Board of Contract Appeals General Services Administration Washington, D.C. 20405 ___________________ January 27, 2000 ___________________ GSBCA 15134-TRAV In the Matter of ERNEST SANTUCCI Ernest Santucci, Bronx, NY, Claimant. Rob Huttenlocker, Acting Assistant Chief, Fresh Products Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, Department of Agriculture, Washington, DC, appearing for Department of Agriculture. PARKER, Board Judge. On July 14, 1999, while Ernest Santucci was on temporary duty (TDY) travel in Chicago, Illinois, he began having back spasms. The condition was a recurrence of one that had previously been treated successfully at Mr. Santucci s home in New York. Mr. Santucci called around and was able to secure an appointment to see a doctor in Chicago on July 16. Also on July 14, he submitted a request for sick leave for July 16, which was approved. Although he worked on July 14 and 15, Mr. Santucci s back pain steadily worsened and, after seeing the doctor and taking the prescribed medication on July 16, he was on sick leave all day. Upon his return to New York, Mr. Santucci s employer, the Department of Agriculture (USDA), disallowed his claim for per diem expenses for July 16. According to USDA, because Mr. Santucci s illness was not sudden (he requested the sick leave two days before he actually took it), the Federal Travel Regulation (FTR) does not permit payment of Mr. Santucci s per diem expenses for the day he was on sick leave. Mr. Santucci has asked the Board to review USDA s decision. 2 Discussion The FTR does permit USDA to pay per diem for the day that Mr. Santucci was on sick leave. Section 301-30.4 of the FTR provides as follows (question and answer format): When an illness or injury occurs on TDY, what expenses may be allowed? Your agency may pay: (A) Per diem at the location where you incurred or were treated for incapacitating illness or injury for a reasonable period of time (generally 14 calendar days). However, your agency may pay for a longer period. 41 CFR 301-30.4 (1999). There is no definition of the term incapacitating illness or injury in the current version of the FTR. The dictionary in the Board s library defines the term incapacitate as render incapable or unfit. Webster s Third New International Dictionary 1141 (3d ed. 1986). Clearly Mr. Santucci s back spasms were incapacitating on the day he took sick leave; he was incapable of working, both because he was getting medical treatment and because his condition was painful. Under the FTR, Mr. Santucci was eligible for per diem on that day. USDA relied on an out-of-date version of the regulation in formulating its position on Mr. Santucci s claim. In 1997, the FTR defined an incapacitating illness or injury as: one that occurs suddenly for reasons other than the employee s own misconduct and renders the employee incapable of continuing, either temporarily or permanently, the travel assignment. A sudden illness or injury may include a recurrence of a previous medical condition thought to have been cured or under control. 41 CFR 301-12.4(c) (1997). Even under this more restrictive definition, however, which required an element of suddeness, Mr. Santucci would have been entitled to per diem. His back condition was a recurrence of a previous medical condition thought to have been cured or under control. The back spasms which caused Mr. Santucci to miss a day of work were not present at the time he left New York. They came suddenly, i.e., while he was already in a TDY status. USDA s interpretation of the regulation was overly restrictive. Under either version of the FTR, per diem was allowable. Decision 3 For the reasons discussed above, the claim is granted. ______________________ ROBERT W. PARKER Board Judge