B-4223, JUNE 23, 1939, 18 COMP. GEN. 963

B-4223: Jun 23, 1939

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DISTRICT OF COLUMBIA - POLICEMEN AND FIREMEN'S RELIEF FUND - MEDICAL TREATMENT - DISEASE ARISING LONG AFTER INJURY IN MAKING AN ARREST WHERE THE STATUTE AUTHORIZES THE USE OF THE DISTRICT OF COLUMBIA POLICEMEN AND FIREMEN'S RELIEF FUND TO PAY THE COST OF PRIVATE MEDICAL TREATMENT OF MEMBERS OF THE SAID DEPARTMENTS ONLY WHEN THE INJURY OR DISEASE FOR WHICH THE TREATMENT IS GIVEN WAS CONTRACTED IN THE ACTUAL DISCHARGE OF DUTY. THE OFFICER'S DISEASE FOR WHICH THE TREATMENT INVOLVED WAS GIVEN WAS CAUSED BY OR RESULTED FROM AN INJURY SUSTAINED IN THE PERFORMANCE OF DUTY APPROXIMATELY 13 YEARS PREVIOUSLY. OR WAS OTHERWISE CONTRACTED IN THE ACTUAL DISCHARGE OF DUTY. PARTICULARLY WHERE THE BOARD OF POLICE AND FIRE SURGEONS HAS CONCLUDED THAT IT "IS FACED WITH A MEDICAL DILEMMA THAT IT CANNOT PROVE OR DISPROVE.'.

B-4223, JUNE 23, 1939, 18 COMP. GEN. 963

DISTRICT OF COLUMBIA - POLICEMEN AND FIREMEN'S RELIEF FUND - MEDICAL TREATMENT - DISEASE ARISING LONG AFTER INJURY IN MAKING AN ARREST WHERE THE STATUTE AUTHORIZES THE USE OF THE DISTRICT OF COLUMBIA POLICEMEN AND FIREMEN'S RELIEF FUND TO PAY THE COST OF PRIVATE MEDICAL TREATMENT OF MEMBERS OF THE SAID DEPARTMENTS ONLY WHEN THE INJURY OR DISEASE FOR WHICH THE TREATMENT IS GIVEN WAS CONTRACTED IN THE ACTUAL DISCHARGE OF DUTY, PAYMENT FOR SUCH TREATMENT MAY NOT BE MADE FROM THE SAID FUND WHERE THERE HAS BEEN NO DEFINITE FINDING THAT, NOTWITHSTANDING THE PROBABILITY OF RELATIONSHIP, THE OFFICER'S DISEASE FOR WHICH THE TREATMENT INVOLVED WAS GIVEN WAS CAUSED BY OR RESULTED FROM AN INJURY SUSTAINED IN THE PERFORMANCE OF DUTY APPROXIMATELY 13 YEARS PREVIOUSLY, OR WAS OTHERWISE CONTRACTED IN THE ACTUAL DISCHARGE OF DUTY, PARTICULARLY WHERE THE BOARD OF POLICE AND FIRE SURGEONS HAS CONCLUDED THAT IT "IS FACED WITH A MEDICAL DILEMMA THAT IT CANNOT PROVE OR DISPROVE.'

COMPTROLLER GENERAL BROWN TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, JUNE 23, 1939:

I HAVE YOUR LETTER OF JUNE 5, 1939, AS FOLLOWS:

THERE IS BEFORE THE COMMISSIONERS FOR APPROVAL CLAIM SUBMITTED BY THE GARFIELD MEMORIAL HOSPITAL IN THE AMOUNT OF $288.50, FOR SERVICES RENDERED TO SGT. JOSEPH P. COMISKEY (DECEASED), MEMBER OF THE METROPOLITAN POLICE, WHICH IS RECOMMENDED FOR PAYMENT FROM THE POLICEMEN AND FIREMEN'S RELIEF FUND AS AN INJURY CONTRACTED IN THE ACTUAL DISCHARGE OF DUTY, SAID BILL BEING RECOMMENDED FOR PAYMENT BY THE BOARD OF POLICE AND FIRE SURGEONS. IN THEIR REPORT IT IS STATED THAT ON SEPTEMBER 18, 1926, AT DELAWARE AVENUE BETWEEN F AND G STREETS, SOUTHWEST, WHILE MAINTAINING ARREST OF A COLORED MAN, HE WAS ASSAULTED BY PRISONER, RECEIVING ABRASIONS TO FACE AND SCALP. "WAS STILL SUFFERING FROM THE RESULT OF INJURIES SUSTAINED WHICH DEVELOPED SARCOMA, WHICH NECESSITATED HOSPITALIZATION. THIS INJURY INCURRED IN THE PERFORMANCE OF DUTY.'

IN VIEW OF THE FACT THAT THIS INJURY OCCURRED APPROXIMATELY TEN YEARS PRIOR TO THE RENDERING OF MEDICAL CARE, THE BOARD OF POLICE AND FIRE SURGEONS WAS REQUESTED TO SUBMIT A DETAILED REPORT OF THE FACTS, WHICH, IN ITS OPINION, JUSTIFIED THE CONCLUSION THAT THE INJURY OR DISEASE WAS CONTRACTED IN THE ACTUAL DISCHARGE OF DUTY, AS REQUIRED BY THE ACT OF SEPTEMBER 1, 1916 (39 STAT. 718). THE BOARD'S REPORT IS AS FOLLOWS:

"IT WILL BE NOTED THAT SERGEANT COMISKEY HAS SUBMITTED THE ORIGINAL INCIDENTAL REPORTS SHOWING THAT HE WAS INJURED DURING THE ACTUAL PERFORMANCE OF DUTY. THESE INJURIES INVOLVED HIS NOSE AND FACE AND OCCURRED IN 1926. SUBSEQUENT TO AND AS A RESULT OF THESE INJURIES HE WAS TREATED AND OPERATED UPON AT THE NAVAL HOSPITAL. THE NAVAL HOSPITAL REPORTS STATE THAT THIS OFFICER WAS OPERATED UPON FOLLOWING THE INJURY TO HIS NOSE.

"IN NOVEMBER 1938 THIS OFFICER PRESENTED HIMSELF WITH THE PERMISSION OF THE BOARD OF SURGEONS AT THE X-RAY DEPARTMENT AT GARFIELD WHERE DR. E. A. MERRITT TOOK CHARGE OF HIS CASE. AT THAT TIME IT WAS FOUND THAT HE HAD A SARCOMA (CANCER) OF THE NASOPHARYNX (BACK OF THE NOSE). APPROPRIATE TREATMENT WAS INSTITUTED AT ONCE AND SERGEANT COMISKEY IS STILL CONFINED AT THE HOSPITAL.

"THE BOARD OF SURGEONS HAVE BEEN ASKED TO PASS UPON THE PAYMENT OF ALL BILLS INCIDENT TO HIS PRESENT ILLNESS. THIS WILL INCLUDE HOSPITAL BILLS AND AN X-RAY BILL THAT I AM INFORMED WILL NOT EXCEED $150.

"IT IS AT ONCE APPARENT THAT THIS OFFICER HAS PRESENTED AMPLE PROOF WITH THE ORIGINAL INCIDENTALS (INCLOSED) THAT HE SUSTAINED AN INJURY TO HIS NOSE AND FACE IN 1926. IT IS AN ACCEPTED MEDICAL FACT THAT INJURY IS A CAUSE OF SARCOMA, OR AT LEAST ONE OF THE CAUSES OF SARCOMA (CANCER). LONG INTERVAL OF TIME CAN ENSUE BETWEEN THE INJURY AND THE APPARENT PRESENCE OF SARCOMA.

"ACCEPTING THE ABOVE CONCLUSIONS AS CORRECT THE BOARD OF SURGEONS CANNOT GO ON RECORD AS DEFINITELY STATING THAT THE SARCOMA NOW PRESENT HAD ITS INCEPTION IN 1926 WHEN THIS OFFICER WAS INJURED IN THE ACTUAL PERFORMANCE OF HIS DUTY. ON THE OTHER HAND THE BOARD CANNOT STATE THAT SARCOMA WAS NOT THE RESULT OF THIS ACCIDENT. IN OTHER WORDS THE BOARD IS FACED WITH A MEDICAL DILEMMA THAT IT CANNOT PROVE OR DISPROVE.

"IN VIEW OF THE ABOVE SITUATION THE BOARD OF SURGEONS IS INCLINED TO GIVE THIS OFFICER THE BENEFIT OF THE DOUBT AND RECOMMEND THAT HIS MEDICAL AND HOSPITAL BILLS BE PAID.'

PERTINENT IN THIS CONNECTION IS THE REPORT OF AN EYE-WITNESS TO THE INJURY WHICH OCCURRED IN 1926, NAMELY, THAT OF JOHN W. WISE, DETECTIVE SERGEANT, METROPOLITAN POLICE DEPARTMENT, WHICH IS DATED FEBRUARY 7, 1939. HE REPORTED THE FOLLOWING TO HIS SUPERIOR:

"ON OR ABOUT THE SPRING OF THE YEAR 1926, WHILE I WAS A PRECINCT DETECTIVE AT NO. 4 PRECINCT, A TELEPHONE CALL CAME TO NO. 4 STATION STATING THAT A POLICEMAN WAS IN TROUBLE IN THE 400 BLOCK OF 8TH STREET SW.

"PRIVATE SPOTSWOOD GRAVELLY AND MYSELF RESPONDED TO THIS CALL IN MY PRIVATELY OWNED AUTOMOBILE. UPON ARRIVING THERE WE FOUND SIX OR SEVEN COLORED MEN HOLDING AND FIGHTING PRIVATE JOSEPH COMISKEY. AFTER OBTAINING HIS RELEASE FROM THESE MEN, ONE OF THE COLORED MEN RAN ACROSS THE STREET INTO A HOUSE. OFFICER COMISKEY AT THAT TIME TOLD ME THAT THAT WAS THE MAN HE WAS PLACING UNDER ARREST. I ACCOMPANIED OFFICER COMISKEY TO THE SECOND FLOOR OF THAT HOUSE AFTER THIS MAN. WHEN OFFICER COMISKEY GOT IN THE DOORWAY OF THE ROOM WHERE THIS MAN WAS, THIS NEGRO STRUCK HIM DOWN ACROSS THE FACE WITH A CHAIR. WE OVERPOWERED THIS MAN AND HE WAS ARRESTED AND CHARGED WITH ASSAULT AT NO. 4 PRECINCT ON OFFICER COMISKEY.'

THERE IS ALSO QUOTED BELOW THE REPORT OF CAPT. FLOYD A. TRUSCOTT, WHO MADE THE FOLLOWING OBSERVATIONS IN CONNECTION WITH THE INJURY OF PRIVATE COMISKEY IN 1926 WHILE HE WAS A PRIVATE AT THE FOURTH PRECINCT:

"IN THE FALL OF 1926, WHILE I WAS ATTACHED TO THE FOURTH PRECINCT, I RECALL THAT SERGEANT JOSEPH P. COMISKEY WHO AT THAT TIME WAS A PRIVATE MOUNTED ON A BICYCLE, AND WAS THEN NAMED JOSEPH P. KONESKY, WAS INJURED IN ATTEMPTING TO ARREST A COLORED MAN NAMED POE, A WELL-KNOWN POLICE CHARACTER, AT FIRST AD F STREETS SOUTHWEST.

"I DID NOT WITNESS THIS INCIDENT, BUT SAW COMISKEY THE FOLLOWING DAY AND ALSO NOTED THE INCIDENTAL ON THE BOOK, AND WAS IN CONVERSATION WITH HIM ABOUT THE AFFAIR.

"I DISTINCTLY RECALL THAT AT THE TIME I SAW HIM ON THE FOLLOWING DAY, HE HAD SKIN ABRASION OR ABRASIONS ON HIS NOSE AND IN THE VICINITY OF HIS EYE, THE LEFT ONE IF I RECALL CORRECTLY, WHICH HE STATED CAME FROM CONTACT WITH THE SIDEWALK WHEN A GROUP OF COLORED MEN ATTEMPTED TO TAKE HIS GUN AND HIS PRISONER AWAY FROM HIM AND IN DOING SO HAD HIM DOWN ON THE GROUND AND FORCED HIS FACE INTO CONTACT WITH THE SIDEWALK.'

THERE IS ALSO QUOTED BELOW THE REPORT OF JAMES H. LEE, A CITIZEN OF ARLINGTON, VIRGINIA, WHO WAS AN EYE-WITNESS AND REPORTS AS FOLLOWS:

"ABOUT 12:20 A.M. SEPT. 18, 1926, I WAS DRIVING MY CAR HOME, WHICH WAS 445 2ND STREET SE., WHEN AT 1ST AND E STREET SW., I OBSERVED A CROWD OF COLORED PEOPLE AND THERE SEEMED TO BE SOME EXCITEMENT THERE. I SAW A BICYCLE LYING IN THE STREET WHICH I LATER FOUND OUT BELONGED TO PRIVATE JOE COMISKEY OF THE 4TH PRECINCT. I LOOKED AROUND TO SEE WHAT HAD HAPPENED AND I THEN SAW COMISKEY STANDING IN THE DOORWAY OF A TAILOR SHOP AT 1ST AND F STREETS HOLDING ON TO A PRISONER. HE WAS CORNERED IN THERE BY A LARGE CROWD OF COLORED PEOPLE. I TURNED INTO 1ST STREET AND PARKED MY CAR AND WALKED UP THROUGH THE CROWD. I SAW THEN THAT IT WASCOMISKEY. HE HAD LOST HIS HAT, HIS COLLAR HAD BEEN PULLED OPEN, HIS NOSE WAS BLEEDING AND HIS FACE WAS BLOODIED UP, LOOKED LIKE HE HAD BEEN IN A TOUGH FIGHT. HE KNEW ME AND ASKED TO GIVE HIM A HAND TO GET THE PRISONER TO A BOX. I TOOK ONE SIDE OF THE COLORED PRISONER AND JOE TOOK THE OTHER AND WE WENT TO THE BOX ON DELAWARE AVE. AND E STREET. WE WERE SURROUNDED BY A CROWD OF COLORED PEOPLE AT THE BOX UNTIL THE WAGON CAME. I OPENED THE PATROL BOX WITH COMISKEY'S KEY AND CALLED THE WAGON.'

FINALLY THERE IS THE CONFIDENTIAL REPORT OF THE RECORDS OF THE UNITED STATES NAVAL HOSPITAL AT WASHINGTON, WHICH DISCLOSED THAT PRIVATE JOSEPH KONESKY (NAME CHANGED TO COMISKEY) WAS ADMITTED TO THAT INSTITUTION ON OCTOBER 19, 1926, FOR TREATMENT OF AN INJURED NOSE. HE WAS TREATED FOR ,DEVIATION OF THE NASAL SEPTUM AND A SUBMUCOUS RESECTION OPERATION WAS PERFORMED.' ON DECEMBER 2, 1929, PRIVATE JOSEPH P. COMISKEY WAS AGAIN ADMITTED TO THE NAVAL HOSPITAL SUFFERING WITH AN INJURED NOSE. THE TREATMENT GIVEN WAS THE SAME AS ADMINISTERED TO HIM IN 1926 AND AN OPERATION, SUBMUCOUS RESECTION, WAS AGAIN PERFORMED. ON THIS OCCASION HE WAS RELEASED FROM THE HOSPITAL ON THE 11TH OF DECEMBER 1929.

ON SEPTEMBER 18, 1926, PRIVATE JOSEPH P. COMISKEY SIGNED THE FOLLOWING STATEMENT TO HIS SUPERIOR, CAPT. W. E. HOLMES:

"ABOUT 12:05 A.M. SEPTEMBER 18TH, 1926, WHILE GOING NORTH ON DELAWARE AVENUE SW., BETWEEN F AND G STS., OFFICER J. P. KONESKY OF NO. 4 PRECINCT OBSERVED A FORD SEDAN GOING SOUTH ON DELAWARE AVENUE OPERATED BY A COLORED MAN WITH ONE HEADLIGHT OUT, WHO LATER PROVED TO BE WESLEY EMMETT POE, COLORED, 27 YEARS, LIVING NO. 437 DEL. AVE. SW., WHO STOPPED AT MY COMMAND. WHEN I ASKED HIM FOR HIS D.C. OPERATORS PERMIT, HE ASKED ME WHAT THE HELL I WANTED TO SEE IT FOR AND ACTED OTHERWISE DISORDERLY AND I THEN PLACED HIM UNDER ARREST AND STARTED TO NO. 26 PATROL BOX LOCATED AT DELAWARE AVE. AND E ST.SW. AND AT F STREET POE CALLED TO HIS BROTHER IN HIS TAILOR SHOP AT NO. 525 1ST ST.SW. AND WHEN HE DID A GANG OF UNKNOWN COLORED MEN GATHERED QUICKLY AROUND ME. A SMALL LIGHT-SKIN COLORED BOY TRIPPED ME BY GRABBING MY LEGS AND WHEN I FELL TO THE GROUND ON MY STOMACH I PUT MY HAND ON MY REVOLVER SO AS NOT TO LOSE IT. WHILE ON THE GROUND POE AND A DARK-SKIN COLORED MAN ASSAULTED ME AND TRIED TO GET MY REVOLVER AWAY FROM ME. DURING THE STRUGGLE POE GOT AWAY FROM ME AND RAN WEST ON F ST.SE. AND I STARTED IN PURSUIT OF HIM; FIRING ONE SHOT AT HIM AND HE STOPPED, I THEN REARRESTED POE AND WITH THE ASSISTANCE OF A PASSING AUTOIST I TOOK HIM TO NO. 26 PATROL BOX AND SENT HIM TO THE STATION CHARGING HIM WITH DISORDERLY CONDUCT, ASSAULT ON ME, AND ONE LIGHT OUT ON AUTO RUNNING. DURING THE STRUGGLE I RECEIVED A SLIGHT CUT OVER THE LEFT EYE. I WILL REPORT TO THE CLINIC AT 10 A.M., SEPTEMBER 18TH, 1926.'

IN CONCLUSION THE FOLLOWING REPORT WAS RECEIVED FROM DRS. GROOVER, CHRISTIE, AND MERRITT, DATED JANUARY 25, 1939:

"I HAVE TO ADVISE THAT SERGEANT COMISKEY WAS REFERRED TO ME FOR DIAGNOSIS AND TREATMENT BY DR. LYNCH WHOM HE HAD CONSULTED NOVEMBER 30, 1938, FOR A TUMOR IN THE RIGHT SUBMAXILLARY REGION. THE TUMOR PERSISTED AFTER CERTAIN DENTAL OPERATIONS WERE PERFORMED AND HE WAS REFERRED TO THE UNDERSIGNED.

"THE PATIENT GAVE A HISTORY OF LOSS OF TEN POUNDS WEIGHT PRIOR TO A GALL BLADDER OPERATION HE HAD AT NAVAL HOSPITAL SIX WEEKS BEFORE, AT WHICH TIME THE GALL BLADDER CONTAINING GALL STONES WAS REMOVED, TOGETHER WITH THE APPENDIX.

"OUR EXAMINATION REVEALED A LARGE SUBMANDIBULAR GLAND ON THE RIGHT SIDE, AND GLANDS IN THE STERNOMASTOID ANTERIORLY AND POSTERIORLY; ALSO AN INFILTRATING TUMOR ON THE FLOOR OF THE NASOPHARYNX AND POSTERIOR WALL OF THE SOFT PALATE. THE RIGHT CERVICAL GLAND WAS REMOVED FOR MICROSCOPIC STUDY AND REPORTED BY DR. LINDSEY "LYMPHOSARCOMA" WITH SOME QUESTION. HAVE PROCEEDED TO TREAT HIM BUT HE HAS RESPONDED NONE TOO WELL. AT THE PRESENT TIME HE IS UNDER TREATMENT AND THE PROGNOSIS, OF COURSE, IS NOT TOO GOOD.

"THE SERGEANT IS VERY MUCH WORRIED ABOUT BEING RETIRED AND WE ARE NOT IN A POSITION TO STATE THAT HE WILL RECOVER FOR THERE IS HOPE THAT HE WILL. LOOKING BACK FOR A POSSIBLY RELATED CAUSE OF THIS CONDITION, WE FIND THAT HE ARRESTED A COLORED MAN IN SEPTEMBER 1926 WHO ATTACKED HIM AND AS A RESULT HIS NOSE AND FACE WERE SEVERELY TRAUMATIZED. IN OCTOBER 1926 HE WAS IN NAVAL HOSPITAL AND SOME NASAL OPERATION WAS PERFORMED. IN DECEMBER 1929 HE AGAIN WENT TO NAVAL HOSPITAL AND AGAIN THEY PERFORMED SOME NASAL OPERATION.

"AS YOU WELL KNOW, THE RELATION BETWEEN TRAUMA AND THE DEVELOPMENT OF SARCOMA IS NOT THOROUGHLY ESTABLISHED. MANY MEN, INCLUDING EWING IN NEW YORK, SAY THERE IS SOME RELATION AND IT SEEMS TO ME THAT THERE IS SOME VERY DEFINITE CONNECTION AT TIMES. IN THIS INSTANCE WE ARE DEALING WITH A VERY HIGH TYPE POLICE OFFICER WHO IS VERY MUCH CONCERNED ABOUT BEING RETIRED AND I AM SURE THE PSYCHOLOGICAL EFFECT ON HIM WOULD BE VERY FAVORABLE IF HIS PRESENT CONDITION COULD BE CONNECTED WITH PREVIOUS DISABILITIES INCURRED IN LINE OF DUTY.

"AS FAR AS MY POSITION IS CONCERNED, I AM UNABLE TO MAKE A POSITIVE STATEMENT--- I CAN NEITHER DENY OR AFFIRM--- BUT I AM SUBMITTING THE FACTS TO YOU SO THAT YOU MAY ACT ACCORDING TO YOUR BEST JUDGMENT.

"IT WOULD APPEAR, FROM ALL OF THE EVIDENCE, THAT A DECISION TO CONNECT THE PRESENT INFIRMITY WITH DISABILITIES INCURRED IN LINE OF DUTY WOULD BE JUST AS REASONABLE AS TO DENY IT. I WOULD APPRECIATE VERY MUCH YOUR GIVING THIS MATTER YOUR CONSIDERATION.

IN VIEW OF THE FOREGOING, THE COMMISSIONERS WOULD APPRECIATE ADVICE FROM YOU AS TO WHETHER THE APPROPRIATION POLICEMEN AND FIREMEN'S RELIEF FUND, D.C. IS AVAILABLE FOR THE PAYMENT OF THIS BILL, THE DETAIL HAS BEEN CERTIFIED AS A REASONABLE CHARGE AND THE PRESENT INJURY HAVING BEEN CERTIFIED AS A DIRECT CONSEQUENCE OF THE INJURY RECEIVED IN 1926, WHICH UNDOUBTEDLY WAS IN THE ACTUAL DISCHARGE OF DUTY.

SECTION 12 OF THE ACT OF SEPTEMBER 1, 1916, 39 STAT. 718, COMBINED THE POLICEMEN AND FIREMEN'S FUNDS INTO ONE FUND TO BE KNOWN AS THE "POLICEMEN AND FIREMEN'S RELIEF FUND, DISTRICT OF LUMBIA," AND PROVIDED FOR PAYMENTS THEREFROM UNDER THE FOLLOWING CONDITIONS:

* * * THE MONEYS TO THE CREDIT OF THE SAID FUND SHALL BE AVAILABLE FOR APPROPRIATION BY CONGRESS ANNUALLY ONLY FOR EXPENDITURE ON REQUISITIONS OF THE SAID COMMISSIONERS FOR THE PURPOSES SET FORTH IN THIS ACT, AND ALL EXPENDITURES FROM SAID FUND SHALL BE MADE AND ACCOUNTED FOR IN THE SAME MANNER AS OTHER EXPENDITURES OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA ARE MADE AND ACCOUNTED FOR. WHENEVER ANY MEMBER OF THE POLICE DEPARTMENT OR THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA SHALL BECOME TEMPORARILY DISABLED BY INJURY RECEIVED OR DISEASE CONTRACTED IN THE ACTUAL DISCHARGE OF HIS DUTY, TO SUCH AN EXTENT AS THE BOARD OF POLICE AND FIRE SURGEONS OF SAID DISTRICT, OR TO REQUIRE HOSPITAL TREATMENT, THE EXPENSES OF SUCH MEDICAL OR SURGICAL SERVICES, OR HOSPITAL TREATMENT, SHALL BE PAID FROM THE POLICEMEN AND FIREMEN'S RELIEF FUND, DISTRICT OF COLUMBIA, PROVIDED FOR IN THIS ACT; BUT NO SUCH EXPENSES SHALL BE PAID EXCEPT UPON A CERTIFICATE OF THE SAID BOARD OF POLICE AND FIRE SURGEONS, OR TWO MEMBERS THEREOF, SETTING FORTH THE NECESSITY FOR SUCH SERVICES OR TREATMENT AND THE NATURE OF THE INJURY OR DISEASE WHICH RENDERED THE SAME NECESSARY, AND UPON THE APPROVAL OF THE SAID CERTIFICATE BY THE SUPERINTENDENT OF THE METROPOLITAN POLICE OR THE CHIEF ENGINEER OF THE FIRE DEPARTMENT, AS THE CASE MAY BE, AND THE APPROVAL OF THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA.

IN DECISION OF MARCH 3, 1926, 5 COMP. GEN. 685, 686, IT WAS STATED, AS FOLLOWS:

THUS, IT IS THE DUTY OF THE ACCOUNTING OFFICERS OF THE UNITED STATES TO ENFORCE SUCH LIMITATIONS UPON THE USES AS THE CONGRESS HAS SEEN FIT TO PRESCRIBE FOR THE PROTECTION AND CONSERVATION OF SAID FUND.

WHEN A MEMBER OF THE POLICE DEPARTMENT OR THE FIRE DEPARTMENT IS "TEMPORARILY DISABLED BY INJURY RECEIVED OR DISEASE CONTRACTED * * * TO SUCH AN EXTENT AS TO REQUIRE MEDICAL OR SURGICAL SERVICES OTHER THAN SUCH AS CAN BE RENDERED BY THE BOARD OF POLICE AND FIRE SURGEONS OF SAID DISTRICT, OR TO REQUIRE HOSPITAL TREATMENT * * *" THE CONGRESS HAS INTERPOSED AS A CONDITION TO THE USE OF THIS FUND FOR PAYMENTS THAT THE INJURY WAS RECEIVED OR THE DISEASE CONTRACTED "IN THE ACTUAL DISCHARGE OF HIS DUTY.' CLEARLY THIS PHRASE IS NOT IN MEANING SYNONYMOUS WITH "WHILE IN THE SERVICE" OR "IN THE LINE OF DUTY" APPEARING IN OTHER PARTS OF THE ENACTMENT.

THE WISDOM OF SUCH A LIMITATION, IN VIEW OF THE NATURE OF THE FUND, IS NOT A MATTER THAT MAY PROPERLY BE TAKEN INTO CONSIDERATION IN DETERMINING ITS EFFECT ON THE AVAILABILITY OF THE FUND FOR PAYMENTS. IT IS THE LAW AND MUST BE GIVEN EFFECT, AND TO SUPPORT PAYMENTS FROM THE FUND THERE MUST APPEAR THE FACTS NECESSARY TO ENABLE THIS OFFICE TO ASCERTAIN WHETHER CREDIT MAY BE GIVEN.

THE STATUTE CLEARLY AND DEFINITELY AUTHORIZES THE USE OF THE FUND TO PAY THE COST OF PRIVATE MEDICAL, SURGICAL, AND HOSPITAL TREATMENTS OF MEMBERS OF THE POLICE DEPARTMENT OR THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA ONLY WHEN THE INJURY OR DISEASE WAS "CONTRACTED IN THE ACTUAL DISCHARGE OF HIS DUTY," AND WHERE SUCH SERVICES COULD NOT BE PERFORMED BY THE BOARD OF POLICE AND FIRE SURGEONS. THE STATUTE FURTHER REQUIRES IN SUCH CASES A CERTIFICATE BY THE BOARD OF POLICE AND FIRE SURGEONS, OR TWO MEMBERS THEREOF,"SETTING FORTH THE NECESSITY FOR SUCH SERVICES OR TREATMENT AND THE NATURE OF THE INJURY OR DISEASE WHCH RENDERED THE SAME NECESSARY," AND THAT THE CERTIFICATE BE APPROVED BY THE SUPERINTENDENT OF THE METROPOLITAN POLICE, AND BY THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA. HOWEVER, SUCH A CERTIFICATE, EVEN THOUGH APPROVED BY THE SUPERINTENDENT OF POLICE AND THE COMMISSIONERS, CONSTITUTES NO PROPER BASIS FOR PAYMENT OF THE COST OF PRIVATE MEDICAL AND HOSPITAL TREATMENT FROM THE POLICEMEN AND FIREMEN'S FUND IN A CASE IN WHICH THERE HAS BEEN NO FINDING THAT THE INJURY OR DISEASE WAS CONTRACTED IN THE ACTUAL DISCHARGE OF DUTY.

WHILE THE BOARD OF POLICE AND FIRE SURGEONS APPARENTLY HAS CERTIFIED THAT THE PRIVATE HOSPITALIZATION WAS NECESSARY AND IT HAS BEEN DETERMINED THAT THE INJURY SUSTAINED IN 1926 WAS INCURRED IN THE PERFORMANCE OF DUTY, THERE HAS NOT BEEN A DEFINITE DETERMINATION THAT THE OFFICER'S DISEASE OF SARCOMA WAS CAUSED BY, OR RESULTED FROM, THE INJURY, OR WAS OTHERWISE CONTRACTED IN THE ACTUAL DISCHARGE OF DUTY. BOTH THE BOARD OF POLICE AND FIRE SURGEONS AND THE PRIVATE PHYSICIAN, WHO IS UNDERSTOOD TO BE A SPECIALIST IN X-RAY DIAGNOSIS, HAVE REFUSED TO FIND AS A FACT THAT THE SAID DISEASE WAS CAUSED BY, OR RESULTED FROM, THE INJURY SUSTAINED MORE THAN 10 YEARS PRIOR TO THE RENDERING OF THE MEDICAL CARE. THE CONCLUSION OF THE BOARD OF SURGEONS THAT IT "IS FACED WITH A MEDICAL DILEMMA THAT IT CANNOT PROVE OR DISPROVE" AND THE SIMILAR CONCLUSION OF THE PRIVATE PHYSICIAN THAT "I CAN NEITHER DENY NOR AFFIRM" THAT THE DISEASE WAS CAUSED BY THE INJURY, DOES NOT MEET THE CONDITIONS OF THE STATUTE AND IT DOES NOT APPEAR THAT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA HAVE MADE A DEFINITE FINDING OF FACT TO THE EFFECT THAT THE DISEASE OF SARCOMA CONTRACTED BY THE POLICE OFFICER IN THIS CASE WAS INCURRED IN THE ACTUAL DISCHARGE OF DUTY.

ACCORDINGLY, UPON THE BASIS OF THE PRESENT RECORD, THIS OFFICE MAY NOT AUTHORIZE PAYMENT OF THE BILL FOR PRIVATE MEDICAL AND HOSPITAL SERVICES FURNISHED IN THIS CASE FROM THE "POLICEMEN AND FIREMEN'S RELIEF FUND, DISTRICT OF COLUMBIA.'