B-209040.OM., NOV 29, 1982

B-209040.OM., NOV 29, 1982

SUBJECT: MEDICAL EXPENSES ARISING FROM FITNESS FOR DUTY EXAMINATION OF JOHN G. OVERDORF - B-209040-O.M.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

RETURNED ARE YOUR FILES Z-2834458, Z-2834459 AND Z-2834460. WE REFER TO YOUR SEPTEMBER 1982 REQUEST FOR INSTRUCTIONS REGARDING THE CLAIMS OF MR. JOHN J. OVERDORF, THE CARDIOVASCULAR MEDICAL GROUP, AND DR. E. T. ANDERSON FOR REIMBURSEMENT OF MEDICAL EXPENSES RESULTING FROM A FITNESS-FOR-DUTY EXAMINATION. FOR THE REASONS THAT FOLLOW, THE ABOVE MENTIONED CLAIMS SHOULD BE PAID, IF OTHERWISE APPROPRIATE.

MR. OVERDORF, AN EMPLOYEE OF THE NAVY PUBLIC WORKS CENTER (PWC), SAN FRANCISCO BAY, CALIFORNIA, EXPERIENCED SEVERAL EPISODES OF LOSS OF CONSCIOUSNESS AND IRREGULAR HEARTBEAT WHILE ON THE JOB. ON ONE OF THESE OCCASIONS, HE WAS OPERATING A GOVERNMENT VEHICLE AND DROVE OFF THE ROAD. THE PWC DIRECTED MR. OVERDORF TO HAVE A FITNESS-FOR-DUTY EXAMINATION BECAUSE OF CONCERN OVER HIS ABILITY TO PERFORM HIS ASSIGNED DUTIES. MR. OVERDORF ELECTED NOT TO BE EXAMINED BY A NAVY DOCTOR AND SUBMITTED A LIST OF FIVE DOCTORS HE WAS WILLING TO HAVE EXAMINE HIM. THE PWC SELECTED DR. NEIL K. WHITE FROM THE LIST AND ARRANGED AN APPOINTMENT WITH HIM FOR MR. OVERDORF TO TAKE PLACE ON JULY 23, 1980. PRIOR TO THE EXAMINATION, DR. WHITE'S SECRETARY ESTIMATED THAT THE EXAMINATION WOULD COST APPROXIMATELY $250. DR. WHITE WAS REQUESTED TO CONDUCT A COMPREHENSIVE EXAMINATION OF MR. OVERDORF'S PHYSICAL CAPABILITIES AND TO SUBMIT A REPORT OF FINDINGS AND RECOMMENDATIONS.

DR. WHITE PERFORMED THE EXAMINATION, AS SCHEDULED, ON JULY 23, 1980. HOWEVER, HE FOUND IT NECESSARY TO ADMIT MR. OVERDORF TO THE HOSPITAL FOR ADDITIONAL CARDIOVASCULAR TESTS. HE WAS HOSPITALIZED FROM JULY 23 TO JULY 25, 1980. ON JULY 29, 1980, DR. WHITE SUBMITTED A FULL REPORT OF HIS FINDINGS TO THE PWC.

THE COSTS WERE AS FOLLOWS: $1,978.55 (HOSPITAL CHARGES), $209 (DR. WHITE'S EXAMINATION), $175 (CARDIOVASCULAR MEDICAL GROUP AND $726 (DR. E. T. ANDERSON). OF THE HOSPITAL CHARGES, $1,832.94 WAS PAID BY AETNA LIFE AND CASUALTY, MR. OVERDORF'S INSURER. DR. WHITE'S BILL WAS PAID BY THE PWC. MR. OVERDORF PAID THE BALANCE OWING TO THE HOSPITAL ($145.61). SEEKS REIMBURSEMENT FOR THE AMOUNT HE PERSONALLY PAID AND PAYMENT OF THE AMOUNTS STILL OWING TO THE CARDIOVASCULAR MEDICAL GROUP AND DR. ANDERSON.

CHAPTER 339, S1-3C OF THE FEDERAL PERSONNEL MANUAL (FPM) PROVIDES THAT AGENCIES HAVE THE AUTHORITY TO DIRECT EMPLOYEES TO TAKE FITNESS FOR-DUTY MEDICAL EXAMINATIONS. ALTHOUGH SUCH EXAMINATIONS ARE USUALLY CONDUCTED BY A FEDERAL MEDICAL OFFICER, THE EMPLOYEE MAY CHOOSE TO BE EXAMINED BY A PHYSICIAN OF HIS CHOICE SUBJECT TO THE FOLLOWING CONDITIONS:

"(1) THE AGENCY DETERMINES THAT SUCH MEDICAL EXAMINATION IS NECESSARY PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT;

"(2) THE PHYSICIAN IS BOARD-CERTIFIED IN THE APPROPRIATE MEDICAL SPECIALTY AND ACCEPTABLE TO THE AGENCY; AND

"(3) THE PHYSICIAN SUBMITS A COMPLETE REPORT OF THE EXAMINATION DIRECTLY TO THE AGENCY."

THE SAME SECTION ALSO PROVIDES THAT WHEN AN AGENCY OBTAINS A FITNESS-FOR- DUTY MEDICAL EXAMINATION, WHETHER BY A FEDERAL MEDICAL OFFICER OR EMPLOYEE DESIGNATED PHYSICIAN, THERE MUST BE NO COST TO THE EMPLOYEE. FURTHER, THE COMPTROLLER GENERAL HAS RULED THAT AGENCIES HAVE AUTHORITY TO PAY FOR SUCH MEDICAL EXAMINATIONS FROM PUBLIC FUNDS. SEE 41 COMP.GEN. 531 (1962).

MR. OVERDORF'S EXAMINATION HAS CLEARLY SATISFIED THE LAST TWO CONDITIONS OF THE FPM REGULATION. HOWEVER, A FACTUAL DETERMINATION MUST BE MADE AS TO WHETHER THE EXAMINATION WAS PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT. SEE B-155489, DECEMBER 10, 1964.

A GOOD EXAMPLE OF A SITUATION WHERE THE FITNESS-FOR-DUTY EXAMINATION OF AN EMPLOYEE WAS PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT IS B-145456, JULY 3, 1961. WE HELD THAT FITNESS-FOR-DUTY EXAMINATIONS OF PILOTS OPERATING GOVERNMENT HELICOPTERS WERE REQUIRED TO PREVENT ACCIDENTS CAUSING INJURY OR DEATH OF GOVERNMENT PERSONNEL, AND PROPERTY DAMAGE. SUCH THEY WERE PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT.

IN 41 COMP.GEN. 531, CITED ABOVE, WE HELD THAT FITNESS-FOR-DUTY EXAMINATIONS OF EMPLOYEES WHO WERE ENGAGED IN OPERATING HEAVY EQUIPMENT, WERE PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT, SINCE THE EXAMS WOULD LESSEN THE CONSEQUENCES OF ACCIDENTS DUE TO UNDISCLOSED PHYSICAL WEAKNESSES. SUCH ACCIDENTS COULD BE EXPENSIVE IN TERMS OF COMPENSATION AND PROPERTY LOSS OR DAMAGE, AND MIGHT RESULT IN INJURY OR LOSS OF LIFE TO THE EMPLOYEES.

MR. OVERDORF IS A CARPENTER. HIS WORK HAS BEEN DESCRIBED AS ARDUOUS AND REQUIRING RAPID MENTAL AND MUSCULAR COORDINATION. ENVIRONMENTAL REQUIREMENTS INCLUDE WORKING ON SLIPPERY AND UNEVEN SURFACES, AND WORKING AROUND MOVING OBJECTS AND MACHINERY WITH MOVING PARTS. HE IS ALSO REQUIRED TO WORK ON LADDERS OR SCAFFOLDING AND OPERATE A GOVERNMENT MOTOR VEHICLE. IT IS EVIDENT THAT AN EPISODE OF LOSS OF CONSCIOUSNESS WHILE ON THE JOB COULD PROVE HAZARDOUS, NOT ONLY FOR MR. OVERDORF, BUT ALSO FOR THE PERSONNEL AT HIS WORKPLACE. AN ACCIDENT, OCCURRING AS A RESULT OF AN UNDETERMINED ILLNESS COULD PROVE EXPENSIVE TO THE GOVERNMENT, MUCH IN THE SAME WAY AS IN THE ABOVE-MENTIONED DECISIONS OF THIS OFFICE.

ADDITIONALLY, IN A LETTER TO THE CLAIMS GROUP FROM THE NAVY REGIONAL FINANCE CENTER DATED DECEMBER 29, 1981, IT IS STATED THAT "THE RECORD IS CLEAR THAT PWC OFFICIALS DEEMED IT NECESSARY THAT MR. OVERDORF BE GIVEN A COMPLETE EXAMINATION AND THAT THE GOVERNMENT RECEIVED THE BENEFIT OF THE HOSPITALIZATION AND CARDIAC TESTING PERFORMED." THE AGENCY HAS ALSO REQUESTED FAVORABLE CONSIDERATION OF MR. OVERDORF'S CLAIMS.

ALTHOUGH THE EXPENSES INCURRED FAR EXCEEDED THOSE ORIGINALLY ANTICIPATED, MR. OVERDORF'S EXAMINATION MEETS THE CONDITIONS IMPOSED BY FPM CHAPTER 339, S1-3C, AND DECISIONS OF THIS OFFICE. ACCORDINGLY, THE CLAIM MAY BE ALLOWED.

CONSIDERATION OF A POTENTIAL CLAIM FOR REIMBURSEMENT BY MR. OVERDORF'S INSURER IS NOT NECESSARY AT THIS TIME SINCE THE GOVERNMENT HAS NOT BEEN BILLED AND THE CLAIM IS MERELY HYPOTHETICAL AT THIS POINT.

CONGRESSMAN DON EDWARDS HAS EXPRESSED AN INTEREST IN THIS CLAIM, AND WE HAVE ADVISED HIM BY LETTER, DATED TODAY, OF OUR DETERMINATION THAT THE CLAIM IS PAYABLE AND WILL BE PROCESSED PROMPTLY.