B-223872, NOV 25, 1986

B-223872, NOV 25, 1986

CIVILIAN PERSONNEL - TRAVEL - MEDICAL EMERGENCIES - TRAVEL EXPENSES - REIMBURSEMENT DIGEST: EMPLOYEE ON TEMPORARY DUTY TRAVEL MAY BE REIMBURSED COSTS OF MEDICALLY NECESSITATED AIR AMBULANCE TRANSPORTATION SERVICES FOR HERSELF AND INFANT SON PREMATURELY BORN DURING EMPLOYEE'S TEMPORARY DUTY ASSIGNMENT. THE GOVERNMENT MAY ABSORB THESE COSTS UNDER 5 U.S.C. SEC. 5702(B) AND PARA. 1- 2.4 OF THE FEDERAL TRAVEL REGULATIONS, WHICH PROVIDE THAT AN EMPLOYEE, INCAPACITATED BY ILLNESS OR INJURY NOT DUE TO HIS OWN MISCONDUCT WHILE ON OFFICIAL TRAVEL AWAY FROM HIS DUTY STATION, IS ENTITLED TO PER DIEM AND "APPROPRIATE TRANSPORTATION EXPENSES" TO HIS DESIGNATED POST OF DUTY. CONSTRUE THE TERM "APPROPRIATE TRANSPORTATION EXPENSES" TO BE BROAD ENOUGH TO AUTHORIZE PAYMENT OF THE AIR AMBULANCE TRANSPORTATION EXPENSES ESSENTIAL FOR THE SAFE RETURN OF THE NEWBORN CHILD TO THE DUTY STATION.

LUCY B. CUSICK - REIMBURSEMENT FOR TRAVEL EXPENSES - AIR AMBULANCE:

THE ASSISTANT SECRETARY FOR MANAGEMENT AND BUDGET OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES ASKS WHETHER THE GOVERNMENT MAY REIMBURSE MS. LUCY B. CUSICK FOR THE EMERGENCY TRAVEL OF HERSELF AND HER DEPENDENT, A NEWBORN INFANT SON, WHERE MEDICAL NECESSITY REQUIRED TRANSPORTATION BY AN AIR AMBULANCE DURING MS. CUSICK'S OFFICIAL TRAVEL AS AN EMPLOYEE OF THE GOVERNMENT. WE HOLD THAT, IF OTHERWISE PROPERLY ITEMIZED AND DOCUMENTED, THE $3,650.40 CASH PAYMENT MADE BY THE CUSICKS FOR THE COSTS INCURRED IN UTILIZING THE EMERGENCY AIR AMBULANCE IN THE UNIQUE CIRCUMSTANCES OF THIS CASE MAY BE REIMBURSED IN FULL BY THE AGENCY.

ON MONDAY AFTERNOON, NOVEMBER 18, 1985, MS. CUSICK DEPARTED BY COMMERCIAL AIR CARRIER FROM ATLANTA, GEORGIA, HER OFFICIAL DUTY STATION, TO SOUTH BEND, INDIANA, UNDER A CENTERS FOR DISEASE CONTROL'S NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH TRAVEL ORDER DATED NOVEMBER 12, 1985, AUTHORIZING THE PERFORMANCE OF OFFICIAL GOVERNMENT BUSINESS. AT THE TIME OF THIS OFFICIAL GOVERNMENT TRAVEL, MS. CUSICK WAS 6 MONTHS PREGNANT AND TRAVELED WITH THE CONSENT OF HER PHYSICIAN AND THE APPROVAL OF COGNIZANT AGENCY MANAGEMENT OFFICIALS.

WHILE ON OFFICIAL DUTY ON NOVEMBER 22, 1985, MS. CUSICK WAS HOSPITALIZED IN SOUTH BEND, INDIANA; SHE DELIVERED A 2 1/2 POUND SON BY EMERGENCY CAESAREAN SECTION THE FOLLOWING DAY. SHE WAS HOSPITALIZED UNTIL NOVEMBER 29, AND REMAINED IN SOUTH BEND UNTIL SHE WAS ABLE TO TRAVEL. BECAUSE OF SEVERE MEDICAL COMPLICATIONS, HER PREMATURE SON NEEDED SPECIALIZED CARE UNAVAILABLE IN SOUTH BEND, AND ON DECEMBER 4, MS. CUSICK ACCOMPANIED HIM IN AN AIR AMBULANCE TO ATLANTA, IN THE VICINITY OF HER HOME OF RECORD FORM WHICH SHE WAS TRAVELING ON OFFICIAL GOVERNMENT BUSINESS. THE MEDICAL NECESSITY FOR THE AIR AMBULANCE IS SUPPORTED BY A DOCTOR'S REPORT DATED DECEMBER 10, 1985, WHICH SPECIFICALLY DETAILS THE NEED FOR A SURGICAL PROCEDURE THAT COULD NOT BE CARRIED OUT AT THE LOCAL HOSPITAL. THE NEAREST FACILITY THAT COULD PROVIDE THE NECESSARY SURGERY WAS INDIANA UNIVERSITY AT INDIANAPOLIS, 3 HOURS AWAY. AN ALTERNATIVE RECOMMENDED BY THE DOCTOR WAS AIR AMBULANCE TRANSPORT TO ATLANTA, GEORGIA, AND EMORY UNIVERSITY WHERE NECESSARY FACILITIES WOULD ALSO BE AVAILABLE. THE 2 1/2 HOUR AIR AMBULANCE TRIP WOULD ALSO MAKE HIS PARENTS MORE IMMEDIATELY AVAILABLE AS SUPPORT FOR THE PATIENT HIMSELF-- A VERY IMPORTANT FACTOR IN THE PATIENT'S SURVIVAL, ACCORDING TO THE DOCTOR'S REPORT.

CONGRESS HAS PROVIDED IN 5 U.S.C. SEC. 5702(B) THAT, UNDER REGULATIONS PRESCRIBED BY THE ADMINISTRATOR OF GENERAL SERVICES, AN EMPLOYEE, INCAPACITATED BY ILLNESS OR INJURY NOT DUE TO HIS OWN MISCONDUCT WHILE ON OFFICIAL TRAVEL AWAY FROM HIS DUTY STATION, IS ENTITLED TO PER DIEM AND APPROPRIATE TRANSPORTATION EXPENSES TO HIS DESIGNATED POST OF DUTY. THE IMPLEMENTING REGULATIONS IN PARA. 1-2.4 (SUPP. 4, AUG. 23, 1982), INCORP. BY REF., 41 C.F.R. SEC. 101-7.003 (1985), OF THE FEDERAL TRAVEL REGULATIONS PROVIDE FOR TRANSPORTATION EXPENSES TO THE POST OF DUTY WITHOUT SPECIFICALLY DESCRIBING THE KIND OF EXPENSES THAT MAY BE PAID BY THE GOVERNMENT TO THE INCAPACITATED EMPLOYEE.

IN B-127109, APRIL 6, 1956, WE ALLOWED THE EXPENSES OF AN AMBULANCE AND AN ATTENDANT REQUIRED FOR THE RETURN OF A STRICKEN EMPLOYEE TO HIS PERMANENT DUTY STATION. THIS DECISION OBSERVED THAT THE ACT OF APRIL 26, 1950, 64 STAT. 89, FROM WHICH 5 U.S.C. SEC. 5702(B) IS DERIVED, WAS ENACTED "TO OVERCOME IN SOME MEASURE INEQUITIES AND HARDSHIPS ARISING WHEN AN EMPLOYEE BECOMES ILL OR IS INJURED WHILE IN A TRAVEL STATUS AND COMPELLED TO PERSONALLY ASSUME ALL EXPENSES INCLUDING SUBSISTENCE AND TRANSPORTATION COSTS." SEE S. REP. NO. 1364, 81ST CONG., 2D SESS., AT 1-2 (1950).

CONGRESS HAS RECENTLY FURTHER BROADENED THE SCOPE OF 5 U.S.C. SEC. 5702(B) BY ITS PASSAGE OF THE FEDERAL CIVILIAN EMPLOYEE AND CONTRACTOR TRAVEL EXPENSES ACT OF 1985, PUB.L. 99-234, 99 STAT. 1756, JANUARY 2, 1986. SECTION 5702(B) NOW PROVIDES STATUTORY AUTHORITY FOR TRAVEL TO AN ALTERNATE LOCATION BECAUSE OF INJURY OR ILLNESS, AND TO RETURN TRAVEL HOME BECAUSE OF PERSONAL EMERGENCIES. IN COMMENTING ON THE CHANGES THE COMMITTEE ON GOVERNMENT OPERATIONS SAID: "IF THE EMPLOYEE HAS TO INCUR ADDITIONAL TRANSPORTATION AND SUBSISTENCE EXPENSES AS A RESULT OF BEING ON TRAVEL, THE GOVERNMENT SHOULD PAY THE DIFFERENCE SO AS TO MAKE THE EMPLOYEE WHOLE." SEE H.R. REP. NO. 99-602, 99TH CONG., 2D SESS., AT 6 (1985).

WE FIND IN THIS SMALL BUT SIGNIFICANT AMALGAM OF CASE PRECEDENT AND CONGRESSIONAL INTENT THE LOGIC THAT SUPPORTS OUR DETERMINATION THAT THE MEDICALLY NECESSITATED AIR AMBULANCE TRANSPORTATION EXPENSE WAS ESSENTIAL TO THE ACCOMPLISHMENT OF THE PURPOSE OF MS. CUSICK'S STILL OFFICIAL TRAVEL, THAT IS, THE SAFE RETURN OF MOTHER-EMPLOYEE AND NEWBORN CHILD TO THE DUTY STATION. CLEARLY, THIS EXPENSE WOULD NOT HAVE BEEN INCURRED BUT FOR THE FACT THAT MS. CUSICK WAS ON TRAVEL FOR THE GOVERNMENT. THEREFORE, THE CLAIM IS ALLOWED.