Exclusive Remedy Provision of the Federal Employees' Compensation Act-Fact or Fiction?

• Author: by Major John R. Thomock
• Pages: 01

This art& contains an examination of the exclusive remedu prosision of 5 C.S.C. S 8116 (e) (1366), with emphasis on its application when one government em-ployee is injured or kzlled by the tortious condcot of an.other; its relationship with the Gooernment Drluers' Act, 28 U.S.C. 5 2673 (1964), and similar legishtia. The author diseases the liability of the Cnited States by way of contn'butta or indennitg ~9 a joint tort-feasor when compensation has been awarded a phintif.

1. ISTRODUCTION

   It is the aim of this article to probe the background of warkmen's compensation and to analyze critically various principles, concepts and fallacies which have produced unintended and somewhat deleterious effects by the application of the exclusive remedy provisions of the Federai Employees' Compensation Act >

   and various provisions of the Federal Tort Claims Act.Z Particular attention will be given the so-called "Government Drivers' Act"J and the liability of the United States for contribution or indemnity as a joint tort-feasor when F.E.C.A. compensation has been awarded a plaintiff-government employee. The problems herein arise first, when one government employee acting within the scope of his employment injures another government employee under circumstances making the injured employee eligible for

   *This article was adapted from a thesis preliented to The Judge Advocate General's School, U.S. Army, Charlottewiile, Virpinia, while the author was B member of the Sixteenth Advanced Courae. The Opmions and eon- elusion^ presented herein are those of the author and do not neeeasarily represent the views ai The Judge Advocate Gsneral'e School 01 any other mvernmentai sgeney.

   **JAGC, 0,s. Army: Aiaiatant to Illrector, Plana and Pubiieations De. partmerat, The Judge Advocate General's School; B.A., 1857, LL.B., 1Q60, University of Idaho. Admitted to practice before the bara of the State of Idaho, the United States Court of Miiitary Appeals, and the United States Supreme Court.

   ' 6 U.S.C. gg 8101-50 (1886) [hereafter called F.E.C.A.].'28 U.S.C. $5 1846(b), 267140 (1864) [hereafter called F.T.C.A.]. '28 U.S.C. 5 2879ib)-(e) (lS84).

   *oo 68688 1

   F.E.C.A. benefits; and second, the United States' liability by way of contribution as a joint tort-feasor when compensation has been awarded a plaintiff. The various combinations of injured parties and causes of injury considered will be: 1. Federal civilian employee toitmusly injured by a member of the armed farces. 2. Federal civilian employee tortiously injured by another co. worker federal employee. 3. Federal civilian employee tortiouely injured by another federal employee (eo-employee) who does not qualify as a co-worker.' Throughout the article reference will be made to the exclusive remedy provisions of F.E.C.A. It should be noted that the Long-shoremen's and Harbor Workers' Compensation Act: is made applicable to most employees of nonappropriated funds,a and that the exclusive remedy provision applicable to the nonappropriated fund employees is virtually identical ta that of F.E.C.A: Therefore, whenever the provisions of F.E.C.A. are considered, those discussions and conclusions are equally applicable to the nonappropriated fund employee.

   11. HISTORY OF WORKMES'S COMPENSATION A HISTORICAL BACRGROCSD

   The scope and magnitude of the changes brought by the industrial revolution have been and will continue to be analyzed by writers of nearly every bent. For the purposes of this article, suf-fice it to say that one of the sociological changes wrought by industrialized society was a greater awarenes~ of the workingman's position in life and his basic rights vis-a-vis industry and society. 1. hdwtrial Disability Low.

   Contrary to popular belief, workmen's compensation had its beginnings in the tribal laws of Chariemagne's time and the Frankish Empire.

   ~ These earliest beginnings found new life in nineteenth century Germany under Bismarck. In 1884, after a progressive development, Germany adopted the first modern compensation system. some thirteen year8 before England; twenty-five years before the first United States jurisdiction; and fully

   -- 'The details of these eatermier will be discussed I" part V injra.'38 E.S.C. 50 8oi-:o 11064).

   6 U S C 8 8172 il86Ri - 5 U.S C. i

   8173 (lQ66f.'Sss Small, The General SL~vetwe or Lo% Appiieabir (0 Enployre Inpry and Death, 16 \-AND. L. RE, 1021 (1963).

   2 AC" SlSBB

   FEDERAL EMPLOYEES' COMPENSATION ACT

   sixty-five years before Mississippi, the last American state to do

   6 0 . ~

   The German system was unique in that it featured contributiona by the worker himself.ln The English development took a similar, although somewhat later course. The common law proved incapable of adapting to the new industrial age requirements in this area. With common law tort principles bottomed on fault-liability concepts and the defenses of (a) fellow-servant, (b) assumption of risk, and (c) contributory negligence, the employer was virtually immune from the hazards of his enterprise and the worker was judicially stymied in his attempts to recoup far industrial injuries." In 1897 the first English Workmen's Compensation Act was passed.'* This Act wa8 later expanded and liberalized.li This latter Act of 1906 deeply influenced the later American statutes.'L 2. Early American Attempts.

   The legislation of both Germany and England had profound effects on early American attempts in the field. Various jurisdictions patterned their first statutes after their European counterparts. With the modest, and somewhat unsuccessful, beginnings of Maryland in 1902,'1 the workmen's compensation bandwagon began to rail. Various state and federal statutes were passed in 1906" and 1908.'- The bandwagon took on the aspects of a steam roller in 1909 and by the period 1911-1920, it had all the characteristics of an avalanche. During this period various study commissions were appointed and studies conducted in nearly all of the states." By 1920 the Federal Government and all but eight of the states had adapted some type of compensation act, and on 1 January 1949, the last state, Mississippi, enacted its

   - *I A. Lmsox, Won~mr's

   COXPENSATIOX

   cited BJ LARSOS]. "Id., at 34-35. S. RIESENFE-R. PAXWEWI. MaoEnn SOCIAL LEDISLATIOX 129 (1950) [hereafter cited BI RIESEX-MUWELLII.

   -60 & 61 Viet. e. 37 (1897).

   6 Edw. 7, e. 58 (1906).

   RIESEWWLD-MUWELL 130.1 LAnsax 5 5.20, at 37. In 1904 the Maryland statute was declared unconstitutional for attempting to give the state imurmce commissioner plenary power to mske inrvranee fnnd payment8 to covered employeel when death resulted fiom the neghgenee of B fellow servant or the em-ployer. There were no proviimr for jury tnal or any appellate pmeeduie. See Franklin V. United Ry. R. & Elec. Ca. (If Baltimore, 2 Bait. Citg Rpte. 309 (1904).

   "Employers Liability Act. ch. 3073. 34 Stat. 232 (1860)."Federal Compensation Act of 1808, ch. 236, 35 Stat. 556 (1908).u1 h Y J F 5 6.20, at 37-39; RIESEIXELD-MUW~L 152.36.

   LAW, 9 5.10 (1866) [hereafter

   statute.'" It WEB during this period of rapid development, in 1916, that the Federal Employees' compensation Act was passed: B. LEGAL BASIS

   Common lair trained attorneys often think of uorkmen's cnm-liensation as a branch of tort law:' Although aarkmen's cnm-pensation has a distinct relationship to tort, it is in renlitr a discipline a11 its own It has been rarmudy described by authorities as social insurance,-- fundamentally tort in nature: and a unique system of security far injured workers. The latter description is most accurate. The American compensation system has forsaken moat traces of tort in that it is not per se an sdiersars conte8t to right a wrong between contestants or to establish fault. Traditional fault concepts are inapplicable to recovery On the other hand. the American system with its prirate character: the allocations of the cost to industry and R class of consumers: and comilensatian based on the individual's past earnings and present loss of earning capacity sharplr contrast with purely public social insurance plans.*- In analyzing the legal basis of workmen's compensation, It is imparrant to remember that work-men's compensation sounds neither in tort nor social insurance, but is 2 unique branch of the law with some of the features of both, and that it is a creature of social policy and statutes. Judicial pronouncements and interpretations, whether upholding the constitutionality of compensation aysteme or variously

   -

   '-1 LARSON 0 5.30, at 39

   1 LI\RSO)I 8 1.20, at 8

   - 1 LARSOX 3 2 70. at 14."39 Stat 742 11516).

   R~cs~rFmo-Muw~u.

   F. HARPER.

   A TREATISE

   OF TXE LAW 01 Toem S 207, BT 416 (1933). 'For a detailed dlsevsman of the cantrastlng theorie., see 1 LARSOZ

   I 1-3, at 2-21.

   The eonatitnrmahty of all types of compensation schemes 13 "0%' firmly &sblished. 1 LARSOR 5 5.20, at 38. See Sheehan Co. V. Shuler. 266 U. S. 371 (1924), upheld contributory fund a8 not contra to 14th Amendment due pmceia: Kew York Central R.R. v. White, 243 U.S. 188 11017), upheld New York compulsoi~ system. Denial by state of trial by juri on campenaatm was not uneonetitutlanal; Harkins Y Bleakie?. 213U.S.

   210 (1911). upheld Iowa elective WJtem Wlthdrawal of common IPU

   defenses of assumption of risk. contributory negligenee, and fellow BerVant rule U,BQ not vioistive of due process 88 to employers who raluntsrilp rejected the aystem: Mountain Timber Ca. I. Washingtan, 243 US. 219(1917), upheld Washingtan abligatory monOpOllStiC state fund system. The act did not violate constitutional rights of tnsi by jury and due proeesai and RIEIEYIELO-M*I~..ELL 160-61. However. lome early acts were held unconstitutional by atate courts on the ground thit imposition of liability wlthout fault on the employer was B taking of property wthout due procpsof law saL Ives Y South Buffalo RY., 201 N.Y.

   271 (1511).

   4 *GO %S&B

   135.

   FEDERAL EMPLOYEES' COMPENSATION ACT

   discussing recovery, joinder of third party tart-feasors, or cantribution and indemnity, must...