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HENRY B. TUCKER

FEBRUARY 13, 1945.-Committed to the Committee of the Whole House and

ordered to be printed

Mr. KEOGH, from the Committee on Claims, submitted the following

REPORT

To accompany H R. 14851

The Committee on Claims, to whom was referred the bill (H. R. 1485) for the relief of Henry B. Tucker, having considered the same, report favorably thereon without amendment and recommend that the bill do pass.

A similar bill was favorably reported by this committee in the Seventy-eighth Congress.

The facts will be found fully set forth in House Report No. 223, of the Seventy-eighth Congress, which is appended hereto and made a part of this report.

The purpose of the proposed legislation is to waive sections 15 to 20, inclusive, of the act entitled, “An act to provide compensation for employees of the United States suffering injuries while in the performance of their duties, and for other purposes," approved September 7, 1916, as amended, in behalf of Henry B. Tucker, of Vicksburg, Miss., and allow the Commission to consider the claim upon its merits, for disabilities alleged to have been incurred by him on April 8, 1940, while an employee of the United States Engineer Office, Vicksburg, Miss. The facts of the case will be found fully set forth in a report from the Employees' Compensation Commission, dated August 19, 1941, addressed to the Honorable Dan R. McGehee, chairman of this committee, which is appended hereto and made a part of this report.

Your committee recommend favorable consideration to the bill.

WAR DEPARTMENT,

Washington, September 29, 1941. Hon. Dan R. McGEHEE, Chairman, Committee on Claims,

House of Representatives, Washington, D. C. DEAR MR. McGEnEE: Careful consideration has been given to the bill H. R. 5381, Seventy-seventh Congress, for the relief of Henry B. Tucker, which you transmitted to the War Department under date of August 21, 1941, with request for information and the views of the Department relative thereto.

The records of this Department show that Mr. Henry B. Tucker had intermittent service in the Corps of Engineers at various rates of pay from May 18, 1926, to September 9, 1929, and that he was probationally appointed as inspector on September 10, 1929, at $1,620 per annum. The eligibility of Mr. Tucker for probational appointment was attained as the result of a civil-service application filed by him in 1929 for the position of inspector, materials and supplies. The medical certificate which formed a part of the application form was executed by Dr. C. P. Thompson, Greenville, Miss., on April 9, 1929, and, in answer to the items of “Tuberculosis”? and“If arrested, how long?”, under item 7 of the medical certificate, reading, “Has the applicant now, or has he ever had, any of the following defects? (Answer 'Yes' or 'No' to each inquiry. In case answer is ‘Yes,' describe fully under question 11 below.),” the physician answered "No" as to “Tuberculosis?”, and simply placed a check mark after “If arrested, how long?".

It is understood that Mr. Tucker now claims that he contracted his present disability from tuberculosis by reason of having been quartered while in the Government service during the period April 9, 1928, to some time in 1929, with Murray E. Neal, gasoline engineman, and by reason of having been quartered from 1934 to 1936 with Emmett H. Neal, foreman (revetment), a brother of Murray E. Neal, both of which employees, he states, were afflicted with tuberculosis.

The only medical certificate on file in this office in the case of Murray E. Neal, gasoline engineman, is he one which forms a part of a civil-service application filed by him in 1928, and this medical certificate, executed by Dr. B. C. Clark, Lake Village, Ark., on March 6, 1928, is identical as to the answers as to tuberculosis to those referred to above as appearing in the medical certificate pertaining to the civil-service application of Henry B. Tucker, that is, the answers are negative.

From the foregoing it will be seen that medical certificates executed in connection with civil-service applications cannot be accepted as definitely establishing whether or not the applicant has tuberculosis, or if they do definitely establish this fact, then neither Mr. Tucker nor Mr. Murray E. Neal was afflicted with tuberculosis at the time of their being quartered together as indicated above.

The medical certificate forming a part of civil-service application of Emmett H. Neal for the position of foreman, filed in 1926, and which medical certificate was executed by Dr. A. S. Lee, Foote, Miss., on May 10, 1926, showed a negative answer to item 9, reading “Are there any indications of disease or of derangement of function of the organs of respiration or their appendages?” The medical certificate executed by Dr. F. M. Acree, Greenville, Miss., on January 1, 1933, after Mr. Emmett H. Neal entered on duty under probational appointment on December 27, 1932, as foreman (revetment), showed simply a check mark as to item 8, "Lungs, right and left," and contained no notation after the supplemental question “If history of tuberculosis, has it been arrested for 1 year?"Check marks were commonly used by physicians on these medical certificates to indicate that the items had been checked but that no disease or abnormality was found to exist. Medical certificates executed by Mr. Emmett H. Neal in connection with applications for leave in July, August, and September 1936. gave the nature of illness as “Pulmonary tuberculosis,” “Chr. pul. tuberculosis," and "Chr. pul. tuberculosis," respectively.

It will therefore be seen that, insofar as records of the Department are concerned, it had no evidence of Mr. Tucker or either of the two Neal brothers being afflicted with tuberculosis at the time Mr. Tucker claims he was quartered with one or the other of the Neal brothers. No record is maintained of what quarters are actually occupied on vessels by personnel for particular periods of time, and it therefore could not be established from the records whether or not Mr. Tucker was actually quartered with the Neal brothers. It is possible, however, that this fact could be determined by interviewing persons who were in the service at the time.

It appears that, if it can be established as a fact that Mr. Tucker was not afflicted with tuberculosis at the time he alleges he was quartered with the Neal brothers, and that they were afflicted with tuberculosis at the time he alleges he was quartered with them, it might be established, upon investigation by the United States Employees' Compensation Commission, that the tuberculosis, insofar as Mr. Tucker is concerned, was an occupational disease; that is, that it was proximately caused by his employment, and that, except for the fact that consideration of nis claim may not be given because of expiration of time within which such claims must be submitted, his disability might now be determined to be compensable.

In view of the fact that it is such a rare occurrence that a disease can be established as an occupational disease and thus form the basis of compensation pay: able by the United States Employees' Compensation Commission, it is considered that Mr. Tucker should be regarded as excusable for not having submitted a notice of injury or a claim for compensation within the allotted time. It is therefore recommended that, since the proposed bill does not per se establish the employee's eight to compensation, but simply extends the period of time within which the United States Employees' Compensation Commission may receive and consider the employee's claim, the enactment of the bill be given favorable consideration, particularly as such action will tend to assure that, if justly entitled to compensation, the employee shall receive the benefit of such compensation. Sincerely yours,

HENRY L. Stimson, Secretary of War.

UNITED STATES EMPLOYEES' COMPENSATION COMMISSION,

Washington, August 19, 1941. CHAIRMAN, COMMITTEE ON CLAIMS,

House of Representatives, Washington, D. C: DEAR MR. CHAIRMAN: Reference is made to your request for the Commission's report on the bill, H. R. 5381, “For the relief of Henry B. Tucker." The bill provides:

"That the limitations of sections 15 to 20, both inclusive, of the Act entitled 'An Act to provide compensation for employees of the United States suffering injuries while in the performance of their duties, and for other purposes', approved September 7, 1916, as amended, are hereby waived in favor of Henry B. Tucker, of Vicksburg, Mississippi, and the Employees' Compensation Commission is hereby authorized and directed to receive and consider under the remaining provisions of said Act his claim on account of injury and disability alleged to have been incurred on or about April 8, 1940, while performing his duties as an employee of the United States Engineer Office, Vicksburg, Mississippi: Provided, That claim hereunder shall be filed within six months from the approval of this Act: Provided further, That no benefits shall accrue prior to the approval of this Act."

On June 13, 1941, the Commission received a claim (Form C. A. 4) for compensation from Henry B. Tucker in which he stated that on April 8, 1940, while employed as a clerk by the United States Engineer's Office of the War Department, he suffered disability from pulmonary tuberculosis of both lungs and resulted in loss of work and wages from June 13, 1940, and continuing indefinitely thereafter. It appears from a medical certificate which accompanied the claim that Mr. Tucker was suffering from far advanced pulmonary tuberculosis of both lungs for which this claimant received sanitarium treatment from November 2, 1936, to January 6, 1937.

The Compensation Act of September 7, 1916, provides for payment of compensation on account of personal injury sustained by an employee while in the performance of duty, including disease when proximately caused by his employment. The fact that a disabling physical condition may develop during a period of service is not sufficient basis for an award under this act, unless proximately caused by the employment.

Since it did not appear that Mr. Tucker had filed written notice of the alleged injury or claim for compensation within 1 year from the date thereof, as required by the mandatory provisions of sections 15 to 20 of the Federal Employees' Compensation Act of September 7, 1916, the Commission was without authority of law to consider the merits of his claim, and Mr. Tucker's representative was so advised by letter dated June 19, 1941.

The bill, H. R. 5381, is apparently designed merely to waive in favor of Mr. Tucker the bar of time limitations in sections 15 to 20, both inclusive, of the Federal Employees' Compensation Act of September 7, 1916, requiring notice of injury and claim for compensation to be filed within 1 year from the date of injury, and to leave the Commission free to determine the merits of his claim and to afford him such measure of relief as the facts when established may show him to be entitled to under the provisions of the act of September 7, 1916.

Since for the reasons stated above the Commission had no authority to award compensation for this case, no inquiry was made relative to the merits of Mr. Tucker's case and the Commission can therefore make no comment upon the merits of his case.

In view of the foregoing, the Commission makes no recommendation as to the advisability of the enactment of the bill, H. R. 5381. Very truly yours,

(Mrs.) JEWELL W. SWOFFORD, Chairman.

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