Williamson v. USA, No. 5:2012cv00334 - Document 19 (E.D. Ky. 2013)

Court Description: MEMORANDUM OPINION & ORDER: Dft's 14 Motion to Dismiss; Motion for Summary Judgment DENIED. Signed by Judge Joseph M. Hood on 9/5/2013. (STC)cc: COR

Download PDF

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON GARY EDWARD WILLIAMSON, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. UNITED STATES OF AMERICA, Defendant. Civil Case No. 5:12-cv-334-JMH MEMORANDUM OPINION & ORDER *** This matter is before the Court upon the United States Motion to Dismiss or, in the alternative, Motion for Summary Judgment, on the grounds that this Court lacks jurisdiction over this action. [D.E. 14]. Federal Tort Claims is now ripe (FTCA) Plaintiff has responded [D.E. 15], and the United States has filed a Reply [D.E. 18]. matter Act for review. For the Thus, this reasons which follow, Defendant s motion will be denied. I. FACTUAL AND PROCEDURAL BACKGROUND On October 26, 2009, while delivering mail for the United States Postal Service (USPS), Plaintiff stepped in a hole and twisted his ankle, fracturing the navicular bone in his right foot. [D.E. 1, ¶ 9]. Later that day, Plaintiff visited the emergency department at the Veterans Administration Medical Center (VAMC) in Lexington, Kentucky, where he received an x-ray of his foot. ¶ 10]. [D.E. 1, Despite the fact that the navicular fracture was allegedly plainly visible on these initial x-ray films, it was not diagnosed. [D.E. 1, ¶ 10-12]. Plaintiff went back to the VAMC for several follow up visits, including on November 27, 2009, and December 7, 2009. However, VAMC physicians did diagnose Plaintiff s [D.E. 1, ¶ 11]. fracture until March 1, 2010. not [D.E. 1, ¶ 12]. As a result of the delay in the diagnosis, Plaintiff s condition went untreated and worsened between October 26, 2009, and March 1, 2010. [D.E. 1, ¶ 10-12]. Ultimately, Plaintiff required three surgeries to correct the navicular fracture instead of one. In April 2007, more than two years prior to Plaintiff s navicular fracture, Plaintiff presented to the VAMC reporting pain in his right foot. [D.E. 1-1 at 9]. The VAMC took x-ray films of Plaintiff s right foot during this 2007 visit that indicated degenerative spurring at the anterior margin of the tibiotalar joint and along the dorsal aspect of the midfoot . . .. ray films taken in November [D.E. 1-1 at 9]. 2009, one month X- after Plaintiff s navicular fracture, showed the spurring at the tibiotalar joint had progressed from the 2007 study, with more prominent spurring along the dorsal aspect of the 2 talonavicular and navicular tarsal joints . . .. [D.E. 1- 1 at 10]. In December 2009, Plaintiff received an MRI at the and VAMC, a radiologist November 2009 x-ray. compared the [D.E. 1-1 at 12]. MRI with the The radiologist noted further changes in Plaintiff s condition, including [i]nflammatory change of the talar navicular articulation with some sclerotic change of the navicular bone noted and some degenerative arthritic change . . .. [D.E. 1-1 at 12]. Plaintiff Employee s filed for Compensation compensation Act under ( FECA ) as the a Federal result of injuring his foot and ankle in the performance of his duty as a USPS employee in March 2010, and received $73,379.66 in temporary $27,801.27 for Additionally, total disability medical Plaintiff net benefits. filed a compensation [D.E. tort 14-2 claim and at 2]. with the Department of Veterans Affairs in November 2011, seeking damages for the VAMC s failure to diagnose and properly treat his navicular fracture. [D.E. 1-1]. Plaintiff waited for a final disposition of the claim, but had not received one at the end of six months. [D.E. 1, ¶ 5]. Thus, Plaintiff exercised his right to treat the decision as a final denial of his claim under 28 U.S.C. § 2675(a), and timely filed his FTCA claim in this Court. 3 II. STANDARD OF REVIEW As an initial matter, Defendant s motion is styled as a Motion to Dismiss under Rule 12(b)(1), or, alternatively, a Motion for Summary Judgment. [D.E. 14]. Because this Court intends to rely on affidavits filed outside of the pleadings when resolving this matter, it Defendant s motion as one for summary judgment. will treat Wysocki v. Int l Business Machine Corp., 607 F.3d 1102, 1104 (6th Cir. 2010) ( The federal rules require that, if . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. (quoting Salehpour v. Univ. of Tenn., 159 F.3d 199, 203 (6th Cir. 1998))). Under Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the factual evidence and all reasonable inferences must be construed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Summers v. Leis, 368 F.3d 881, 885 (6th Cir. 2004). 4 III. DISCUSSION The United foreclosed States from argues relying on that the Plaintiff preexisting should be condition as part of his claim because it was not clearly presented in the FTCA Complaint or the initial Complaint in this Court. While the matter FTCA do condition, Complaint not the and Complaint specifically medical mention records in the submitted the instant preexisting with the FTCA Complaint and the Complaint before this Court reference the preexisting condition in such a way as to give adequate notice. The preexisting condition affected the same area of the body as the work-related injury, and it was the defendant s malpractice in the treatment of that injury, which allegedly prior condition. Complaint, more and clearly contributed to Granted, the certainly stated, the the exacerbation allegations Complaint however, the in of the the FTCA herein, could be plaintiff is not prevented from making this argument at this stage of the proceedings. Generally, if a federal employee sustains an injury while in performance of his duty, compensation provided through FECA is his exclusive remedy against the United States. 5 U.S.C. § 8102(a); Wright v. United States, 717 F.2d 254, 256 57 (6th Cir. 1983). 5 Therefore, [i]njuries which are compensable under the FECA . . . cannot be compensated under other federal remedial statutes such as the Federal Tort Claims Act. (citing (1966)). United States v. Wright, 717 F.2d at 257 Demko, 385 U.S. 149, 151 n.1 In fact, district courts lack subject matter jurisdiction to consider an action substantial question of FECA coverage. where there is a Id. at 257 (citing Joyce v. United States, 474 F.2d 215, 219 (3d Cir. 1973)). A substantial question of FECA coverage is generally present where the Secretary has undertaken an action to award or deny FECA benefits. Id. (citing Gill v. United States, 641 F.2d 195 (5th Cir. 1981)). The Sixth Circuit developed a narrow exception, coined as the dual capacity doctrine, to FECA s exclusive regime in Wright v. United States, 717 F.2d 254 (6th Cir. 1983). Under the dual capacity doctrine, [a]n employer may become a third person, vulnerable to tort suit by an employee, ifand only if-he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person. Wright, 717 F.2d at 259 (quoting 2A LARSON, WORKMEN S COMPENSATION LAW § 72.81 (1982)). In this particular case, Plaintiff concedes that a substantial question of FECA coverage is present, since the 6 Secretary has already awarded FECA compensation. at 6]. Defendant thus argues that jurisdiction over Plaintiff s case. this [D.E. 15 Court lacks Contrarily, Plaintiff argues that the dual capacity doctrine applies, giving this Court jurisdiction over his FTCA claim. [D.E. 15 at 6]. A resolution of this matter thus depends on whether the dual capacity doctrine is applicable to Plaintiff s case. If a federal employee alleges an injury as a result of negligent treatment of condition while patient a a preexisting, at a non-work-related government operated hospital, the Sixth Circuit has applied the dual capacity doctrine to allow the person to maintain an FTCA action. Wright, 717 F.2d at 259 60. In Wright, the plaintiff was employed as a secretary at a VA hospital when she began experiencing severe abdominal pain from a ruptured tubal pregnancy. Id. at 255. The plaintiff was admitted to the VA hospital s emergency department, and when complications arose during an exploratory laparotomy, was placed on a respirator. applied Id. and corrective Because the respirator was incorrectly operated, surgery to the her plaintiff trachea. had Id. at to undergo 256. The plaintiff subsequently brought an FTCA claim against the United States, arguing that the VA hospital breached its standard of care while treating her. 7 Id. Although the plaintiff s injury technically occurred while she was working, and, thus, FECA would usually provide her with an exclusive remedy, the Sixth Circuit applied the dual capacity maintain her FTCA claim. doctrine Id. at 260. and allowed her to The court observed that although the plaintiff was initially an employee of the VA Hospital, the relationship changed when the doors of the emergency room swung open and she became a patient thus placing her in a dual capacity relationship with the VA hospital. Id. Therefore, particularly since the plaintiff was under no obligation to seek treatment for her ailment at the VA hospital,1 the Sixth Circuit held that the VA Hospital acted in a second persona unrelated to [its] status as employer when the plaintiff became a patient, and allowed her to maintain a FTCA suit against the United States. Id. at 259 60. In Wright, the plaintiff s FECA claim was not timely filed, and, thus, it could not be processed. Wright, 717 F.2d at 256. The Sixth Circuit noted, however, that even if Wright s pregnancy had been compensable under the FECA, the present action would not be barred. Id. at 259. 1 Indeed, the Wright plaintiff alleged that when she requested to transfer to another hospital, the VA hospital would not allow it. Wright, 717 F.2d at 255. 8 Contrarily, if a plaintiff-employee s initial injury is clearly suffered in the performance of his or her duties, and is thus work-related, the Sixth Circuit has refused to apply the dual capacity doctrine to allow a plaintiff to maintain an FTCA claim. McCall v. United States, 901 F.2d 548, 551 (6th Cir. 1990). In McCall, the plaintiff, a federal civilian employee at Wright-Patterson Air Force Base, fractured her hip when she fell down a flight of stairs Medical Center. at work and Id. at 549. was treated at the Base The plaintiff subsequently applied for and received FECA benefits for her hip injury. Id. After termination of her FECA benefits, the plaintiff filed an FTCA claim against the United States, alleging that medical malpractice committed during her initial surgery and rehabilitation treatment forced her to undergo a second surgery, permanent disability causing her pain, suffering, and Id. The Sixth Circuit refused to apply the dual capacity doctrine under these facts. The court distinguished the plaintiff s case from Wright by pointing out that, although both plaintiffs were injured at work, the injury in Wright (ruptured tubal pregnancy) was not work-related, whereas the McCall plaintiff s initial injury (falling down the stairs at work) was clearly suffered in the performance of 9 her duties. McCall, 901 F.2d at 551 (alterations omitted). Further, the court pointed out that the injury in (damaged Wright trachea due to improper use of a respirator) was quite distinct from the (ruptured tubal pregnancy) that brought her to the hospital in the first place. Id. Contrarily, the court noted that the McCall plaintiff s alleged malpractice injury (malpractice in the initial surgery and rehabilitation treatment) was closely related to the initial injury. Id. Finally, the court observed that the Wright plaintiff s injury was not covered by FECA, unlike the McCall plaintiff. The United States argues that Id. McCall, rather Wright, controls under the instant circumstances. than However, because the Court agrees with Plaintiff that the facts of his case are more analogous to Wright, the dual capacity doctrine applies, and the Court will maintain jurisdiction over his FTCA claim. First, like in Wright, the United States clearly acted under two separate personas: 1) as Plaintiff s employer at USPS; and 2) as Plaintiff s medical care provider at VAMC. Indeed, the separation between the United States personas is even clearer in Plaintiff s case than it was in Wright, making application of the dual capacity doctrine seem even more appropriate. For example, 10 unlike the Wright plaintiff, Plaintiff did not work at the VAMC, which was separated in both time and proximity from USPS. Additionally, there was no evidence that USPS encouraged him to seek treatment at a government-operated hospital as part of his employment, whereas the VA hospital in Wright voluntarily undertook treatment and allegedly refused to let her transfer to another medical facility. F.2d at 255. Wright, 717 It is also worth noting that Plaintiff s status as a veteran, and not his status as a USPS employee, entitled him to medical care at the VAMC, further exemplifying the separation between his employment at USPS and his medical treatment at the VAMC. Overall, the relationship between the parties indicates that the United States assumed a second persona, satisfying the initial test for application of the dual capacity doctrine articulated in Wright. Second, although it is true that Plaintiff s navicular fracture occurred at work, Plaintiff has presented evidence that he suffered from a pre-existing condition in his ankle that first began in 2007. 2 [D.E. 1-1 at 9 10].2 Specifically, Plaintiff presents medical notes from 2009 that compare his 2009 x-ray with his 2007 x-ray, which support his theory that he had a pre-existing condition in his right foot which worsened after the VAMC failed to diagnose his navicular fracture in October and November 2009. [D.E. 1-1 at 9 10]. 11 Accordingly, he contends that the alleged malpractice (the failure to diagnose fracture) and aggravated properly his treat the pre-existing navicular condition. Therefore, like in Wright, when the facts are viewed in the light most favorable to Plaintiff, there is some evidence that his original injury came from a pre-existing personal pathology that was not job-related. 256. There remain genuine Wright, 717 F.2d at issues of material fact surrounding the extent that the VAMC s medical malpractice exacerbated his initial condition, and the damages that he would be entitled to receive as a result of this exacerbation. The Court also notes that the Plaintiff s facts do not accord with the second distinction articulated in McCall, in which the McCall court concluded that the facts before it differed from Wright because the alleged malpractice injury (malpractice treatment) was closely in surgery related to and the rehabilitative initial McCall, 901 F.2d at 551.; [D.E. 15 at 7 8]. injury. The Wright plaintiff s malpractice injury (damaged trachea) was vastly different pregnancy). than her initial injury (ruptured Wright, 717 F.2d at 255 56. tubal However, the Wright Court did not consider this as part of its analysis to regarding the dual capacity doctrine, and this Court 12 does not find this matter. On balance, situation is far consideration this more Court similar dispositive finds to that that of of this Plaintiff s Wright than McCall. The crux of the United States motion relies on the proposition that McCall bars the assertion of an FTCA claim when there is a substantial question of FECA coverage. Indeed, the McCall court did point out that the plaintiff s situation in that case differed from Wright because the McCall plaintiff was covered under FECA. at 551. McCall, 901 F.2d However, this distinction articulated by the Sixth Circuit in McCall is in conflict with its previous opinion in Wright, which stated that, because of the dual capacity doctrine, even if Wright s pregnancy had been compensable under the FECA, the present action would not be barred. Wright, 717 F.2d at 259. this distinction in Further, the McCall court stated what nearly appears to afterthought, without any supporting authority. 901 F.2d at 551. be an McCall, Therefore, given the factual similarities of this case to Wright, and given that the Wright court specifically stated that the plaintiff s FTCA action would not be barred even if she had been covered under FECA, this Court concludes that FECA coverage is not determinative to whether the dual capacity doctrine applies. 13 Notably, the Sixth Circuit is in the minority when it applies the dual capacity doctrine to FECA claims. courts have either inapplicable. rejected the doctrine or Most found it See, e.g., Gallo v. United States Dep t. of State Foreign Serv. Grievance Bd., 776 F. Supp. 1478, 1481 (D. Colo. 1991); Soltysiak v. United States, No. 90C6775, 1991 WL 55750, at *3 (N.D. Ill. Apr. 8, 1991); Votteler v. United States, 904 F.2d 128, 130 31 (2d Cir. 1990); Vilanova v. United States, 851 F.2d 1, 7 n.24 (1st Cir. 1988); Schmid v. United States, 826 F.2d 227, 229 30 (3d Cir. 1987). Further, at least one court has interpreted recent Sixth Circuit decisions as favoring a departure from Wright. See Soltysiak, 1991 WL 55750, at *2 (citing McCall as authority that the existence of FECA coverage precludes a separate tort action); see also Elman v. United States 173 F.3d 486, 490 91 (3d Cir. 1999) (suggesting the Sixth Circuit may have become disenchanted with the dual capacity doctrine. ). Regardless of the Sixth Circuit s suggested disenchantment with the dual capacity doctrine, Wright and McCall remain standing as the controlling law on this Court, and the undersigned is bound to apply the rules of the cases Moreover, until the the Court Sixth Circuit acknowledges 14 states that, as otherwise. applied in Wright, the dual capacity doctrine is a tough standard to meet, and the unique circumstances in Wright provide a very narrow exception to the rule that FECA coverage is a government employee s exclusive remedy accidents. Wright, 717 F.2d at 260. for work-related However, when viewed in the light most favorably to Plaintiff, the facts of this case appear to meet this narrow exception. Defendant s motion must be denied. IV. CONCLUSION For the foregoing reasons, IT IS ORDERED that the Defendant s Motion to Dismiss, or Alternatively, Motion for Summary Judgment [D.E. 14], shall be DENIED. This the 5th day of September, 2013. 15

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.