B-40815, APRIL 4, 1944, 23 COMP. GEN. 746

B-40815, APRIL 4, 1944, 23 COMP. GEN. 746

APPROPRIATIONS - AVAILABILITY - MEDICAL EXAMINATIONS OF FORMER EMPLOYEES APPLYING FOR RESTORATION TO CIVILIAN POSITION AFTER DISCHARGE FROM ARMY WHERE A FORMER EMPLOYEE OF THE WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR, AFTER RECEIVING A MEDICAL DISCHARGE FROM THE ARMY, APPLIED FOR RESTORATION TO HIS CIVILIAN POSITION PURSUANT TO SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AND IT WAS ADMINISTRATIVELY DETERMINED AS IN THE INTEREST OF THE UNITED STATES TO REQUIRE THE EMPLOYEE TO UNDERGO A MEDICAL EXAMINATION PRIOR TO RESTORATION TO DETERMINE THAT HIS CONDITION WAS NOT SUCH AS TO DISQUALIFY HIM FOR PERFORMANCE OF HIS CIVILIAN DUTIES, THE EXPENSE OF SUCH EXAMINATION MAY BE CHARGED TO THE DIVISION'S APPROPRIATION FOR MISCELLANEOUS EXPENSES. 22 COMP. GEN. 243, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO ALBERT A. BREUNIG, DEPARTMENT OF LABOR, APRIL 4, 1944:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 16, 1944 ( BM:AAB:AS), AS FOLLOWS:

THERE HAS BEEN SUBMITTED TO US BY A DR. JACOB E. FINESINGER, OF THE MASSACHUSETTS GENERAL HOSPITAL, BOSTON, MASSACHUSETTS A CLAIM FOR PROFESSIONAL SERVICES (PSYCHIATRIC EXAMINATION) RENDERED TO ONE OF OUR EMPLOYEES, IRVING FELDMAN, AFTER HE RECEIVED A MEDICAL DISCHARGE FROM THE U.S. ARMY, AT CAMP PATRICK HENRY, ON OCTOBER 21, 1943, IT BEING REQUIRED BY OUR DIRECTOR OF PERSONNEL THAT SUCH BE HAD BEFORE ACTION COULD BE TAKEN ON HIS APPLICATION FOR REINSTATEMENT AS AN INSPECTOR FOR THIS DIVISION.

THE WRITER, NOT BEING ABLE TO FIND A RULING ON SUCH A CASE ASKED OUR DIRECTOR OF PERSONNEL FOR HIS AUTHORITY IN DIRECTING THAT BILL FOR SUCH SERVICES BE PRESENTED TO US FOR PAYMENT AND HE QUOTED COMPTROLLER GENERAL'S DECISION B-27022, VOL. 22, PAGE 32. THE WRITER, HOWEVER, UNDERSTANDS THAT B-27022 APPLIES ONLY IN CASES WHERE THE EMPLOYEE IS WORKING UNDER CONDITIONS OR WITH MATERIALS THAT MAY JEOPARDIZE HIS HEALTH, AND FEELS THAT THE INSTANT CASE FALLS UNDER THE PURVIEW OF YOUR DECISION B -28703. MEDICAL EXAMINATIONS--- APPLICANTS FOR POSITIONS--- COST LIABILITY, CONTAINED IN YOUR LETTER TO COL. RAY H. LARKINGS, U.S. ARMY, SEPTEMBER 18, 1942--- 22 C.G. 243.

THERE ARE OTHERS HERE WHO DISAGREE WITH THIS VIEW BECAUSE IN THIS INSTANCE THEY HOLD THAT THE SOLDIER, A FORMER EMPLOYEE, RECEIVED A MEDICAL DISCHARGE FROM THE ARMY AND IS MERELY APPLYING FOR REINSTATEMENT TO HIS OLD POSITION, AND THAT THE PSYCHIATRIC EXAMINATION ORDERED PRIOR TO THE DESIRABILITY OF REINSTATING AN INDIVIDUAL WHO RECEIVED SUCH A DISCHARGE FROM THE ARMY WAS MORE IN THE INTEREST AND FOR THE PROTECTION OF THE GOVERNMENT THAN IN THE INTEREST OF THE INDIVIDUAL. SUCH EXAMINATIONS THEY CLAIM ARE PREVENTATIVE MEASURES AND DO NOT FALL INTO THE SAME CATEGORY OF ENTRANCE EXAMINATIONS REQUIRED OF NEW APPLICANTS FOR CIVIL SERVICE POSITIONS.

SINCE THERE WILL UNDOUBTEDLY BE MANY MORE CASES OF THIS KIND, NOW THAT THE ARMED SERVICES ARE RECEIVING BY INDUCTION MEN OF LOWER PHYSICAL STANDARDS THAN HAVE BEEN AVAILABLE HERETOFORE, YOUR CONSIDERATION OF THE INSTANT CLAIM WILL BE APPRECIATED AND YOUR DECISION AS TO THE PROPRIETY OF MY CERTIFICATION OF THE VOUCHER IS REQUESTED.

ATTACHED ARE THE VOUCHER AND COPIES OF CORRESPONDENCE RELATING TO THIS CLAIM.

IN THE DECISION OF JULY 14, 1942, 22 COMP. GEN. 32, CITED IN YOUR LETTER, IT WAS STATED IN PERTINENT 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. IN THE OTHER DECISION CITED IN YOUR LETTER, NAMELY, THE ONE RENDERED SEPTEMBER 18, 1942, 22 COMP. GEN. 243, 245, IN WHICH THE RULE IN THE EARLIER DECISION WAS DISTINGUISHED, IT WAS HELD:

UNLESS PROVIDED FOR BY STATUTE OR IN AN APPROPRIATION ACT, THE ACT 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.

SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, AUTHORIZES RESTORATION OF AN EMPLOYEE UPON RETURN FROM ACTIVE MILITARY DUTY IN HIS FORMER POSITION OR A POSITION OF LIKE SENIORITY, STATUS AND PAY, PROVIDED HE "/1) RECEIVES SUCH CERTIFICATE, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE.' SEE, ALSO, SECTION 7 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 627.

REFERRING TO CONDITION (2) OF THE SELECTIVE TRAINING AND SERVICE ACT, SUPRA, THE STATUTE IS SILENT AS TO WHETHER THE BURDEN AND EXPENSES OF ESTABLISHING THAT THE RETURNING EMPLOYEE IS STILL QUALIFIED TO PERFORM THE DUTIES OF HIS FORMER POSITION OR OF ANOTHER POSITION IS UPON THE GOVERNMENT OR THE RETURNING EMPLOYEE. ON THE OTHER HAND, THE STATUTE MANIFESTS AN INTENTION ON THE PART OF THE CONGRESS THAT EMPLOYEES RETURNING FROM ACTIVE MILITARY DUTY, IF THEY SO DESIRE AND ARE QUALIFIED, SHALL BE RESTORED TO THEIR CIVILIAN POSITIONS OR POSITIONS OF LIKE SENIORITY, STATUS AND PAY. HENCE, THERE APPEARS A SUBSTANTIAL BASIS FOR THE VIEW THAT THE STATUS OF SUCH AN APPLICANT FOR RESTORATION TO HIS FORMER POSITION--- THE APPLICATION BEING FILED AS A MATTER OF STATUTORY RIGHT--- IS NOT REQUIRED TO BE REGARDED AS BEING THE SAME AS THE STATUS OF AN APPLICANT FOR INITIAL APPOINTMENT TO A FEDERAL POSITION WITHIN THE MEANING OF THE RULES EMBODIED IN THE DECISION, SUPRA, REGARDING THE EXPENSE OF MEDICAL EXAMINATIONS, THERE BEING FOR NOTING IN THAT CONNECTION THAT UNDER SECTION 8 (C) OF THE ACT, SUPRA, 54 STAT. 890, A PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE ACT "SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE.' WHEN AN EMPLOYEE RETURNS FROM ACTIVE MILITARY DUTY AND MAKES APPLICATION WITHIN THE PRESCRIBED PERIODS TO BE RESTORED TO A CIVILIAN POSITION, BELIEVING HIMSELF TO BE QUALIFIED TO PERFORM THE DUTIES OF THE CIVILIAN POSITION TO WHICH IT IS PROPOSED TO RESTORE HIM, ANY MEDICAL EXAMINATION THOUGHT NECESSARY BY THE ADMINISTRATIVE OFFICE TO PROTECT THE INTEREST OF THE UNITED STATES IS MADE AT THE REQUEST, AND FOR THE BENEFIT, OF THE GOVERNMENT, RATHER THAN AT THE REQUEST, AND FOR THE BENEFIT, OF THE EMPLOYEE.

IN THE CORRESPONDENCE SUBMITTED BY YOU IT IS STATED IN MATERIAL PART AS FOLLOWS:

IT WOULD BE MR. FELDMAN'S DUTY AS A WAGE-HOUR INSPECTOR TO PERFORM THE INTERVIEW, INSPECTION AND REVIEW WORK REQUIRED TO DETERMINE COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT AND THE PUBLIC CONTRACTS ACT, THE INSPECTION AND REVIEW WORK INVOLVED IN WAR PRODUCTION BOARD AUDITS TO DETERMINE COMPLIANCE WITH PRIORITY REGULATIONS REGARDING PURCHASE AND USE OF CRITICAL WAR MATERIALS, AND/OR THE INTERVIEW, INSPECTION, RULINGS AND REVIEW WORK INVOLVED IN THE WAGE STABILIZATION PROGRAM OF THE WAR LABOR BOARD; AND TO PERFORM OTHER DUTIES AS REQUIRED. IN ADDITION TO MEETING THE MINIMUM STANDARDS OF EDUCATION AND EXPERIENCE, IT IS NECESSARY THAT AN INSPECTOR POSSESS THE FOLLOWING PERSONAL TRAITS; INITIATIVE; RESOURCEFULNESS; KEEN POWERS OF OBSERVATION; INTEGRITY; TACT AND COURTESY; GOOD JUDGMENT; APPROPRIATE BEARING; WILLINGNESS TO TRAVEL; GOOD PHYSICAL CONDITION.

IN THE INSTANT CASE, WHILE THE MEDICAL DISCHARGE FROM THE ARMY (APPARENTLY BECAUSE OF A MENTAL OR NERVOUS CONDITION) MAY NOT PER SE DISQUALIFY THE FORMER EMPLOYEE FROM CIVILIAN DUTY, NEVERTHELESS, IN VIEW OF THE NATURE OF THE DUTIES PERFORMED BY AN INSPECTOR, AS ABOVE INDICATED SUCH A DISCHARGE FROM THE ARMY REASONABLY MAY BE REGARDED BY THE ADMINISTRATIVE OFFICE AS RAISING A DOUBT IN THE MATTER, JUSTIFYING THE EXPENDITURE IN THE INTEREST OF THE UNITED STATES UNDER THE APPROPRIATION SOUGHT TO BE CHARGED " MISCELLANEOUS EXPENSES, WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR, 1944," ACT OF JULY 12, 1943, 57 STAT. 498, PUBLIC LAW 135 FOR THE COST OF THE MEDICAL EXAMINATION GIVEN TO IRVING FELDMAN TO DETERMINE DEFINITELY THAT HIS CONDITION IS NOT SUCH AS TO DISQUALIFY HIM FOR PERFORMANCE OF THE DUTIES OF AN INSPECTOR, THE DESIGNATED APPROPRIATION PROVIDING, IN MATERIAL PART, AS FOLLOWS:

MISCELLANEOUS EXPENSES (OTHER THAN SALARIES): FOR NECESSARY EXPENSES, OTHER THAN SALARIES, OF THE WAGE AND HOUR DIVISION IN PERFORMING THE DUTIES IMPOSED BY THE FAIR LABOR STANDARDS ACT OF 1938 AND BY THE ACT TO PROVIDE CONDITIONS FOR THE PURCHASE OF SUPPLIES AND THE MAKING OF CONTRACTS BY THE UNITED STATES, APPROVED JUNE 30, 1936 (41 U.S.C. 38), INCLUDING * * *. THAT IS TO SAY, THE RULE STATED IN 22 COMP. GEN. 32, AND IN OTHER DECISIONS INVOLVING CASES WHERE THE MEDICAL EXAMINATION WAS GIVEN IN THE INTEREST OF THE UNITED STATES, IS APPLICABLE IN THIS CASE, RATHER THAN THE RULE STATED IN 22 COMP. GEN. 243, INVOLVING THE CASE OF AN APPLICANT FOR INITIAL APPOINTMENT TO A FEDERAL POSITION.

ACCORDINGLY, THE VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.