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Senator SHORTRIDGE. Is it the general rule to bring them in person to the court or to take their deposition?
General Hines. Well, we do both; but in many cases it is essential to have the witnesses in court. Where the deposition will answer, we do that.
The CHAIRMAN. Why do you make that $20 per day?
General Hines. This is for the purpose of taking care of those who are part-time and fee-basis employees of the bureau. We can not expect them to come for only the $6 a day allowance. You can not get them to come, unless you can compel it by court order.
The CHAIRMAN. Why should they be different from anybody else?
General Hines. They are part-time and fee-basis employees of the bureau, and you can not expect them to come that way.
Senator SHORTRIDGE. Observe, however, Mr. Chairman, that the language is "a fee in an amount not to exceed $20 per day.”
The CHAIRMAN. Of course, you know what that means; it means $20 a day.
General Hines. May I have Mr. Roberts tell you some of the difficulties we are experiencing in that matter?
Senator SHORTRIDGE. It does not necessarily mean, Mr. Chairman, $20 a day.
The CHAIRMAN. Not necessarily. But did you ever hear of a case of that kind where it was less than $20 per day? If the language were “not to exceed $10 per day," did you ever hear of a case where it was less than $10?
Senator SHORTRIDGE. I can imagine if it should say “not to exceed $100 per day," it would not always be $100 per day.
General Hines. If the committee will permit, I would like to have Mr. Roberts, who is the assistant general counsel, give you some of the difficulties we are having in that regard.
The CHAIRMAN. Very well, Mr. Roberts.
Mr. JAMES O'C. ROBERTS. Mr. Chairman, the Department of Justice has authority to pay expert witnesses fees up to $20 a day at the present time. The Comptroller General has ruled, however, that fee basis and part time doctors are Government employees, and as such are only to be allowed the regular amount provided for travel and subsistence. We have a large number of diagnosticians on the rolls, who are either on part time duty or in fee basis positions. Those men will not continue in our service, and have so notified us, if we pay them only $6 a day, and the regular transportation allowance when they travel as witnesses. In fact, most of them would prefer not to go as witnesses at all, because they lose money at $20 a day; but at the present time we can not pay them even that, which is the same fee as the Department of Justice pays expert witnesses when they are called to testify in a case. We do not use these men extensively, but we do have to use them when we are compelled to show the progress of a disease, and how it affects the human body. We have to call those witnesses in cases of that kind, and under the present law can pay them only $6 a day.
The CHAIRMAN. Do you call many of those who are now in the regular service?
Mr. ROBERTS. We call many of them in the regular service.
Mr. ROBERTS. No; the men who are the part time or fee basis specialists are the ones we are going to pay $20 a day. Men who are on the Government pay roll will not be paid that amount.
The CHAIRMAN. It says here “part time and fee basis employees of the bureau."
Mr. ROBERTS. Yes; but they are only paid so much for a visit, or on a part-time status. But, in addition to that, we have our own doctors who are called and who get nothing but their regular travel allowance.
Senator SHORTRIDGE. Do these physicians who may be called and are to be paid according to this proposed rate engage in private practice?
Mr. ROBERTS. Yes; they are all engaged in private practice and are only on our rolls as part time or fee basis employees.
Senator SHORTRIDGE. So that if called as witnesses, their private practice suffers?
General Hines. They will have to let their private practice go for that time.
The CHAIRMAN. They are all seeking the remuneration of the parttime service. What I want to call attention to is that it will be $20 a day.
General Hines. We have many men to whom $20 a day would not be a temptation to leave their practice. They are very highgrade men, and even now the service they give at these places they give at considerable sacrifice to their own private interest and practice; but they do it because they have an interest in the veterans. But the fee we pay them for the part-time service, or for the visits they make over a period of time, they would receive that normally, perhaps, in one visit in a civilian case.
Senator SHORTRIDGE. Who fixes that?
Mr. ROBERTS. It will be now in the discretion of the director, under a written order of the director.
Senator SHORTRIDGE. Meaning General Hines?
General Hines. And in addition to the $6 we pay the employees, they would have to have a special order from me to pay them the additional $20.
Senator SHORTRIDGE. Then, not to prolong the matter, it would be up to you to fix the rate?
General HINES. It would.
Senator SHORTRIDGE. And you would not, as a matter of course, fix it at $20?
General HINES. I would not.
General HINES. would take into account the man, and the necessity of heving him.
The CHAIRMAN. Senator, the doctor will say, it is $20, and that is. fixed.
Senator SHORTRIDGE. Like the law of the Medes and Persians.
General HINES. Section 4 of the bill also amends section 19 of the act by authorizing official leave for bureau employees subpænaed as witnesses for veteran plaintiffs in suits under this section. Under existing law these officials of the bureau who are called by plaintiffs, because of their knowledge of their physical or mental conditions acquired as the result of their employment in the bureau, must take annual leave or leave without pay. This works a particular hardship upon physicians of the bureau, particularly in those localities where a large number of suits has been instituted. It would seem only fair to these employees that they be not compelled to use their annual leave or take leave without pay in answering these subpænas. The cost of this amendment is problematical, but it will undoubtedly increase to a certain extent the necessary bureau appropriations.
In other words, the veterans themselves, having been examined by our doctors at various places, call them as witnesses. They can go and, of course, do go, but if they leave they either have to take official leave or leave without pay; and it does seem to me that they haven't any discretion in the matter, and it is a little unfair to have them use up all their annual leave and lose their pay when called as witnesses in those suits.
Senator SHORTRIDGE. Is that matter covered by the language here?
The CHAIRMAN. Yes. They have 30 days' leave now?
General Hines. They have 30 days' sick leave, but that is not automatic. It has to be shown they are sick.
The CHAIRMAN. Certainly.
, the holiday period can not very well be counted, because that is a time the court is not in session.
The CHAIRMAN. I am not counting that in the 68 days.
General HINES. Yes. Section 4 of the bill amends the World War adjusted compensation act by providing that in connection with adjudication of the claim of Hal R. Johnson, XC-423904, the director shåll make payment of the amount of the adjusted service certificate in accordance with the last will and testament of the deceased. The facts in this case are as follows:
The veteran executed an application for adjusted compensation benefits designating as beneficiary thereof, “Mrs. Stella Mae Johnson, wife.” On April 2, 1929, the designated beneficiary shot the veteran and as the result of the gunshot wound inflicted by her the veteran died the following day, April 3, 1929. Subsequent to the time the gunshot wound was inflicted the veteran executed a will which has been probated. Item 2 of the will reads as follows:
I give, devise, and bequeath all of my property real and personal and mixed whatsoever and wheresoever situate to my beloved uncle William E. Johnson, residing at Forest, Ohio, to have and to hold to him his heirs and assigns forever.
The original designated beneficiary, the wife, died on May 4, 1929. The question which arises in this case is whether the will of the veteran which was executed subsequent to the time the gunshot wound was inflicted by the original beneficiary and which makes no specific reference to adjusted compensation, is sufficient to constitute a cancellation of the original designation of beneficiary under the adjusted compensation certificate. This case is being submitted to the Comptroller General for decision in view of two prior decisions rendered by him; one in the case of Russell R. La Fraugh, May 4, 1929, A-26791 (8 Comp. Gen. 575), and in the case of Willie Willis, XC-1307570, November 9, 1929, and January 14, 1930, A-28938.
We believe, Mr. Chairman, that that legislation has no place in this bill
The CHAIRMAN. None whatever.
General HiNEs. Adjusted compensation act and should be stricken from this act. Senator SHORTRIDGE. That would strike out that whole priviso?
"he CHAIRMAN. From line 14 to line 18. General HINES. I think, if it had been noticed in the House, it would have gone out on a point of order.
Section 5 of the bill amends section 21 of the act by authorizing the director to pay compensation to the person having custody and control of an incompetent or minor beneficiary during the time compensation payments to a legally appointed guardian are suspended or withheld because of the misconduct of the guardian, and authorizes the continuance of a fund which the bureau is administering for the benefit of certain incompetent beneficiaries. These amendments are to insure a greater cooperation between the courts and the bureau and guardians in supervising the funds of incompetent beneficiaries. The adoption of these amendments will result in no additional cost to the Government.
In other words, they have to do plainly with administrative matters.
The CHAIRMAN. I see no reason why it should not be. What is the next?
General HINES. Section 5 of the bill also amends section 21 of the act to provide for an escheat to the United States of funds of a minor or incompetent beneficiary in the hands of the Government or a guardian at the time of death of such minor or incompetent, when such funds are made up of payments from the bureau and escheat would otherwise result in favor of the State of residence of the minor or incompetent. The enactment of this amendment was suggested by the bureau and will result in a saving of millions of dollars to the Government over a period of years. The immediate saving can not be estimated. The only question which will arise in connection with this amendment will be that of its constitutionality as applied to money already paid to the guardian. However, the bureau is hopeful of being able to maintain that this section, as amended, will apply to such funds, and that in the event of the death of the incompetent the money will revert to the United States rather than be paid to the State of the residence of the veteran.
The committee will understand that the estates of these veterans who have been incompetent and have been in our institutions a long time have grown so that they sometimes exceed $10,000, or may be even $12,000 or $15,000. And they will continue to build up. If the veteran dies, they become the source of controversy, first, among relatives; and in this case, if there was no relative, then the question arises as to whether they would escheat to the United States, or to the State. We thought there was no question about them escheating to the United States under the existing law, but we have had questions raised. In what States was that, Mr. Roberts?
Mr. ROBERTS. In Tennessee and in Kansas.
General HINES. They should escheat to the United States. These funds are held for the benefit of the veteran in the hope, of course, that he will recover. If they do not recover, I think it should go should go back to the United States.
The CHAIRMAN. All right. What is the next?
Senator SHORTRIDGE. It goes either to the State or the United States?
General Hines. Yes, sir.
General HINES. If there were relatives, it would go to them, and we have no objection to that; but in cases where there are no relatives that do take we think it should go to the United States.
Senator SHORTRIDGE. I wanted to recall the law to myself.
General Hines. Section 6 of the bill amends section 28 of the act, as amended, to make it effective June 7, 1924. This section authorizes the director to waive recovery of overpayments under certain circumstances. An amendment was adopted on May 29, 1928, relieving disbursing officers from liability in cases where such recovery was waived. The Comptroller General has ruled that this amendment was not retroactive and that recoveries waived between June 7, 1924, and May 29, 1928, were still chargeable against the disbursing officers. The present amendment will relieve the disbursing officers from and after June 7, 1924. The bureau recommended this amendment as it was felt that it was manifestly unfair to charge these disbursing officers with these overpayments when the Government, by waiving recovery, was making it impossible for them to recoup themselves from future payments to be made to the beneficiaries. The disallowances standing against disbursing officers which will be affected by this amendment are approximately $218,500.
We felt, also, Mr. Chairman, that that was the original intent of the act, although it did not specifically say so, that it was to be effective from the date of the act of June 7, 1924; and we felt that the comptroller, in his contention was perfectly right under the law, but that it puts the disbursing officers in an unfair position.
The CHAIRMAN. And it clarifies the language.
Section 7 of the bill adds a new provision to the act whereby checks issued to beneficiaries which are undelivered shall be retained in the bureau of three full fiscal years, rather than forwarded to the General Accounting Office after three months as is now the practice under regulations of the General Accounting Office. The operation of this regulation has resulted in much delay in beneficiaries receiving payments and much confusion in the records of the bureau as to payments made. The amendment was recommended by the bureau in the interest of good administration and will result in no increased cost.