A-14820, JULY 27, 1926, 6 COMP. GEN. 78

A-14820, JULY 27, 1926, 6 COMP. GEN. 78

EMPLOYEES' COMPENSATION COMMISSION - WIVES AS NURSES - MEDICAL TREATMENT FURNISHED BY ARMY HOSPITALS UNDER THE PROVISIONS OF THE EMPLOYEES' COMPENSATION ACT, THE GENERAL RULE IS THAT THE GOVERNMENT WILL NOT REIMBURSE A WIFE FOR NURSING HER HUSBAND WHO IS A BENEFICIARY UNDER THE ACT, BUT EXCEPTION MAY BE RECOGNIZED WHERE THE WIFE WAS QUALIFIED AND GAINFULLY EMPLOYED AS A NURSE OUTSIDE THE HOME AND TERMINATED HER OUTSIDE EMPLOYMENT IN ORDER TO NURSE HER HUSBAND. UNDER THE PROVISIONS OF SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT, AS AMENDED BY THE ACT OF JUNE 26, 1926, 44 STAT. 772, ARMY HOSPITALS AND DISPENSARIES ARE NOT ENTITLED TO REIMBURSEMENT FOR THE COST OF MEDICAL AND HOSPITAL TREATMENT FURNISHED BENEFICIARIES UNDER THE ACT.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 27, 1926:

REVIEW HAS BEEN REQUESTED OF SETTLEMENT C-38176-MS, SUSPENDING IN THE ACCOUNTS OF A. H. GARDES, FORMER DISBURSING CLERK UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, FOR THE QUARTER ENDED SEPTEMBER 30, 1925, CREDIT FOR PAYMENTS MADE TO LOUISE WALDSTEIN FOR NURSING HER HUSBAND, OTTOKAR WALDSTEIN, AND TO MRS. JOHN W. LYTLE, FOR NURSING HER HUSBAND, JOHN W. LYTLE, BOTH OF THE PATIENTS BEING BENEFICIARIES OF THE COMMISSION, AND PAYMENTS TO ARMY HOSPITALS AND DISPENSARIES FOR MEDICAL AND HOSPITAL SERVICES FURNISHED BENEFICIARIES OF THE COMMISSION.

IN SUPPORT OF THE PAYMENTS MADE FOR NURSING SERVICE TO THE WIFES OF THE TWO BENEFICIARIES, IT IS NOW STATED AS FOLLOWS:

VOUCHER NO. 9439-LOUIS WALDSTEIN ------------------------------ $60.00

MRS. WALDSTEIN IS THE WIFE OF THE CLAIMANT, OTTOKAR WALDSTEIN. IT IS NOTED YOU STATE: "IF LOUIS WALDSTEIN IS THE WIFE OF OTTOKAR WALDSTEIN, IT WOULD APPEAR TO BE HER PRIMARY DUTY TO CARE FOR HER HUSBAND AND ANY PAYMENT THEREFOR BY THE GOVERNMENT WOULD BE IN THE NATURE OF ADDITIONAL COMPENSATION, IN EXCESS OF THE MAXIMUM ALLOWED BY THE COMPENSATION ACT AND NOT AUTHORIZED.' THE COMMISSION HAS ALWAYS KEPT THIS PRINCIPLE IN MIND AND IN NUMEROUS CASES, WHERE REQUEST HAS BEEN MADE BY THE WIFE FOR PAYMENT OF NURSING SERVICES, SUCH REQUESTS HAVE BEEN UNIFORMLY DENIED. HOWEVER, IN A FEW EXCEPTIONAL CASES, OF WHICH THIS IS ONE, AN AWARD FOR NURSING SERVICES HAD BEEN MADE AS A PART OF MEDICAL SERVICE AUTHORIZED UNDER SECTION 9 OF THE COMPENSATION ACT.

THE FACTS IN THIS PARTICULAR CASE ARE AS FOLLOWS: DUE TO THE INJURY RECEIVED MR. WALDSTEIN IS COMPLETELY PARALYZED AND HAS TO HAVE CONSTANT ATTENTION. MRS. WALDSTEIN WAS A TRAINED NURSE AND WAS GAINFULLY EMPLOYED IN THAT CAPACITY WHICH SHE GAVE UP. IF THE PRESENT ARRANGEMENT COULD NOT BE CONTINUED MRS. WALDSTEIN WOULD HAVE TO RETURN TO HER OCCUPATION FOR FINANCIAL REASONS AND THE COMMISSION WOULD HAVE TO HOSPITALIZE MR. WALDSTEIN IN A DESIGNATED HOSPITAL IN EL PASO, WHERE THE RATE CHARGES THE GOVERNMENT WOULD BE, AT LEAST, $4 PER DAY. THE CASE HAD BEEN PREVIOUSLY HANDLED IN THIS WAY. THERE IS NO GOVERNMENT HOSPITAL IN THIS LOCALITY WHICH IS AVAILABLE TO THE COMMISSION FOR THE HOSPITALIZATION OF SUCH CASES. FURTHER, THE CASE SINCE THE BEGINNING HAS BEEN UNDER THE SUPERVISION OF THE MEDICAL OFFICER IN CHARGE OF THE PUBLIC HEALTH SERVICE AT EL PASO, WHOSE ASSISTANT, DR. ROBERT IRVING MCNEIL, A.A. SURGEON, REGULARLY VISITS THE PATIENT AT HIS HOME. THE PRESENT ARRANGEMENT WAS RECOMMENDED BY THE MEDICAL OFFICER IN CHARGE.

IN A REPORT TO THE COMMISSION, DOCTOR MCNEIL STATED: "IT IS CERTAIN THAT AN ASSIGNMENT TO A HOSPITAL WOULD HAVE AN UNTOWARD PSYCHIC EFFECT UPON THE PATIENT.' THE MEDICAL OFFICER IN CHARGE IN FORWARDING DOCTOR MCNEIL'S REPORT STATED: "IF FIRMLY BELIEVE THAT HOSPITALIZATION IS CONTRA-INDICATED IN THIS CASE.'

IN VIEW OF ALL THE FACTS AS STATED ABOVE THE COMMISSION THEREFORE CONSIDERED, AS RECOMMENDED BY THE PUBLIC HEALTH SERVICE, THAT THE PRESENT ARRANGEMENT WAS THE MOST ECONOMICAL ONE FOR THE GOVERNMENT, HAVING IN MIND ALSO THE INTERESTS OF THE PATIENT FROM A MEDICAL STANDPOINT.

VOUCHERS NOS. 9382 - MRS. JOHN W. LYTLE -------------------- $62.00

9503 - MRS. JOHN W. LYTLE -------------------- 60.00

122.00

THE FACTS IN THIS CASE ARE AS FOLLOWS: MR. LYTLE WAS PRACTICALLY BLIND AS A RESULT OF HIS INJURY, HAD BEEN OPERATED UPON, AND WAS BEING HOSPITALIZED AT THE HOTEL DIEU (SISTERS' HOSPITAL), THE DESIGNATED HOSPITAL AT EL PASO, WHERE THE RATE WAS $25 PER WEEK. THE CASE WAS IN CHARGE OF DR. JOHN W. TAPPAN, THE MEDICAL OFFICER IN CHARGE, U.S. PUBLIC HEALTH SERVICE RELIEF STATION AT EL PASO, TEX. DR. TAPPAN REPORTED THAT IT WAS ABSOLUTELY NECESSARY FOR THE BENEFICIARY TO HAVE CONSTANT ATTENDANCE, BEING UNABLE TO DRESS, FEED, OR HELP HIMSELF.

DOCTOR TAPPAN STATED THAT MRS. LYTLE, THE WIFE OF THE CLAIMANT, HAD BEEN HELPING TO SUPPORT THE FAMILY BY OUTSIDE NURSING AND THAT SHE WOULD BE COMPETENT TO NURSE MR. LYTLE AT HOME. SHE COULD NOT DO THIS, HOWEVER, UNLESS SHE RECEIVED SOME PAYMENT FROM THE COMMISSION FOR SERVICES RENDERED AS NURSE, AS SHE WOULD HAVE TO GIVE UP HER GAINFUL EMPLOYMENT OUTSIDE. DOCTOR TAPPAN RECOMMENDED THAT SHE BE PAID $2 PER DAY FOR HER SERVICES AS NURSE. THIS WOULD RELIEVE THE GOVERNMENT OF THE DIFFERENCE BETWEEN $25 PER WEEK, BEING PAID FOR HIS HOSPITALIZATION, AND THE $2 PER DAY RATE. THIS WAS CONSIDERED A MORE ECONOMICAL ARRANGEMENT, AND UPON THE RECOMMENDATION OF DOCTOR TAPPAN THE COMMISSION AUTHORIZED THE PAYMENT OF NURSING SERVICES TO MRS. LYTLE UNDER SECTION 9 OF THE COMPENSATION ACT.

NECESSARY PRIVATE NURSING SERVICE IS AUTHORIZED AS INCIDENT TO APPROVED MEDICAL TREATMENT UNDER THE TERMS OF SECTION 9 OF THE EMPLOYEE'S COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, AND AS AMENDED BY THE ACT OF JUNE 26, 1926, 44 STAT. 772. THE GOVERNMENT WILL NOT GENERALLY REIMBURSE A WIFE FOR PERFORMANCE OF THE ORDINARY AND USUAL DUTIES INCIDENT TO THE HOME, ON BEHALF OF HER HUSBAND WHO IS A BENEFICIARY OF, OR EMPLOYEE UNDER, THE GOVERNMENT. PAYMENT TO THE WIFE UNDER SUCH CIRCUMSTANCES WOULD BE TANTAMOUNT TO PAYMENT TO THE BENEFICIARY OR EMPLOYEE OF AN ADDITIONAL AMOUNT NOT AUTHORIZED BY LAW. ACCORDINGLY, THE GENERAL RULE UNDER THE PROVISIONS OF THE EMPLOYEES' COMPENSATION ACT MUST BE THAT A WIFE WILL NOT BE REIMBURSED FOR NURSING HER HUSBAND WHO IS A BENEFICIARY UNDER THE ACT.

EXCEPTIONS TO THE GENERAL RULE THUS STATED MAY BE RECOGNIZED IN PARTICULAR CASES WHERE THE WIFE IS QUALIFIED AND GAINFULLY EMPLOYED AS NURSE OUTSIDE THE HOME AND TERMINATES HER OUTSIDE EMPLOYMENT IN ORDER TO CARE FOR HER HUSBAND. IN SUCH CASES THERE WOULD NO NO SOUND REASON FOR REFUSING TO EMPLOY THE SERVICES OF THE WIFE AS NURSE RATHER THAN ANOTHER. A FULL STATEMENT OF THE FACTS SHOULD BE SUBMITTED TO THIS OFFICE WITH THE ACCOUNTS OF THE DISBURSING CLERK IN SUPPORT OF ANY PAYMENTS MADE TO THE WIFE OF A BENEFICIARY FOR NURSING SERVICE FURNISHED THE BENEFICIARY. THE FACTS AS REPORTED IN THE COMMISSION'S LETTER QUOTED ABOVE WOULD SEEM TO BRING THE TWO CASES HERE INVOLVED WITHIN THE EXCEPTION HEREIN RECOGNIZED, IN VIEW OF WHICH CREDIT FOR THE PAYMENTS FOR NURSING SERVICES WILL NOT BE ALLOWED.

IT APPEARS THAT THE PAYMENTS TO ARMY HOSPITALS AND DISPENSARIES FOR MEDICAL AND HOSPITAL TREATMENT FURNISHED BENEFICIARIES OF THE EMPLOYEES' COMPENSATION COMMISSION HAVE BEEN MADE BY THE COMMISSION UNDER PROVISIONS OF SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT AS ORIGINALLY ENACTED ON THE BASIS OF A SETTLEMENT MADE BY THE AUDITOR FOR THE STATE AND OTHER DEPARTMENTS, DATED MAY 25, 1917. THE MATTER HAD PREVIOUSLY BEEN SUBMITTED BY THE SECRETARY OF WAR TO THE COMPTROLLER OF THE TREASURY WHO DENIED JURISDICTION UNDER DATE OF APRIL 20, 1917, UNLESS AND UNTIL SUBMITTED BY THE AUDITOR FOR AN ORIGINAL CONSTRUCTION OF THE STATUTE IN CONNECTION WITH THE PROPOSED ADJUSTMENT OF APPROPRIATIONS, BUT THIS THE AUDITOR APPARENTLY FAILED TO DO. HENCE, THE LEGALITY OF PAYMENTS TO ARMY HOSPITALS AND DISPENSARIES UNDER THE STATUTE HAS NEVER BEEN AUTHORITATIVELY DECIDED BY THE COMPTROLLER OF THE TREASURY OR HIS OFFICE. SIMILAR SERVICES HAVE BEEN REQUIRED TO BE PERFORMED FREE OF CHARGE BY OTHER GOVERNMENTAL HOSPITALS AND INSTITUTIONS AND UNITED STATES MEDICAL OFFICERS UNDER THE PROVISIONS OF SECTION 9 OF THE ORIGINAL STATUTE. HOSPITAL OF THE PANAMA CANAL, 23 COMP. DEC. 776; ST. ELIZABETHS HOSPITAL, DECISION OF JUNE 9, 1919, 89 MS. COMP. DEC. 1555; VETERANS' BUREAU HOSPITALS, 2 COMP. GEN. 320; UNITED STATES MEDICAL OFFICERS, 26 COMP. DEC. 940; 27 ID. 545; 5 COMP. GEN. 206.

THERE WOULD APPEAR TO HAVE BEEN NO GOOD REASON FOR APPLYING ANY DIFFERENT RULE TO MEDICAL AND HOSPITAL SERVICES FURNISHED BENEFICIARIES OF THE EMPLOYEES' COMPENSATION COMMISSION BY ARMY HOSPITALS AND DISPENSARIES. THERE IS NOW FOR CONSIDERATION IN CONNECTION WITH THIS QUESTION THE PROVISIONS OF SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT AS AMENDED BY THE ACT OF JUNE 26, 1926, 44 STAT. 772, AS FOLLOWS:

THAT FOR ANY INJURY SUSTAINED BY AN EMPLOYEE WHILE IN THE PERFORMANCE OF DUTY, WHETHER OR NOT DISABILITY HAS ARISEN, THE UNITED STATES SHALL FURNISH TO THE EMPLOYEE ALL SERVICES, APPLIANCES, AND SUPPLIES PRESCRIBED OR RECOMMENDED BY DULY QUALIFIED PHYSICIANS WHICH, IN THE OPINION OF THE COMMISSION, ARE LIKELY TO CURE OR TO GIVE RELIEF OR TO REDUCE THE DEGREE OR THE PERIOD OF DISABILITY OR TO AID IN LESSENING THE AMOUNT OF THE MONTHLY COMPENSATION. SUCH SERVICES, APPLIANCES, AND SUPPLIES SHALL BE FURNISHED BY OR UPON THE ORDER OF THE UNITED STATES MEDICAL OFFICERS AND HOSPITALS, BUT WHERE THIS IS NOT PRACTICABLE THEY SHALL BE FURNISHED BY OR UPON THE ORDER OF PRIVATE PHYSICIANS AND HOSPITALS DESIGNATED OR APPROVED BY THE COMMISSION. FOR THE SECURING OF SUCH SERVICES, APPLIANCES, AND SUPPLIES, THE EMPLOYEE MAY BE FURNISHED TRANSPORTATION, AND MAY BE PAID ALL EXPENSES INCIDENT TO THE SECURING OF SUCH SERVICES, APPLIANCES, AND SUPPLIES, WHICH, IN THE OPINION OF THE COMMISSION, ARE NECESSARY AND REASONABLE. ALL SUCH EXPENSES WHEN AUTHORIZED OR APPROVED BY THE COMMISSION SHALL BE PAID FROM THE EMPLOYEES' COMPENSATION FUND. ANY AWARD HERETOFORE MADE BY THE COMMISSION ON ACCOUNT OF EXPENSES INCURRED UNDER SECTION 9 OF THE ACT OF SEPTEMBER 7, 1916, PRIOR TO THE PASSAGE OF THIS ACT, SHALL BE VALID, IF SUCH AWARD WOULD BE VALID IF MADE ON ACCOUNT OF EXPENSES INCURRED UNDER THIS SECTION AFTER THE PASSAGE OF THIS ACT.

IT WILL BE NOTED, THAT, AS UNDER THE ORIGINAL STATUTE, THE SERVICES UNDER THE AMENDED SECTION ARE TO BE FURNISHED PRIMARILY THROUGH GOVERNMENTAL AGENCIES, AND IF NOT PRACTICABLE THEN THROUGH PRIVATE AGENCIES. THERE HAS BEEN MADE NO PROVISION FOR REIMBURSING UNITED STATES MEDICAL OFFICERS AND HOSPITALS FROM THE EMPLOYEES' COMPENSATION FUND FOR COST OF SERVICES, SUPPLIES, AND APPLIANCES FURNISHED BENEFICIARIES OF THE COMMISSION. IT IS BUT REASONABLE TO ASSUME THAT THE SENTENCE "ALL SUCH EXPENSES WHEN AUTHORIZED OR APPROVED BY THE COMMISSION SHALL BE PAID FROM THE EMPLOYEES' COMPENSATION FUND" REFERS ONLY TO THE "EXPENSES" MENTIONED IN THE SENTENCE IMMEDIATELY PRECEDING, THAT IS, EXPENSES INCURRED BY THE EMPLOYEES "INCIDENT TO THE SECURING OF SUCH SERVICES, APPLIANCES, AND SUPPLIES, WHICH, IN THE OPINION OF THE COMMISSION, ARE NECESSARY AND REASONABLE.'

IN VIEW OF THE LONG-ESTABLISHED PRACTICE BASED ON THE ACTION OF THE AUDITOR OF REIMBURSING ARMY HOSPITALS AND DISPENSARIES FOR TREATMENT FURNISHED BENEFICIARIES OF THE COMMISSION, CREDIT WILL BE ALLOWED IN THE ACCOUNTS HERE CONSIDERED AND PAYMENTS HERETOFORE MADE FOR SIMILAR SERVICES WILL NOT BE DISTURBED IF OTHERWISE CORRECT.

CREDIT WILL NOT BE ALLOWED FOR PAYMENTS HEREAFTER MADE TO ARMY HOSPITALS AND DISPENSARIES AS REIMBURSEMENT FOR COST OF SERVICES, APPLIANCES AND SUPPLIES FURNISHED BENEFICIARIES UNDER THE EMPLOYEES' COMPENSATION ACT.