Government Argues “Employee” Can’t Sue
The Legionnaires disease outbreak at the VA in Pennsylvania showcases some offbeat legal traps that can arise in personal injury cases.
Legal Remedies: Tort vs. Workers Compensation
After the question of jurisdiction is determined, the next question is normally “What is the injured person’s status under the law?” and “What remedies can they pursue?” The general assumption is that people that contract the legionella virus are persons that can bring a lawsuit in tort. Tort is generally the pursuit of a claim seeking damages, loss of wages and general damages. The alternative method is to bring a claim under a state or federal compensation setting, or commonly called “workers compensation.” Under a workers compensation claim the injured person may only recover the related medical expenses, and compensation benefits which are usually some percentage of the persons average wage.
If the worker is pursuing a compensation claim the entire procedure is handled in a separate office or board, and not generally in a court. Compensation claims are handled by compensation judges who only consider compensation claims. The rules are separate, and the claims are not generally reviewed by a jury. State compensation cases may vary on their approach; however, Federal compensation cases are uniform in that there is a Federal procedure throughout the nation using Administrative Law Judges that specifically review federal compensation cases.
Federal Employee Compensation Act
One of the most common Federal compensation Acts is the Federal Employee Compensation Act, commonly referred to as FECA. Postmen for example would be a type of person that would be entitled to benefits under FECA if he or she were injured while on the job. In fact only “employees of the United States” are entitled to receive FECA benefits. And this is where the recent VA case involving a volunteer of the VA becomes problematic.
In reviewing the news articles on the Pennsylvania VA case it appears that the person that contracted legionnaires was not a paid employee of the VA. As has been shown is other recent news accounts the VA is an enormous government operation. Within the VA there is a separate division specifically organized for volunteer service. In fact the VA Volunteer home page describes 140,000 volunteers giving over 11 million hours of service to veterans. With this number of people assisting the VA, if one of them becomes injured or ill, will they be entitled to pursue a tort case or will they be limited to workers compensation. That is the question that the VA is raising presently in Pennsylvania.
What the Court Must Address
The case is presently pending in the Western District of Pennsylvania, and the two legal questions that will be addressed by the court will be:
- Is the injured person an “employee of the United States”; and
- Did his illness arise out of the “performance of duty?” Unless the person is a postman injured lifting his mailbag, the question of employee status under FECA can become factually dependent. Questions of daily schedule, ability to fire the volunteer, any per diem allowance, individual obligations to the VA, and many others will be the focus of the court.
Reasonably Expected Risks for the Job
Additionally the actual work that the volunteer is performing is also an important issue that will be reviewed. The argument can be made that a person that if a person is exposed to legionella, unless his job is such that he is working with the virus in some way, any exposure is simply not within the expected risks of the job. For example a volunteer that contracts legionnaires when his responsibility involved assisting veterans by pushing wheelchairs should not be limited to only FECA benefits since his job duty had nothing to do with legionella. In this case the facts indicate that the person was merely taking his medication from a water fountain when he contracted legionnaires.
FECA Definitions of Volunteers
One other interesting note is that the FECA does have definitions that address volunteers under Section 8101 and covers:
an individual rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay, when a statute authorizes the acceptance or use of the service, or authorizes payment of travel or other expenses of the individual;
Additional sections allow for FECA benefits for Civil Air Patrol Volunteers, Peace Corps Volunteers, and Job Corps Volunteers, but a quick review of the act does not include a specific section for volunteers of the VA.
I’ve attached a related brief by the US that covers employment status (as well as a number of issues).