A-10803, MARCH 5, 1926, 5 COMP. GEN. 688

A-10803, MARCH 5, 1926, 5 COMP. GEN. 688

MEDICAL TREATMENT, PROSTHETIC APPLIANCES - JURISDICTION OF THE GENERAL ACCOUNTING OFFICE THE AUTHORITY IN THE EMPLOYEES' COMPENSATION ACT TO FURNISH REASONABLE MEDICAL, SURGICAL, AND HOSPITAL SERVICES AND SUPPLIES IS CONFINED TO ICES AND SUPPLIES ORDINARILY FURNISHED BY PHYSICIANS OR HOSPITALS, SUCH AS MEDICINES AND SURGICAL DRESSINGS, AND DOES NOT INCLUDE ARTIFICIAL EYES, ARMS, OR OTHER PROSTHETIC APPLIANCES. THE COST OF SUCH APPLIANCES AND EXPENSES ENTAILED IN THEIR PROCUREMENT ARE NOT PAYABLE FROM PUBLIC FUNDS. 5 COMP. GEN. 301, AFFIRMED. THE PROVISION IN THE ACT OF JUNE 5, 1924, 43 STAT. 389, AMENDING THE ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, DOES NOT AUTHORIZE THE FURNISHING OF ANY CLASS OF SERVICES OR SUPPLIES NOT AUTHORIZED IN THE SAID ACT OF 1916. QUESTIONS INVOLVING THE LEGALITY OF EXPENDITURES FROM APPROPRIATED MONEYS ARE FOR DETERMINATION BY THE COMPTROLLER GENERAL OF THE UNITED STATES RATHER THAN THE ATTORNEY GENERAL.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN, UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, MARCH 5, 1926:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF FEBRUARY 16, 1926, REQUESTING RECONSIDERATION OF MY DECISION OF OCTOBER 29, 1925, 5 COMP. GEN. 301, HOLDING THAT THE EMPLOYEES' COMPENSATION FUND (SEE ACT OF JUNE 7, 1924, 43 STAT. 524, FOR FISCAL YEAR 1925) WAS NOT AVAILABLE FOR FURNISHING PROSTHETIC APPLIANCES, SUCH AS ARTIFICIAL EYES AND LIMBS, TO DISABLED GOVERNMENT EMPLOYEES. YOU STATE:

SINCE THE RECEIPT OF YOUR DECISION ABOVE REFERRED TO THE COMMISSION HAS GIVEN CAREFUL CONSIDERATION TO THE MATTER, AND HAS SOUGHT THE ADVICE OF THE ATTORNEY GENERAL AS TO THE REASONABLE CONSTRUCTION OF THE LAW. REVIEWING THIS MATTER THE COMMISSION IS SUBMITTING FOR YOUR CONSIDERATION THIS OPINION OF THE ATTORNEY GENERAL OF FEBRUARY 4, 1926, AND THE MEMORANDUM WHICH HAS BEEN PREPARED IN THE COMMISSION PRESENTING THE CASE FOR THE ALLOWANCE OF PROSTHETIC APPLIANCES AND OTHER NECESSARY AND REASONABLE TREATMENT UNDER THE COMPENSATION LAW.

SECTION 9 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, 743, PROVIDES, IN ADDITION TO THE DISABILITY COMPENSATION OTHERWISE PROVIDED UNDER SAID ACT, THAT---

* * * IMMEDIATELY AFTER AN INJURY * * * AND FOR A REASONABLE TIME THEREAFTER, THE UNITED STATES SHALL FURNISH TO SUCH EMPLOYEE REASONABLE MEDICAL, SURGICAL, AND HOSPITAL SERVICES AND SUPPLIES * * *.

SUCH SERVICES AND SUPPLIES ARE REQUIRED TO BE FURNISHED BY "UNITED STATES MEDICAL OFFICERS AND HOSPITALS," OR WHEN THIS IS NOT PRACTICABLE BY "PRIVATE PHYSICIANS AND HOSPITALS DESIGNATED OR APPROVED BY THE COMMISSION.' THE RULING IN MY DECISION OF OCTOBER 29, 1925, THAT THIS AUTHORIZED ONLY SUCH SUPPLIES AS ARE "ORDINARILY FURNISHED BY PHYSICIANS AND HOSPITALS," IS NOT SO DIFFICULT OF APPLICATION AS IS ATTEMPTED TO BE SHOWN IN THE UNSIGNED BRIEF ACCOMPANYING YOUR REQUEST FOR RECONSIDERATION. THE HOLDING IN QUESTION WAS EXPRESSED IN THE FOLLOWING TERMS:

* * * IT MUST BE HELD THAT THE TERM "SUPPLIES" AS USED IN THE STATUTE INCLUDES ONLY THOSE ORDINARILY FURNISHED BY PHYSICIANS OR HOSPITALS, SUCH AS MEDICINES AND SURGICAL DRESSINGS. * * *

THIS STATEMENT COULD NOT BY ANY REASONABLE APPLICATION BE VIEWED AS HOLDING THAT NO SUPPLIES COULD BE FURNISHED EXCEPT SUCH AS MAY BE FURNISHED BY THE PARTICULAR PHYSICIAN OR HOSPITAL THAT MAY BE TREATING THE PARTICULAR INDIVIDUAL, WHETHER IT BE A COUNTRY DOCTOR OR A COMPLETELY EQUIPPED AND MODERN HOSPITAL, AS APPARENTLY ASSUMED IN THE UNSIGNED BRIEF SUBMITTED. THE SUPPLIES MAY INCLUDE MEDICINES, SURGICAL DRESSINGS, ETC., NECESSARY TO TREATMENT OF THE INJURY SUFFERED, BUT MAY NOT INCLUDE APPLIANCES SUCH AS ARTIFICIAL LIMBS AND EYES WHICH FORM NO PART OF THE MEDICAL OR SURGICAL TREATMENT SUCH AS THE COMMISSION IS AUTHORIZED TO FURNISH FOR A REASONABLE TIME AFTER THE INJURY. SUCH APPLIANCES ARE NOT "ORDINARILY" FURNISHED BY PHYSICIANS OR HOSPITALS, ALTHOUGH THEY MAY BE RECOMMENDED BY PHYSICIANS OR HOSPITALS WHEN THE PATIENT IS FINANCIALLY ABLE TO AFFORD THEIR PURCHASE. THAT SUCH APPLIANCES, WHEN INTENDED TO BE AUTHORIZED, ARE SPECIFICALLY PROVIDED FOR IS INDICATED BY THE PROVISIONS MADE IN STATUTES ENACTED BEFORE AND AFTER THE EMPLOYEES' COMPENSATION ACT. SECTION 4787, REVISED STATUTES, AS AMENDED BY THE ACTS OF FEBRUARY 27, 1877, 19 STAT. 252, MARCH 3, 1891, 26 STAT. 1103, JUNE 5, 1920, 41 STAT. 901, SPECIFICALLY AUTHORIZED THE FURNISHING OF ARTIFICIAL LIMBS TO OFFICERS, SOLDIERS, SEAMEN, AND MARINES INJURED DURING THE WAR OF THE REBELLION, AND THE ACT OF AUGUST 15, 1876, 19 STAT. 203, ALSO AUTHORIZED ARTIFICIAL LIMBS FOR EVERY OFFICER, SOLDIER, SEAMAN, AND MARINE INJURED IN THE LINE OF DUTY IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES. THE FURNISHING OF TRUSSES WAS ALSO AUTHORIZED BY SECTION 1176, REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 3, 1879, 20 STAT. 353, TO EVERY SOLDIER, PETTY OFFICER, SEAMAN, OR MARINE RUPTURED IN THE LINE OF DUTY IN ANY WAR. THE CONGRESS ALSO MADE SPECIFIC PROVISION IN THE ORIGINAL WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 406, AND IN ITS RESPECTIVE AMENDMENTS UP TO AND INCLUDING THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 607, AND THE AMENDMENT OF MARCH 4, 1925, 43 STAT. 1306, FOR FURNISHING NOT ONLY ,REASONABLE GOVERNMENTAL MEDICAL, SURGICAL, AND HOSPITAL SERVICES," BUT ALSO SUPPLIES,"INCLUDING ARTIFICIAL LIMBS, TRUSSES, AND SIMILAR APPLIANCES.' EVEN THIS SPECIFICATION OF PROSTHETIC APPLIANCES WAS EVIDENTLY NOT CONSIDERED BY THE CONGRESS TO BE SUFFICIENT, FOR IN THE LATER AMENDMENTS, INCLUDING THAT OF MARCH 4, 1925, SUPRA, THE LIST WAS ENLARGED TO INCLUDE SPECIFICALLY

DENTAL APPLIANCES, WHEEL CHAIRS, ARTIFICIAL LIMBS, TRUSSES, AND SIMILAR APPLIANCES, INCLUDING SPECIAL CLOTHING MADE NECESSARY BY THE WEARING OF PROSTHETIC APPLIANCES * * *

AND THIS NOTWITHSTANDING THE PLAIN INTENT AND PURPOSE OF THE WAR RISK INSURANCE ACT AND THE WORLD WAR VETERANS' ACT TO PROVIDE FOR THE PERMANENT TREATMENT AND REHABILITATION OF THE VETERANS. IT IS TO BE NOTED IN THIS CONNECTION THAT THERE IS NOTHING IN THE EMPLOYEES' COMPENSATION ACT TO INDICATE AN INTENT TO AUTHORIZE THE COMMISSION TO UNDERTAKE THE REHABILITATION OF THE INJURED EMPLOYEES.

THE QUESTION OF THE JURISDICTION OF YOUR COMMISSION TO DETERMINE QUESTIONS AS TO THE EXTENT AND APPLICATION OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, WAS FULLY CONSIDERED IN MY DECISIONS OF JULY 5, 1922, SEPTEMBER 23, 1922, JANUARY 29, 1923, MAY 29, 1923, FEBRUARY 11, 1924, AND FEBRUARY 26, 1924, 3 COMP. GEN. 545. YOUR ATTENTION IS PARTICULARLY INVITED TO THE FOLLOWING QUOTATION FROM THE DECISION LAST CITED:

* * * THE ACCOUNTING OFFICERS HAVE CONSISTENTLY RECOGNIZED THE FINALITY OF THE FINDINGS AND DECISIONS OF THE COMMISSION UPON MATTERS WITHIN ITS JURISDICTION, BUT THE JURISDICTION OR AUTHORITY OF THE COMMISSION IS PRESCRIBED AND LIMITED BY THE ACT OF SEPTEMBER 7, 1916, SUPRA, AND IT IS THE DUTY AND RESPONSIBILITY OF THE ACCOUNTING OFFICERS TO SEE THAT THE APPROPRIATIONS MADE BY THE CONGRESS TO CARRY OUT THE PROVISIONS OF SAID ACT ARE DISBURSED AND ACCOUNTED FOR IN ACCORDANCE WITH THE LAWS RELATING THERETO. NEITHER THE ACT OF SEPTEMBER 7, 1916, NOR ANY APPROPRIATION MADE IN PURSUANCE THEREOF AUTHORIZES THE EMPLOYEES' COMPENSATION COMMISSION TO EXPEND GOVERNMENT MONEY IN ITS DISCRETION AND FOR SUCH PURPOSES AS IT MAY SEE FIT. ON THE CONTRARY THE CONGRESS HAS SPECIFICALLY PRESCRIBED THE OBJECTS AND PURPOSES FOR WHICH THE FUNDS APPROPRIATED BY IT MAY BE EXPENDED. * * *

SINCE THE ABOVE CITED DECISIONS WERE RENDERED THERE HAS BEEN INSERTED BY THE AMENDMENT OF JUNE 5, 1924, 43 STAT. 389, THE FOLLOWING LANGUAGE:

* * * IN THE ABSENCE OF FRAUD OR MISTAKE IN MATHEMATICAL CALCULATION, THE FINDING OF FACTS IN, AND THE DECISION OF THE COMMISSION UPON, THE MERITS OF ANY CLAIM PRESENTED UNDER OR AUTHORIZED BY THIS ACT, IF SUPPORTED BY COMPETENT EVIDENCE SHALL NOT BE SUBJECT TO REVIEW BY ANY OTHER ADMINISTRATIVE OR ACCOUNTING OFFICER, EMPLOYEE OR AGENT OF THE UNITED STATES. * * *

THIS LANGUAGE DOES NOT EXTEND THE APPLICATION OF THE ACT OR AUTHORIZE THE FURNISHING OF ANY SERVICES OR SUPPLIES NOT OTHERWISE AUTHORIZED IN THE ORIGINAL ACT AS AMENDED. THE MATTER HERE UNDER CONSIDERATION DOES NOT INVOLVE ANY FINDING OF FACTS OR THE MERITS OF ANY CLAIM AUTHORIZED UNDER THE EMPLOYEES' COMPENSATION ACT. IT INVOLVES ONLY A DETERMINATION AS TO THE AVAILABILITY OF AN APPROPRIATION FOR A CERTAIN CLASS OF EXPENDITURES, AND IN SO FAR AS THE EXECUTIVE BRANCH OF THE GOVERNMENT IS CONCERNED, THERE CAN BE NO DOUBT THAT THE LAW HAS MADE THE DECISION OF THIS OFFICE ON SUCH MATTERS FINAL AND CONCLUSIVE.

CAREFUL CONSIDERATION HAS BEEN GIVEN THE OPINION OF THE ATTORNEY GENERAL, REFERRED TO IN YOUR LETTER, SUPRA, BUT I FIND THEREIN NOTHING TO REQUIRE OR JUSTIFY ANY CHANGE IN THE FORMER DECISION OF THIS OFFICE ON THE QUESTION INVOLVED.

WHATEVER MAY HAVE BEEN THE EFFECT OF OPINIONS OF THE ATTORNEY GENERAL ON QUESTIONS RELATING SOLELY TO THE LEGALITY OF PROPOSED EXPENDITURES OF APPROPRIATED MONEYS, PRIOR TO THE ENACTMENT OF THE DOCKERY ACT OF JULY 31, 1894, 28 STAT. 205, THE EVIDENT PURPOSE AND EFFECT OF SAID STATUTE WAS TO VEST IN THE COMPTROLLER THE EXCLUSIVE JURISDICTION AND PLENARY AUTHORITY TO DETERMINE SUCH QUESTIONS. THIS IS CLEARLY INDICATED BY THE REPORT OF THE JOINT COMMITTEE WHICH DRAFTED THE PROVISIONS OF SAID ACT. SEE REPORT AS PRINTED IN HOUSE REPORT NO. 637, 53D CONGRESS, SECOND SESSION, IN WHICH IT IS STATED THAT THE DUTIES OF THE COMPTROLLER WILL BE "MAINLY TO DETERMINE FINALLY THE CONSTRUCTION OF STATUTES," AND THAT THE ACT "WILL CONCENTRATE IN ONE HEAD ALL THE LEGAL DIRECTION IN THE SETTLEMENT OF ACCOUNTS.' IN THIS CONNECTION ATTENTION IS INVITED TO THE OPINION OF ATTORNEY GENERAL RICHARD OLNEY, RENDERED MAY 22, 1895, 21 OP.ATTY.GEN. 178, IN WHICH HE DECLINED TO RENDER AN OPINION ON CERTAIN QUESTIONS INVOLVING THE LEGALITY OF EXPENDITURES FROM APPROPRIATED MONEYS, REFERRING TO THE FACT THAT WHILE SUCH QUESTIONS "PRIOR TO OCTOBER 1, 1894 (EFFECTIVE DATE OF THE DOCKERY ACT), COULD PROPERLY BE ASKED OF THE ATTORNEY GENERAL," THEY COULD NOW BE SUBMITTED TO THE COMPTROLLER UNDER THE PROVISIONS OF SAID ACT AND THAT THEY "ARE QUESTIONS WHICH THE COMPTROLLER, BY HIS GREATER EXPERIENCE, IS BETTER QUALIFIED TO PASS UPON, AND IT IS DESIRABLE TO AVOID ANY POSSIBLE CONFLICT OF PRECEDENTS.' THIS OPINION WAS QUOTED FROM AND FOLLOWED BY ATTORNEY GENERAL JUDSON HARMON IN AN OPINION OF AUGUST 31, 1896, 21 OP.ATTY.GEN. 405, IN WHICH HE REFUSED TO EXPRESS AN OPINION ON THE QUESTION THERE PRESENTED, STATING:

THIS IS A QUESTION WHICH MAY BE ASKED OF THE COMPTROLLER OF THE TREASURY. (ACT OF JULY 31, 1894, CHAP. 174, SEC.8.) IT BELONGS TO A CLASS OF QUESTIONS WHICH REQUIRE FOR THEIR DECISION A SPECIAL KNOWLEDGE OF OUR APPROPRIATION ACTS AND THE COURSE OF DECISION THEREUNDER. * * *

SEE ALSO OPINION OF ATTORNEY GENERAL JOSEPH MCKENNA, RENDERED MAY 6, 1897, 21 OP.ATTY.GEN. 531, IN WHICH HE SAID:

* * * IT HAS BEEN REPEATEDLY HELD BY ATTORNEYS-GENERAL THAT ON QUESTIONS OF DISBURSEMENT OF MONEY OR PAYMENT OF CLAIMS, SO BY LAW RELEGATED TO THE COMPTROLLER, THE ATTORNEY-GENERAL SHOULD NOT RENDER OPINIONS, * * *.

TO THE SAME EFFECT IS AN OPINION OF AUGUST 10, 1922, 33 OP.ATTY.GEN. 268, WHICH CONCLUDES AS FOLLOWS:

SECTION 8 OF THE DOCKERY ACT OF JULY 31, 1894 (CH. 174, 28 STAT. 207), PROVIDED THAT THE BALANCES CERTIFIED BY THE AUDITORS OF THE TREASURY, OR UPON REVISION BY THE COMPTROLLER OF THE TREASURY, SHOULD BE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND THAT WHERE DISBURSING OFFICERS, OR THE HEAD OF ANY EXECUTIVE DEPARTMENT, APPLIED TO THE COMPTROLLER OF THE TREASURY FOR HIS DECISIONS UPON ANY QUESTION INVOLVING A PAYMENT, THE DECISION, WHEN RENDERED, SHOULD GOVERN THE CASE. CONSTRUING THESE PROVISIONS OF LAW, MY PREDECESSORS HAVE UNIFORMLY HELD THAT A QUESTION OF PAY FOR THE DETERMINATION OF THE COMPTROLLER CAN NOT BE SUBMITTED TO THE ATTORNEY GENERAL FOR HIS OPINION MERELY BECAUSE IT MAY INCIDENTALLY INVOLVE SOME POWER OR THE EFFECT OF SOME POWER CLAIMED TO EXIST IN THE HEAD OF A DEPARTMENT. (SEE, FOR EXAMPLE, 25 OP. 301, 28 OP. 129.) THE SAME RULE NECESSARILY APPLIES TO THE COMPTROLLER GENERAL, IN WHOM IS VESTED ALL THE POWER FORMERLY CONFERRED BY LAW UPON THE COMPTROLLER OF THE TREASURY. (ACT OF JUNE 10, 1921, CH. 18, SEC. 304, 42 STAT. 20, 24.)

I HAVE THE HONOR, THEREFORE, TO ADVISE YOU THAT I DO NOT DEEM IT PROPER TO EXPRESS MY OPINION UPON THE QUESTION SUBMITTED BY YOU.

UPON RECONSIDERATION MY DECISION OF OCTOBER 29, 1925, MUST BE AND IS AFFIRMED.