B-32504, MAY 13, 1943, 22 COMP. GEN. 1038

B-32504, MAY 13, 1943, 22 COMP. GEN. 1038

PAY - AVIATION DUTY - WHAT CONSTITUTES "INJURY" RESULTING FROM AVIATION ACCIDENT A NAVY FLYING OFFICER WHO, AFTER BEING SHOT DOWN AT SEA BY ENEMY ACTION, RETURNED TO HIS FLYING DUTIES BUT SHORTLY THEREAFTER BECAME TEMPORARILY INCAPACITATED FOR FLYING DUTY BY REASON OF SHOCK, DERANGEMENT OR EXHAUSTION OF HIS NERVOUS SYSTEM AS A RESULT OF BEING SHOT DOWN MAY BE CONSIDERED AS HAVING INCURRED AN "INJURY" AS A RESULT OF AN "AVIATION ACCIDENT" WITHIN THE MEANING OF EXECUTIVE ORDER NO. 9195, PERMITTING THE TEMPORARY CONTINUANCE OF FLYING PAY, AUTHORIZED BY SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, TO OFFICERS AND ENLISTED MEN WHO BECOME INCAPACITATED FOR FLYING BY REASON OF AN INJURY SUSTAINED AS A RESULT OF AN AVIATION ACCIDENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 13, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 12, 1943, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH A LETTER FROM THE DISBURSING OFFICER, U.S. NAVAL AIR STATION, JACKSONVILLE, FLORIDA, DATED DECEMBER 21, 1942, WITH ENCLOSURES AND ACCOMPANYING ENDORSEMENTS, RELATIVE TO THE RIGHT OF ENSIGN MILTON TOOTLE, IV, A-V (N), USNR, TO FLIGHT PAY FOR THE PERIOD FROM JULY 31, 1942, TO NOVEMBER 10, 1942.

YOUR DECISION IS REQUESTED AS TO WHETHER ENSIGN TOOTLE IS ENTITLED TO FLIGHT PAY FOR THE PERIOD IN QUESTION UNDER THE CONDITIONS SET FORTH IN THE ATTACHED CORRESPONDENCE.

THE QUESTION IS WHETHER, DURING THE PERIOD IN QUESTION, ENSIGN TOOTLE WAS "INCAPACITATED FOR FLYING BY REASON OF AN AVIATION ACCIDENT" WITHIN THE MEANING OF PARAGRAPH 10 OF EXECUTIVE ORDER 9195, DATED JULY 7, 1942, PRESCRIBING REGULATIONS EFFECTIVE AS OF JUNE 1, 1942, RELATING TO ADDITIONAL FLYING PAY FOR PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD AND NATIONAL GUARD PURSUANT TO SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, PUBLIC LAW 607, APPROVED JUNE 16, 1942, 56 STAT. 368. IF SO, ENSIGN TOOTLE WAS NOT REQUIRED AS A CONDITION PRECEDENT TO RECEIVING FLIGHT PAY TO PERFORM AERIAL FLIGHTS DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF THE ACCIDENT.

THE CIRCUMSTANCES OF THE CASE ARE STATED IN A LETTER DATED DECEMBER 21, 1942, FROM THE DISBURSING OFFICER AT BENJAMIN LEE II FIELD, NAVAL AIR STATION, JACKSONVILLE, FLORIDA, TO THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, IN PART AS FOLLOWS:

1. THE SUBJECT OFFICER WAS TAKEN UP FOR PAY PURPOSES AT THIS ACTIVITY ON OCTOBER 25, 1942 FROM U.S. NAVAL HOSPITAL, MARE ISLAND, CALIFORNIA.

2. HE WAS SHOT DOWN IN ACTION AT THE BATTLE OF MIDWAY ON JUNE 4, 1942 AND PARACHUTED INTO THE SEA. HE WAS RESTORED TO FLYING DUTY FOLLOWING THE ABOVE ACCIDENT BUT SOON THEREAFTER DEVELOPED MARKED IRRITABILITY WHICH HIS HEALTH RECORD INDICATED WAS A DIRECT RESULT OF BEING SHOT DOWN AND EXPOSED IN THE SEA. AS A RESULT OF PHYSICAL EXAMINATION BY A MEDICAL BOARD, HE WAS DECLARED UNFIT FOR FLYING DUTY AND ENTERED THE NAVAL HOSPITAL AT PEARL HARBOR, T.H. ABOUT JULY 26,1942. HE WAS THEN TRANSFERRED TO U.S. NAVAL HOSPITAL AT MARE ISLAND, CALIFORNIA. HE WAS DECLARED AGAIN FIT FOR FLYING DUTY AND DISCHARGED FROM THE HOSPITAL ON OCTOBER 24, 1942 AND REPORTED FOR DUTY INVOLVING FLYING AT THE U.S. NAVAL AIR STATION, QUONSET POINT, RHODE ISLAND ON NOVEMBER 10, 1942.

A REPORT DATED JANUARY 27, 1943, FROM THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY TO THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, CONCERNING THE MATTER, IS AS FOLLOWS:

1. REPORTS OF BOARDS OF MEDICAL SURVEY ON FILE IN THE BUREAU OF MEDICINE AND SURGERY SHOW THAT THIS OFFICER WAS ADMITTED TO THE NAVAL HOSPITAL, PEARL HARBOR, T.H. ON JULY 24, 1942, FROM THE NAVAL AIR STATION AT PEARL HARBOR WITH A DIAGNOSIS OF PSYCHONEUROSIS, NEURASTHENIA. FOLLOWING A PROTRACTED PERIOD OF ACTIVE COMBAT FLYING DUTY WHICH CULMINATED IN HIS BEING SHOT DOWN DURING THE MIDWAY BATTLE, HE BEGAN TO DEVELOP INCREASING NERVOUSNESS, INSOMNIA AND IRRITABILITY. AT THE TIME HE WAS ADMITTED TO THE HOSPITAL, HE WAS TWELVE (12) POUNDS UNDER HIS NORMAL WEIGHT AND COMPLAINED OF PROGRESSIVE FATIGUE. THE NEUROPSYCHIATRIC CONSULTANTS AT THE HOSPITAL EXPRESSED THE OPINION THAT HE WAS SUFFERING FROM NEURASTHENIA AND RECOMMENDED REST, RECREATION AND TEMPORARY CHANGE OF ENVIRONMENT.

2. ENSIGN TOOTLE WAS BROUGHT BACK TO THE UNITED STATES AND WAS ADMITTED TO THE NAVAL HOSPITAL AT MARE ISLAND ON AUGUST 15, 1942. REPEATED EXAMINATIONS AND PROLONGED OBSERVATION AT THE HOSPITAL REVEALED NO EVIDENCE OF ANY ORGANIC TROUBLE OR PSYCHONEUROTIC ABNORMALITY, AND THE DIAGNOSIS WAS CHANGED TO NO DISEASE ( EXHAUSTION). A BOARD OF MEDICAL SURVEY WHICH MET AT THE HOSPITAL ON OCTOBER 2, 1942, FOUND HIM TO BE IN EXCELLENT PHYSICAL AND MENTAL CONDITION, AND RECOMMENDED THAT HE BE RETURNED TO DUTY.

3. A REVIEW OF THE MEDICAL HISTORY IN THIS CASE SHOWS NO ADMISSION TO THE SICK LIST PRIOR TO HIS BEING SHOT DOWN IN COMBAT, BUT IMMEDIATELY FOLLOWING THIS INCIDENT ENTRIES IN HIS MEDICAL RECORD MADE AT THE NAVAL HOSPITAL, PEARL HARBOR, REVEAL EVIDENCE OF "INSOMNIA, IRRITABILITY, AND INCREASING NERVOUSNESS.' FURTHER ENTRIES ARE RECORDED ON A " PHYSICAL EXAMINATION FLYING" FORM DATED OCTOBER 2, 1942, SUCH AS "TREMOR OF FINGERS, EXCESSIVE PERSPIRATION, INCREASED PSYCHOMOTOR TENSION.' SUCH ENTRIES INDICATE AT LEAST A FATIGUE OR EXHAUSTIVE STATE OF THE NERVOUS SYSTEM, WHICH WAS EVIDENTLY PRECIPITATED BY A PROTRACTED PERIOD OF COMBAT FLYING DUTY AND BEING SHOT DOWN IN COMBAT.

4. UNDOUBTEDLY, ENSIGN TOOTLE'S INCAPACITY FOR FLYING WHILE ON THE SICK LIST WAS DUE TO A CONSIDERABLE EXTENT TO THE FACT THAT HE WAS SHOT DOWN, AND WHILE THERE WAS NO ACTUAL PHYSICAL INJURY INCURRED THERE IS EVIDENCE INDICATING A RESULTANT EMOTIONAL TRAUMA; THE PREDISPOSING CAUSE BEING COMBAT FATIGUE AND THE EXCITING CAUSE BEING SHOT DOWN.

PARAGRAPH 10 OF EXECUTIVE ORDER 9195, SUPRA, PROVIDES, IN PART:

* * * ANY OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN WHO HAS BEEN REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS BY ORDERS OF COMPETENT AUTHORITY AND WHO AS A RESULT OF SUCH ORDERS HAS PARTICIPATED REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, AS DEFINED IN THIS EXECUTIVE ORDER, AND WHO SUBSEQUENTLY BECOMES INCAPACITATED FOR FLYING BY REASON OF AN AVIATION ACCIDENT SHALL NOT BE REQUIRED TO PERFORM SUCH AERIAL FLIGHTS DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF SAID ACCIDENT: * * *

PARAGRAPH 1 (H) OF THE EXECUTIVE ORDER DEFINES THE TERM "AVIATION ACCIDENT," AS USED IN THE REGULATIONS, AS FOLLOWS:

THE TERM "AVIATION ACCIDENT" SHALL BE CONSTRUED TO MEAN AN ACCIDENT IN WHICH AN OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN WHO IS REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS IS INJURED WHILE AN OCCUPANT OF AN AIRCRAFT OR AS THE RESULT OF JUMPING FROM, BEING THROWN FROM, OR BEING STRUCK BY, AN AIRCRAFT OR ANY PART OR AUXILIARY THEREOF, OR IN WHICH APPROPRIATE MEDICAL AUTHORITY OF THE SERVICES ATTESTS THAT INJURY RESULTED FROM PARTICIPATION IN DULY AUTHORIZED AERIAL FLIGHTS.

WAS ENSIGN TOOTLE INCAPACITATED FOR FLYING BY REASON OF AN AVIATION ACCIDENT WITHIN THE MEANING OF SUCH DEFINITION? WAS HE "INJURED" OR WAS THERE AN "INJURY" AS THOSE TERMS ARE USED IN THE DEFINITION? THE WORD "INJURY," IN THE SENSE OF PHYSICAL HURT OR HARM TO THE PERSON, HAS NOT USUALLY BEEN REGARDED BY THE COURTS AS CONNOTING ONLY THE IMMEDIATE PHYSICAL MANIFESTATION OF HARM TO THE BODILY STRUCTURES RESULTING FROM UNTOWARD FORCE OR VIOLENCE. WHILE GENERALLY THE TERM DOES NOT INCLUDE DISEASES INDEPENDENTLY CONTRACTED, IT MAY INCLUDE "OCCUPATIONAL" DISEASES, AND USUALLY IS HELD TO INCLUDE THE ACCELERATION OR AGGRAVATION OF PREEXISTING DISEASE AND DISEASES WHICH ARE OCCASIONED BY OR FOLLOW AS A RESULT OF "PHYSICAL" INJURY. SEE 21 WORDS AND PHRASES 415, ET SEQ. IN FORD MOTOR CO. V. HUNTER, 50 OHIO APP. 547, 199 N.E. 85, IT WAS HELD THAT "HEAT EXHAUSTION" SUSTAINED BY AN ENGINEER EMPLOYED TO TEND PUMPS AND COMPRESSORS WAS AN "INJURY" COMPENSABLE UNDER THE STATE WORKMEN'S COMPENSATION ACT. THE COURT SAID:

IT WILL BE SEEN BY A READING OF THE ANNOTATION TO THE CASE OF LERNER V. RUMP BROS., 241 N.Y. 153, 140 N.E. 334, 41 A.L.R. 1122, AND WALSH V. RIVER SPINNING CO., 41 R.I. 490, 103 A. 1025, 13 A.L.R. 956, THAT UNDER THE WORKMEN'S COMPENSATION ACTS OF OTHER STATES HEAT EXHAUSTION IS GENERALLY HELD TO BE COMPENSABLE, PROVIDED, OF COURSE, THE OTHER ELEMENTS OF COMPENSABILITY ARE PRESENT. THAT IT IS A PHYSICAL INJURY OR HURT IS UNIFORMLY HELD.

MORE DIRECTLY IN POINT IN THE PRESENT CASE IS THE RECENT CASE OF BURLINGTON MILLS CORPORATION V. HAGOOD, 13 S.E.2D 261, DECIDED BY THE SUPREME COURT OF APPEALS OF VIRGINIA, FEBRUARY 24, 1941, WHERE IT WAS HELD THAT AN "ACCIDENTAL INJURY" EXISTS WITHIN THE WORKMEN'S COMPENSATION ACT WHERE AN EMPLOYEE IN THE COURSE OF HIS EMPLOYMENT RECEIVES A SUDDEN SHOCK INVOLVING NO PHYSICAL IMPACT BUT RESULTING IN HIS DISABILITY. IN THE COURSE OF ITS OPINION THE COURT SAID:

THE DOCTORS THUS, IN EFFECT, STATED THAT TRAUMATIC NEUROSIS WAS TRACEABLE TO THE SHOCK OR DISTURBING EFFECT ON THE NERVES OF THE PATIENT, AND THAT IN TURN, THE IRRITATION OF THE NERVES CAUSED FUNCTIONAL DISORDERS, AND, THAT WHETHER THE DISABILITY RESULTED FROM NERVOUS REACTION OR FROM AUTO- SUGGESTION SET IN MOTION BY MEMORY OF THE ACCIDENT, THE RESULT WAS THE SAME TO THE INJURED PERSON.

IN WASMUTH-ENDICOTT CO. V. KARST, 1922, 77 IND. APP. 279, 133 N.E. 609, 610, THE COURT DEFINES THE WORD "INJURY" AS FOLLOWS:

"IN COMMON SPEECH THE WORD "INJURY," AS APPLIED TO A PERSONAL INJURY TO A HUMAN BEING, INCLUDES WHATEVER LESION OR CHANGE IN ANY PART OF THE SYSTEM PRODUCES HARM OR PAIN OR A LESSENED FACILITY OF THE NATURAL USE OF ANY BODILY ACTIVITY OR CAPABILITY.'

(3) THE SUPREME COURT OF MICHIGAN IN KLEIN V. LEN. H. DARLING CO., 1922, 217 MICH. 485, 187 N.W. 400, 403, SAID:

"AN ACCIDENT HAPPENED IN WHICH THE DECEASED WAS AN ACTOR, AND THE SHOCK TO HIM WAS SO ACUTE AND SO DEPRESSED HIS VITAL FORCES AS TO KILL HIM. MUST NOT OVERLOOK MAN'S NERVOUS SYSTEM AND MENTAL MAKEUP AND THEIR INTIMATE RELATION TO HIS VITAL FORCES.

"THIS MAN DIED BECAUSE HIS VITAL FORCES COULD NOT MEET AND WITHSTAND THE ACUTE DEPRESSION OCCASIONED BY WHAT HE HAD DONE IN THE COURSE OF HIS EMPLOYMENT. THE INJURY TO HIM WAS NO LESS REAL AND FATAL IN ITS CONSEQUENCES THAN A MORTAL WOUND. "ACCIDENTS," WITHIN THE COMPREHENSION OF THE WORKMEN'S COMPENSATION LAW, INCLUDE ALL ACCIDENTS ACTIONABLE AT LAW AND ALL FORMER NONACTIONABLE ACCIDENTS, EXCEPT IN CASE OF INTENTIONAL AND WILLFUL MISCONDUCT ON THE PART OF THE EMPLOYEE.'

(4) ALTHOUGH THERE IS A CONFLICT ON THE QUESTION, THE MAJORITY OF THE REPORTED CASES TAKE THE VIEW THAT THERE IS AN ACCIDENTAL OR PERSONAL INJURY WITHIN THE WORKMEN'S COMPENSATION ACTS WHERE AN EMPLOYEE, IN THE COURSE OF HIS EMPLOYMENT, RECEIVES A SUDDEN SHOCK OR FRIGHT, INVOLVING NO PHYSICAL IMPACT, WHICH RESULTS IN HIS DISABILITY. 109 A.L.R. (1937) ANNOTATION, PAGE 892.

(9)THE PURPOSE OF THE ACT IS TO PROVIDE COMPENSATION TO A WORKMAN FOR THE LOSS OF HIS OPPORTUNITY TO ENGAGE IN WORK, WHEN HIS DISABILITY IS OCCASIONED BY AN INJURY SUFFERED FROM AN ACCIDENT ARISING OUT OF AND IN THE COURSE OF HIS EMPLOYMENT.

IN THE INSTANT CASE, THE DISABILITY OF MRS. HAGOOD WAS OCCASIONED BY AN INJURY WHICH MAY BE FAIRLY TRACED TO A RISK WHICH AROSE OUT OF AND IN THE COURSE OF HER EMPLOYMENT. THERE WAS A DIRECT CAUSAL RELATION BETWEEN THE ELECTRIC FLASH AND THE IRRITATED CONDITION OF HER NERVOUS SYSTEM.

TRAUMATIC NEUROSIS IS A DEFINITE AILMENT RECOGNIZED BY THE MEDICAL PROFESSION. THE CONDITION PRODUCED BY "SHELL SHOCK" IS NOT UNKNOWN TO THE AVERAGE LAYMAN. WE ARE NOT EQUIPPED TO INVADE THE FIELD OF PSYCHIATRY, AND MUST DEPEND ON MEDICAL EXPERTS TO ADVISE US.

AS A RESULT OF THE ACCIDENT AND INJURY MRS. HAGOOD WAS INCAPACITATED FOR WORK. HER INCAPACITY WAS AS EFFECTUAL AS IF IT HAD BEEN CAUSED BY VISIBLE LESION.

IN THE PRESENT CASE IT APPEARS THAT FOLLOWING A PROTRACTED PERIOD OF ACTIVE COMBAT FLYING ENSIGN TOOTLE WAS AN OCCUPANT OF AN AIRPLANE SHOT DOWN IN ACTION AT THE BATTLE OF MIDWAY ON JUNE 4, 1942, AND HE PARACHUTED INTO THE SEA. INCREASING MANIFESTATIONS OF SHOCK OR DERANGEMENT OR EXHAUSTION OF HIS NERVOUS SYSTEM DATED FROM THAT EVENT AND SOON BECAME SO PRONOUNCED AS TEMPORARILY TO INCAPACITATE HIM FOR FLYING. RESOLVING WHAT DOUBT THERE MAY BE IN THE MATTER IN CONSONANCE WITH THE BASIC PURPOSE OF THE EXECUTIVE REGULATIONS TO PERMIT THE TEMPORARY CONTINUANCE OF FLYING PAY WHERE THE INCAPACITY TO MAKE FLIGHTS IS ATTRIBUTABLE TO THE HAZARDS OF FLYING, IT IS CONCLUDED, ON THE RECORD PRESENTED, THAT THE OFFICER'S INCAPACITY DURING THE PERIOD IN QUESTION WAS DUE TO AN INJURY "WHILE AN OCCUPANT OF AN AIRCRAFT OR AS A RESULT OF JUMPING FROM * * * AN AIRCRAFT" AND, THEREFORE, WAS "BY REASON OF AN AVIATION ACCIDENT" WITHIN THE DEFINITION CONTAINED IN THE EXECUTIVE ORDER.

ACCORDINGLY, YOU ARE ADVISED THAT TO THE EXTENT HE OTHERWISE MAY BE ENTITLED TO FLIGHT PAY OVER THE PERIOD IN QUESTION, ENSIGN TOOTLE IS ENTITLED TO BE CREDITED WITH FLIGHT PAY ON THE BASIS THAT HE WAS INCAPACITATED FOR FLYING BY REASON OF AN AVIATION ACCIDENT OCCURRING ON JUNE 4, 1942.