I recently encountered what I found to be a fascinating fact pattern while defending a local town on what was otherwise a standard claim involving competing opinions on permanency from an attending physician and an IME.
On June 14, 2011, the DEA and local Western New York law enforcement personnel,200 in all, sought to arrest 17 members of the violent “The Camp street Boys”gang. For more on this story see, WKBW News, “Drug Raids In Buffalo”, http://www.wkbw.com/news/crime/Drug-Raids-In-Buffalo-123833394.html. Also see, http://www.justice.gov/dea/divisions/nyc/2011/nyc061611a.shtml.
The Claimant, a town narcotics officer and one of the 200 who helped make these arrests, sustained an injury to his left arm while on “loan” to the Drug Enforcement Agency. The officer, whose weapon was drawn in his right hand, fell onto his outstretched left arm,
It appears that although the town paid the officer’s wages, the DEA reimbursed the town for the officer’s wages from the day of the raid/accident. Presumably, given that this was the DEA’soperation, it directed and controlled the manner in which the officer performed his duties on the day of the injury.
There were certainly sufficient indicia of a general/special employment arrangement that if the coordinated effort had been spearheaded by another municipal entity, such as the City of Buffalo, the issue could have been raised at the Workers’Compensation Board. In this hypothetical scenario, the town could have argued that its liability should be shared with the City of Buffalo.
However, the special employer in his situation was the Federal Government – the DEA. The following questions arose:
1.) Could the town apportion part of its liability to the DEA on a theory of general/special employment?
2.) Could the Claimant make a claim against the DEA under the Federal Employment Compensation Act, FECA?
3.) If a claim could be made under FECA could the town bring it on the Claimant’sbehalf? and,
4.) Could it benefit the town to bring such an action on the Claimant’s behalf?
1.) The town would not be successful in requiring the United States to submit to the jurisdiction of the New York Workers’ Compensation Board and thus would face significant challenges in apportioning any liability to the special employment.
According to the Federal Employees’Compensation Act, 5 USC §8116(c), the liability of the United States with respect to an injury of an “employee” is limited to the benefits available under that act:
§8116(c). The liability of the United States…under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States…to the employee…and any other person otherwise entitled to recover damages from the United States…because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen’s compensationstatute…
The town could argue that liability should be apportioned to the special employer even though the DEA would not be subject to the NY WCB’s jurisdiction, but in my opinion, the Board would be unlikely to apportion any liability to the special employment unless it was assured that the Claimant would be entitled to recover against the special employer, the DEA, in another venue.
2.) The Claimant appears to have a viable claim against the United States as an“employee” pursuant to a provision of FECA that allows for such claims by law enforcement officers who are not employees of the United States:
5USC 8191. Determination of eligibility
The benefits of this subchapter are available as provided in this subchapter to eligible law enforcement officers (referred to in this subchapter as “eligible officers”) and their survivors. For the purposes of this subchapter, an eligible officer is any person who is determined by the Secretary of Labor in his discretion to have been on any given occasion–
(1) a law enforcement officer and to have been engaged on that occasion in the apprehension or attempted apprehension of any person–
(A) for the commission of a crime against the United States…
The Claimant herein certainly appears to fit this description and thus likely has a claim under FECA.
3.) As noted by the 9th Circuit Court in City of Whittier v. U.S. Dept.of Justice, 598 F.2d 561 (9 Cir. 1979):
In 1968 Congress adopted 5 U.S.C. §8191,which extended the benefits of the Federal Employees Compensation Act to state and local law enforcement officers who are injured while engaged in the apprehension of persons committing federal crimes. The purpose for enacting section 8191 was to provide such injured local law enforcement officers with the same benefits as are available to federal employees under the Federal Employees Compensation Act…A companion section, 5U.S.C. § 8192, provides that the benefits received should be reduced by the amount of benefits paid by state or local governmental sources, including workmen’s compensation benefits. 5 U.S.C. § 8192(a).
In the City of Whittier, the 9th Circuit found that the City could not bring a Federal Tort Claims Act against the United States because FECA is the exclusive remedy, and therefore “any possible claims of the City must be brought under that Act.” Hence, the Court envisioned that the employer could bring a claim against the United States under FECA.
4.) However,because 5 U.S.C. § 8192 only provides for benefits under FECA in excess of those that an employee receives pursuant to New York State Law, there would need to be a finding by the NY WC Board that liability should be apportioned to the DEA as a special employer. Hence, it seems probable that recovery under FECA would be deferred until a determination was made by the NY WCB re: apportionment to a special employer. And, as is noted above, in my opinion, the Board would be unlikely to make such a finding unless it was assured that the Claimant had another avenue of relief. Hence the general employer, the town,would be in a Catch-22 in its efforts to apportion liability to a special employer under these facts.
Other thoughts – Such an action might make sense for the Claimant if he could recover greater benefits under FECA then he has under NY Compensation Law. FECA has a Compensation Schedule similar to NY’s schedule loss of use provisions. For example, under FECA, compensation for loss of an arm entitles a claimant to 312 weeks of benefits, identical to NY’s schedule for an arm. It does not appear that there is a maximum on the weekly benefit under FECA like there is in NY. However, based on my research, loss of use findings under FECA, which are determined using the 6 Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment are much more modest that schedule loss of use findings in NY and thus it would be highly unlikely that he Claimant would be entitled to a greater benefit under FECA then he would be in NY, unless he was a very high wage earner.