRCULAR 227) ARE STILL REQUIRED TO BE SO EXAMINED, BUT SUCH EXAMINATIONS ARE TO BE PERFORMED, AS A GENERAL RULE, BY FEDERAL PART-TIME AND DESIGNATED FEE-BASIS MEDICAL OFFICERS AT THE EXPENSE OF THE APPOINTEE. DEPARTMENTS AND ESTABLISHMENTS WITH THEIR OWN MEDICAL FACILITIES MAY ELECT TO PERFORM SUCH PHYSICAL EXAMINATIONS FOR THEIR OWN APPOINTEES AND TO RELIEVE THEIR OWN APPOINTEES OF THIS EXPENSE, PROVIDED THAT THE EXPENSE IS NOT TRANSFERRED TO THE CIVIL SERVICE COMMISSION. THE GENERAL PROCEDURE, HOWEVER, WILL BE FOR NOMINATING AND APPOINTING OFFICERS TO REFER THOSE APPOINTEES WHOSE EXAMINATION BY FEDERAL MEDICAL OFFICERS IS REQUIRED BY THE COMMISSION TO FEDERAL PART-TIME OR DESIGNATED FEE-BASIS MEDICAL OFFICERS FOR EXECUTION OF THE REQUIRED MEDICAL CERTIFICATES AT THE EXPENSE OF THE INDIVIDUAL APPOINTEES.

UNLESS PROVIDED FOR BY STATUTE OR IN AN APPROPRIATION ACT, THE COST OF MEDICAL EXAMINATIONS TO DETERMINE PHYSICAL ELIGIBILITY OR FITNESS FOR APPOINTMENT TO CIVILIAN FEDERAL POSITIONS IS REQUIRED TO BE REGARDED AS A PERSONAL EXPENSE CHARGEABLE TO THE APPLICANTS FOR POSITIONS AND MAY NOT BE CHARGED TO THE GOVERNMENT. SEE THE AUTHORITY CONTAINED IN THE APPROPRIATION PROVIDED FOR THE CIVIL SERVICE COMMISSION "FOR REIMBURSEMENT OF THE VETERANS' ADMINISTRATION FOR SERVICES RENDERED THE COMMISSION IN CONNECTION WITH PHYSICAL EXAMINATIONS OF APPLICANTS FOR AND THE EMPLOYEES IN THE FEDERAL CLASSIFIED SERVICE," QUOTING FROM THE ACT OF JUNE 27, 1942, PUBLIC LAW 630, 56 STAT. 396.

I FIND NO AUTHORITY IN THE ENGINEER OFFICE OF THE WAR DEPARTMENT TO ENTER INTO A CONTRACT WITH DR. KIBLER--- SUCH AS WAS DONE HERE--- TO RENDER PROFESSIONAL SERVICES AS A PHYSICIAN SOLELY "IN CONNECTION WITH THE PHYSICAL EXAMINATION OF EMPLOYEES OF THIS OFFICE PRIOR TO THEIR ENTRANCE ON DUTY" (QUOTING FROM THE CONTRACT). THERE IS NOTHING IN THE CIVIL SERVICE RULE PURSUANT TO WHICH IT IS ALLEGED THIS CONTRACT WAS ENTERED INTO WHICH PURPORTS TO OBLIGATE APPROPRIATED FUNDS FOR THE EMPLOYMENT BY CONTRACT OR OTHERWISE OF A PHYSICIAN ON A FEE-BASIS FOR WHICH NO PROVISION HAS BEEN MADE BY LAW.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED, WHICH VOUCHER WILL BE RETAINED IN THIS OFFICE.