B-220540, MAR 31, 1986

B-220540, MAR 31, 1986

SUBSISTENCE - PER DIEM - ILLNESS, ETC. - WHILE ON TEMPORARY DUTY DIGEST: EMPLOYEE BECAME SERIOUSLY ILL AND WAS HOSPITALIZED WHILE ON TEMPORARY DUTY. UNDER 5 U.S.C. SEC. 5702(B) AND PARAGRAPHS 1-7.5B(1) AND 1-8.4B OF THE FEDERAL TRAVEL REGULATIONS PER DIEM OR ACTUAL SUBSISTENCE EXPENSES SHALL BE CONTINUED FOR A PERIOD NOT TO EXCEED 14 CALENDAR DAYS UNLESS A LONGER PERIOD IS APPROVED. THE EMPLOYEE'S OWN ACTUAL SUBSISTENCE EXPENSES IN A HIGH RATE GEOGRAPHICAL AREA ARE ALLOWED FOR THE ENTIRE PERIOD OF HIS HOSPITALIZATION. HOWEVER, THE EMPLOYEE'S CLAIMS FOR THE COST OF HIS WIFE'S MOTEL ROOM AND THE RENTAL EXPENSES OF THE CAR, WHICH WAS NOT AUTHORIZED ON HIS TRAVEL ORDERS AND WAS RENTED AND USED SOLELY BY HIS WIFE, ARE DENIED.

JAMES A. SISLER-- CONTINUATION OF PER DIEM DURING ILLNESS WHILE ON TEMPORARY DUTY:

MR. V. JOSEPH STARTARI, AN AUTHORIZED CERTIFYING OFFICER WITH THE DEPARTMENT OF ENERGY (DOE), HAS REQUESTED AN ADVANCE DECISION ON WHETHER THE RECLAIM VOUCHER OF MR. JAMES A. SISLER MAY BE CERTIFIED FOR PAYMENT. FOR THE FOLLOWING REASONS, WE CONCLUDE THAT MR. SISLER'S ACTUAL SUBSISTENCE EXPENSES IN A HIGH RATE GEOGRAPHICAL AREA (HRGA), AS WE HAVE OUTLINED BELOW, MAY BE CERTIFIED FOR PAYMENT, BUT HIS CLAIM FOR HIS WIFE'S MOTEL ROOM AND HER CAR RENTAL EXPENSES MAY NOT BE PAID.

THE RECORD SHOWS THAT MR. SISLER, AN EMPLOYEE OF DOE, WAS AUTHORIZED TO TRAVEL FROM WASHINGTON, D.C., TO OAK RIDGE, TENNESSEE, AND RETURN FOR TEMPORARY DUTY (TDY). AFTER CHECKING IN AT HIS MOTEL ON SEPTEMBER 26, 1984, MR. SISLER SUFFERED A HEART ATTACK. UPON THE ADVICE OF MR. SISLER'S DOCTOR, MRS. SISLER AND THEIR TWO SONS IMMEDIATELY FLEW TO OAK RIDGE.

WHILE IN OAK RIDGE, MRS. SISLER STAYED IN MR. SISLER'S MOTEL ROOM FROM SEPTEMBER 27 TO OCTOBER 3, 1984. BETWEEN OCTOBER 4 AND OCTOBER 8, 1984, MRS. SISLER WAS ABLE TO LODGE AT NO COST IN A VACANT HOSPITAL ROOM. ADDITION, MRS. SISLER RENTED A CAR FROM SEPTEMBER 27 TO OCTOBER 4, 1984, BECAUSE THERE WAS A LACK OF ADEQUATE LOCAL COMMERCIAL TRANSPORTATION TO ACCOMMODATE THE UNUSUAL HOURS REQUIRED FOR TRAVEL BETWEEN THE MOTEL, HOSPITAL, AND EATING FACILITIES. ON OCTOBER 9, 1984, MR. SISLER WAS TRANSPORTED BACK TO WASHINGTON, D.C.

ON AUDIT OF HIS ORIGINAL VOUCHER, MR. SISLER'S CLAIM FOR ACTUAL SUBSISTENCE FOR HOTEL EXPENSES DURING THE PERIOD FROM SEPTEMBER 27 TO OCTOBER 3, 1984, IN THE AMOUNT OF $264.81 WAS DISALLOWED ON THE GROUND THAT MR. SISLER DID NOT INCUR THIS EXPENSE SINCE HE WAS HOSPITALIZED. ADDITION, MR. SISLER'S CLAIM FOR REIMBURSEMENT FOR THE COST OF RENTING A CAR FROM SEPTEMBER 27 TO OCTOBER 4, 1984, IN THE AMOUNT OF $176.35 WAS DISALLOWED ON THE GROUND THAT IT WAS NOT USED TO PERFORM GOVERNMENT BUSINESS BY MR. SISLER, BUT WAS USED SOLELY BY MRS. SISLER. FURTHERMORE, MR. SISLER'S TRAVEL AUTHORIZATION DID NOT AUTHORIZE, NOR DID ANY SUBSEQUENT MODIFICATIONS AUTHORIZE THE USE OF A RENTAL CAR.

AFTER THE DISALLOWANCE, MR. SISLER SUBMITTED A RECLAIM VOUCHER IN THE TOTAL AMOUNT OF $441.16, CONSISTING OF CLAIM FOR $264.81 FOR HIS WIFE'S MOTEL ROOM COSTS AND A CLAIM FOR REIMBURSEMENT OF $176.35 FOR CAR RENTAL EXPENSES. MR. SISLER CONTENDS THAT HE IS ENTITLED TO REIMBURSEMENT FOR BOTH ITEMS BECAUSE THESE EXPENSES WERE INCURRED AS A RESULT OF HIS BEING AWAY FROM HIS PERMANENT DUTY STATION ON TDY AND THE EMERGENCY SITUATION.

THE STATUTE WHICH GOVERNS THE REIMBURSEMENT OF EXPENSES OF EMPLOYEES WHO BECOME INCAPACITATED WHILE ON TDY AWAY FROM THEIR PERMANENT DUTY STATION IS 5 U.S.C. SEC. 5702(B) (1982), WHICH PROVIDES:

"(B) UNDER REGULATIONS PRESCRIBED UNDER SECTION 5707 OF THIS TITLE, AN EMPLOYEE WHO, WHILE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY OR, IN THE CASE OF AN INDIVIDUAL DESCRIBED UNDER SECTION 5703 OF THIS TITLE, HIS HOME OR REGULAR PLACE OF BUSINESS, BECOMES INCAPACITATED BY ILLNESS OR INJURY NOT DUE TO HIS OWN MISCONDUCT, IS ENTITLED TO THE PER DIEM ALLOWANCE AND APPROPRIATE TRANSPORTATION EXPENSES TO HIS DESIGNATED POST OF DUTY, OR HOME OR REGULAR PLACE OF BUSINESS, AS THE CASE MAY BE."

THE STATUTE IS CURRENTLY IMPLEMENTED, IN RELEVANT PART, BY PARAGRAPH 1- 7.5B(1) OF THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (NOVEMBER 1981), INCORP. BY REF. 41 C.F.R. SEC. 101-7.003 (1983) (FTR), WHICH PROVIDES:

"(1) CONTINUATION OF PER DIEM. WHENEVER A TRAVELER TAKES LEAVE OF ABSENCE OF ANY KIND BECAUSE OF BEING INCAPACITATED DUE TO HIS/HER ILLNESS OR INJURY NOT DUE TO HIS/HER OWN MISCONDUCT, THE PRESCRIBED PER DIEM INSTEAD OF SUBSISTENCE, IF ANY, SHALL BE CONTINUED FOR PERIODS NOT TO EXCEED 14 CALENDAR DAYS (INCLUDING FRACTIONAL DAYS) IN ANY ONE PERIOD OF ABSENCE UNLESS, UNDER THE CIRCUMSTANCES IN A PARTICULAR CASE, A LONGER PERIOD IS APPROVED."

FURTHERMORE, SINCE MR. SISLER'S TRAVEL WAS TO THE HRGA OF OAK RIDGE, TENNESSEE, WHICH FOR THE PERIOD OF TIME INVOLVED HERE HAD A MAXIMUM ACTUAL SUBSISTENCE EXPENSE ALLOWANCE OF $64 PER DAY, FTR PARA. 1-8.4B IS ALSO RELEVANT AND PROVIDES AS FOLLOWS:

"B. ILLNESS OR INJURY. THE PROVISIONS OF 1-7.5B APPLICABLE TO PER DIEM INSTEAD OF SUBSISTENCE SHALL ALSO APPLY TO THE ALLOWANCE OF SUBSISTENCE EXPENSES."

THIS STATUTE AND THE IMPLEMENTING REGULATIONS WERE DESIGNED TO PREVENT THE IMPOSITION ON GOVERNMENT EMPLOYEES OF THE INEQUITABLE HARDSHIPS WHICH RESULT FROM BECOMING INCAPACITATED BY ILLNESS OR INJURY WHILE AWAY ON GOVERNMENT BUSINESS. THUS, THESE AUTHORITIES ARE TO BE LIBERALLY CONSTRUED IN ORDER TO ACCOMPLISH THE STATUTE'S EQUITABLE PURPOSES. SEE BILLY J. STAFFORD, B-203080, JUNE 8, 1982, AND CASES CITED THEREIN. INDEED, OUR OFFICE HAS HELD THAT THE LANGUAGE OF FTR PARA. 1-7.5B(1) IS MANDATORY AND VESTS NO DISCRETION IN ADMINISTRATIVE OFFICIALS TO DENY AN EMPLOYEE PER DIEM FOR A SICK LEAVE PERIOD OTHERWISE COMING WITHIN THE TERMS OF THAT REGULATION. B-144985, MARCH 3, 1961.

THE PROVISIONS OF THE FTR QUOTED ABOVE CLEARLY GOVERN MR. SISLER'S CLAIM. SINCE MR. SISLER WAS INCAPACITATED, AND THOSE PARAGRAPHS REQUIRE THAT HIS ACTUAL SUBSISTENCE EXPENSES SHALL BE CONTINUED FOR PERIODS NOT TO EXCEED 14 CALENDAR DAYS, PAYMENT OF MR. SISLER'S CLAIM FOR HIS OWN ACTUAL SUBSISTENCE EXPENSES IS AUTHORIZED.

ALTHOUGH HE WAS HOSPITALIZED, MR. SISLER, THROUGH PAYMENTS TO THE HOSPITAL, INCURRED SUBSTANTIAL EXPENSES FOR LODGING AND MEALS DURING HIS HOSPITALIZATION FROM SEPTEMBER 27 TO OCTOBER 9, 1984. IT IS CLEAR THAT THE SUBSISTENCE EXPENSES (ROOM AND BOARD) INCURRED IN A HOSPITAL ARE REIMBURSABLE UNDER FTR PARAGRAPHS 1-7.5B(1) AND 1-8.4B, QUOTED ABOVE. SEE BILLY J. STAFFORD, CITED ABOVE. AS TO THE PORTION OF THE TOTAL HOSPITAL BILL THAT MAY BE ALLOCABLE TO ROOM AND BOARD, WE HELD IN B-171933, MARCH 19, 1971, THAT IT WAS NOT UNREASONABLE TO CONCLUDE THAT ROOM AND BOARD EXPENSES WERE AT LEAST $40 A DAY WHERE THE TOTAL HOSPITAL BILL WAS $65 A DAY. WE HAVE NOT BEEN FURNISHED INFORMATION AS TO MR. SISLER'S HOSPITAL COSTS, BUT, GIVEN THE RECENT ESCALATION OF HOSPITAL COSTS GENERALLY, IT IS REASONABLE TO ASSUME THAT THE ROOM AND BOARD PORTION WAS AT LEAST $64 A DAY. THUS, WE CONCLUDE THAT MR. SISLER IS ENTITLED TO BE REIMBURSED FOR HIS HOSPITAL ROOM AND BOARD EXPENSES NOT TO EXCEED THE $64 A DAY RATE ALLOWABLE IN THE OAK RIDGE AREA. HIS ENTITLEMENT IS SUBJECT, HOWEVER, TO FTR PARAGRAPH 1-7.5B(3) WHICH PROVIDES FOR A REDUCED ALLOWANCE IF THE TRAVELER RECEIVES HOSPITALIZATION UNDER ANY FEDERAL STATUTE, OTHER THAN 5 U.S.C. SECS. 8901-8913 (FEDERAL EMPLOYEES' HEALTH INSURANCE).

IN REGARD TO MR. SISLER'S CLAIMS OF $264.81 FOR HIS WIFE'S MOTEL ROOM COSTS AND OF $176.35 FOR THE RENTAL COST OF THE CAR, WHICH WAS RENTED AND USED SOLELY BY HIS WIFE, WE VIEW THESE AS PERSONAL EXPENSES OF MRS. SISLER. WE NOTE THAT MR. SISLER WAS NEVER AUTHORIZED TO RENT A CAR AT GOVERNMENT EXPENSE, AND WE ARE NOT AWARE OF ANY STATUTORY OR REGULATORY AUTHORITY THAT WOULD ALLOW EITHER HIS WIFE OR HIM TO BE REIMBURSED FOR SUCH CAR RENTAL EXPENSES, EVEN THOUGH MR. SISLER BECAME ILL WHILE ON TDY. SEE CHARLES E. LAW, B-198299, OCTOBER 28, 1980, AND FTR PARA. 1-1.3B (REIMBURSABLE TRAVEL EXPENSES ARE CONFINED TO THOSE EXPENSES ESSENTIAL TO THE TRANSACTING OF OFFICIAL BUSINESS).

ACCORDINGLY, MR. SISLER'S ACTUAL SUBSISTENCE EXPENSES MAY BE CERTIFIED FOR PAYMENT AS OUTLINED ABOVE, BUT HIS CLAIMS FOR HIS WIFE'S MOTEL ROOM COSTS AND CAR RENTAL EXPENSES MAY NOT BE PAID.