We have stated with respect to the Federal Employees' Compensation Act, "if the injury is covered by the Act, the general rule is that the compensation act remedy is exclusive, even though under the facts of the particular case no compensation is payable or even though the compensation act fails to provide for the full extent of the employee's damages." Cf. Tredway v. District of Columbia, supra, 403 A.2d at 734-35; Hubbard v. Reynolds Metals Co., 482 F.2d 63, 64 (9th Cir. 1973). This rationale applies equally to the No-Fault Act. D.C. Code § 35-2106(e) (1985 Supp.) places a limitation upon the actual receipt or recovery of PIP benefits.
See Cole v Dow Chemical Co, 112 Mich. App. 198; 315 N.W.2d 565 (1982); Genson v Bofors-Lakeway, Inc, 122 Mich. App. 470; 332 N.W.2d 507 (1983). See also Tredway v Dist of Columbia, 403 A.2d 732 (DC App, 1979), cert den 444 U.S. 867; 100 S Ct 141; 62 L Ed 2d 92 (1979); Grice v Suwannee Lumber Mfg Co, 113 So.2d 742 (Fla App, 1959); Hubbard v Reynolds Metals Co, 482 F.2d 63 (CA 9, 1973); Williams v State Compensation Ins Fund, 50 Cal.App.3d 116; 123 Cal.Rptr. 812 (1975). The Stimson distinction would yield anomalous results.
Haynes v. Rederi A/S Aladdin, 362 F.2d 345, 350 (5th Cir. 1966), cert. denied, 385 U.S. 1020, 87 S.Ct. 731, 17 L.Ed.2d 557 (1967). E. g., Hubbard v. Reynolds Metals Co., 482 F.2d 63, 64 (9th Cir. 1973); Grice v. Suwannee Lumber Mfg. Co., 113 So.2d 742, 746 (Fla.Dist.Ct.App. 1959); Blue Bell Globe Mfg. Co. v. Baird, 64 Ga. App. 347, 13 S.E.2d 105, 106 (1941). Physical attacks by third parties sustained in the performance of the employee's duties are clearly covered by FECA. E. g., Penker Construction Co. v. Cardillo, 73 App.D.C. 168, 169, 118 F.2d 14, 15 (1941); Hartford Accident Indemnity Co. v. Cardillo, 72 App.D.C. 52, 55, 112 F.2d 11, 14, cert. denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940); Hartford Accident Indemnity Co. v. Hoage, 66 App.D.C. 160, 85 F.2d 417 (1936).
Wood v. Aetna Casualty Surety Co., 260 Md. 651, 661, 273 A.2d 125, 131 (1971); see Kendall Lumber Co. v. State, 132 Md. 93, 103 A. 141 (1918). Secondly, we note that the legal and factual determinations of a compensation board in awarding or denying compensation are generally held to be conclusive on a court in subsequent tort proceedings on the same claim. Hubbard v. Reynolds Metals Co., 482 F.2d 63, 64 (9th Cir. 1973). This general rule applies not only to determinations that the claim is or is not covered by the Act, id. at 64-65, but also to determinations that the injuries did or did not occur as alleged, id.
We also noted: "Plaintiff relies on Hubbard v. Reynolds Metal Company, 482 F.2d 63 (9th Cir 1973), to support his view that a common law or statutory claim may lie for a condition that is not within the `coverage' of the Act. We would agree with that general proposition, although we would use different words to describe it. 2A Larson, Workmen's Compensation Law 12-1, § 65 (1993). If, for example, the person is not a subject worker, see Metcalf v. Case, 278 Or. 629, 565 P.2d 736 (1977), or if the injury or condition did not occur in the course of employment, see Sumnee v. Coe, 40 Or. App. 815, 596 P.2d 617 (1979), then the person's claim is not within the scope of the Act, and the Act cannot be the person's exclusive remedy.
Compare Carr v. U S West Direct Co., 98 Or. App. 30, 35, 779 P.2d 154, rev den 308 Or. 608 (1989) (no causal link shown between injury and risk connected with employment). Plaintiff relies on Hubbard v. Reynolds Metals Company, 482 F.2d 63 (9th Cir 1973), to support his view that a common law or statutory claim may lie for a condition that is not within the "coverage" of the Act. We would agree with that general proposition, although we would use different words to describe it. 2A Larson, Workmen's Compensation Law 12-1, § 65 (1993). If, for example, the person is not a subject worker, see Metcalf v. Case, 278 Or. 629, 565 P.2d 736 (1977), or if the injury or condition did not occur in the course of employment, see Sumner v. Coe, 40 Or. App. 815, 596 P.2d 617 (1979), then the person's claim is not within the scope of the Act, and the Act cannot be the person's exclusive remedy.
However, for purposes of determining whether the exclusive remedy provision of the WDCA bars an injured employee's common-law action against his or her employer, the existence or nonexistence of a disability is immaterial. If the WDCA covers the kind of injury suffered, the act remedy is exclusive even though under the facts of the particular case no compensation is payable because there has been no actual loss of earning capacity. 2A Larson's Workmen's Compensation Law, §§ 65.10, 65.20, Tredway v Dist of Columbia, 403 A.2d 732 (DC App, 1979), cert den 444 U.S. 867; 100 S Ct 141; 62 L Ed 2d 92 (1979), Grice v Suwannee Lumber Mfg Co, 113 So.2d 742 (Fla Dist Ct App, 1959), Hubbard v Reynolds Metals Co, 482 F.2d 63 (CA 9, 1973), Williams v State Compensation Ins Fund, 50 Cal.App.3d 116; 123 Cal.Rptr. 812 (1975). In Grice v Suwannee Lumber Mfg Co, supra, the Florida court ruled that the exclusivity provision of Florida's workers' compensation act barred the plaintiff's suit even though the plaintiff's injury — loss of a testicle — had not resulted in loss of earning capacity: