Excelsior Motor Manufacturing & Supply Co. because it was not within the power or authority of the contracting officer who signed that agreement on behalf of the United States to bind the United States to such a stipulation. Neither was it within the power or authority of the officer of the Government who thereafter advised claimant to defend the suit to obligate the United States to bear any of the expense of such defense. In view of these facts and the further fact that the agreement of April 11, 1919, did not obligate the Government to pay any claim which might be presented by the Allegheny Forging Co., but only such obligations and commitments as were incurred in connection with the performance of the original contract, thereby making it the duty of claimant at its own expense to establish to the satisfaction of the Government the existence and amount of said obligation or commitment, it must be held that the provisions of Article V and the action of the Government officers in advising claimant to defend the suit can be construed as nothing more than an announcement of willingness on the part of the United States to accept the determination of the court as to the validity of the Allegheny Forging Co.'s claim as an obligation or commitment of claimant made in connection with the performance of the original contract. Therefore no part of the expenses incurred by claimant in defending the suit should have been allowed in the settlement of December 8, 1921.

The Government's obligation in the matter was to pay the amount, when definitely ascertained, of claimant's commitment to the Allegheny Forging Co. made in connection with the performance of the original contract, and as a prerequisite to such payment it was incumbent upon claimant, at its own expense, to establish the existence and amount of such commitment.

It appears, also, that there was a shortage to the amount of $415.69 in the material which became the property of the United States under settlement agreements. The material was inventoried and left at claimant's plant for some time thereafter. When it was removed by the Government there was found to be a shortage amounting to $415.69. Claimant contends that it did not undertake to become responsible for the material left in its custody and states that the Government placed an armed guard over the property for a few weeks after the inventory was made.

There appears to be no doubt that the material was left in claimant's custody and, regardless of any express agreement to that effect, it thereby assumed certain liabilities as bailee with respect to said material. The fact that the Government for a part of the time furnished an armed guard to watch the property can not relieve the claimant of its responsibility in the matter.

989449 0-52——16

In the termination settlements made with claimant credit was given to it for the full amount of the inventory, and since the entire amount of the property covered by the inventory was not thereafter turned over to the Government the amount of the shortage is primarily chargeable to claimant regardless of whether said shortage was due to an error in the inventory or to losses occurring thereafter. It is true that claimant did not become an absolute insurər of the property, but as the loss occurred while the property was in its custody and it has failed to show how the loss occurred, it must be held responsible therefor.

Upon a review of the matter a difference of $514.44 is certified due the United States, being the amount erroneously allowed and paid as expenses incident to the suit of the Allegheny Forging Co. ($98.75) plus the amount ($415.69) of the property shortage as herein before indicated.

EMPLOYEES' DISABILITY COMPENSATION — VOCATIONAL

DISEASES.

The authority given to the Employees' Compensation Commission, by section 32, act of September 7, 1916, 39 Stat., 749, to decide "all questions arising under said act, is conclusive upon the General Accounting Office so far as the denial of compensation by that commission is concerned, but does not deprive the General Accounting Office of jurisdiction over the question of payment of disability awards or of authority to require evidence of facts necessary to establish the legality of payments made thereunder.

The employees' compensation act of September 7, 1916, 39 Stat., 746, provides compensation for such disability only as is the result of a personal injury of an accidental nature, or, at least, of a personal injury which is referable to some particular event capable of being fixed in point of time.

Decision by Comptroller General McCarl, September 23, 1922:

The chairman, United States Employees' Compensation Commission, applied August 1, 1922, for review of the action of this office in disallowing, by settlement 11906, dated July 15, 1922, certain vouchers in the accounts of the disbursing officer of the commission amounting to $6,570.05. The vouchers represent payments of compensation or for medical or hospital services in cases diagnosed as disease with no supporting evidence that the disease and resulting disability originated in a personal injury for which alone compensation and medical service are provided by law.

The vouchers in question were first suspended for explanation and subsequently disallowed for lack of evidence that the disability in each case had resulted from some personal injury of service origin. 2 Comp. Gen., 6.

The application for review sets forth generally the construction given by the commission to the term "personal injury" as used in the compensation laws which it administers, and alleges that under section 32 of the act of September 7, 1916, 39 Stat., 749, which au

thorizes the commission to "decide all questions arising under this act," the commission is required to determine, among other questions, "whether he (the claimant) sustained a personal injury; whether the injury was sustained while in the performance of duty; and whether the personal injury caused any disability for work," or required any medical or hospital treatment, or supplies."

The question at issue in the decision of this office hereinbefore cited was the finality and conclusiveness of the finding and award of the commission under sections 32 and 36 of the act. First in order, therefore, is the question of respective jurisdiction of the commission and of the Comptroller General in deciding questions arising under or growing out of these laws.

All questions arising under the act are for decision primarily by the commission, and section 36 provides that the commission shall determine and make a finding of fact and an award for or against payment of compensation, and that compensation when awarded. shall be paid from the employees' compensation fund. The duty and function of the commission is thus clearly and accurately defined by law. If its award is against compensation no question of payment for decision by the Comptroller General arises. If compensation is awarded the statutory provision that it shall be paid from the employees' compensation fund raises a question of payment for decision by the Comptroller General. The established rule in such cases is that the finding and award will not support the payment if clearly wrong, and does not preclude this office from inquiring into the facts of the case and determining independently from the fact whether the payment was lawful. 15 Comp. Dec., 394, 845; 21 id., 708; 23 id., 567; 25 id., 197. The same rule has been applied to payment of awards of the Director of the United States Veterans' Bureau made under similar provisions of the war risk insurance laws.

This office must require of the commission such supporting evidence of fact as may be necessary to establish the legality of any payment which the disbursing officer of the commission has made. This duty will be so exercised as to impose no unnecessary hardship or inconvenience upon the commission.

A happening and immediate physical injury are apparently within. the enactments. Questions arise mainly where the facts involved. require interpretation of the term injury in the application of the enactments thereto-where the happening and injury are not immediately connected in point of time. Duties may be injurious in the disease sense through their continuousness, but if this is injury it is not injury for which the Federal laws have as yet provided compensation; and in such doubtful cases, such as those matters of the present submission, this office must require evidence to establish the

fact of injury which is a jurisdictional essential to the award, any finding, award, or certification of the commission to the contrary notwithstanding.

The application for review sets forth the commission's construction of the term "personal injury " as used in the compensation act-as covering not only accidents as ordinarily defined, but also any bodily injury or disease clearly due to the performance of duty and causing incapacity for work or requiring medical treatment. It should be em

phasized, however, that the commission considers as essential to an award the establishment of a causal relationship between the disability for which compensation or medical treatment is claimed and the conditions of the employee's work.

In support of this construction, cases adjudicated under the workmen's compensation laws of Massachusetts construing the term "personal injury " in that connection are cited.

The Massachusetts courts held that one who had suffered total loss of vision from optic neuritis caused by exposure to noxious gases in connection with his duties had sustained a personal injury under the workmen's compensation act; also one who had become infected with glanders while cleaning a stable; also a paint grinder who became disabled from work through lead poisoning.

The term "personal injury" is not one having a fixed and definite meaning in any and all connections. Its meaning in any statute must be gathered from the context and the general intent and purpose of the law. The value of the Massachusetts cases as precedents depends upon the similarity of the compensation law of that State and the Federal compensation laws in intent and purpose and in context.

The question for decision is whether injuries from slow poisoning or inflammation caused by normal occupational conditions and not by accident or sudden happening are such personal injuries as are contemplated and provided for by the Federal employees' compensation law.

The act of May 30, 1908, 35 Stat., 556, provided generally in sections 1 and 2 for payment to the employee, or to his widow and children in case of death, when artisans or laborers employed under certain designated conditions were "injured in the course of such employment." Section 3 provided for prompt report of any "accident" to an employee within the terms of the act, and section 4 provided for filing of claims in case the "accident" resulted in death.

"

The quoted phrase "injured in the course of such employment was the subject of numerous opinions by the Solicitor of the Department of Labor and by the Attorney General of the United States, which have been collected in a publication designated "Opinions of Solicitor, Department of Labor, 1915, Workmen's Compensation," and may be found in pages 188-281, inclusive, of that publication. In an opinion of the solicitor of July 28, 1913, in the case of Willard E. Jule, the facts given were that an employee who was a painter

became incapacitated for his work through lead poisoning due to inhaling the fumes arising from materials used in his work. It was held that he had been injured in the course of his employment and was entitled to pay under the terms of the act. The decision distinguished between what are known as vocational or occupational diseases and such diseases as pneumonia, malaria, typhoid, and the like which do not directly originate in occupational conditions. That opinion and the consensus of other opinions in the publication seem to be in line with the construction given to the Massachusetts statute by the courts of that State.

In the claim of A. E. Clark, December 17, 1908; page 188, the act was construed by the solicitor as restricting payments to injuries of an accidental nature, or at least "to injuries which are referable to some particular event capable of being fixed in point of time."

The Attorney General, however, at first construed the word "injury" as used in that statute as being employed comprehensively to embrace all the cases of incapacity to continue the work of employment, including all cases where as a result of the employee's occupation he becomes unable to carry on his work, 27 Op. Atty. Gen., 356; but later reviewed his opinion and appears to have given it a much narrower application, 28 id., 254. These opinions rest upon the terms of the act under consideration, and their value as precedents is limited to a comparison of the term of the respective statutes.

Sections 15, 16, and 17 of the act of September 7, 1916, 39 Stat., 746, which appear to be decisive of the question at issue, provide—

SEC. 15. That every employee injured in the performance of his duty, or some one on his behalf, shall, within forty-eight hours after the injury, give written notice thereof to the immediate superior of the employee. Such notice shall be given by delivering it personally or by depositing it properly stamped and addressed in the mail.

SEC. 16. That the notice shall state the name and address of the employee, the year, month, day, and hour when and the particular locality where the injury occurred, and the cause and nature of the injury, and shall be signed by and contain the address of the person giving the notice.

SEC. 17. That unless notice is given within the time specified or unless the immediate superior has actual knowledge of the injury, no compensation shall be allowed, but for any reasonable cause show, the commission may allow compensation if the notice is filed within one year after the injury.

These provisions differ materially from the corresponding provisions of the earlier act. Whereas the earlier act provided only for report of any "accident" to the employee the quoted section of the later act provides for notice of the "injury," thus broadening the sections to cover the full scope of the general provisions of sections 1 and 10 of the act, and provides further that no compensation shall be paid unless the notice is given or the immediate superior has actual knowledge of the injury. The earlier statute merely required a prompt report of the accident-the later requires that the notice of the injury shall state the hour the injury occurred.