Caps & Immunities
missed on the pre-induction physical and the person is sworn in and subsequently goes to basic training and dies because of the undiagnosed medical condition. Conversely, if a condition is not diagnosed when the service member leaves active duty, then the “incident to service” doctrine has also been held to bar a claim for a post-service injury. Tis is not the case, however, when an individual leaves active duty and goes on to get further treatment with the Veterans Administration or another provider. Such a case may arise if a service member left active duty and there was a failure to diagnose cancer while the service member was on active duty. As the service member transitions to the Veterans Administration system and receives followup care, they might have a cause of action against the VA pursuant to the FTCA if the VA also failed to diagnose the cancer. Te “incident to service” doctrine has been further extended
to bar derivative claims where the injured party is a service member. For instance, if a service member is injured while on active duty, leaves active duty and suffers complications related to that initial injury, those are considered service-related injuries and are excluded. However, a service member can bring a derivative claim for injuries to a spouse or a family member. An example would be a service member’s wife who goes in to deliver a baby at a military hospital. If she or the child sustain injury during the delivery, then they would be entitled to bring a claim under the FTCA. In addition, the service member would be allowed to bring a derivative claim for the injuries to his spouse and family member. Te courts have carved out exceptions for independent
post-discharge negligence such as a failure to monitor, warn or report a diagnosis. In addition, if there is an injury to a military dependent that violates a continuing duty owed to the service member, the courts have also excluded those claims.United States v. Brown, 348 US 110 (1954);Molsbergen v. United States, 757 F. 2d 1016 (9th Cir. 1985), cert. dismissed, 473 US 934 (1985).
IV. Claims by Civilian Employees of the United States
Under the Federal Employment Compensation Act
(FECA), 5 USC 8101 et. seq., all Federal civilian employees except for nonappropriated fund employees are entitled to receive Federal worker’s compensation. FECA requires that compensation be paid to the Federal employee if they are injured or killed “while in the performance of . . . duty.” Because this is a benefit which is payable notwithstanding government negligence or contributory negligence on the part of the employee, FECA is the exclusive remedy for those individuals. Johansen v. United States, 343 US 427 (1952). FECA has been excluded by federal legislation to members of the Peace Corps, Vista volunteers,
Federal
jurors, volunteer members of the Civil Air Patrol,
Reserve Officers Training Corps (ROTC), cadets, Job Corps and Youth Conservation Corps enrollees, student nurses, and State or local law enforcement officers engaged in apprehending personnel who are committing crimes against the United States. However, FECA does apply to those who are temporary Federal employees, such as contract employees or volunteer or loaned employees acting under certain circumstances. FECA does not bar any third party claims for indemnity
or contribution. Lockheed Aircraft Corp. v. United States, 460 US 190 (1983). While subsequent cases have limited the application of the Lockheed case, one needs to fully investigate the facts and circumstances related to the third party liability before drawing the conclusion that FECA is the exclusive remedy. In addition, property damage claims are not barred by FECA and are claims which may properly be paid under the FTCA. If you are faced with a situation and do not know whether
FECA is the exclusive remedy, I recommend that you file a claim pursuant to the FTCA. Te agency will quickly determine whether FECA is the exclusive remedy and will notify you of that fact. Te determination as to whether FECA is going to apply is made by the Department of Labor (DOL). Once the DOL makes the determination that the injured party is entitled
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