MARCH 28 (legislative day, MARCH 18), 1949.-Ordered to be printed Mr. MCCARRAN, from the Committee on the Judiciary, submitted the following REPORT [To accompany H. R. 572] The Committee on the Judiciary, to whom was referred the bill (H. R. 572) for the relief of Sylvia M. Misetich, having considered the same, report favorably thereon, without amendment, and recommend that the bill do pass. The purpose of the proposed legislation is to pay the sum of $5,000 to Sylvia M. Misetich, of Portland, Oreg., in full settlement of all claims against the United States for personal injuries, hospital and medical expenses sustained as a result of infection from a vaccination for smallpox administered to her pursuant to orders of her supervisor at the Portland subport of embarkation, Portland, Oreg., on January 10, 1944. STATEMENT It appears that on January 10, 1944, Miss Sylvia M. Misetich, then a civilian employee of the Army, was vaccinated against smallpox, pursuant to an official order by military personnel at the dispensary of the Portland subport of embarkation. The vaccination, on Miss Misetich's left thigh, became infected, and as a consequence she was hospitalized for about 2 months in Barnes General Hospital, Vancouver, Wash., and thereafter for a similar period at St. Vincent's Hospital, Portland, Oreg. For 10 months she had no use of her leg, and was in bed for more than a year, with temperature from 101 to 105. Her thigh drained all this time, and she was in severe pain all the time, with swelling about the ankle. After she had somewhat recovered she returned to work, and did so for a year, when the infection reoccurred. She was taken to St. Vincent's Hospital where she remained for 2 months, during this time there were several operations, and treated with penicillin shots. Miss Misetich states that it is hard for her to climb stairs and her muscles are stiff in her entire leg, and very badly scarred. Affidavits submitted to the committee show that Miss Misetich has expended the sum of $2,854.90 in hospital and medical expenses. A similar bill for the relief of this claimant in the Eightieth Congress was considered and ordered postponed indefinitely by the committee for the reason that an administrative remedy was available to the claimant at that time. The administrative remedy, under Public Law 161, Seventy-ninth Congress, approved July 28, 1945, continued. to be available to the claimant until January 10 of this year. It may be said therefore that the claimant, and those acting on her behalf, have been guilty of laches; however your committee notes that the Department of the Army in its report to the House Judiciary Committee, dated June 9, 1947, with respect to a similar bill, quotes a letter which it received from the Bureau of Employees Compensation under date of April 24, 1947, as follows: Attention is directed to the amendment to the Federal Employees' Compensation Act by Public Law 161, Seventy-ninth Congress, first session approved July 28, 1945, under which the Bureau may under certain conditions waive compliance with certain statutory provisions relating to the giving of notice and thefi ling of claim. The amendment provides as follows: "Failure to give notice of injury or to file claim for compensation for disability or death within the time and in the manner prescribed by this act shall not bar the claim of any person thereunder if such claim is filed within 5 years after the injury or death and if the Commission shall find (1) that such failure was due to circumstances beyond the control of the person claiming benefits, or (2) that such person has shown sufficient cause or reason in explanation thereof, and material prejudice to the interest of the United States has not resulted from such failure; and upon such finding the Commission may waive compliance with the applicable provisions of the act." It seems to your committee that the War Department having disapproved a claim filed directly with them by Miss Misetich on May 21, 1946, on the basis that there was no statute available to the War Department for the consideration of claims of that character, should have in the interest of protection of the rights and privileges of its employees, notified Miss Misetich of the possibility of recovery of compensation under the amended law. On these considerations, in addition to the fact that the House of Representatives has twice resolved any doubts in this case in favor of this claimant, the committee recommends enactment of the bill. Attached hereto and made a part of this report is the letter from the War Department, dated June 9, 1947, referred to above. Hon. EARL C. MICHENER, WAR DEPARTMENT, Washington, D. C., June 9, 1947. House of Representatives DEAR MR. MICHENER: The War Department is opposed to the enactment of H. R. 744, Eightieth Congress, a bill for the relief of Sylvia M. Misetich This bill would authorize and direct the Secretary of the Treasury to pay, out of any money in the Treasury not otherwise appropriated, to Sylvia M. Misetich, of Portland, Oreg., the sum of $7,500, in full satisfaction of her claims against the United States for compensation for personal injuries sustained by her, and for reimbursement of hospital, medical, and other expenses incurred by her, as a result of infection from a vaccination for smallpox administered to her pursuant to orders of her supervisor at the Portland subport of embarkation, Portland, Oreg., on January 10, 1944 On January 10, 1944, Miss Sylvia M. Misetich, 1721 North Prescott Street, Portland, Oreg., then a civilian employee of the Army, was vaccinated against smallpox, pursuant to an official directive, by military personnel at the dispensary of the Portland subport of embarkation. The vaccination, on Miss Misetich's left thigh became infected, and as a consequence thereof she was hospitalized for approximately 2 months in Barnes General Hospital, Vancouver, Wash., and thereafter for a similar period at St. Vincent's Hospital, Portland, Oreg. The cause of the infection or of the patient's unusual reaction to vaccination appears to be unknown. No negligence has been found in the performance of the vaccination or in the subsequent treatment. On April 4, 1946, a claim was filed with the War Department by Sylvia M. Misetich in the amount of $2,415.50 on account of the medical and hospital expenses incurred and loss of earnings sustained by her as a result of the infection in question, which expenses and losses she itemized as follows: Wages lost, Jan. 10, 1944, to Feb. 26, 1945, 12 months and 22 days, as switchboard operator at $146 per month (salary received at Portland subport of embarkation on Jan. 10, 1944): Doctor and hospital expenses incurred up to and including Feb. 26, 1945: Dr. Ben Wade, Portland, Oreg Dr. Thomas Joyce, Portland Clinic Barnes General Hospital, Vancouver, Wash.. St. Vincent's Hospital, Portland, Oreg.. Total. $1, 857. 60 83.00 1, 774. 60 15.00 129.00 46. 40 28.50 422. 00 2, 415. 50 On May 21, 1946, Miss Misetich's claim was necessarily disapproved by the War Department on the ground that the personal injury sustained by her was incident to her service as an employee of the Government and for that reason was not compensable under the provisions of the act of July 3, 1943 (57 Stat. 372; 31 U. S. C. 223b), the only statute available to the War Department for the consideration of claims of this character. The Director of the Bureau of Employees' Compensation, Federal Security Agency, in a letter to the War Department, dated April 24, 1947, concerning the special relief proposed for Miss Misetich by H. R. 744, stated: "The files of the Bureau of Employees' Compensation (including the files of the former United States Employees' Compensation Commission) contain no information concerning an injury sustained by Sylvia M. Misetich on January 10, 1944, or on any other date. Miss Misetich, so far as the Bureau's records disclose, has neither given notice of such injury, nor filed claim for compensation benefits in accordance with the provisions of sections 15 to 20, inclusive, of the Federal Employees' Compensation Act of September 7, 1916 (39 Stat. 742; U. S. C.: title 5, c. 15, sec. 751, et seq.). No compensation or other benefits have been paid in this case. "The bill, H. R. 744, if enacted, would apparently authorize a direct grant to Sylvia M. Misetich in the sum of $7,500, in full satisfaction of her claims against the United States for compensation for personal injuries sustained by her, and for reimbursement of hospital, medical, and other expenses incurred by her, as a result of infection from a vaccination for smallpox administered to her pursuant to orders of her supervisor at the Portland subport of embarkation, Portland, Oreg., on January 10, 1944, upon a legislative determination of her right thereto, and would not impose any duty upon the Bureau in connection with the case. • 66 "Attention is directed to the amendment to the Federal Employees' Compensation Act by Public Law 161, Seventy-ninth Congress, First session, approved July 28, 1945, under which the Bureau may under certain conditions waive compliance with certain statutory provisions relating to the giving of notice and the filing of claim. The amendment provides as follows "Failure to give notice of injury or to file claim for compensation for disability or death within the time and in the manner prescribed by this act shall not bar the claim of any person thereunder if such claim is filed within 5 years after the injury or death and if the Commission shall find (1) that such failure was due to circumstances beyond the control of the person claiming benefits, or S. Repts., 81-1, vol. 1-110 (2) that such person has shown sufficient cause or reason in explanation thereof, and material prejudice to the interest of the United States has not resulted from such failure; and upon such finding the Commission may waive compliance with the applicable provisions of the act. "I am unable to express the views of this Agency upon the merits of the bill, H. R. 744; however, the bill appears to be discriminatory in the sense that it would, if enacted, provide a grant in this particular case of a kind not accorded to other employees sustaining injuries. Furthermore, it does not appear that the employee has sought the application of the administrative remedy provided for by the Employees' Compensation Act." The purpose of the United States Employees' Compensation Act, supra, is to provide compensation to a Government employee for personal injuries sustained while in the performance of duty, as well as necessary medical and hospital expenses incident thereto. It does not provide for indemnity for physical impairment as such, but compensates only for loss in wage-earning capacity caused by physical disability. In fairness it would seem that the compensation law should be applied uniformly to all Government employees. The enactment of H. R. 744, awarding compensation for the personal injury sustained by Miss Misetich, would have the effect of granting special benefits to her that are denied to Government employees in other cases where the facts are similar, and there appear to be no circumstances present in the instant case that would warrant singling this claimant out for preferential treatment over other claimants similarly situated. The War Department, therefore. recommends that the proposed legislation be not favorably considered. This claimant has no remedy under the Federal Tort Claims Act of August 2, 1946 (Public Law 601, 79th Cong.), since the claim accrued prior to January 1; 1945. The Bureau of the Budget has advised that there is no objection to the submission of this report. Sincerely yours, |