B-75178, MAY 17, 1948, 27 COMP. GEN. 692

B-75178: May 17, 1948

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AUTHORIZING THE EMPLOYMENT OF PHYSICIANS WHEN PUBLIC HEALTH SERVICE FACILITIES ARE NOT AVAILABLE FOR FIELD EMPLOYEES. AUTHORIZE THE PROCUREMENT OF THE SERVICES OF A CHIROPRACTOR SO AS TO WARRANT THE USE OF APPROPRIATED FUNDS TO REIMBURSE A FIELD EMPLOYEE FOR CHIROPRACTIC TREATMENT OF A SERVICE-CONNECTED INJURY WHERE THE SERVICES OF A PHYSICIAN AND THE PUBLIC HEALTH FACILITIES WERE NOT AVAILABLE. HE WAS TRANSPORTED IMMEDIATELY BY GOVERNMENT VEHICLE TO THE NEARBY TOWN OF PARK RIVER. WHERE THE AID OF A DULY QUALIFIED PHYSICIAN WAS SOUGHT. THAT IS. WAS ABSENT. WHO WAS NOT SCHEDULED TO RETURN WITHIN THE SUCCEEDING THREE DAYS. IT WAS DECIDED NOT TO SUBJECT THE INJURED EMPLOYEE TO THE 25-MILE JOURNEY BECAUSE OF THE HAZARDOUS ROAD CONDITIONS.

B-75178, MAY 17, 1948, 27 COMP. GEN. 692

MEDICAL TREATMENT - PRIVATE - CHIROPRACTIC TREATMENT NEITHER THE ACT OF AUGUST 8, 1946, PROVIDING FOR THE ESTABLISHMENT OF FEDERAL EMPLOYEE HEALTH SERVICE PROGRAMS NOR THE ORDERS AND REGULATIONS, CORPS OF ENGINEERS, UNITED STATES ARMY, AUTHORIZING THE EMPLOYMENT OF PHYSICIANS WHEN PUBLIC HEALTH SERVICE FACILITIES ARE NOT AVAILABLE FOR FIELD EMPLOYEES, AUTHORIZE THE PROCUREMENT OF THE SERVICES OF A CHIROPRACTOR SO AS TO WARRANT THE USE OF APPROPRIATED FUNDS TO REIMBURSE A FIELD EMPLOYEE FOR CHIROPRACTIC TREATMENT OF A SERVICE-CONNECTED INJURY WHERE THE SERVICES OF A PHYSICIAN AND THE PUBLIC HEALTH FACILITIES WERE NOT AVAILABLE.

COMPTROLLER GENERAL WARREN TO COL. W. K. WILSON, JR., DEPARTMENT OF THE ARMY, MAY 17, 1948:

BY 2ND ENDORSEMENT DATED APRIL 2, 1948, THE OFFICE, CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY (REFERENCE ENGFA 201 CIV NELSON, MELVIN C.), FORWARDED HERE FOR CONSIDERATION YOUR LETTER OF FEBRUARY 27, 1948, FILE REFERENCE NO. UMPFC, REQUESTING AN ADVANCE DECISION IN YOUR CAPACITY AS DISBURSING OFFICER ON THE CLAIM OF MELVIN C. NELSON FOR REIMBURSEMENT OF $32, EXPENDED FROM HIS PERSONAL FUNDS FOR TREATMENT OF AN INJURY INCURRED WHILE ON OFFICIAL FIELD DUTY.

IT APPEARS FROM THE RECORD THAT ON NOVEMBER 5, 1947, MR. NELSON SUFFERED "ROTATION OF 4TH AND 5TH LUMBAR VERTEBRAE AND SACROILIAC" WHILE LIFTING A HEAVY DRILL ROD AND PLACING IT IN THE DRILL HOLE IN THE PERFORMANCE OF HIS OFFICIAL DUTIES, WHICH INJURY GAVE RISE TO EXTREME PAIN AND PREVENTED THE EMPLOYEE FROM CONTINUING THE PERFORMANCE OF HIS OFFICIAL DUTIES. HE WAS TRANSPORTED IMMEDIATELY BY GOVERNMENT VEHICLE TO THE NEARBY TOWN OF PARK RIVER, NORTH DAKOTA, WHERE THE AID OF A DULY QUALIFIED PHYSICIAN WAS SOUGHT.

HOWEVER, IT DEVELOPED THAT THE ONLY MEDICAL DOCTOR IN THE IMMEDIATE VICINITY, THAT IS, WITHIN A RADIUS OF APPROXIMATELY 25 MILES, WAS ABSENT, HAVING JOURNEYED TO MINNEAPOLIS, MINNESOTA, AND WHO WAS NOT SCHEDULED TO RETURN WITHIN THE SUCCEEDING THREE DAYS. MOREOVER, IT WAS DECIDED NOT TO SUBJECT THE INJURED EMPLOYEE TO THE 25-MILE JOURNEY BECAUSE OF THE HAZARDOUS ROAD CONDITIONS, WHICH MIGHT HAVE AGGRAVATED THE INJURY. ACCORDINGLY, AND THERE BEING NO PUBLIC HEALTH FACILITIES WITHIN A REASONABLE DISTANCE, THE SERVICES OF A CHIROPRACTOR IN THE TOWN OF PARK RIVER WERE ENGAGED. SEVERAL SUCCESSFUL TREATMENTS WERE RECEIVED BY THE EMPLOYEE FROM THE CHIROPRACTOR AT PARK RIVER, AND IN YOUR OPINION SAID TREATMENTS "PREVENTED LOSS OF TIME AND A PERIOD OF DISABILITY THAT OTHERWISE WOULD HAVE RESULTED.' BEFORE THE EMPLOYEE HAD RECOVERED FULLY, HE WAS TRANSFERRED FOR TEMPORARY FIELD DUTY TO THE VICINITY OF THIEF RIVER FALLS, MINNESOTA," AND WHILE THERE, FEELING THE NEED OF AT LEAST ONE FINAL TREATMENT, MR. NELSON * * * SOUGHT THE SERVICES OF A CHIROPRACTOR IN THIEF RIVER FALLS FOR SAID FINAL TREATMENT.' THE EMPLOYEE PAID A TOTAL OF $32 TO THE TWO CHIROPRACTORS FOR THE SERVICES RENDERED, AS EVIDENCED BY PHOTOSTATIC COPIES OF THE RECEIPT SUBMITTED WITH YOUR LETTER.

THE INJURY WAS REPORTED TO THE BUREAU OF EMPLOYEES' COMPENSATION, FEDERAL SECURITY AGENCY, ON DECEMBER 9, 1947. BY LETTER OF JANUARY 28, 1948, SAID BUREAU DENIED LIABILITY FOR PAYMENT OF THE CLAIM UPON THE GROUND THAT EXPENSES INCURRED FOR TREATMENT BY CHIROPRACTORS "ARE NOT PROPER CHARGES AGAINST THE COMPENSATION FUND," IT BEING NECESSARY FOR THE PURPOSES OF THAT BUREAU THAT SUCH SERVICES BE PERFORMED BY PHYSICIANS, THAT IS,"A GRADUATE OF A RECOGNIZED MEDICAL SCHOOL HAVING A DEGREE OF M.D. AND OSTEOPATH PRACTITIONERS WITHIN THE SCOPE OF THEIR PRACTICE AS DEFINED BY STATE LAW.'

IT IS A WELL ESTABLISHED RULE THAT MEDICAL TREATMENT TO CIVILIAN EMPLOYEES OF THE GOVERNMENT IS A PERSONAL EXPENSE TO THE EMPLOYEE AND THAT PAYMENT THEREFOR FROM APPROPRIATED FUNDS IS UNAUTHORIZED UNLESS PROVIDED FOR IN THE CONTRACT OF EMPLOYMENT, OR BY STATUTORY ENACTMENT, OR VALID REGULATION.

SECTION 6 OF THE WAR DEPARTMENT CIVIL APPROPRIATION ACT, 1948, APPROVED JULY 31, 1947, 61 STAT. 686, 694, PROVIDES, INTER ALIA, THAT APPROPRIATIONS FOR CIVIL FUNCTIONS ADMINISTERED BY THE WAR DEPARTMENT MAY BE USED FOR THE EXPENSES OF HEALTH PROGRAMS FOR FEDERAL EMPLOYEES PURSUANT TO THE ACT OF AUGUST 8, 1946, 60 STAT. 903. SAID ACT OF AUGUST 8, 1946, AUTHORIZES THE HEADS OF DEPARTMENTS AND AGENCIES, WITHIN THE LIMITS OF APPROPRIATIONS MADE AVAILABLE THEREFOR, TO ESTABLISH HEALTH SERVICE PROGRAMS FOR THEIR EMPLOYEES, SUCH PROGRAMS TO BE ESTABLISHED AFTER CONSULTATION WITH THE PUBLIC HEALTH SERVICE, BUT NOTHING CONTAINED THEREIN AUTHORIZES PAYMENT OF EXPENSES SUCH AS THOSE HERE INCURRED.

THERE REMAINS FOR CONSIDERATION THE QUESTION WHETHER EMPLOYMENT OF THE SERVICES OF A CHIROPRACTOR IS AUTHORIZED UNDER PART II, CHAPTER III, ORDERS AND REGULATIONS, CORPS OF ENGINEERS, UNITED STATES ARMY. SUBSECTION 3241.01 OF SECTION 41, PARAGRAPHS (A) AND (B), OF THOSE REGULATIONS PROVIDES FOR THE FURNISHING OF MEDICAL AND HOSPITAL SERVICES TO EMPLOYEES OF THE CORPS OF ENGINEERS BY THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION (NOW BUREAU OF EMPLOYEES' COMPENSATION, FEDERAL SECURITY AGENCY) AND THE UNITED STATES PUBLIC HEALTH SERVICE. PARAGRAPH (C) OF THAT SAME SUBSECTION PROVIDES THAT FIELD EMPLOYEES OF THE CORPS OF ENGINEERS ON CIVIL WORKS MAY BE FURNISHED MEDICAL AND SURGICAL TREATMENT NOT COVERED BY PARAGRAPHS (A) AND (B) OF SAID SUBSECTION IN ACCORDANCE WITH THE TERMS OF SECTION 43 OF THE SAME REGULATIONS. SUBSECTION 3243.01 OF SECTION 43 PROVIDES THAT WHEN PUBLIC HEALTH SERVICE FACILITIES ARE NOT AVAILABLE "THE EXPENSE OF TREATMENT OF EMPLOYEES (INCLUDING SEAMEN) MAY BE BORNE FROM RIVER AND HARBOR OR OTHER FUNDS APPLICABLE TO WORK OF THE CORPS OF ENGINEERS.' SUBSECTION 3243.02 OF SECTION 43, WHICH SPECIFIES THE STEPS WHICH MAY BE TAKEN BY THE ADMINISTRATIVE OFFICIALS FOR CARE OF SUCH EMPLOYEES AUTHORIZES THE EMPLOYMENT OF ,PHYSICIANS" BUT CONTAINS NO PROVISION FOR THE ENGAGEMENT OF A CHIROPRACTOR. NOR HAS ANY OTHER LAW OR REGULATION BEEN FOUND VESTING AUTHORITY IN THE CORPS OF ENGINEERS TO AUTHORIZE EMPLOYEES TO UTILIZE THE SERVICES OF A CHIROPRACTOR. CONNECTION WITH THE USE OF THE WORD "PHYSICIANS" IN THE REGULATIONS, IT IS FOR NOTING THAT SAID TERM HAS BEEN DEFINED AS ONE WHO PRESCRIBES OR ADMINISTERS MEDICINE FOR OR IN ANY MANNER TREATS DISEASES; ONE SKILLED IN MEDICINE AND SURGERY; ONE WHO IS AUTHORIZED TO PRESCRIBE REMEDIES FOR AND TREAT DISEASES ( RICHARDSON V. STATE, 2 S.W. 187; 48 C.J. 1063; 32 WORDS AND PHRASES, PERMANENT EDITION, 502), WHEREAS THE WORD "CHIROPRACTIC" (PRACTICE BY CHIROPRACTORS) HAS BEEN DEFINED AS A DRUGLESS METHOD OF TREATING DISEASES PHYSICALLY BY MANIPULATION OF THE SPINAL COLUMN; THE SPECIFIC SCIENCE THAT REMOVES PRESSURE ON THE NERVE BY THE ADJUSTMENT OF THE SPINAL VERTEBRAE. 11 C.J. 758; 84 P.2D 326.

IT FOLLOWS THAT PAYMENT ON THE VOUCHER IS NOT AUTHORIZED, WHICH VOUCHER WILL BE RETAINED IN THE FILES OF THIS OFFICE.

WITH RESPECT TO THE REJECTION OF THE EMPLOYEE'S CLAIM BY THE BUREAU OF EMPLOYEES' COMPENSATION, THE RULE IS THAT ADVERSE ACTION BY THAT BUREAU IN RESPECT OF ANY CLAIM FILED THEREWITH UNDER THE EMPLOYEES' COMPENSATION ACT, GENERALLY, IS NOT SUBJECT TO REVIEW OR REVISION BY THIS OFFICE. SEE 5 U.S.C. 786 AND 787; 17 COMP. GEN. 590, 592; B 42017, MAY 31, 1944.