B-108259, MARCH 18, 1952, 31 COMP. GEN. 472

B-108259, MARCH 18, 1952, 31 COMP. GEN. 472

MEDICAL TREATMENT - DISTRICT OF COLUMBIA FIREMEN INJURED IN LINE OF DUTY A FIREMAN WHO WAS BURNED PREPARING HOT MEALS WHILE ON DUTY AT THE QUARTERS OF AN ENGINE COMPANY AND TREATED IN A CIVILIAN HOSPITAL MAY BE REGARDED AS HAVING BEEN INJURED "IN THE ACTUAL DISCHARGE OF HIS DUTY" WITHIN THE MEANING OF THAT PHRASE AS USED IN ACT OF SEPTEMBER 1, 1916, WHICH PROVIDES THAT EXPENSES FOR SUCH TREATMENT SHALL BE PAID FROM THE POLICEMEN AND FIREMEN'S RELIEF FUND.

COMPTROLLER GENERAL WARREN TO A. R. PILKERTON, GOVERNMENT OF THE DISTRICT OF COLUMBIA, MARCH 18, 1952:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1952, TRANSMITTING A VOUCHER STATED IN FAVOR OF THE EASTERN DISPENSARY AND CASUALTY HOSPITAL IN THE AMOUNT OF $8.50, REPRESENTING THE CHARGE FOR SERVICES RENDERED TO PRIVATE WALTER F. FERNEN OF THE DISTRICT OF COLUMBIA FIRE DEPARTMENT ON OCTOBER 18, 1951, AND REQUESTING A DECISION AS TO WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT UNDER THE PROVISIONS OF TITLE 4, SECTION 506 OF THE 1940 D.C. CODE, 39 STAT. 718, SEPTEMBER 1, 1916.

THE CITED PROVISION OF THE D.C. CODE IS AS FOLLOWS:

WHENEVER ANY MEMBER OF THE POLICE DEPARTMENT OR THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA SHALL BECOME TEMPORARILY DISABLED BY INJURY RECEIVED OR DISEASE CONTRACTED IN THE ACTUAL DISCHARGE OF HIS DUTY, TO SUCH AN EXTENT AS TO REQUIRE MEDICAL OR SURGICAL SERVICES OTHER THAN SUCH AS CAN BE RENDERED BY THE BOARD OF POLICE AND FIRE SURGEONS OF SAID DISTRICT, OR TO REQUIRE HOSPITAL TREATMENT, THE EXPENSES OF SUCH MEDICAL OR SURGICAL SERVICES, OR HOSPITAL TREATMENT, SHALL BE PAID FROM THE POLICEMEN AND FIREMEN'S RELIEF FUND, DISTRICT OF COLUMBIA, PROVIDED FOR IN SECTIONS 4-501, 4-503, 4-506 TO 4-510, 4 512 TO 4-514; BUT NO SUCH EXPENSE SHALL BE PAID EXCEPT UPON A CERTIFICATE OF THE SAID BOARD OF POLICE AND FIRE SURGEONS, OR TWO MEMBERS THEREOF, SETTING FORTH THE NECESSITY FOR SUCH SERVICES OR TREATMENT AND THE NATURE OF THE INJURY OR DISEASE WHICH RENDERED THE SAME NECESSARY, AND UPON THE APPROVAL OF THE SAID CERTIFICATE BY THE SUPERINTENDENT OF THE METROPOLITAN POLICE OR THE CHIEF ENGINEER OF THE FIRE DEPARTMENT, AS THE CASE MAY BE, AND THE APPROVAL OF THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA. ( ITALICS SUPPLIED.)

THE RECORD INDICATES THAT ON OCTOBER 18, 1951, WHILE HE WAS ON DUTY AND CONFINED TO THE QUARTERS OF ENGINE COMPANY NO. 8, PRIVATE FERNEN WAS BURNED ABOUT THE RIGHT FOREARM AND BOTH ANKLES WHILE TURNING OFF THE FIRE UNDER A GLASS COFFEE MAKER ON THE STOVE IN THE QUARTERS OF SAID ENGINE COMPANY AND WAS TREATED THEREFOR AT THE EASTERN DISPENSARY AND CASUALTY HOSPITAL ON THE SAME DATE.

YOUR LETTER QUOTES THE FOLLOWING STATEMENT FROM THE DECISION OF THIS OFFICE DATED MARCH 3, 1926, 5 COMP. GEN. 685, 687:

* * * THE STATUTORY LIMITATION PRECLUDES PAYMENT FOR MEDICAL OR SURGICAL SERVICES, OTHER THAN SUCH AS CAN BE RENDERED BY THE BOARD OF POLICE AND FIRE SURGEONS, ALSO HOSPITAL TREATMENT, EXCEPT IN CASES OF "INJURY RECEIVED OR DISEASE CONTRACTED IN THE ACTUAL DISCHARGE OF HIS DUTY," AND IT APPEARS CLEAR THAT BY NO PROPER CONSTRUCTION OF THE PHRASE "IN THE ACTUAL DISCHARGE OF HIS DUTY" COULD IT BE MADE TO INCLUDE EATING, SLEEPING, OR REST PERIODS, OR PERIODS OF ANNUAL LEAVE, SICK LEAVE, DAYS OFF DUTY, ETC. 10 COMP. DEC. 789.

THIS WAS A BROAD STATEMENT FOR GENERAL APPLICATION, EMPLOYED IN VIEW OF THE CONTENTION IN SUPPORT OF THE REQUEST FOR REVIEW IN THE MATTER THERE PRESENTED TO THE EFFECT THAT POLICE AND FIREMEN WERE "ON DUTY" 24 HOURS DAILY AND EVERY DAY IN THE YEAR, AND WAS INTENDED TO ELIMINATE INJURIES RECEIVED OR DISEASES CONTRACTED BY POLICE OR FIREMEN ON THEIR "OFF DAYS" OR "OFF HOURS" AS DIFFERENTIATED FROM THOSE OCCURRING WHILE IN THE ACTUAL DISCHARGE OF THEIR DUTIES.

IT IS APPARENT THAT IN INTERPRETING THE PHRASE "IN THE ACTUAL DISCHARGE OF HIS DUTY" CONSIDERATION MUST BE GIVEN TO THE NATURE OF THE DUTY OF A FIREMAN. WHEN A FIREMAN IS "ON DUTY," HIS DUTY IS PRIMARILY TO FIGHT FIRES AND SECONDARILY TO WAIT AT THE QUARTERS OF THE COMPANY TO WHICH HE IS ASSIGNED IN PREPARATION FOR AN ALARM. WHILE ON DUTY, HE CAN LEAVE HIS ASSIGNED QUARTERS ONLY ON OFFICIAL DETAILS OR IN RESPONSE TO AN ALARM, AND SLEEPING AND EATING QUARTERS AND FACILITIES FOR PREPARING MEALS ARE FURNISHED FOR THIS REASON. IT IS CLEAR THAT, IN THE ABSENCE OF A CALL TO A FIRE OR AN OFFICIAL DETAIL, AN "ON DUTY" FIREMAN IS DISCHARGING HIS DUTY BY REMAINING IN HIS ASSIGNED QUARTERS, EVEN AT SUCH TIMES AS HE MAY BE EATING OR SLEEPING THEREIN. AN "ON DUTY" FIREMAN HAS NO ACTUAL EATING AND SLEEPING PERIODS IN THE SENSE IN WHICH THOSE WORDS WERE USED IN THE DECISION OF MARCH 3, 1926--- THAT IS, PERIODS WITHIN HIS REGULAR TOUR OF DUTY DURING WHICH HE IS REGULARLY AND TOTALLY EXCUSED FROM DUTY--- BUT MUST RESPOND IMMEDIATELY TO AN ALARM AT ANY TIME, REGARDLESS OF WHETHER HE IS EATING, SLEEPING, CLEANING EQUIPMENT, OR JUST WAITING.

ACCORDINGLY, IT APPEARS THAT THE INJURY TO PRIVATE FERNEN IN THE INSTANT CASE WAS "RECEIVED * * * IN THE ACTUAL DISCHARGE OF HIS DUTY" WITHIN THE MEANING OF THE QUOTED PROVISION OF THE D.C. CODE AND, IF OTHERWISE CORRECT, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT.