Sharon Lee Wright v. United States

CORNELIA G. KENNEDY, Circuit Judge,

dissenting.

Because I believe that the District Court properly held that there was a substantial question of FECA coverage, I respectfully dissent. As the majority notes, district courts lack subject matter jurisdiction to consider an action where there is a substantial question of FECA coverage.

The leading Supreme Court case on the scope of federal workers’ compensation is O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504 , 71 S.Ct. 470 , 95 L.Ed. 483 (1951). In O’Leary , the death of a construction worker who reasonably attempted to rescue two drowning men (not co-employees) in a channel running in front of his employer’s recreation facility, but off the employer’s premises, was found to be compensable under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (1978) (amended 1972). The Court stated that:

Workmen’s compensation is not confined by common-law conceptions of scope of *261 employment.... The test of recovery is not a causal relation between the nature of employment of the injured person and the accident.... Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the “obligations or conditions” of employment create the “zone of special danger” out of which the injury arose.

340 U.S. at 506-07 , 71 S.Ct. at 471-72 (citations omitted). 1

The effect of O’Leary is that an injury need not bear a “causal relation” to the employment or have been incurred while the employee was working for his employer’s benefit in order to be compensable under federal statutory workers’ compensation provisions. Most courts have refused to adopt any per se rules as to when an injury arises out of a “zone of special danger” created by “obligations and conditions” of employment. Nor would I adopt a “premises rule” and conclude that the fact that injuries occur on federal property is sufficient to raise a substantial question of coverage which must be decided by the Secretary. I agree with a majority of courts of appeals which have adopted the position that location of the injury is but one factor that is considered among a “totality of all relevant circumstances.” Concordia v. U.S. Postal Service, 581 F.2d 439, 442 (5th Cir.1978); Martin v. United States, 566 F.2d 895 (4th Cir.1977); Bailey v. United States, 451 F.2d 963, 967-68 (5th Cir.1971); United States v. Udy, 381 F.2d 455 (10th Cir.1967); United States v. Browning, 359 F.2d 937 (10th Cir.1966).

While examining the relevant circumstances it is important to observe that the “zone of special danger” that gave rise to Wright’s injuries is the danger of improper treatment by VA medical personnel treating her for an emergency condition that arose while Wright was on duty. The personal, non-causal nature of Wright’s condition was unknown at the time of her acute abdominal pains. Submission to emergency medical treatment at a government treatment facility where one is employed may reasonably be considered incident to federal employment at that facility, especially where the personal nature of the medical emergency is unknown at the time action must be taken. See Mohr v. United States, 184 F.Supp. 80 (N.D.Cal.1960); Frieouf v. United States, 183 F.Supp. 439 (N.D.Cal.1960); Leahy v. United States, 160 F.Supp. 519 (E.D.N.Y.1958); Berry v. United States, 157 F.Supp. 317 (D.Or.1957). 2 That Wright would be treated there because she was an employee was foreseeable. And had her condition developed while she was off duty, she would not have been entitled to treatment at a VA hospital and thus would not have been exposed to the possibility of improper treatment by VA medical personnel. The condition of her employment, namely its location at the hospital, created the “zone of special danger” out of which the injury arose to a greater degree than did conditions of employment in O’Leary where the employee attempted to rescue two strangers and the only connection with his employment was that he was at a recreational facility (in Guam) provided by his employer when he made the rescue attempt.

This appears to be a difficult case because Wright’s injuries to her throat and abdomen are remote in time, place and activity from her job as a secretary at the VA. The inherent risks of ectopic pregnancy, or other acute non-work related disorders, are not risks incidental to her employment. Furthermore, her presence at the VA at the time of her problem was not dictated by her *262 employment but by pure chance. All of these factors suggest that her injuries were not incurred in the performance of her duties with the federal government. However, the question before us is not an ultimate determination on the merits but rather whether there is even a substantial compensation question under the FECA. Because workers’ compensation statutes are intended to provide liberal coverage to protect employees, uncertainties are generally resolved in favor of coverage. Martin, supra; Udy, supra. There is sufficient uncertainty in the circumstances before us to present a substantial question of whether compensation would be allowed. In at least one instance federal workers’ compensation has been awarded for malpractice by a government physician in connection with services rendered for a non-work related condition. In the case of John B. Battey, ECAB Doe. No. 73-124, decided October 10, 1974, a claimant was found eligible for FECA coverage for a tubercular condition that predated his government employment. Battey alleged that government personnel had negligently failed to discover evidence of the pre-employment tuberculosis in his pre-employment chest x-rays and that this condition was exacerbated by failure to treat it at an early stage. The Chief of the Claim Branch concurred in the award of compensation, stating that “[a]n employer should be liable for the deleterious effects of medical services furnished to employees. Battey at 3.” It is reasonable to consider medical services provided as a factor of employment and as such to find coverage under the FECA. Battey is cited with approval for this proposition in Scalia v. United States, 475 F.Supp. 1040, 1043 (S.D.N.Y.1979).

Several state decisions have also held that an employer is liable for medical treatment given for otherwise noncompensable conditions. These cases are collected in Larson, Workmen’s Compensation Law, § 13.21, footnotes 89 and 91. These decisions support -the conclusion that there is a substantial question of coverage.

The cases relied upon by the majority in Part II of its opinion are' distinguishable from the present case. The employee in Bailey, supra, was injured on her way home from work in an automobile accident on a street that happened to be on an Army base. The employer was not exposed to any dangers other than those faced by any commuting non-government employee, and was not “on duty” in any sense at the time of the accident. Wright was on duty when she first suffered acute abdominal pains, which led to her exposure to malpractice. 3 The employees in Wallace v. United States, 669 F.2d 947 (4th Cir.1982) and Dishman v. United States, 93 F.Supp. 567 (D.Md.1950), both alleged injury during minor, routine medical procedures which the employees were free to have had performed somewhere else at their leisure. 4 Wright was not so free, being constrained by the fact that her emergency condition developed while she was on duty at the hospital.

The dual capacity doctrine discussed in Part III of the majority opinion has not been applied to federal workers’ compensation laws. It appears to be incompatible with the' “zone of special danger” analysis consistently followed by the federal courts in interpreting federal workers’ compensation laws.

I would hold that a substantial compensation question exists because Wright was a federal employee who was on government property at her work station at the time her problem occurred; it was unknown at the time of her problem whether her acute abdominal pain was work-related or not (the personal nature of her problem was only determined subsequently); and, finally, Wright’s treatment at the VA was directly attributable to her status as a federal employee coupled with her actual presence on the employer’s premises at the time of the *263 occurrence, since the VA does not ordinarily treat the general public. These latter factors seem to raise a substantial question of coverage which, when viewed in light of the statutory mandate that the Secretary of Labor make the initial determination and the case law mandate that FECA be liberally construed, indicate that the District Court did not err in this case.

. The language of the statute interpreted by the O’Leary Court was somewhat different from the language of the FECA. However, the O’Leary “zone of special danger” analysis has been adopted by courts construing the FECA. E.g., Wallace v. United States, 669 F.2d 947 (4th Cir.1982); Avasthi v. United States, 608 F.2d 1059 (5th Cir.1979); Bailey v. United States, 451 F.2d 963 (5th Cir.1971).

. All these cases involved situations where an employee was reinjured in a government hospital or treatment facility where the employee was receiving treatment for an on-the-job injury.

. Martin, supra, Udy, supra, and Browning, supra, cited by appellant Wright, also involved auto accidents and are similarly distinguishable.

. Neither Wallace, supra, nor Dishman, supra, considered the O’Leary “zone of special danger” standard.