(D.C. Civil Action No. 70-226) Appeal from the United States District Court for the Western District of Pennsylvania.
Van Dusen, Adams, Circuit Judges and Barlow, District Judge.
This is an action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq. The plaintiff, John J. Joyce, is a United States Postal Service employee. He seeks recovery for injuries sustained when he was hit on the top of his head by a bar of soap that was either dropped or thrown from the window of a restroom on the third floor of the United States Post Office and Courthouse Building in Pittsburgh, Pennsylvania.
The incident occurred at approximately 5:45 A.M. on August 26, 1968, while Mr. Joyce was walking along the sidewalk adjacent to the Post Office and Courthouse Building and on his way to enter the building in order to commence his 6:00 A.M. shift as a postal clerk. At the time he received the blow, Mr. Joyce was approximately 300 to 350 feet from the employees' entrance to the building on that portion of the sidewalk owned and maintained by the City of Pittsburgh.
Within two days after the incident occurred, Mr. Joyce notified the Bureau of Employees' Compensation (hereinafter BEC) of his injuries. In the "Notice of Injury" filed with BEC, Mr. Joyce, in addition to describing the place where the injury occurred, the injury's cause, and the nature of the injury, certified that "the injury described * * * was sustained in the performance of [his] duties as an employee of the United States Government. * * *"
The filing of Mr. Joyce's notice was followed on December 10, 1968, as required, by an official supervisor's Report of Injury that was executed by the Assistant Postmaster. It provided BEC with summary answers to a variety of form questions relating to the accident and to Mr. Joyce's injuries. Thereafter, on January 16, 1969, BEC approved for payment, on Mr. Joyce's behalf, two medical bills incurred as a result of the accident and certified to BEC by the United States Public Health Service.
Approximately nine months later, BEC requested additional information concerning the accident from Mr. Joyce's superiors. Then, on October 8, 1970, the examiner assigned to the case entered his findings formally approving the claim. In his "Notice of Injury," Mr. Joyce stated that as a result of the blow to his head he had experienced "headaches, dizziness, and pain continually at the point where the bar of soap hit [him]." The only demonstrable injury described was the contusion of the head.
Shortly after its approval of the claim, BEC authorized Mr. Joyce to undergo further medical examinations in order to determine the full extent of his treatment needs. On October 16, 1970, BEC wrote to Mr. Joyce, advising him to make an appointment with the United States Public Health Service in Pittsburgh to be examined and treated, if necessary, for possible residual effects of the injury. A similar letter was also sent by BEC to the Public Health Service, confirming the authorization for further treatment and advising clinic officials how best to expedite BEC's payment of any subsequent medical bills.
Having received no response from Mr. Joyce, BEC again wrote to him on February 17, 1971, asking for an explanation of why no medical reports had been received. Mr. Joyce did not respond to that letter.
On February 25, 1971, Mr. Joyce filed the present complaint against the United States under the Federal Tort Claims Act, seeking damages for a sum in excess of $10,000. Following several days of a non-jury trial, which commenced on May 20, 1971, the Government filed a motion for leave to amend the answer. In its motion, the United States asserted that the district court lacked jurisdiction to adjudicate plaintiff's cause of action until such time as the Secretary of Labor, through BEC, determined that the injuries were not covered by the Federal Employees Compensation Act (FECA). The court was asked to stay its proceedings in order to allow plaintiff time to complete the processing of his FECA claim.
The district court, 329 F. Supp. 1242, denied the motion and entered judgment in favor of Mr. Joyce for approximately $35,000. The court held that a district court must defer to BEC only when the facts in a particular case raise a substantial question of FECA coverage and that since no such question was presented it was free to adjudicate the cause of action. Alternately, the district court stated that even if FECA coverage did, in fact, exist, because the FECA issue was raised so late in the proceedings, it had discretion whether to consider the Government's motion and under the circumstances would deny such motion.*fn1
The FECA, 5 U.S.C. § 8101, et seq., provides the exclusive remedy for a Federal employee's injuries covered by that Act.*fn2
The nature and purpose of the FECA were stated by this Court in Somma v. United States, 283 ...