Petition — Tredway v. District of Columbia

7 Supreme Court, U.

FILED’

Jul 19 1979

IN THE

SUPREME COURT OF THE UNITED STATES!0!//) pon):

—

October Term, 1978

179299.

LYNDA TREDWAY, Petitioner

v.

DISTRICT OF COLUMBIA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE DISTRICT OF COLUMBIA .

COURT OF APPEALS

Ronald L. Goldfarb

Ronald A. Schechter

Goldfarb, Singer & Austern

918 Sixteenth Street, N.W.

Washington, D.C. 20006

(202) 466-3030

———

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Citations to Opinions Below. ......-eeee-.

v. United States,

Jurisdiction * „ a e * « * * * * * a * ° a + „ *

’ 451 F.2d 963 (Sth Cir. 197177 12

I 3 i’ san np to be we a hae

Francis v. Liberty Mutual Insurance Co.,

85 Ga. App. 225, 97 SE.2d 553 (1957) .

16

Gondeck v. Pan Ameri World Airwa

382 U.S. 25 1965 o e * © „ * 0 - „ 2 — * * 2 4 11

1

2

2

—. 8 2

— cf the 6, „„ 8

3

Reasons for Granting the Vriltt . Graham v Graham

( Pe ee (c 350 P.ae wee (Ole. 1964) 2. we ec ee we ew ee 16

Appendix A- Statutes .......... 1 Hawkins v. Portland Gas ht Company,

„ 43 A. 2d 718 3, A

Appendix B Superior Court and Appea |

— and a wed 5 * 1-b a Mason v. District of Columbia,

395 A.2d 399 (D.C. App. 1978) pe 2°68 2 6 © © 6, 7

Math Igler's Casino v. Industrial Commission,

349 111. 330, 68 N. 2d 73 (1946) 9 9 „ „„ „4 „41 @ 15

j O'Leary v. Brown-Pacific-Maxon, Inc.,

; 340 U a 8 „ 504 (1951) — * * e > * * * * * „ * 0 13

Siebert v. Hoch

3 pot i", . —— .

i 199 Kan. 299, 428 P.2d 825 (1967) . 16

4

' Thornton v. RCA Service Company, Inc.,

221 SW.2d 954 (Tenn. 194999) - 15, 16

1

United States v. Udy,

381 F.2d 455 (10th Cir. 1967) .... +s 2 eee 12

ADMINISTRATIVE RULINGS:

7

„

*

5

„

*

„

—

O

Bernard D. Blum, 7 ECAB 1 (1947)

f 0 Frank Escalante, 13 ECAB 160 (1961) eee „ „„ 10

, f

George Fenske, Jr., 11 ECAB 471 (1970) ... 10, 11, 14

TABLE OF AUTHORITIES

(Continued) |

Jette L. Luellen, 13 ECAB 379 (1962). .

Margaret M. McClain, 23 ECAB 171 (1972)

STATUTES :

5 U.S.C. § 8101, et seq.

5 U.S.C. 8 8101(5) ..

5 U.S.C. § 8102(a) ...

5 U.S.C. 8 8116(c) ...

5 U.S.C. § 8128 eeee

MISCELLANEOUS :

Federal Personnel Manual,

810

oe 16

13, 14

ee 2

„ eS

2, 9, 10

ee 2

ee 9

2 * 9

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

LYNDA TREDWAY, Petitioner

v.

DISTRICT OF COLUMBIA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE DISTRICT OF COLUMBIA

COURT OF APPEALS

Petitioner Lynda Tredway asks that a writ of certiorari

issue to review the judgment of the District of Columbia

Court of Appeals entered in this case on June 19, 1979.

CITATIONS TO OPINIONS BELOW

The Opinion and Order of the Superior Court of the

District of Columbia are unreported and are printed in

Appendix B, p. Ib. The Opinion of the District of Columbia

Court of Appeals, printed in Appendix B, p. 7-b, is un-

reported.

JURISDICTION

The Judgment of the District of Columbia Court of

Appeals was entered June 19, 1979. The jurisdiction of

this Court is invoked under 28 U.S.C. §1257(3).

QUESTIONS PRESENTED

1. Whether petitioner, a former school teacher, must

apply to the Secretary of Labor for compensation under the

Federal Employees’ Compensation Act prior to instituting a

tort action against the-District of Columbia for injuries

regulting from her being raped in her classroom by non-

student intruders.

x Whether the injuries suffered by petitioner

come within the Federal Employees’ Compensation Act.

b. Whether there is a substantial question that

petitioner's injuries arose out of her employment.

STATUTE INVOLVED

"This case involves questions concerning the coverage

and exclusivity of the Federal Employees’ Compensation Act

(FECA), 5 U.S.C. §8101 et seq., particularly sections

8101(5), 8102(a) and 8116(c). These sections are printed

in Appendix A.

STATEMENT OF THE CASE

This case arose out of an especially horrible crime

that occurred at about 3:15 p.m., on May 5, 1975. Peti-

tioner, Lynda Tredway, then a teacher at a public high

school in the District of Columbia, was alone in her class-

room after formal class had ended at 3:00 p.m. She had

remained in her room to aid a student, and she had just

begun to grade student papers.

At approximately 3:15 p.m., two male strangers, who

were neither students nor employees of the school, entered

the classroom, locked the door, and tied and gagged the

petitioner. They assaulted petitioner with a knife, robbed

her and raped her repeatedly. Despite her cries, no one

came to petitioner's aid. Immediately after her assailants

departed, petitioner freed herself and sought help. Subsr-

quently, her assailants were captured and convicted.

On December 11, 1975, petitioner filed a complaint

in the Superior Court of the District of Columbia, alleging

that the attack was a direct result of respondent District

of Columbia's negligence in failing to provide petitioner

with safe working conditions under circumstances in which

respondent knew, or should have known, of the dangers to

which petitioner was exposed. Similar attacks had occurred

- 3<

previously, and a school guard who had been hired to be

there then was absent when this attack took place. As a

result of this attack, petitioner suffered substantial

injuries, humiliation, embarrassment, and pain, and she

incurred considerable expenses for necessary legal assis-

tance and medical and psychological —

On Msreh 11, 1975, respondent filed a Motion for

Judgment on the Pleadings, based on the argument that

petitioner's sole remedy was under FECA. On December 28,

1977, the trial court granted respondent's motion and

dismissed the complaint. The trial court held that "a

"substantial question’ of coverage under FECA has been

raised... and therefore the Secretary of Labor mst have

the first opportunity to speak on the applicability of

FECA."

Petitioner appealed this ruling to the District of

Columbia Court of Appeals. Petitioner argued that she

should be allowed to proceed with her tort suit against

respondent because:

1. the injuries she suffered were not contem-

plated for coverage under FECA; and

2. there was no substantial question that her

injuries did not arise out of her employment as a

teacher.

On June 19, 1979, the Court of Appeals ruled against

petitioner on both grounds, and affirmed the ruling of

the trial court. The Court of Appeals held that FECA

applied to the type of injuries suffered by petitioner,

and that there was a causal connection between petitioner's

employment as a school teacher, and her being raped by

non-student intruders.

REASONS FOR GRANTING THE WRIT

This case presents the Court with the opportunity to

answer two fundamental questions concerning the scope of

FECA, an important Federal statute:

1. whether certain of the harms suffered by

petitioner — humiliation, embarrassment and mental

anguish — are within the scope of the Act; and

2. whether the incident that caused the injuries —

petitioner's being raped by non- student intruders —

arose out of her employment as a teacher.

In 1 this case, the Court can establish a clear

standard for determining when an injured employee may proceed

in tort against her employer, without first filing a

claim for compensation with the Secretary of Labor.

I. This Court never has addressed directly whether

particular kinds of injuries, by their very nature, are not

within the purview of FECA. However, in Mason v. District

of Columbia, 395 A.2d 399 (O. c. App. 1978), the District

of Columbia Court of Appeals considered this question,

and held that certain types of "mental suffering" were

not "injuries" as that term is used in FECA. The Court

stated that an employee could bring a negligence claim

involving harm of that kind without first filing a FECA

clain.

The employee in Mason filed suit in court for assault,

battery, false arrest and false imprisonment, based on her

having been arrested while at work. Her damages were based

on the mental suffering, humiliation and embarrassment she

suffered because of her being arrested. The District of

Columbia sought to dismiss the complaint, arguing that the

employee's sole remedy was under FECA.

In its ruling, the Court of Appeals focused on the

Act's definition of "injury", which "includes in addition

to injury by accident, a disease proximately caused by

the employment and damage to or destruction of medical

braces, artificial limbs, and other prosthetic devices..."

5 U.S.C. §8101(5). The Court held that ""humiliation'

and ‘embarrassment’ claimed by [the employee] to have

caused ‘mental suffering’ in the instant case would not

be within the ambit of FECA and hence she could not recover

these damages under FECA." The Court allowed the employee's

tort suit to proceed without first having her attempt to

recover under FECA.

Petitioner's case presented the Court of Appeals

with circumstances almost identical to those in Mason —

an incident not within the traditional notion of a work-

place accident, and harm of the type not contemplated by

FECA. However, instead of focusing on the nature of the

injuries petitioner suffered and deciding that they were

not within the scope of FECA (as the Court did in Mason),

the Court of Appeals ruled that FECA applied to the

incident out of which the injuries arose. The Court ruled

that FECA applied to assaults, and that therefore peti-

tioner had to file her claim with the Secretary of Labor.

It is necessary for the Court to hear the present

case in order to clarify the concept addressed by the

325

Court of Appeals in Mason. Petitioner thinks that the

principle of Mason is correct: that certain injuries are

not contemplated by FECA, regardless of the incident out

of which the injuries arose. This principle applies to

her case, and petitioner should be allowed to proceed |

in tort against respondent.

Although FECA reflects important social policies and

needs, it simply does not encompass every type of harm

suffered by an employee. The mental agony petitioner

suffered clearly is not the type of "injury [caused by]

accident or disease" Congress had in mind in passing FECA.

The policies behind workmen's compensation laws —

sharing the risks of werkplace, work related injuries,

and expediting claims for injuries on the job — are wise

and useful ones. They have nothing to do with claims

arising out of a savage rape of a teacher by strangers,

irrespective of its fortuitous happening on her work

premises. Such a criminal act had nothing to do with her

job, and her employer's insistance on limiting petitioner's

remedy to a workmen's compensation claim is a bitterly

ironic attempt to limit her claim for the damages she

clearly and horribly sustained.

For these important reasons of policy and law,

the decision of the Court of Appeals in this case should

be reviewed by this Court, and the judgment should be

reversed.

II. The second issue raised by petitioner is whether

there was a sufficient connection between her employment

and her being raped, to raise a substantial question as

to the applicability of FECA. In order for petitioner

to be entitled to relief under FECA, her injury must have

been sustained “while in the performance of [her] duty."

5 U.S.C. §8102(a).

These words are a term of art in the law and they

have had a clear and definite interpretation by the state

courts interpreting state workmen's compensation laws and

by the Employees’ Compensation Appeal Board interpreting

the same phrase in the federal statute. The precise

1/ Claims for compensation under FECA are processed by

the Department of Labor, and most administrative actions

in this area are not subject to judicial review. 5 U.S.C.

§8128. As its name suggests, the Employees’ Compensation

Appeals Board is the appellate-level review board for

claims under FECA. See Federal Personnel Manual, Chapter

810, §5-15 (1975).

3 of this term should be gleaned from all those

cases and applied to the present 5 When that

is done, it is clear that petitioner's claim here is not

based on any injury which arose "in the performance of

her duty as a high school teacher as that term has been

applied consistently and uniformly in the courts of this

country.

A. The Federal Statute and Decisions

‘The decisions of the ECAB that interpret 5 U.S.C.

§8102(a) hold that in order for an injury to be compen-

sable under FECA, two tests must be met: (1) the injury

must have occurred "in the course of employment" and

(2) the injury must have "arise[n] out of... the employ-

ment." Frank Escalante, 13 ECAB 160 (1961). See also

Bernard D. Blum, 7 ECAB 1 (1947). The Board explained

these. tests in the matter of George Fenske, Jr., 11 ECAB

471 (1960):

"In the course of employment" deals prinarily

with the work setting, the locale and time

of the employee's performance of his work

assignment; "arising out of the employment"

en es not the work sett but

also a causal concept, the requirement

that t caused the in n

Congress... did not contemplate an insurance

program against any and every injury, illness,

-10-

or mishap that might befall an employee

contemporaneous or coincidental with his

employment. Liability does not attach A

merely upon the existence of an employee-

employer relationship. Congress... re-

quired the showing of a causal connection

between a personal injury and the employ-

.

In the case at hand, the District of Columbia Court

of Appeals correctly ruled that petitioner, a former

school teacher, could sue her employer in tort, without

—

first filing a FECA claim, if there was no "substantial

question" that the injuries she suffered did not arise

out of her employment. However, the Court of Appeals was

wrong in ruling that a substantial question as to the

applicability of FECA existed in this case, which involved

criminal acts unrelated to being a teacher, and committed

by strangers.

The applicability of this substantial question rule

here requires (1) an analysis of the usual and direct

hazards and risks of petitioner's employment as a school

teacher, and (2) a determination of whether her having

been raped and robbed by intruders was within the "zone

of special danger" involved in teaching, or ‘ia in any

way connected to the hazards of teaching. See Gondeck v.

Pan American World Airways, 382 U.S. 25 (1965); Bailey v.

United States, 451 F.2d 963 (Sth Cir.-1971) ; United States

wv. Udy, 381 F.2d 455 (10th Cir. 1967).

It is petitioner's position, well warranted by the

facts and by logic, that her injuries were neither an

ordinary hazard of her employment as a school teacher nor

the product of any danger which conceivably could be

-viewed to be within the zone of normal risks of her job.

As a teacher, petitioner came in regular contact :

with numerous students and other school employees. It

is arguable that an attack by one of these individuals

could conceivably be a hazard of being a teacher, as would

be an attack motivated in some way by petitioner's actions

in her classroom.2/

However, petitioner was raped and robbed by intruders

who were strangers to the school and to petitioner. There

was no possible relationship between this bizarre incident

and the usual and direct hazards of petitioner's employment

as a teacher; being raped by an intruder in the school is

not a normal risk incidental to being a teacher — not in

any civilized society, at least.

2/ For example, if a friend or relative of a student as-

saulted a teacher because the student was given a bad grade,

this incident might be considered a "usual risk" of teaching.

- 2 -

In ruling that petitioner's injury was within the

zone of danger created by her being a teacher, the Court

of Appeals relied on cases involving unusual injuries

which were non-criminal in nature, e. g., O'Leary X. Brown-

Pacific-Maxon, Inc., 340 U.S. 504 (1951), and concluded

that "compensation has been awarded for injuries no more

job-related than" petitioner's.

However, petitioner's claim is far less connected

to her employment than these cases relied on by the Court

of Appeals, because the basis of her claim involves un-

related criminal acts. Employment as a teacher may cause

an employee to be exposed to unusual circumstances that

lead to injury. However, a clear line of ECAB precedent

demonstrates that it is inconceivable that under FECA

there was a causal connection between being a teacher and

being subjected to the brutal criminal acts suffered by

petitioner.

For example, in Margaret M. McClain, 23 ECAB 171

(1972), the employee was murdered by his son-in-law, who

came to the employee's place of work and shot him. The

shooting arose out of a quarrel over a personal matter,

and the son-in law was not employed by the deceased's

employer. The ECAB denied relief under FECA and held:

There is no suggestion that the fatal assault

had any relation to the employee's work...

the only logical conclusion is that... the

employment was not a factor in the assault...

[T]he assault did not arise out of the employ-

. ment and the resulting injury was therefore

not compensable.

Id. at 173.

See also George Fenske, Jr., supra; Jette L. Luellen,

13 ECAB 379 (1962).

The Court of Appeals did not attempt to distinguish

these cases, nor did it explain why 4 present case did

not come within the rule established by the ECAB.

B. State Laws and Decisions

State courts consistently have denied workmen's

compensation in situations where employees were injured

in assaults by strangers, or where the motives for the

assaults were unrelated to the employment. Compensation

has been denied in these cases because the injuries to

the employees in no way could be said to have been caused

by the employment; therefore they did not arise out of

the employment.

Indeed, state courts are virtually unaninous in

holding that in order for an injury to arise out of

someone's employment, the injury not only must occur

21

at the time and place of employment, but also must bear

some causal connection to the employment. This causal

relationship has been defined by the courts in a variety

of ways, but the end result always is the same - benefits

for unrelated assaults are denied.

For workmen's compensation coverage to apply, it is

not necessary to prove that the precise injury could have

been anticipated by the employer; coverage is denied unless

the injury was within the zone of risk or hazard incident

to the employment, i.e., its terms, conditions, activities,

or obligations. For example, in Thornton v. RCA Service

Company, Inc., an employee was assaulted by a stranger

who made an entirely unprovoked attack upon him during

his employment. 221 SW.2d 954 (Tenn. 1949). In upholding

the denial of benefits, the Court stated:

[T]he assault did not arise out of any risk

incident to the employment of the party

assaulted and was not made because of the

employment, or the identity of the employer...

There was no causal connection between the

nature of Thornton's employment and this

assault.

Id. at 956-7.

See also Hawkins v. Portland Gas Light Company, 43 A.2d

718 (Me. 1945); Math Igter's Casino v. Industrial Con-

mission, 349 111. 330, 68 NE.2d 73 (1946).

- 15 -

Other courts borrow from the general principles of

the law of torts and require that the employment be a

contributing or proximate cause of injury. For instance,

in Siebert v. Hoch, an employee who was asleep on his

employer's premises was shot and killed by an unknown

assailant. The court denied the claim for workmen's com-

pensation because there was no "causal connection" between

the death and the employment: "proof of the shooting...

by an unknown assailant, for no known reason or motive,

without more, fails to meet the statutory requisite that

the death arose out of the employment." 199 Kan. 299,

428 P. 2d 825, 830-3 (1967). See also Francis X. Liberty

Mutual Insurance Co., 85 Ga. App. 225, 97 SE.2d 553 (1957).

Finally, some states require that the motive for the

assault relate to the identity of the employer, or to the

employer's type of business. See Graham v. Graham, 390

P.2d 892 (Okla. 1964), Thornton v. RCA Service Company,

Inc., supra; Hawkins v. Portland Gas Light Company, supra.

CONCLUSION

Based on all these federal and state precedents, it

is clear that no causal connection existed between peti-

tioner's employment and her injuries. The District of

*

Columbia Court of Appeals stands alone in holding that

workmen's compensation may be available to an employee

in a situation involving an unrelated criminal assault.

In its opinion, the Court of Appeals did not attempt

to reconcile its view on the subject with all the opposite

views of the ECAB and of the state courts. Its failure

to do so is particularly significant because this sini

involves FECA, a federal statute. It is necessary for

this Court to review this case, not only to permit peti-

tioner the resort to the justice system which her case

compellingly calls for, but also to establish and apply

a uniform standard to all comparable cases arising under

FECA and to bring the District of Columbia within the

coverage of this standard.

For the foregoing reasons, the Court should grant

this petition for a writ of certiorari.

Respectfully submitted,

msn .

Ronald L. Goldfarb

Ronald A. Schechter

Goldfarb, Singer & Austern

918 Sixteenth Street, N.W.

Washington, D.C. 20006

(202) 466-3030

July 18, 1979

- 17 -

CERTIFICATE OF SERVICE

I hereby certify that three (3) copies of this

Petition for a Writ of Certiorari were mailed, postage

pre-paid, this 19th day of July, 1979, to the Office of

the Corporation Counsel, District Building, 1350 E Street,

N.W., Washington, D.C. .20004.

ACA

Ronald L. Goldfarb

APPENDIX A

STATUTES

53 U. S. C. § 8101. Definitions

For the purpose of this subchapter--

(5) “injury” includes, in addition to injury by

accident, a disease proximately caused by the employment,

and damage to or destruction of medical braces, artificial

limbs, and other prosthetic devices which shall be replaced

or repaired, and such time lost while such device or

appliance is being replaced or repaired; except that

eyeglasses and hearing aids would not be replaced, re-

paired, or otherwise compensated for, unless the damages

or destruction is incident to a personal injury requiring

medical services.

5 U.S.C. § 8102. Compensation for disability or death

of employee

(a) The United States shall pay compensation as

specified by this subchapter for the disability or death

of an employee resulting from personal injury sustained

while in the performance of his duty, unless the injury

or death is —

(1) caused by willful misconduct of the employee;

(2) caused by the employee's intention to bring

about the injury or death of himself or of another;

or

(3) proximately caused by the intoxication of

the injured employee.

5 U.S.C. § 8116. Limitations on right to receive com-

pensation

(c) The liability of the United States or an instru-

mentality thereof under'this subchapter or any extension

thereof with respect to the injury or death of an employee

is exclusive and instead of all other liability of the

United States or the instrumentality to the employee,

APPENDIX A

2—

his legal representative, spouse, dependents, next of

kin, and any other person otherwise entitled to recover

damages from the United States or the instrumentality

because of the injury or death in a direct judicial

proceeding, in a civil action, or in admiralty, or by

an administrative or judicial proceeding under a work-

men's compensation statute or under a Federal tort lia-

bility statute. However, this subsection does not apply

to a master or a member of a crew of a vessel.

a EE EE

APPENDIX B

1-b

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

7

LYNDA TREDWAY,

2 Plaintiff

APPENDIX B v. }

DISTRICT OF COLUMBIA, : Civil Action No.

11257-75

Defendant,

OPINION AND ORDER

This matter comes before the court on defendant's

Motion to Dismiss.

Lynda Tredway, a District of Columbia school teacher,

filed a complaint for damages on January 6, 1976 alleging

negligence by the District of Columbia through its agent,

the District of Columbia Board of Education for injuries

suffered following her assault, rape and robbery in her

classroom on May 5, 1975.

Defendant moved to dismiss and a hearing was held

before this court. Defendant's contention is that the

plaintiff's exclusive remedy is governed by the provisions

of the Federal Employees’ Compensation Act, 5 U.S.C.

8101, et. seq., and, accordingly, this court is without

jurisdiction.

APPENDIX B

2b

Finding that the Secretary of Labor 18 sacatred: te

be given the primary opportunity to rule on the applica-

bility of the Federal Employees’ Compensation Act to the

case, this court grants defendant's Motion to Dismiss.

FACTS

The facts of this case are disturbing and undisputed.

On May 5, 1975, at approximately 3:00 p.m., plaintiff,

Lynda Tredway, was alone in her classroom at the Springarn

High School in the District of Columbia. She had just

finished talking with and helping a student in her home

room class and had begun to grade student papers. Plaintiff

was sitting at her desk when, at approximately 3:15 p. u. |

two men who were neither students at nor employees of the

school entered her room, shut and locked the door, tied

and gagged her when she screamed, assaulted her with a

knife, robbed her and raped her repeatedly.

CONCLUSIONS OF LAW 5

Plaintiff argues that her injuries are not within the

scope of the Federal Employees’ Compensation Act (here in-

after FECA), and in the alternative, if her injuries are

covered by the F.E.C.A. it is not her sole remedy and, if

so, the Act contravenes her Due Process rights under the

APPENDIX B

3—b

Fifth and Fourteenth Amendments of the United States Con-

stitution. Whether plaintiff's injuries are compensable

under F.E.C.A. is determinative of her claims. This court

is not the proper forum for this determination. "Unless

plaintiff's injuries were clearly not compensable under

F.E.C.A., we believe that the Secretary of Labor mst be

given the primary opportunity to rule on the applicability

of the Act to this case." Daniels-Lumley v. United States,

113 U. S. App. D. C. 162, 306 F.2d 769 (2962). 70

The only decision for this court is whether the facts

in this case raise a "substantial question" of coverage

under F.E.C.A., United States v. Charles, 130 U. S. App.

/ The plaintiff declined throughout to secure a decision

from the Secretary of Labor although given every oppor-

tunity to do so. The District Court stayed the pro-

ceedings to allow plaintiff time to secure a determina-

tion as to whether her injuries were compensable. The

plaintiff failed to do so, therefore, the court dismissed

plaintiff's suit without prejudice to pursue her remedies

within the Bureau of Employees’ Compensation, Department

of Labor. The U. S. Court of Appeals affirmed.

APPENDIX B

4-b

D.C. 151, 397 F.2d 712 (1968);2/ Somma v. United States,

283 F.2d 149 (3rd Cir., 1960).2/ ff so, the case mst

2/ In this case, judgment had already been entered against

the United States under the Tort Claims Act and the

court vacated and remanded with directions to reinstate

judgment if deputy commissioner decided that jurisdic-

tion did not lie under the Longshoremen's and Harbor

Workers’ Compensation Act.

3/ The court stated, after vacating judgment against the

plaintiff who was found contributorily negligent and

denied damages under the Federal Tort Claims Act:

In so deciding, we are not abdicating the functions

and responsibility of the court in favor of an

administrative agency; rather, we are merely car-

rying out the obvious intent of Congress when it

created the F.E.C.A. That Act sets up a compre-

hensive system of workmen's compensation for federal

employees [and for the District of Columbia as

prescribed by statute]. Congress provided that

it be interpreted and administered by a Bureau of

Employees’ Compensation and an Appeals Board whose

action is not reviewable by the courts.

.. „ Obviously, the purpose in so providing was

to insure uniformity of interpretation and policy.

Where, as here, admittedly a substantial question

of coverage exists, especially in an area in which

the Boar¢ has not as yet authoritatively spoken,

we think it extremely important that it have the

opportunity to speak first. at page 151.

APPENDIX B

5b

be submitted to the Secretary of Labor for determination.

Because of the extraordinary circumstances in this

case, this court believes that a "substantial question”

of coverage under F.E.C.A. has been raised. This is

precisely the type of case contemplated by the court in

Daniels-Lumley v. United States, supra, and, therefore,

the Secretary of Labor must have the first opportunity

to speak on the applicability of F.E.C.A.

The defendant submitted along with its pleadings,

an affidavit signed by the Counsel for Federal Employees'

Compensation, Office of the Solicitor, United States Depart-

ment of Labor, stating that he was advised of the plaintiff's

injuries, presumably by the defendant, and they are compen-

sable under F.E.C.A. Also submitted was an affidavit by

the Superintendent of Schools relating three instances

where teachers or school employees were injured by students

or outsiders and received benefits pursuant to F.E.C.A.

These affadavits do not obviate the need for an official

administrative proceeding by the Secretary of Labor or

his designees.

Plaintiff argues that if her sole remedy is the F.E.C.A.

then her Due Process rights under the Fifth and Fourteenth

Amendments of the U. S. Constitution have been violated.

APPENDIX B

6-b

The court cannot, at this time, make a determination as

to the merits of this argument. ‘The Secretary of Labor

has not made a decision as to the applicability of the

statute in this case. Therefore, it would be mere conjec-

ture for this 3 to entertain the constitutional ar gu-

ment at this time.

WHEREFORE, it is, this 28th day of December, 1977,

hereby,

ORDERED, that defendant's (District of Columbia)

motion to dismiss be granted without prejudice to pro-

ceedings under F.E.C.A., and if jurisdiction does not lie

under F.E.C.A., plaintiff's suit will be reinstated.

BY THE COURT:

SAMUEL B. BLOCK, JUDGE

APPENDIX B

7=b

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18177

LYNDA TREDWAY, APPELLANT,

7s

v. 8

So

DISTRICT OF COLUMBIA, et al., APPELLEES. f 5

iw

Appeal from the Superior Court of the | 8 2

Distriet of Columbia 5

(Hon. Samuel B. Block, Trial Judge) 1 |

(Argued September 13, 1978 Decided June 19, 1979)

Ronald L. Goldfarb, with whom Ronald A. Schechter

was on the brief, for appellant.

Margaret L. Hines, Assistart Corporation Counsel, with

whom John R. Risher, Jr., Corporation Counsel at the

time the brief was filed, and Richard W. Barton, Deputy

Corporation Counsel, were on the brief, for appellee.

Before GALLAGHER, HARRIS and MACK, Associate

Judges.

GALLAGHER, Associate Judge: This tort suit presents

two questions concerning the interpretation of the Fed-

eral Employees’ Compensation Act (hereinafter FECA) .

15 U.S.C. §§ 8101 et seg. (1976).

8b

The first question is whether the injury suffered by ap-

pellant is outside the scope of FECA so that she is not

barred by the exclusivity provision? of that Act from

suing her employer for negligence which allegedly caused

her injury.“ The second is whether there is a “substan-

tial question” that appellant’s injury arose while in the

performance of her duties, thus requiring her to seek and

be denied relief from the Secretary of Labor before she is

entitled to sue in tort on the same claim. We hold:

(1) that the injuries complained of are within FECA’s

coverage, and (2) that this case does raise a substantial

question as to whether these injuries arose in the per-

formance of duty. Accordingly, we affirm the trial court’s

dismissal of the complaint.

The facts are not in dispute. Appellant is a District

of Columbia school teacher at the Spingarn High School.

Her employer, the District of Columbia Board of Educa-

tion, is an agency of the District government. At about

8:15 p.m. on May 5, 1975, appellant was alone in her

classroom grading papers after class. Two male strangers,

who were neither students nor employees of the school,

entered the classroom, locked the door, and tied and

gagged appellant. They assaulted her with a knife, and

then robbed and raped her. Appellant alleges that as a

result of this attack she experienced humiliation, em-

barrassment, mental stress, anguish, and pain and suf-

25 U.S.C. § 8116 (e) (1976).

* This issue was raised in a supplemental brief submitted

after oral argument in this case. We granted appellant’s

motion to file the supplemental brief because our decision in

Mason v. District of Columbia, D.C.App., 395 A.2d 399

(1978), issued after oral argument here, had a potentially

substantial bearing on this case.

This of course permits appellant to proceed under FECA.

APPENDIX B

9=-b

fering, incurred expenses for legal assistance and medical

and psychological treatment, and was temporarily unable

to perform her duties as a teacher.

She filed her complaint in tort against the District of

Columbia alleging that the attack was a direct result of

appellee’s negligence in failing to provide her with safe

working conditions. She alleged that prior similar at-

tacks had occurred and that the school guard was absent

when the attack upon her took place. The trial court dis-

missed the complaint. It ruled that a substantial question

of FECA coverage had been raised under the rule stated

in Daniels-Lwmley v. United States, 118 U.S. App. D. C.

162, 306 F.2d 769 (1962). This appeal followed.“

I.

FE CA requires the government to pay compensation

“for the disability or death of an employee resulting from

personal injury sustained while in the performance of his

duty.” 5 U.S.C. §8102(a). Compensation consists of

(1) medical services, id., § 8108; (2) vocational rehabili-

tation, id., § 8104; and payments based on fixed percent-

ages of weekly wages for (3) death, id., § 8102; (4) dis-

ability, whether partial or total, temporary or permanent,

id., §§ 8105-06; and (5) loss of sense or member, id.,

§ 8107. There is no provision for pain and suffering.

5 Two affidavits, one by a Labor Department legal counsel

and one by the Superintendent of the District of Columbia

Public Schools, both to the effect that appellant’s injuries

were of a type covered by FECA, were received into evidence

over appellant’s objectians. It is not clear how much, if any,

weight the trial court gave them in reaching its decision. Since

we affirm the trial court without reference to the two affi-

davits, there is no need to consider here the propriety of the

trial court’s acceptance of them under Super. Ct. Civ. R. 56 (e)

or otherwise.

10=b

*

FECA further provides that the liability it imposes is

the government’s exclusive liability “with respect to the

injury or death of [the] employee.” Id., §8116(c) (em-

phasis supplied). This provision serves a major purpose

of the Act—namely, to limit the government’s liability to

a low enough level so that all injured employees can be

paid some reasonable level of compensaticn for a wide

range of job-related injuries, regardless of fault. See

Busey v. Washington, 225 F. Supp. 416, 422 (D.D.C.

1964). As the legislative history of this provision states:

Thus [by adding the exclusivity provision to

FECA],... [t]he savings to the United States,

both in damages recovered and in the expense

of handling the lawsuits, should be very sub-

stantial and the employees will benefit accord-

ingly under the Compensation Act as liberalized

by this bill. [S. REP. No. 886, 8lst Cong., 1st

Sess. 28 (1949).]

This provision, however, has been construed as limiting

the government’s tort liability only for injury or death

within the scope of the Act. Thus, an injured employee

may sue his employer where the injury is not of the type

intended to be covered by the compensation act, Mason

v. District of Columbia, D.C. App., 395 A.2d 399, 403

(1978), or where the injury was not sustained “while in

the performance of his duty.” See Bailey v. United

States, 451 F.2d 968, 967 (5th Cir. 1971) ; United States

v. Udy, 381 F.2d 455, 458 (10th Cir. 1967). On the

other hand, if the injury is covered by the Act, the gen-

eral rule is that the compensation act remedy is exclusive,

even though under the facts of the particular case no

compensation is payable* or even though the compen-

FE. g., Hubbard v. Reynolds Metals Co., 482 F.2d 68, 64

(9th Cir. 1978) ; Grice v. Suwannee Lumber Mfg. Co., 118

ll=-b

5

sation act fails to provide for the full extent of the em-

ployee’s damages. Haynes v. Rederi A/S Aladdin, 362

F.2d 345, 350 (5th Cir. 1966), cert. denied, 385 U.S.

1020 (1967).

Physical attacks by third parties sustained in the

performance of the employee’s duties are clearly covered

by FECA. E.g., Penker Construction Co. v. Cardillo,

73 App. D. C. 168, 169, 118 F.2d 14, 15 (1941); Hart-

ford Accident & Indemnity Co. v. Cardillo, 72 App.

D.C. 52, 55, 112 F.2d 11, 14, cert. denied, 310 U.S. 649

(1940); Hartford Accident & Indemnity Co. v. Hoage,

66 App.D.C. 160, 85 F.2d 417 (1936). In her supple-

mental brief, however, appellant contends that her injury

is outside the coverage of FECA because she is claiming

for humiliation, mental anguish, pain and suffering, and

the like. She argues that the Mason decision, in which

we allowed a plaintiff claiming similar “psychic” injuries

to sue her employer, requires that this tort suit be per-

mitted. This argument is without merit. The Mason

decision does not change the rule that there can be no

separate recovery for pain and suffering where the under-

lying injury is covered by the Act. Haynes v. Rederi

A/S Aladdin, supra at 350." Rather, Mason involved

So.2d 742, 746 (Fla. Dist. Ct. App. 1959); Blue Bell Globe

. v. Baird, 64 Ga. App. 847, 18 S. E. 2d 105, 106

T Addressing the injured employee’s argument that he

should be entitled to tort damages for pain and suffering in

a to compensation, the court in Haynes, supra at 350,

(Appellant’s] analysis is so bizarre and unsupportable

as to require very little rebuttal. Suffice it to say that

appellant completely misconceives the purpose and func-

tion of the [compensation] Act; the whole theory of the

Act, and of similar compensation legislation, is to provide

12=b

injuries which we held were not covered by FECA, name-

ly false arrest and false imprisonment. “The gist of any

complaint for false arrest or false imprisonment is an

unlawful detention,” Clarke v. District of Columbia, D.C.

App., 311 A.2d 508, 511 (1978), “irrespective of any

physical or mental harm.” Moore v. Federal Department

Stores, Inc., 33 Mich. App. 556, ——, 190 N.W.2d 262,

264 (1971); see Clarke, supra. Since FECA has been

interpreted to encompass only mental or physical“ in-

juries, this was not the kind of personal injury covered

by FECA. Appellant, however, has alleged physical in-

juries. The underlying cause of her psychic damages is

thus covered by FECA. Mason therefore does not apply,

and suit is barred even though the compensation act

remedy fails to provide for the full extent of her dam-

ages. Haynes v. Rederi A/S Aladdin, supra.

II.

As we noted earlier, the exclusivity provision of FECA

De eee eee ated e ide Den

in lieu of all common law damages. Thus the payments

made by [the insurance company] were made in place

of all damages to which appellant otherwise would be

eee Leo

(Emphasis in original; footnote omitted.]

F. g., Butler v. District Parking Management, 124 U.S.

App.D.C. 195, 868 F.2d 682 (1966); „Orban Land Inst. v. Gar-

roll, 346 F. Supp. 699 (D. D. C. 1972); District of Columbia

Transit Sy „ Inc. v. Massey, 260 F. Supp. 310 (D. D. C.

1966), rev’d in part on other grounds, 128 U.S. App. D. C. 828,

388 F.2d 584 (1967).

F. g., Penker Constr. Co. v. Cardillo, supra; Hartford

Accident & Indemnity Co. v. Cardillo, supra; Hartford Acci-

dent & Indemnity Co. v. Hoage, supra.

APPENDIX B

1b

7

tained in the performance of appellant's duties. It has

been held, however, that in the interest of uniform appli-

cation of FECA, a court must dismiss a suit to allow the

Secretary of Labor to decide whether the injury is com-

pensable under the Act if there is a “substantial question”

that the injury arose out of employment. Somma v.

United States, 283 F.2d 149, 151 (3d Cir. 1960). A sub-

stantial question will exist unless [the] injuries were

clearly not compensable under the FECA ... .” Daniels-

Lumley v. United States, supra at 168, 306 F.2d at 769

(emphasis supplied). This rule is necessary to meet the

statutory provision that “all questions arising under“ the

Act shall be decided by the Secretary of Labor. 5 U.S.C.

§ 8145; see Somma v. United States, supra at 151.

Appellant’s argument that there is no substantial ques-

tion of FECA coverage is based on the absence of a causal

connection between her type of employment and the type

of injury suffered. While it is true that such a causal

relation is required under many state workmen’s com-

pensation acts,“ the rule under the federal compensation

acts has been much more liberal to employees. Under both

FECA and the Longshoremen’s and Harbor Workers’

Compensation Act,“ the causal test has required only that

“the work [bring] the worker within the orbit of what-

ever dangers the-environment affords.” Hartford Acci-

dent & Indemnity Co. v. Cardillo, supra at 55, 112 F.2d

at 14. Another frequently applied test has been whether

the work placed the employee in the particular “zone of

special danger” which caused the injury. Gondeck v.

10 See, e.g., Hartford Accident & Indemnity Co. v. Coz, 101

Ga. App. 789, 115 S.E.2d 452 (1960) ; Math Igler’s Casino v.

Industrial Comm 'n, 894 IIl. 880, 68 N.E.2d 778 (1946) ; Siebert

v. Hoch, 199 Kan. 299, 428 P.2d 825 (1967).

u $3 U.S.C. §§ 901 et seg. (1976).

1b

8

Pan American World Airways, 382 U.S. 25, 27 (1965) ;

O’Keefe v. Smith, Hinchman & Grylls Assocs., 380 U.S.

859, 362 (1965); O'Leary v. Brown-Pacific-Maxon, Inc.,

340 U.S. 504, 507 (1951). These cases establish that

FECA coverage cannot be denied on the grounds that

the injury was not an inherent risk or hazard of the type

of job. All that is required is that the injury result from

a risk incidental to the environment in which the employ-

ment places the claimant.

We note that compensation has been allowed for in-

juries scarcely more job-related than those in the present

case. In O' Leary, supra, the employee had drowned while

attempting to save swimmers at his employer’s recreation

center. The center was situated next to a very dangerous

channel. Although the employee’s job responsibilities had

nothing to do with the center or with rescue, the Supreme

Court allowed compensation. In Amalgamated Ass’n of

Street, Electric Ry. & Motor Coach Employees v. Adler,

119 U.S.App.D.C. 274, 340 F.2d 799 (1964), a union

official was compensated where, as an alternate to a union

convention, he slipped and injured himself in the bathtub

of his hotel room while preparing to attend the convention

banquet. The claimant in United States v. Charles, 130

U.S. App. D.C. 151, 397 F.2d 712, cert. denied, 393 U.S.

897 (1968), was allowed compensation for injuries suf-

fered when she fell while alighting from a bus on her

way to work, the accident occurring within one block of

the officer’s club where she was employed. And an assault

was compensated in Hartford Accident & Indemnity Co.

v. Hoage, supra, where the claimant, a cook in a restau-

rant, was injured when a crazed stranger stuck a knife

into the chef’s nose while the chef was cooking.

Appellant was in her classroom during her work hours

and was acting in the course of her employment when the

{1 63°

A

\

-b

attack occurred. The “zone of danger” was not created

by appellant; rather, appellant has alleged that the

Spingarn High School had been the scene of three previ-

ous similar attacks on women teachers. In this situation

it is not unlikely that the Secretary of Labor will find

that the risk of attack was incidental to the environment

in which appellant’s job placed her. Compensation has

been awarded for injuries no more job-related than those

here. We conclude the Secretary of Labor must be al-

lowed to “make the initial determination of coverage to

promote uniformity in the application of FECA.” Reep

v. United States, 557 F.2d 204, 208 (9th Cir. 1977).

Affirmed.

12 This case, therefore, is not governed by the “military

base“ cases cited by appellant. See, ¢.g., Bailey v. United

States, supra; United States v. Udy, supra; United States v.

Browning, 359 F.2d 987 (10th Cir. 1966). The courts in those

cases ruled that the mere fact that an injury occurs on a mili-

tary base where a civilian claimant’s job is located is not

enough to create a substantial question of FECA. coverage

where the claimants were injured off their job sites long after

they had left work to go home. Here, of course, appellant was

injured during work hours at her place of employment. Her

— are therefore more job-related than those in the cases