Noble v. U.S., 99-14328

• Decision Date: 29 June 2000
• Docket Number: No. 99-14328,99-14328
• Citation: 216 F.3d 1229
• Parties: (11th Cir. 2000) Ottie R. NOBLE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1229

216 F.3d 1229 (11th Cir. 2000)

Ottie R. NOBLE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 99-14328.

United States Court of Appeals, Eleventh Circuit.

June 29, 2000.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Alabama.

(No. 97-02493-CV-BU-M), H. Dean Buttramm, Jr., Judge.

Before BIRCH, BARKETT and ALARCON^*, Circuit Judges.

ALARCON, Circuit Judge:

Ottie Noble ("Noble") appeals from an order dismissing his complaint and entering summary judgment in favor of the United States in an action brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., ("FTCA"). We have jurisdiction over this appeal under 28 U.S.C. § 1291. Because there was a substantial question as to whether the Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq., ("FECA") covered the alleged injury and because the Secretary of Labor ("Secretary") determined that the alleged losses fell within the coverage of FECA but were uncompensable thereunder, we affirm.

I

Noble was a painting supervisor with the Federal Bureau of Prisons. He was injured on the job during a mandatory self-defense training session at the Federal Correctional Institution in Talladega, Alabama, on January 27, 1994. Dr. James White, a neurosurgeon, examined Noble on February 14, 1994. Dr. White noted in his examination report that Noble had experienced neck and arm pain subsequent to his injury. Noble continued to experience neck and arm pain in the ensuing months. Noble saw Dr. White again on May 9, 1994. On that date, Noble discontinued reporting for work.

On May 18, 1994, Noble filed with the Department of Labor's Office of Workers' Compensation Programs ("OWCP") a claim for continuing compensation on account of disability.

On Dr. White's recommendation, Noble underwent a cervical myelogram test on May 18, 1994. On June 6, 1994, Dr. White recommended that Noble undergo surgery. Dr. White subsequently submitted a report to the OWCP in which he recommended surgery to treat Noble's condition, which he diagnosed as "cervical strain" and "cervical HNP."

The OWCP notified Noble on June 21, 1994, that it had scheduled an appointment for him to be examined by Dr. Matthew Berchuck, an orthopaedic surgeon, on July 12, 1994, in order to obtain a second opinion regarding Noble's request for OWCP authorization of FECA funding for the surgery. Upon examining Noble and his medical records, which included the results of the May 18, 1994, cervical myelogram test, Dr. Berchuck concluded that additional testing was necessary in order to determine whether surgery was warranted.

In a letter to Noble dated August 15, 1994, the OWCP informed him that it had determined him eligible to receive FECA compensation in the amount of 75% of his weekly rate of pay, or $527.40 per week.

On January 30, 1995, the OWCP notified Noble that it had scheduled an appointment with Dr. Richard Rex Harris, an orthopaedic surgeon, for another opinion regarding Noble's request for authorization of surgery. Dr. Harris examined Noble on February 16, 1995. In his February 21, 1995, report to the OWCP, Dr. Harris stated that Noble would need to undergo additional testing before he could determine whether surgery was warranted.

On April 10, 1995, the OWCP authorized Dr. Harris to perform the additional testing he deemed necessary. Noble declined to undergo the additional testing.

Noble was examined by Dr. J. Finley McRae, a neurosurgeon, on May 3, 1995. Noble consented to have Dr. McRae conduct additional testing. After Noble underwent the additional testing on May 15, 1995, Dr. McRae did not recommend surgery.

Noble then arranged on his own to see Dr. Terry Andrade, a neurosurgeon. On June 15, 1995, Dr. Andrade examined Noble and his medical records. He "strongly recommend[ed]" surgery.

A July 6, 1995, letter from a facility manager with the Federal Bureau of Prisons advised Noble that he had initiated proceedings to bring about Noble's removal from his position. He cited two reasons for taking this action: (1) Noble's failure to provide the updated medical documentation required to support his continuing absence from work; and (2) Noble's physical inability to perform the duties of his position. In the letter, the facility manager described the mechanism through which Noble could respond to the removal proceeding and also noted that the removal would occur no sooner than thirty days from the date Noble received the letter. Although the date of Noble's removal is unclear in the record before us, it is undisputed that Noble lost his job.

Dr. Andrade provided his findings and recommendation to the OWCP in reports dated July 13, 1995, and October 26, 1995. The OWCP authorized surgery on January 3, 1996. Dr. Andrade performed the procedure on January 26, 1996. Noble continued to experience neck and arm pain after the surgery.

On September 18, 1997, Noble filed a complaint pursuant to the FTCA in which he sought to recover $250,000 for the prolonging of his pain and the loss of his job that he alleged resulted from the OWCP's tortious delay in authorizing his surgery. On December 4, 1997, the United States filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). On March 19, 1998, the district court found there was a substantial question as to FECA coverage of the alleged injury, ordered the FTCA action held in abeyance, and directed Noble to file a claim with the OWCP seeking additional compensation under FECA for the prolonged pain and job loss that allegedly resulted from the OWCP's delay in authorizing surgery.

An October 19, 1998, memorandum from senior claims examiner Jennifer Valdivieso to the Director of the OWCP set forth the following rationale for the OWCP's denial of Noble's request for additional compensation under FECA:

Since all compensation payments and work related medical expenses have been paid, and will continue to be paid, Mr. Noble is not entitled to any further payments above and beyond that from this office. Section 8116(c) provides for exclusiveness of remedy with regard to work related injuries and deaths. This section provides that the benefits provided by the Act constitute the exclusive remedy against the United States for employment related injuries or deaths. The injury or death of an employee gives rise to no right to recover damages from the United States exclusive of the Act.

It is regrettable if Mr. Noble has suffered more because of his not obtaining surgical relief however, our office has paid all benefits possible to Mr. Noble consistent with the provisions of the Federal Employees' Compensation Act; therefore, the following conclusion is reached.

Mr. Noble's claim for monetary payment, based on his allegation that the office's delay in authorizing funding of his surgery precipitated physical pain and suffering, loss of income, loss of employment, loss of retirement benefits and loss of quality of life, is hereby denied as there is no provision for such payments under the Federal Employees' Compensation Act.

At the insistence of the district court, Noble requested a review of this determination by an OWCP hearing representative. After reviewing the written record, hearing representative Jacqueline Neugent affirmed the earlier decision in a July 19, 1999, letter to Noble:

Since all compensation payments and work related medical expenses have been paid and will continue to be paid (for the accepted work related conditions) the claimant is not entitled to any additional payments above that which has been approved. His request for reimbursement due to pain and suffering, loss of income, loss of employment, loss of retirement benefits, and loss of quality of life must be denied as there is no provision under the Act for such payments.

After receiving a copy of this denial of Noble's claim, the district court was satisfied that the Secretary had finally determined that the OWCP's delay in authorizing surgery and Noble's prolonged pain and loss of his job fell within the coverage of FECA but were not compensable under the statute's limited remedies.

On September 23, 1999, the district court dismissed Noble's complaint for lack of subject matter jurisdiction. On October 21, 1999, Noble filed a timely notice of appeal.

II

Noble contends that the district court erred in dismissing his claims and entering judgment for the United States because he had a viable FTCA claim against the United States for the prolonging of his pain and the loss of his job that resulted from the OWCP's delay in authorizing surgery. We review de novo the order dismissing Noble's complaint for lack of subject matter jurisdiction and the entry of summary judgment for the United States. See Woodruff v. United States Dep't of Labor, Office of Workers Compensation Program, 954 F.2d 634, 636 (11th Cir.1992).

In 1916, Congress enacted FECA to provide benefits to federal employees injured or killed in the course of performing their duties. See 5 U.S.C. § 8102(a). The benefits available under FECA are primarily medical expense reimbursement and disability compensation that represents a percentage of the claimant's salary prior to his injury. See §§ 8103-07. Congress amended FECA in 1949 expressly to provide that FECA is the federal employee's exclusive remedy against the federal government for on-the-job injuries. See § 8116(c). FECA provides that

[t]he liability of the United States ... under this subchapter ... with respect to the injury ... of an employee is exclusive and instead of all other liability of the United States ... to the employee ... [or] any other person otherwise entitled to recover damages from the United States ... because of the injury ... in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal...