ROBERT E. VOTTELER, PETITIONER V. UNITED STATES OF AMERICA No. 90-5549 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A5) /1/ is reported at 904 F.2d 128. The opinion of the district court (Pet. App. B1-B16) is unreported. JURISDICTION The judgment of the court of appeals was entered on May 18, 1990. The petition for a writ of certiorari was filed on August 14, 1990. The jurisdiction of this Court is apparently invoked under 28 U.S.C. 1254(1). /2/ QUESTION PRESENTED Petitioner's pre-existing injuries were allegedly aggravated as a result of job-related medical treatment at a Public Health Service hospital where he was employed. The question presented is whether, in these circumstances, petitioner has a cause of action for medical malpractice under the Federal Tort Claims Act. STATEMENT In this action, the court of appeals affirmed the district court's order of summary judgment dismissing petitioner's complaint under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), on the ground that the exclusive remedy for petitioner's claim is the Federal Employees' Compensation Act (FECA), 5 U.S.C. 8101 et seq. Pet. App. A2. 1. Petitioner was employed as a porter at a Public Health Service hospital on Staten Island, New York, from 1973 to 1981. Pet. App. A2. In 1979, he was placed on sick leave for several months due to injuries to the neck and shoulder that were sustained in an automobile accident unrelated to his employment. Id. at A2, B3. On July 17, 1979, petitioner's supervisor wrote to the hospital's medical director requesting that petitioner be examined "for purposes of determining whether or not (petitioner) should be continued in employment in his position as a housekeeping aide." Pet. App. B3. The hospital then wrote petitioner requiring him to undergo a physical examination by one of its doctors. Ibid. The examination took place on August 1 and September 7, 1979. Ibid. According to petitioner, he advised the examining doctors that he was a chemically addicted alcoholic and could not take any mood-changing drugs. Pet. App. B3-B4. PHS doctors recommended that petitioner be returned to work on a trial basis. Ibid. On October 17, 1979, after returning to work, petitioner aggravated his neck and shoulder injury while lifting laundry bags. Ibid. He sought treatment from a PHS physician, who prescribed the medication librium and noted in petitioner's medical record "pain in the neck after picking up laundry bags. Pain started since returning to work." On November 3, 1979, petitioner received emergency treatment for neck pain, was again prescribed librium, and was dismissed for two days as unfit to work. Upon his return on November 5, petitioner was again prescribed librium. Ibid. In December 1979, petitioner visited the same PHS physician with complaints of pain and limited neck motion in connection with his lifting duties. Ibid. Once again the doctor prescribed librium, and told petitioner to finish taking the drug on December 17, 1979. Pet. App. B4-B5. In a March 12, 1980 visit to the employee health unit at his work site, petitioner complained of vomiting and diarrhea, and received prescriptions for belladonna and phenobarbital. Pet. App. B5. According to petitioner, he resisted taking librium until March 13, 1980. Ibid. The medication then had an immediate adverse affect on him, causing him to consume alcohol. Ibid. Petitioner sought further emergency treatment for neck and shoulder pain on May 24, 1980. Ibid. On July 25, 1980, he sought treatment for depression and was referred to the PHS hospital's psychiatric unit, where, on May 24 and October 11, 1980, a treating physician again prescribed librium. Ibid. In January 1981, PHS hospital officials notified petitioner that his employment was terminated. Pet. App. B6. On January 26, 1981, he was admitted to the hospital's psychiatric unit for special study and was diagnosed as having problems of excessive habitual drinking and osteoarthritis of the neck. He was discharged from the hospital after signing out against medical advice. Ibid. 2. Petitioner filed claims for continuation of pay under the FECA on three occasions -- May 27, September 12, and September 25, 1980 -- for injuries to the shoulder, neck, and back incurred while lifting objects on the job. Pet. App. B6. The Department of Labor Office of Workers Compensation Programs authorized the PHS hospital to provide free medical services and continuation of pay on the first two claims. With respect to the third claim -- for injuries incurred on September 25 -- the Department determined that petitioner had failed to establish that he had been injured in the performance of duty. Ibid. 3. In 1984, petitioner filed the present suit for damages under the FTCA. Petitioner asserted that, as a result of the examinations required by his employer, he was ordered back to work prematurely, aggravating his initial injuries, Pet. App. B4, and that as a result of the ingestion of librium, phenobarbital, and other drugs, he suffered injury and lost his employment. Id. at B7. The district court granted summary judgment for the government on the ground that FECA was the exclusive remedy for the damages claimed. Citing 5 U.S.C. 8116(c) and Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 194 (1983), the court noted that FECA bars any suit under the FTCA for injury compensable under FECA. See Pet. App. B9. It noted that, because "(i)ndependent acts of negligence in the treatment of work-related injuries by the employer are not so unforeseeable as to break the chain of causation," FECA coverage extends to situations such as petitioner's where the alleged medical malpractice occurs in the treatment of a work-related injury. Pet. App. B9-B10, B14-15. The court also observed that it was irrelevant that the original automobile injury took place outside of work since the alleged malpractice occurred as part of the employer-employee relationship. /3/ Ibid. The district court rejected petitioner's contention that he was entitled to file an FTCA suit under the "dual capacity" doctrine, articulated by the Sixth Circuit (see Wright v. United States, 717 F.2d 254, 259 (6th Cir. 1983)), which would remove an employer from the protection of FECA when the acts complained of are independent of its status as employer. Pet. App. B12. In the court's view, the Wright decision was inconsistent with Balancio v. United States, 267 F.2d 135 (2d Cir.), cert. denied, 361 U.S. 875 (1959), which held that FECA was the sole source of compensation for job-related injuries. Pet. App. B14, B11. /4/ In any event, the district court stated, an FTCA action is foreclosed if there is a "substantial question" whether the injury is covered under FECA. Here, there was, at a minimum, a "substantial question" as to FECA's applicability, and that alone would preclude an FTCA action at least unless and until the Secretary of Labor denied petitioner relief under FECA. Id. at B15. 4. The court of appeals affirmed, agreeing that FECA is petitioner's exclusive remedy. Pet. App. A1, A3. The court upheld the district court's ruling that, even though petitioner's original injury occurred off the job, "it is undisputed that (petitioner) aggravated his original injuries in the course of his employment, after he returned to work." /5/ Id. at A3. The court then observed that "FECA is available not only for the work-related injury that aggravated the original non-work-related injury," but also "for any malpractice claim arising out of the treatment of such aggravated work-related injuries." Ibid. The court of appeals rejected petitioner's argument based on the so-called "dual capacity" theory articulated in the Wright decision. The court noted that Wright was inconsistent with the court's previous decision in Balancio, and that it had been criticized by other courts of appeals as well. Pet. App. A5, citing Schmid v. United States, 826 F.2d 227, 229-230 (3rd Cir. 1987); Wilder v. United States, 873 F.2d 285, 289 (11th Cir. 1989); Vilanova v. United States, 851 F.2d 1, 7 n.24 (1st Cir. 1988), cert. denied, 488 U.S. 1016 (1989). ARGUMENT The decision of the court of appeals is correct and does not conflict with decisions of this Court or any other courts of appeals. Further review is not warranted. 1. It is undisputed that FECA provides compenation for all work-related injuries, including those resulting from aggravation of pre-existing conditions. See Balancio v. United States, 267 F.2d 1350; Lockheed Aircraft Corp. v. United States, 460 U.S. 190. /6/ Similarly, the courts of appeals are in agreement that "if a work-related injury compensable under FECA is aggravated through medical treatment, the aggravation is also compensable." Wilder v. United States, 873 F.2d 285, 288 (11th Cir. 1989) ("the initial wrong is the cause of all that follows even when there has intervened a succeeding negligent act that produced the aggravation," quoting Balancio v. United States, 267 F.2d at 137). See also McCall v. United States, 901 F.2d 548, 550 (6th Cir. 1990) ("there is substantial case law to support (the) proposition" that "FECA covers not only an initial injury, but also additional injuries caused by negligent treatment of the first injury."); Larson, Workmen's Compensation Law Section 13.21 and Section 72.61(c) (1985). /7/ 2. Relying on the Sixth Circuit's decision in Wright, supra, petitioner nevertheless contends (Pet. 111-115) that because the PHS was not only his employer but the provider of his medical care, the FTCA should be available for his claims. That contention is without merit. In Wright, the plaintiff, a secretary at a Veterans Administration hospital, was allowed to proceed with an FTCA suit alleging negligence by VA hospital employees who treated her for a tubal pregnancy that ruptured while she was at work. She charged that the hospital's obstetrical care was inadequate, and also that she sustained throat injuries resulting from negligent use of a respirator in connection with her emergency surgery. Her initial claim for FECA benefits was rejected with the explanation that her "ruptured tubal pregnancy (is) a pre-existing personal pathology which is not job-related." 717 F.2d at 256. The Sixth Circuit noted that neither of Wright's injuries was sustained while Wright was performing her job duties. Rather, this was a situation where "a government physician injured a federal employee who had voluntarily sought treatment for a noncompensable ailment." 717 F.2d at 258 (emphasis added, citation omitted). In such a situation there is "simply (no) substantial question of FECA coverage," ibid. For this reason, Wright was entitled to sue under FTCA. The court in Wright also stated that "even if" the pregnancy had been compensable under FECA, the FTCA action "would not be barred" because of the "dual capacity" doctrine. 717 F.2d at 259. As the court stated, an employer may become a third person, vulnerable to tort suit by an employee, if -- and 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. Ibid., citing 2A Larson, Workmen's Compensation Law 14-229, Section 72.81 (1982). The court noted that the plaintiff's employee status had not obligated the hospital to treat her for a complication of pregnancy and that its decision to treat and its refusal to transfer her, based on medical evaluation, showed that Ms. Wright's relationship to the hospital had changed from employer-employee to doctor-patient. Id. at 260. It was only "(u)nder these unique circumstances," ibid., that the Sixth Circuit found that the FECA did not bar an FTCA action. As the Sixth Circuit's subsequent decision in McCall v. United States, 901 F.2d 548 (6th Cir. 1990) makes clear, there is no conflict between Wright and the decision here. In McCall the court held that an FTCA action was foreclosed because the case involved a work-related injury and because there was a "substantial question" of FECA compensation for that injury and, by extension, for the malpractice growing out of it. The court in McCall distinguished Wright by noting that the plaintiff there "was injured while at work, but her injury * * * was not work-related." McCall, 901 F.2d at 551 (emphasis in original). The decision in McCall makes clear that the Sixth Circuit would not apply the "dual capacity" doctrine to hold that someone in petitioner's position has a cause of action under the FTCA. Thus, Wright (as limited by McCall) endorses a "dual capacity" doctrine only when FECA coverage is foreclosed because neither the treatment in question nor the condition that is treated is work-related. Since the present case differes in both of these critical respects, /8/ there is no conflict between the decision below and the decision of the Sixth Circuit in Wright. Further review is therefore unwarranted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General ROBERT S. GREENSPAN MARILYN S.G. URWITZ Attorneys NOVEMBER 1990 /1/ In his Table of Contents, petitioner refers to the court of appeals' decision as "Appendix A" and to the district court decision as "Appendix B." In the Appendix to his petition, each document is numbered consecutively without any letter designation. /2/ Petitioner does not cite a basis for this Court's jurisdiction. /3/ The alleged malpractice consisted of the determination, required by the employer, that petitioner was fit to return to work, at least on a trial basis, and of the treatment for job-related aggravation of injuries resulting from the return to work. /4/ The court also distinguished Wright by observing that "(p)laintiff here, having been injured as a result of negligent treatment by the USPHSH doctors on his examination to determine if he was fit for duty, presumably did have a right to further treatment by USPHSH to mitigate the effects of their original malpractice." Pet. App. B14. /5/ With respect to petitioner's contention that the malpractice was unrelated to his work because the PHS allegedly prescribed librium for petitioner's alcoholism, not the pain of his work-related injuries, the court of appeals noted that hospital records revealed that petitioner reported neck pain after returning to work and that librium was prescribed for the pain on the job. Pet. App. A4. Even if PHS doctors were in part attempting to treat petitioner's alcoholism, the court of appeals said, the treatment was so closely associated with work-related pain as to be covered under FECA. Pet. App. A4. /6/ Thus, as the courts below concluded, petitioner's claim that he can sue under FTCA because the original automobile accident occurred off the job (Pet. 103-08) cannot succeed. For the same reason, as the court of appeals said, petitioner's allegation that PHS doctors prescribed librium in part for his alcoholism, and not exclusively for his work injury, does nothing to advance his position. As we understand it, petitioner apparently does not renew either contention before this Court. /7/ As the district court implied, any alleged malpractice in the decision to allow petitioner to return to duty -- a decision required by the employer before petitioner's return -- was itself job-related. See Pet. App. B14-B15. /8/ Petitioner in this case had no option but to appear for the PHS examination scheduled to determine whether he should return to work, and his numerous subsequent visits to PHS physicians grew out of an ongoing injurious work situation. In Wright, on the other hand, there was no obligation of the employer to treat the plaintiff, or of the plaintiff to seek treatment at the government hospital where she was employed. Rather, the hospital made a conscious decision to accept Ms. Wright for treatment, thereby establishing a doctor-patient relationship separate and distinct from the employer-employee relationship. 717 F.2d at 255, 260.