B-144985, MAR. 3, 1961

B-144985, MAR. 3, 1961

TO AUTHORIZED CERTIFYING OFFICER, COMMODITY STABILIZATION SERVICE, DEPARTMENT OF AGRICULTURE:

YOUR LETTER, WITH ENCLOSURES, REQUESTS OUR DECISION WHETHER CERTIFICATION FOR PAYMENT MAY BE MADE ON THE RECLAIM VOUCHER THEREWITH TRANSMITTED PROPOSING PAYMENT OF $168 TO MR. F. FONTAINE FREEMAN IV, FOR PER DIEM IN LIEU OF SUBSISTENCE WHILE ON SICK LEAVE FOR THE PERIOD AUGUST 30 THROUGH SEPTEMBER 12, 1960, INCLUSIVE.

YOU SAY THAT MR. FREEMAN WHOSE OFFICIAL HEADQUARTERS IS CHICAGO, ILLINOIS, ENTERED ON SICK LEAVE AT 8:00 A.M., AUGUST 30, 1960, WHILE ON TEMPORARY DUTY AT SIDNEY, NEBRASKA, AND CONTINUED IN A SICK LEAVE STATUS THROUGH CLOSE OF BUSINESS SEPTEMBER 12, 1960, MR. FREEMAN SAYS HE WAS FIRST ATTENDED BY DR. THAYER OF SIDNEY ABOUT AUGUST 18, 1960. DR. THAYER DIAGNOSED HIS ILLNESS AS A SEVERE CASE OF TRACHEA BRONCHITIS AGGRAVATED BY POLLENS IN THE SIDNEY AREA. AFTER DAILY MEDICATION MR. FREEMAN'S CONDITION GREW WORSE AND ON AUGUST 29, 1960, DR. THAYER ADVISED MR. FREEMAN THAT HE SHOULD HAVE A COMPLETE CHANGE OF CLIMATE AND THAT IT WOULD NOT BE DETRIMENTAL TO TRAVEL ANY DISTANCE IN AN AIR-CONDITIONED CAR TO GET OUT OF THE SIDNEY AREA. AS A CONSEQUENCE MR. FREEMAN DID IN FACT DRIVE HIS AIR-CONDITIONED AUTOMOBILE SOME 700 MILES TO SPRINGFIELD, MISSOURI. MR. FREEMAN PROCEEDED AT HIS OWN EXPENSE TO SPRINGFIELD, HIS HOME, INASMUCH AS PAST EXPERIENCE HAD INDICATED THAT HE HAD NEVER HAD BRONCHIAL TROUBLE IN THE OZARKS DURING THE MONTHS OF AUGUST AND SEPTEMBER AND TO SECURE THE SERVICES OF HIS FAMILY PHYSICIAN WHO HAD HIS MEDICAL HISTORY FOR THE PAST 20 YEARS. WHILE AT SPRINGFIELD, MR. FREEMAN WAS ATTENDED BY DR. PARK WHO CONFIRMED DR. THAYER'S DIAGNOSIS AND PRESCRIBED FURTHER MEDICATION. MR. FREEMAN'S CONDITION WAS CONSIDERABLY BETTER WHEN HE LEFT SPRINGFIELD TO RETURN TO SIDNEY TO RESUME WORK. HOWEVER, HIS CONDITION GREW WORSE AS HE ENTERED THE SIDNEY AREA WHERE THE POLLEN COUNT IS VERY HIGH AND AGAIN CONFERRED WITH DR. THAYER. DR. THAYER SUGGESTED THAT HE BE TRANSFERRED TO A DIFFERENT AREA. TO SUPPORT EVIDENCE OF HIS ILLNESS MR. FREEMAN PRESENTED AN "APPLICATION FOR LEAVE" COVERING SICK LEAVE DURING THE PERIOD AUGUST 30, 1960, TO SEPTEMBER 12, 1960. THIS FORM CONTAINS A CERTIFICATE OF PHYSICIAN SIGNED BY DR. THAYER ON SEPTEMBER 12, 1960, REFERRING TO THE EMPLOYEE'S CONDITION AS "SEVERE TRACHEA-BRONCHITIS- AGGRAVATED BY LOCAL POLLENS" AND SUGGESTING HE BE TRANSFERRED TO A DIFFERENT AREA. THERE IS ALSO ON FILE A CERTIFICATE SIGNED BY DR. PARK IN SUPPORT OF SICK LEAVE COVERING THE PERIOD SEPTEMBER 2 TO SEPTEMBER 9, 1960. WE UNDERSTAND THAT WHILE THE HEADQUARTERS OF MR. FREEMAN IS CHICAGO HE TRAVELS EXTENSIVELY IN HIS POSITION AS AN INVESTIGATOR AND DOES NOT MAINTAIN PERMANENT HOME OR RESIDENCE THERE.

CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE WAS MADE FOR 14 DAYS DURING THE PERIOD OF AUGUST 30 THROUGH SEPTEMBER 12, 1960, IN ACCORDANCE WITH SECTION 6.5A OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. PAYMENT OF THE 14 DAYS' PER DIEM WAS SUSPENDED FROM MR. FREEMAN'S AUGUST AND SEPTEMBER VOUCHERS IN THE ABSENCE OF ADMINISTRATIVE APPROVAL WHICH GENERALLY IS A POLICY REQUIREMENT OF YOUR AGENCY PRIOR TO PAYMENT OF ANY VOUCHER.

IN A LETTER DATED SEPTEMBER 7, 1960, MR. MORRIS STICKGOLD, COMPLIANCE OFFICER, IN CHARGE OF THE CHICAGO FIELD OFFICE, COMPLIANCE AND INVESTIGATION DIVISION, AND MR. FREEMAN'S SUPERVISOR MADE THE FOLLOWING STATEMENT REGARDING HIS DISAPPROVAL OF THE CLAIM:

"THE ADMINISTRATIVE REGULATIONS PROVIDING FOR TRAVEL EXPENSES PROVIDES IN SECTION 550.7 (B) THAT PER DIEM MAY CONTINUE FOR PERIODS NOT TO EXCEED 14 DAYS WHEN A TRAVELER IS "INCAPACITATED" BECAUSE OF ILLNESS OR INJURY WHILE IN TRAVEL STATUS. THIS PARAGRAPH ALSO PROVIDES THAT THE PAYMENT OF PER DIEM "DOES NOT INCLUDE PREARRANGED OR PLANNED MEDICAL TREATMENT OR EXAMINATION, OR INSTANCES WHERE TREATMENT CAN BE POSTPONED WITHOUT UNDUE HARDSHIP TO THE TRAVELER.'

"IT DOES NOT APPEAR TO ME THAT A PERSON WHO CAN DRIVE 700 MILES, WHICH WOULD TAKE APPROXIMATELY TWO DAYS, CAN BE CONSIDERED AS "INCAPACITATED," AND IT APPEARS TO ME THAT IN AN INSTANCE OF THIS TYPE WHERE AN EMPLOYEE IN A TRAVEL STATUS BECOMES ILL OR IS ADVISED TO OBTAIN MEDICAL TREATMENT OR REST, AND IS ABLE TO DRIVE A DISTANCE OF 700 MILES SO HE CAN RECEIVE THIS TREATMENT OR REST AT THIS HOME, FALLS WITHIN THE EXCEPTION TO THE PAYMENT OF PER DIEM WHILE ON SICK LEAVE IN THE FIELD. FOR THIS REASON I WILL NOT ADMINISTRATIVELY APPROVE PAYMENT OF PER DIEM FOR THIS PERIOD OF SICK LEAVE TAKEN BY AGENT FREEMAN.'

IN VIEW OF THE CIRCUMSTANCES OUTLINED ABOVE, THE FOLLOWING QUESTIONS ARE PRESENTED FOR OUR CONSIDERATION.

"1. MUST MR. FREEMAN BE CONSIDERED INCAPACITATED FOR DUTY DURING THE PERIOD COVERED BY SICK LEAVE?

"2. IF THE ANSWER TO THE ABOVE IS IN THE AFFIRMATIVE, IS IT MANDATORY UNDER THE REGULATIONS THAT THE PER DIEM RATE BE CONTINUED FOR A PERIOD NOT TO EXCEED 14 DAYS OR DOES THE ADMINISTRATIVE OFFICE HAVE ANY DISCRETION IN APPROVING PAYMENT?

THE CERTIFICATES OF THE ATTENDING PHYSICIANS AT SIDNEY AND AT SPRINGFIELD SAY THAT DURING THE PERIOD IN QUESTION THE CONDITION OF THE EMPLOYEE FROM A MEDICAL STANDPOINT WAS SUCH THAT IT WAS CONSIDERED INADVISABLE FOR THE EMPLOYEE TO REPORT FOR WORK. WE MUST CONSIDER THE EMPLOYEE INCAPACITATED FOR DUTY BECAUSE OF ILLNESS AS WE ARE NOT IN A POSITION TO SUBSTITUTE OUR OPINION FOR THAT OF A QUALIFIED PHYSICIAN. MOREOVER, IN THE CIRCUMSTANCES OF THIS CASE, WE ARE OF THE OPINION THAT THE ABSENCE FROM DUTY WAS NOT PRIMARILY FOR ANY OF THE REASONS SPECIFIED IN THE EXCEPTIONS TO SECTION 550.7 (B) OF THE ADMINISTRATIVE REGULATIONS REFERRED TO BY MR. STICKGOLD IN HIS LETTER OF SEPTEMBER 7.

YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

SECTION 6.5A OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES IN PART AS FOLLOWS:

"6.5 ILLNESS OR INJURY.--- A. WHENEVER A TRAVELER TAKES LEAVE OF ABSENCE OF ANY KIND BECAUSE OF BEING INCAPACITATED DUE TO HIS ILLNESS OR INJURY, NOT DUE TO HIS OWN MISCONDUCT, THE PRESCRIBED PER DIEM IN LIEU OF SUBSISTENCE * * * SHALL BE CONTINUED FOR PERIODS NOT TO EXCEED 14 CALENDAR DAYS * * * IN ANY ONE PERIOD OF ABSENCE * * *. THE EVIDENCE FILED WITH THE AGENCY CONCERNED, AS REQUIRED BY THAT AGENCY UNDER THE ANNUAL-AND SICK- LEAVE REGULATIONS OF THE UNITED STATES CIVIL SERVICE COMMISSION WILL SUFFICE. * * *"

SECTION 6.5A CONTEMPLAES THAT THE PER DIEM ALLOWANCE, WHICH IS PRESCRIBED FOR PERIODS OF OFFICIAL TRAVEL, SHALL CONTINUE AVAILABLE TO THE OFFICER OR EMPLOYEE, IN THE ABSENCE OF ADVANCE ADMINISTRATIVE ACTION TO TERMINATE OR REDUCE THE PER DIEM FOR ALL OR A PORTION OF THE PERIOD EITHER BY BLANKET OR INDIVIDUAL CASE ACTION. THE TERM "SHALL" ORDINARILY IS CONSTRUED IN THE IMPERATIVE OR MANDATORY SENSE, HOWEVER, AND THE REGULATION WOULD VEST NO DISCRETION IN ADMINISTRATIVE OFFICIALS RETROACTIVELY TO DENY AN EMPLOYEE PER DIEM FOR THE SICK LEAVE PERIOD OTHERWISE COMING WITHIN THE TERMS AND LIMITATIONS OF THE TRAVEL REGULATION. WE ASSUME THAT YOUR AGENCY HAS NO REGULATORY PROVISION UNDER WHICH THE RATE OF PER DIEM OF ITS EMPLOYEES IS REDUCED WHILE IN A TRAVEL STATUS AT HIS PLACE OF RESIDENCE. CF. 35 COMP. GEN. 554.

YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.

SINCE MR. FREEMAN WAS ON OFFICIAL BUSINESS AWAY FROM HIS HEADQUARTERS DURING THE PERIOD OF HIS LEAVE OF ABSENCE BECAUSE OF ILLNESS, THE PROVISIONS OF 6.5A, ABOVE, IN THE ABSENCE OF ANY ADMINISTRATIVE REGULATION OR INSTRUCTION TO THE CONTRARY, HAVE THE EFFECT OF CONTINUING HIM IN A TRAVEL AND SUBSISTENCE STATUS DURING THE PERIOD OF SUCH LEAVE; HENCE, HE IS ENTITLED TO RECEIVE PER DIEM IN LIEU OF SUBSISTENCE DURING SUCH LEAVE OF ABSENCE, NOTWITHSTANDING THE FACT THAT HE WAS ABSENT FROM HIS TEMPORARY DUTY STATION AND AT HIS RESIDENCE. SEE 30 COMP. GEN. 511.

THEREFORE, THE VOUCHER, WHICH IS RETURNED, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.