Wright v. U.S.

• Decision Date: 13 September 1983
• Docket Number: No. 81-1788,81-1788
• Citation: 717 F.2d 254
• Parties: Sharon Lee WRIGHT, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 254

717 F.2d 254

Sharon Lee WRIGHT, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 81-1788.

United States Court of Appeals Sixth Circuit.

Argued March 31, 1983.

Decided Aug. 26, 1983.

As Amended Sept. 13, 1983.

Michael T. Materna, Dwight Robinson (argued), Detroit, Mich., for plaintiff-appellant.

Leonard R. Gilman, U.S. Atty., Patricia Reeves, Ellen G. Ritteman (argued), Asst. U.S. Attys., Detroit, Mich., for defendant-appellee.

Before KEITH, KENNEDY and JONES, Circuit Judges.

KEITH, Circuit Judge.

On September 8, 1975, Sharon Lee Wright, plaintiff-appellant, became acutely ill. She was admitted to the Allen Park Veterans Administration Hospital where she was employed as a secretary. Physicians at the hospital treated her for a ruptured tubal pregnancy. Subsequently, Wright recovered and filed the present action under the Federal Tort Claims Act, 28 U.S.C. Sec. 2675. Wright alleged that the physicians at the Veterans Administration Hospital performed the surgical procedures negligently. The district court ultimately held that the Federal Employees Compensation Act, 5 U.S.C. Sec. 8101, was Wright's exclusive remedy. We reverse.

I.

On September 8, 1975, Sharon Lee Wright was performing her secretarial duties in the Psychiatry Department at the Veterans Administration Hospital in Allen Park, Michigan. At approximately 4 p.m. she began experiencing severe abdominal pain. A fellow employee transported her by wheelchair to the emergency room. Wright, a Jehovah Witness, was conscious and alert. She was not entitled to treatment at Allen Park Veterans Administration Hospital. Nonetheless, the hospital undertook to treat her. She refused to accept blood transfusions. At 7 p.m. Wright's parents arrived at the hospital. Wright's condition had worsened. She was conscious, but unable to communicate effectively. Wright's parents maintain that they requested that their daughter be transferred to a hospital which was better equipped to treat a young female with pregnancy complications. The medical staff, allegedly, rejected this request.

Later, Wright's parents confirmed that Wright's religious beliefs prevented her from receiving blood transfusions. Hospital personnel, nevertheless, elected to perform an exploratory laparotomy. ¹ A ruptured tubal pregnancy with massive intra-abdominal hemorrhage was discovered. When complications developed Wright was placed on a respirator. The next morning, Wright agreed to submit to a blood transfusion. Several days later Wright was discharged from the hospital.

On August 16, 1977, Wright filed an administrative claim with the Veterans Administration ("VA") under the Federal Tort Claims Act, 28 U.S.C. Sec. 2675. The claim alleged, inter alia, that the respirator was improperly applied and operated. In fact, Wright maintained that the respirator damaged her trachea, vocal cords and pharynx. In addition, Wright complained that her abdomen was improperly sutured. Consequently, she had to undergo corrective surgery and a "tracheal resection and reconstruction". On May 24, 1978, the VA responded with a letter which stated that Wright's exclusive remedy was the Federal Employees Compensation Act, 5 U.S.C. Sec. 8101. The VA based their determination on Wright's status as a working federal employee at the time of the onset of her injury. Wright apparently did not respond to this letter.

Instead, on August 18, 1978, Wright filed the present action in the United States District Court for the Eastern District of Michigan. Jurisdiction was asserted under the Federal Tort Claims Act, 28 U.S.C. Sec. 2675. The complaint alleged that hospital personnel assumed, but subsequently violated the duty to provide competent medical care. In particular, Wright maintained that the application, operation, and removal of the respirator damaged her trachea, vocal cords and pharynx.

On November 14, 1979, Wright filed a claim for compensation under the Federal Employees Compensation Act (FECA), 5 U.S.C. Sec. 8101. In a letter dated February 19, 1980, a Department of Labor claims examiner explained that Wright's FECA claim was untimely. The claim could not be processed because it had not been filed within three years of the date of the injury. Significantly, however, the claims examiner stated as follows:

In addition to the above, which absolutely precludes entitlement to benefits, the mere fact or coincidence that you happened to be at work when your medical emergency occurred would not entitle you to benefits. Your ruptured tubal pregnancy would be a pre-existing personal pathology which is not job-related and which would be covered by use of leave and your personal health insurance.

A year later, a claims supervisor for the Department of Labor sent Wright a second letter which referred to Wright's pending action in the district court. ² This second letter was sent approximately three months before the VA filed a motion to dismiss. It, too, confirmed that Wright's FECA claim was untimely. However, the letter concluded with the following assertion:

If you are successful in proving any deleterious result of medical service furnished by the Veterans Administration, you would have been covered by and entitled to benefits under the Federal Employees Compensation Act had your claim been timely filed.

On May 11, 1981, the VA filed a motion to dismiss, alleging that the FECA was Wright's sole and exclusive remedy. On September 11, 1981, the district court agreed and dismissed the action. Wright appeals.

II.

The FECA, 5 U.S.C. Sec. 8101 et seq., establishes a comprehensive program of workmen's compensation for government employees injured in work-related accidents. Reep v. United States, 557 F.2d 204, 207 (9th Cir.1977). The program is administered by the Secretary of Labor. He alone has the exclusive authority to "decide all questions arising under the FECA." 5 U.S.C. Sec. 8145. To ensure uniformity, an action of the Secretary is not subject to judicial review by mandamus or otherwise:

The action of the Secretary or his designee in allowing or denying a payment under this subchapter is--

1) final and conclusive for all purposes and with respect to all questions of law and fact; and

2) not subject to review by another official of the United States or by a court by mandamus or otherwise.

5 U.S.C. Sec. 8128.

The FECA is the exclusive remedy against the United States for an injury within its coverage. 5 U.S.C. Sec. 8116(c). Injuries which are compensable under the FECA, therefore, cannot be compensated under other federal remedial statutes such as the Federal Tort Claims Act. United States v. Demko, 385 U.S. 149, 151 n. 1, 87 S.Ct. 382, 384 n. 1, 17 L.Ed.2d 258 (1966). Moreover, district courts lack subject matter jurisdiction to consider an action where there is a substantial question of FECA coverage. Joyce v. United States, 474 F.2d 215, 219 (3d Cir.1973); Concordia v. United States Postal Service, 581 F.2d 439, 442 (5th Cir.1978); Reep v. United States, 557 F.2d at 207. A substantial question of FECA coverage is generally present where the Secretary has undertaken an "action" to award or deny FECA benefits. See Gill v. United States, 641 F.2d 195 (5th Cir.1981).

The statutory test for coverage under the FECA is whether the employee was injured "while in the performance of his duty." 5 U.S.C. Sec. 8102(a). Appellate courts which have interpreted these words of limitation have held that the injury must arise out of the special zone of danger created by an obligation or condition of employment. See, e.g., O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 506-07, 71 S.Ct. 470, 471-72, 95 L.Ed. 483 (1951); Bailey v. United States, 451 F.2d 963, 967 (5th Cir.1971); Avasthi v. United States, 608 F.2d 1059, 1061 (5th Cir.1979); Wallace v. United States, 669 F.2d 947, 952 (4th Cir.1982). The two leading cases which have applied the zone of special danger analysis are Bailey v. United States and Wallace v. United States.

In Bailey, an off-duty civilian employee had driven one block from her place of employment on the main street of the Army base before she was injured in an automobile accident. The court held that there was no substantial question of FECA coverage presented even though the injury occurred on government property:

At the time of the collision Mrs. Bailey had completed her work day; she had departed from the job site in her privately-owned automobile; and she was traveling home on a street which was apparently open to all persons authorized to be on the Army base. She was not under any supervision from her employer, and the driving of the automobile was not an activity connected to the usual hazards of laundry work. See Walker v. United States, D.Alaska, 1971, 322 F.Supp. 769. Absent any showing that the street traveled by Mrs. Bailey was a "zone of special danger" incident to her laundry employment, we hold that the location of the collision in this case was of small import and no substantial question of FECA coverage is raised by the fortuitous circumstance that the street was owned by the federal government.

Id. at 967.

The Wallace court also found no substantial question of FECA coverage despite the fact that the injury occurred during normal working hours on government property. Pursuant to a national swine flu immunization program, plaintiff voluntarily received a swine flu shot during normal working hours. The shot apparently was administered by the Public Health Service in a government building near where plaintiff worked. Subsequently, plaintiff contracted Guillain-Barre Syndrome. The court held that the injury had not occurred within the zone of special danger which was attendant to plaintiff's employment. The court stressed that the inoculation was not a condition of plaintiff's employment and that the shot could just as easily have been obtained at another location:

[T]his court cannot see how a causal relationship between one's employment can be...