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Williamson v. United States

United States District Court, Sixth Circuit

September 5, 2013



JOSEPH M. HOOD, District Judge.

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 Federal Tort Claims Act (FTCA) action. [D.E. 14]. Plaintiff has responded [D.E. 15], and the United States has filed a Reply [D.E. 18]. Thus, this matter is now ripe for review. For the reasons which follow, Defendant's motion will be denied.


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. [D.E. 1, ¶ 10]. 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. [D.E. 1, ¶ 12]. However, VAMC physicians did not diagnose Plaintiff's fracture until March 1, 2010. [D.E. 1, ¶ 11]. 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...." [D.E. 1-1 at 9]. Xray films taken in November 2009, one month 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 talonavicular and navicular tarsal joints...." [D.E. 1-1 at 10]. In December 2009, Plaintiff received an MRI at the VAMC, and a radiologist compared the MRI with the November 2009 x-ray. [D.E. 1-1 at 12]. 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 filed for compensation under the Federal Employee's Compensation Act ("FECA") as a 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 total disability net compensation and $27, 801.27 for medical benefits. [D.E. 14-2 at 2]. Additionally, Plaintiff filed a tort claim 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.


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 will treat Defendant's motion as one for summary judgment. 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).


The United States argues that Plaintiff should be foreclosed from relying on the preexisting 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 FTCA Complaint and Complaint in the instant matter do not specifically mention the preexisting condition, the medical records submitted 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 contributed to the exacerbation of the prior condition. Granted, the allegations in the FTCA Complaint, and certainly the Complaint herein, could be more clearly stated, however, the 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). Therefore, "[i]njuries which are compensable under the FECA... cannot be compensated under other federal remedial statutes such as the Federal Tort Claims Act." Wright, 717 F.2d at 257 (citing United States v. Demko, 385 U.S. 149, 151 n.1 (1966)). In fact, "district courts lack subject matter jurisdiction to consider an action where there is a substantial question of FECA coverage." 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 Secretary has already awarded FECA compensation. [D.E. 15 at 6]. Defendant thus argues that this Court lacks jurisdiction over Plaintiff's case. Contrarily, Plaintiff argues that the dual capacity doctrine applies, giving this Court jurisdiction over his FTCA claim. [D.E. 15 at 6]. A ...

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