The file in this case contains statements from both Dr. Kelley and Dr. Johnson and from a Dr. E. M. Dibble of Marion, S. C., who did not treat the employee professionally, but had general knowledge of him through reputation, appearance, etc. The report of Dr. Kelley which is dated October 15, 1945, is in full as follows: "I certify that Mr. Cecil M. Foxworth was admitted to the Kelley Memorial Hospital, September 11, 1936, p. m. and was discharged September 29, 1936, p. m. One-half hour previous to admission he received gunshot wound, at close range, entering left upper arm and shoulder, also blowing off the index and middle fingers at the second and third joints, respectively, of the right hand. He was in much shock and having to do multiple blood transfusions on admission, during surgery, and after surgery. Left arm was amputated through shoulder joint, index and middle fingers of right hand amputated at second and third joints, respectively. "He did not have a smooth convalescence as his vascular system gave evidence of an acute myocarditis.

"This latter condition, I am sure, could have originated directly from his injury."

The opinion of Dr. Johnson which is dated January 22, 1947, is in full as follows:

"In reply to your letter concerning Cecil Maurice Foxworth (file No. 504576), as I have stated previously I did not see the deceased until shortly after his death (approximately 30 minutes). He was stricken suddenly while chasing & hog into a pen and collapsed and died within a few minutes. From what little information I was able to obtain at that time I concluded he had had a coronary embolus. When questioned by the investigator who was seeking to establish a connection between his injury in 1936 and his death in 1944 I reconcluded that there could have been a connection, and that his primary injury could have contributed to the cause of his death 8 years later. Since my interview with the investigator, I have learned from people, who knew the deceased, that his activities had been curtailed and that his endurance was below what it had been prior to his accident.

"In view of this later information—in my opinion—I believe there was a connection between the accident in 1936 and the cause of death in 1944.

"I hope that this will be sufficient to clarify the situation which seems to be holding up the claim."

The opinion of Dr. Dibble which is dated January 11, 1947, is in full as follows: "This is in answer to your letter of December 6, 1946, in reference to a claim filed by Mrs. Eleonor O. Foxworth, because of the death of her husband Cecil M. Foxworth.

"This man was shot in the shoulder while in discharge of his duty and as a consequence had his arm amputated high up, after nearly bleeding to death. As a consequence he had to change his manner of living. It is my understanding that he had one or more blood transfusions. Previous to this time he was a strong, vigorous, perfectly healthy man. It seems to me that the reasonable explanation of his sudden death some years later is to be found in the change of living habits, some changes in his blood as a result of severe blood loss and possibly some Rh change due to transfusions, and the possibility of an old thrombosed vein in the stump passing an embolus into the blood stream. There was nothing else in his past history to offer any explanation of why a perfectly apparently healthy man should suddenly die."

The medical staff of the Bureau did not concur in the opinion expressed in reports of local physicians, quoted above, and were of the opinion that there was no sound medical basis for a belief that the heart condition which caused death was due to the injury 8 years before. In view of this conflict of medical opinion the file in the case, including all medical reports and evidence of record, was referred to a heart specialist for expert medical opinion.

The expert selected for this purpose was Dr. John A. Boone, associate professor of medicine at the Medical College of the State of South Carolina, at Charleston, S. C. Dr. Boone was requested for his opinion as to the relationship of the death of the employee which occurred on April 10, 1944, to the injuries he sustained on September 11, 1936. Dr. Boone, in a report dated October 14, 1947, stated he was "unable to find any reasonable connection" between the injury and the death. In view of the expert opinion and the reasons in support thereof submitted by Dr. Boone, the Bureau of Employees' Compensation found that Mr. Foxworth's death did not result from personal injury sustained while in the performance of duty, or from disease proximately caused by his employment. The claim of the widow was accordingly denied.

*

* *

On January 22, 1948, the claimant filed an appeal from the Bureau's determination with the Employees' Compensation Appeals Board and that appeal is now pending. Since this Agency has thus not made its final decision in this case, the present bill, which would require payment of compensation as "if the Bureau had found that the death * * * had been the direct result of * * * which were sustained by him * severe personal injuries while in the performance of his duties," is obviously premature. The Appeals Board is an administrative but quasi-judicial tribunal created under section 3 of Reorganization Plan No. 2 of 1946 to hear and make final decision on appeals taken from determinations and awards with respect to claims of Federal employees. In view of this availability of an independent review upon the record, it seems especially appropriate to invoke the salutary principle that calls for an exhaustion of administrative remedies before a further review is sought elsewhere.

But even if the claimant had exhausted her remedies here and the final decision of this Agency had been rendered, a private bill of this character would raise serious questions. The bill may be viewed either as a proposal for excepting claimant's case from the general requirement of the law that death, to be compensable, must be due to the injury, or as a legislative determination that the death of claimant's husband was in fact due to his injury. In the former view the bill would be plainly discriminatory. In the latter view, it would be questionable in two respects: (1) It would be discriminatory in operation by setting up a special review for the claimant. (2) It would, by causing a consideration de novo on the facts by Congress, in effect inject the Congress into the day-to-day administration of the Compensation Act notwithstanding the existence of adequate and disinterested administrative trial and appeal agencies under general law which lays down the governing principles of adjudication.

In view of the foregoing, we are unable to recommend the enactment of the bill, H. R. 4522. (Should the bill nevertheless be favorably considered, it is suggested that the words "Federal Security Administrator" be substituted for the words "Bureau of Employees' Compensation" wherever they occur in the bill since the Bureau is not a statutory agency.)

The Bureau of the Budget advises that there is no objection to the submission of this report to your committee.

Sincerely yours,

OSCAR R. EWING, Administrator.

Hon. EARL C. MICHENER,

TREASURY DEPARTMENT,
Washington, March 29, 1948.

Chairman, Committee on the Judiciary, House of Representatives,

House Office Building, Washington, D. C.

MY DEAR MR. CHAIRMAN: Further reference is made to your letter of November 20, 1947, enclosing three copies of bill H. R. 4522, entitled "For the relief of Mrs. Oteein Foxworth," and requesting a statement of this Department's views on this proposed legislation.

The bill, if enacted into law, would authorize and direct the Bureau of Employees' Compensation to pay, "effective as of the first day of the month following the month in which this Act is enacted, to Mrs. Oteein Foxworth, Marion, South Carolina, compensation at the monthly rate which she would have been entitled to receive under paragraph (C) of section 10 of the Act of September 7, 1916, as amended (U. S. C., 1940 edition, title 5, sec. 760), if the Bureau of Employees' Compensation had found that the death of her husband, Cecil Foxworth, on April 10, 1944, had been the direct result of the severe personal injuries (for which he received compensation for permanent disability under such Act) which were sustained by him on September 11, 1936, while in the performance of his duties as an employee of the Bureau of Internal Revenue."

In this regard, your attention is invited to the fact that a prior bill, Private Law 656 (H. R. 5212), was approved June 14, 1946, by the Seventy-ninth Congress, for the relief of the dependents of Cecil M. Foxworth, deceased. That bill, in substance, waived, in favor of Mr. Foxworth's widow and children, the time limitation provisions of/ he Employees' Compensation Act of September 7, 1916, as amended, and left the "United States Employees' Compensation Commission" free to determine the merits of their claim, if filed within 6 months after date of enactment of the bill, and to afford them such measure of relief as the facts when established might show them to be entitled to under the provisions of the compensation law. It appears from the Senate report to accompany said

H. R. 5212 that the said Commission interposed no objection to passage of the bill. A set of printed copies of the said bill and of the Senate report to accompany the same are attached for your ready reference.

This Department is not advised as to whether, subsequent to the passage of the noted prior relief bill by the Seventy-ninth Congress, a claim was filed with the compensation officials within the required 6 months, and, similarly, as to the action taken on such a claim, if filed.

As shown by the records of this Department, the facts of the case are that on September 11, 1936, in the Gourdin section of Williamsburg County, S. C., Investigator Cecil M. Foxworth, of the Alcohol Tax Unit of the Bureau of Internal Revenue operating out of Florence, S. C., suffered severe shotgun wounds at the hands of an assailant who was one of three persons the officers were attempting to arrest for a suspected violation of the Federal liquor laws. Investigator Foxworth was taken to the Kelley Sanitorium at Kingstree, S. C., where it was found necessary to amputate his left arm at the shoulder and two fingers of his right hand. He was dropped from the rolls of this Department, without prejudice, effective at the close of business December 12, 1936, on account of total disability incurred in line of duty.

His personnel file shows that on November 5, 1936, Mr. Foxworth executed a claim on Form C. A. 4 for compensation on account of this injury, addressed to the "United States Employees' Compensation Commission," the antecedent Forms C. A. 1 (notice of injury) and C. A. 2 (report of injury), required by the said Commission, having been executed on September 11 and 22, 1936, respectively. The Department was not informed in respect of his death on or about April 10, 1944, over 7 years after his separation from the service for total disability.

As the instant bill, like the noted previous act, relates to a matter entirely within the purview and jurisdiction of the Congress and the Bureau of Employees' Compensation, this Department feels some hesitancy as to expressing its views with regard thereto and would prefer, under the circumstances, to offer no recommendation.

The Director, Bureau of the Budget, has advised the Treasury Department that there is no objection to the presentation of this report.

Very truly yours,

A. LEE M. WIGGINS, Acting Secretary of the Treasury.

1st Session

No. 523

FLORENCE BRYANT PETERS AND E. B. PETERS

MAY 5, 1949.-Committed to the Committee of the Whole House and ordered to be printed

Mr. BYRNE of New York, from the Committee on the Judiciary, submitted the following

REPORT

[To accompany H. R. 1173]

The Committee on the Judiciary, to whom was referred the bill (H. R. 1173) for the relief of Florence Bryant Peters and E. B. Peters, having considered the same, report favorably thercon without amendment and recommend that the bill do pass.

The purpose of the proposed legislation is to pay the sum of $420 to Florence Bryant Peters and E. B. Peters, of Savannah, Ga., in settlement of all claims of the said Florence Bryant Peters and E. B. Peters against the United States for losses sustained as the result of the failure of the War Department to carry out its plans to lease certain property owned by the said Florence Bryant Peters and E. B. Peters and located at 310 Drayton Street, Savannah, Ga. A lease providing for the rental of such property by the United States at the rate of $420 per annum was signed on November 3, 1944, by the said Florence Bryant Peters and E. B. Peters. On October 4, 1945, the War Department returned such lease unsigned by any representative of the United States, although the War Department had had the use of such property since November 3, 1944.

STATEMENT OF FACTS

The Secretary of the Army makes a complete report on this claim and has no objection to the enactment of this bill. Your committee concurs in this recommendation and recommends favorable consideration. Report from the Department of the Army is as follows: JANUARY 20, 1948.

Hon. EARL C. MICHENER,

Chairman, Committee on the Judiciary, House of Representatives.

DEAR MR. MICHENER: The Department of the Army has no objection to the enactment of H. R. 3010, Eightieth Congress, a bill for the relief of Florence Bryant Peters and E. B. Peters.

This bill provies as follows:

"That the Secretary of the Treasury is authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to Florence Bryant Peters and E. B. Peters, of Savannah, Georgia, the sum of $420. The payment of such sum shall be in full settlement of all claims of the said Florence Bryant Peters and E. B. Peters against the United States for losses sustained as the result of the failure of the War Department to carry out its plans to lease certain property owned by the said Florence Bryant Peters and E. B. Peters and located at 310 Drayton Street, Savannah, Georgia. A lease providing for the rental of such property by the United States at the rate of $420 per annum was signed on November 3, 1944, by the said Florence Bryant Peters and E. B. Peters. On October 4, 1915, the War Department returned such lease unsigned by any representative of the United States, although the War Department had had the use of such property since November 3, 1944."

The claimants are the owners of a piece of property located in the city of Savannah, Ga., designated as 310 Drayton Street, on which is situated a small building which the Army desired to rent. Negotiations for the rental of the property were instituted in October 1944 and on November 3, 1944, the claimants executed and delivered a lease which had been prepared by the Government and which provided for an annual rental of $420. On that same date the owners and the negotiator for the United States executed a joint survey and inspection report which was to "constitute evidence of the condition of the premises existing at the time of the entrance thereon by the Government.' As the property was then under lease to a third party it was also necessary for the owners to obtain a cancellation of that lease, which they did.

Administrative difficulties were subsequently encountered by the military authorities by reason of the extent and nature of the repairs and alterations which were required in order to prepare the building for the use to which the Army intended to put it. These difficulties prevented the Army from taking possession for a considerable period of time and then the surrender of Japan ended the military necessity for the project. Accordingly, on October 4, 1945, the owners were notified, for the first time, that the United States did not intend to execute the lease of the property or to take possession thereof. It appears that on October 22, 1945, the property was leased to other persons. On December 14, 1945, Mr. and Mrs. Peters submitted a claim to the War Department in the sum of $420 for rental of the property for the period of 1 year. On April 25, 1946, the War Department disapproved the claim upon a determination that the Department was precluded, under the provisions of the act of July 3, 1943 (57 Stat. 372; 31 U. S. C. 223b), as amended, from making administrative settlement of the claim since the loss asserted was not incident to the actual use or occupancy of the property by the Government, and there was no other statute available for the consideration of the claim.

From November 3, 1944, to October 4, 1945, the owners of the property were under the impression that it was leased to the United States. The failure to receive the agreed rental was no notice to them inasmuch as no rental was payable until July 1945. Several times during the intervening period opportunities presented themselves for the rental of the property to other persons. When notice of the intention of the United States was finally given to the owners they had no trouble in promptly securing new tenants.

After a careful consideration of the facts in this case, it is the opinion of the Department of the Army that while the claim made by Mr. and Mrs. Peters could not be settled administratively under the provisions of the act of July 3, 1943, supra, for the reason herein before stated, they are, nevertheless, equitably entitled to compensation from the United States for the loss of rental sustained by them as a result of the property having been vacant for the period of 1 year during which, in good faith, they believed it to be leased to the United States. The Department, therefore, has no objection to the favorable consideration of this bill.

The Bureau of the Budget advises that there is no objection to the submission of this report.

Sincerely yours,

KENNETH C. ROYALL,

Secretary of the Army.