                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-1633
                                  ___________

Theodore Knudsen,                      *
                                       *
      Appellant,                       *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of South Dakota,
United States of America,              * Southern Division.
                                       *
      Appellee.                        *
                                  ___________

                             Submitted: December 12, 2000

                                 Filed: June 25, 2001
                                  ___________

Before McMILLIAN and JOHN R. GIBSON, Circuit Judges, and LAUGHREY,1
District Judge.
                           ___________

LAUGHREY, District Judge.

      Mr. Knudsen is a veteran who claims the Veterans Administration (VA) was
negligent in treating his Post Traumatic Stress Disorder (PTSD). He appeals the




      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western and Eastern Districts of Missouri, sitting by designation.
District Court’s2 decision to grant summary judgment in favor of the government.

I. Factual Background

       Theodore Knudsen served with distinction in the United States Army between
1967 and 1969. He spent approximately one year in combat in Vietnam where he
patrolled with an infantry division in unsecured enemy territory. After his honorable
discharge, Mr. Knudsen returned to South Dakota to pursue his education.

       In 1982, while serving as superintendent of schools in Bowdle, South Dakota,
Mr. Knudsen began having nightmares about his experiences in Vietnam. As a result
of these problems, he met with Dr. Zitzow, a psychologist who contracted with the VA
to provide psychotherapy services to veterans suffering PTSD. Mr. Knudsen had
regular sessions with Dr. Zitzow and came to understand that his PTSD was “treatable
but not curable”. J.A. 178.

      In the spring of 1984, Dr. Zitzow moved out of the area. Before leaving, he
recommended that Mr. Knudsen continue counseling and helped him fill out a form to
get additional counseling. The form also asked if the applicant wanted an Agent
Orange examination. Approximately two months later, in July of 1984, an Agent
Orange examination was conducted for Mr. Knudsen at a VA hospital in Sioux Falls,
South Dakota.

        After completing the Agent Orange exam, Mr. Knudsen went to the information
desk at the VA Medical Center in Sioux Falls and asked where he could get treatment
for his PTSD. An unidentified woman at the desk said the VA did not have that service



      2
      The Honorable Lawrence L. Piersol, U.S. District Judge for the District of
South Dakota.

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anymore and directed Mr. Knudsen to the Administration Building.3 Mr. Knudsen went
there and spoke with a second unidentified woman and asked how to file a claim and
how to get counseling for PTSD. The woman notified him that the VA did not have
that program. The VA eventually authorized additional counseling in response to the
form which Mr. Knudsen had filled out with the help of Dr. Zitzow, but the VA did not
notify Mr. Knudsen that additional counseling had been authorized. As a result, Mr.
Knudsen did not have PTSD counseling from the spring of 1984 until 1992.

       In March of 1992, Mr. Knudsen had to resign his job as superintendent of
schools in Elgin, North Dakota after he was stopped from taking a gun to the home of
a school board member with whom he was having conflict. In that same year he
sought, and was provided, additional medical treatment by the VA for his PTSD. In
1995, however, he was informed by the VA doctors that he was permanently disabled
as a result of PTSD. Had Mr. Knudsen received continued PTSD counseling in 1984,
his permanent disability could have been avoided.

       On January 12, 1998, Mr. Knudsen filed suit in the U.S. District Court for the
District of South Dakota, seeking damages under the Federal Tort Claims Act (FTCA),
28 U.S.C. §§ 2671 to 2680. Mr. Knudsen made the following allegations in his
Amended Complaint: (1) Dr. Zitzow “diagnosed Plaintiff as having PTSD and
recommended that Plaintiff have continued therapy and possible inpatient treatment in
an appropriate VA program to prevent his condition from becoming worse” ¶ 17,
Amended Complaint. J.A. 34; (2) Because Dr. Zitzow was unable to continue Mr.
Knudsen’s care, he referred Mr. Knudsen to another VA program and helped him fill

      3
       The facts concerning this encounter are in dispute as are several other facts in
the case. However, because this is an appeal from an order granting summary
judgment, the facts are viewed in the light most favorable to the non-movant, Mr.
Knudsen. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 601
(1986), and Black Clawson Co., Inc. v. Kroenert Corp., 245 F.3d 759, 763 (8th Cir.
2001).

                                          -3-
out a claim for compensation and for additional counseling; (3) Mr. Knudsen presented
the form to the VA, but the VA refused to file it and refused Mr. Knudsen’s request for
continued treatment. J.A. 35; (4) Mr. Knudsen was examined by VA medical
personnel in Sioux Falls, South Dakota, and Mr. Knudsen told them that Dr. Zitzow
had diagnosed him as having PTSD and had referred Plaintiff for additional counseling.
J.A. 36.

       Based on these allegations, Mr. Knudsen claimed in Count I of his Amended
Complaint that the VA failed to provide him with needed counseling services, as
required by law. In Count II, Mr. Knudsen alleged that the VA negligently failed to
refer him for counseling services. J.A. 36-37. As the case progressed, Mr. Knudsen
also alleged that the VA was vicariously liable for Dr. Zitzow’s negligence in failing
to refer Mr. Knudsen for additional counseling after Dr. Zitzow moved from the area.

       On October 14, 1999, the District Court granted summary judgment in favor of
the government. The District Court concluded that even if Dr. Zitzow negligently
managed Mr. Knudsen’s case, the VA was not responsible for his actions because Dr.
Zitzow was an independent contractor, not an employee. The District Court also held
that there was no evidence to support a negligence claim against VA medical personnel
because Mr. Knudsen admitted in his deposition that he did not tell any VA medical
doctors that he had been referred for counseling, or asked them for additional treatment,
or was ever refused additional treatment by VA medical staff. As to the allegation that
VA administrative personnel were negligent because they refused to give Mr. Knudsen
a referral when he inquired or when they told him no treatment was available, the
District Court found that the claim was barred by the two-year statute of limitations.

       On appeal, Mr. Knudsen argues that summary judgment should not have been
granted in favor of the government because (1) Dr. Zitzow was an employee of the VA
and not an independent contractor; (2) the VA was itself negligent for failing to meet
the standards of care established by Congress for the psychiatric treatment of veterans;

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and (3) the statute of limitations was tolled until Mr. Knudsen both learned of his injury
and knew the cause of his injury.

II. Standard of Review

       A decision to grant summary judgment is reviewed de novo. Do v. Wal-Mart
Stores, 162 F.3d 1010, 1012 (8th Cir. 1998). We view the facts in the light most
favorable to the non-movant, Dodd v. Runyon, 114 F.3d 726, 729 (8th Cir. 1997), and
will affirm the grant of summary judgment when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c); McLaughlin v. Esselte Pendaflex
Corp., 50 F.3d 507, 510 (8th Cir. 1995). If the party with the burden of proof at trial
is unable to present evidence to establish an essential element of that party’s claim,
summary judgment on the claim is appropriate because “a complete failure of proof
concerning an essential element of the nonmoving party's case necessarily renders all
other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

III. Discussion

                        A. INDEPENDENT CONTRACTOR

       Based on the record before it, the District Court found that Dr. Zitzow was an
independent contractor and not an employee of the VA. Whether or not an individual
is an independent contractor or an employee is a question of law to be reviewed de
novo. The existence or weight of the facts underlying the analysis are questions of fact
to be reviewed for clear error. Berger Transfer & Storage v. Central States, Southeast
and Southwest Areas Pension Fund, 85 F.3d 1374 (8th Cir. 1996).




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       The Federal Tort Claims Act makes the United States liable for the torts of its
employees. 28 U.S.C. 1346. On the other hand, the United States is not responsible
for the torts of government contractors. 28 U.S.C. 2671. To determine whether an
individual is an employee or contractor, the court must evaluate the extent to which the
government has the power to supervise the individual’s day-to-day operations. U.S.
v. Orleans, 425 U.S. 807, 814 (1976). The crucial question is the amount of control
exercised by the government over the physical performance of the individual. Logue
v. U.S., 412 U.S. 521, 527-8 (1973).

       The District Court found that Dr. Zitzow was an independent contractor because
Dr. Zitzow was not subject to any day-to-day control by the VA and was told not to
maintain records for the VA’s review. In fact, the program with which Dr. Zitzow
contracted was intentionally set up to be separate from the VA because veterans were
distrustful of the organization. The District Court also relied on Bernie v. U.S., 712
F.2d 1271 (8th Cir. 1983), where we held that physicians in private practice who
provide contract services for the Indian Health Service are not government employees
for purposes of the FTCA. The Indian Health Service did not provide daily supervision
nor did it control the physician’s right to exercise independent medical judgment.

       Mr. Knudsen argues that the District Court erred in finding Dr. Zitzow an
independent contractor because Congress imposed on the VA a nondelegable duty to
supervise counselors who treated Vietnam veterans pursuant to government contracts.
According to Mr. Knudsen, the VA was required to provide extensive supervision of
such contract counselors, and the fact that the VA failed to provide the required
supervision should not convert Dr. Zitzow into an independent contractor. In support
of his argument, Mr. Knudsen points first to the legislation which authorized the
counseling program in which Dr. Zitzow participated. It provided: “Before furnishing
counseling or mental health services . . . through a contract facility, as authorized by
this section, the administrator shall approve (in accordance with criteria which the
administrator shall prescribe by regulation) the quality and effectiveness of the program

                                          -6-
operated by such facility for the purpose for which the counseling or services are to be
furnished.” Public Law 96-22, § 103(e)(2), J.A. 110. Mr. Knudsen also argues that
Congress intended to make contract counselors employees for purposes of the FTCA
because it stated in the same legislation that: “. . . the counseling services shall be
considered furnished by the Veterans Administration as a part of hospital care.” Public
Law 96-22, § 103(b)(1), J.A. 110. Finally, Mr. Knudsen points to VA Circular 10-82-
101, which contains several quality assurance standards for contract counselors.

        Mr. Knudsen, however, did not present these theories to the District Court prior
to the summary judgment ruling, nor was the VA Circular 10-82-101 part of the record
when summary judgment was granted in favor of the government. Because Mr.
Knudsen did not present in a timely fashion the argument that Congress intended
contract counselors to be treated as employees of the VA, we will not consider this
argument on appeal. See RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399,
402 (8th Cir. 1995); Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357, 358 (8th Cir.
1984); Hubbard Broadcasting, Inc. v. Southern Satellite Systems, Inc., 777 F.2d 393,
404 (8th Cir. 1985). Moreover, we are unconvinced that Congress intended to
transform independent contractors into employees merely because it expected the VA
to insure that quality work was done with government funds. As stated in Orleans:
“Although such regulations are aimed at assuring compliance with goals, the
regulations do not convert the acts of entrepreneurs . . . into federal government acts.”
Orleans, 425 U.S. at 816. The District Court did not err when it held that Dr. Zitzow
was an independent contractor, and consequently the VA was not vicariously liable for
his conduct.

          B. VA’S NEGLIGENCE AND STATUTE OF LIMITATIONS

     Vicarious liability was not the sole basis for Mr. Knudsen’s claim against the
VA. In his FTCA claim filed on January 12, 1998, Mr. Knudsen also alleged that the
VA was itself negligent in failing to supervise Dr. Zitzow and failing to comply with

                                          -7-
the quality control standards established by Congress and the VA. According to Mr.
Knudsen, the VA’s negligence caused the lapse in his treatment which in turn caused
his permanent impairment. Mr. Knudsen, however, acknowledges that his last
counseling with Dr. Zitzow occurred in 1984, as did his Agent Orange exam which was
conducted at the VA hospital in Sioux Falls, South Dakota. It was after that exam that
VA administrative personnel told him that he could not file a claim for his PTSD or get
counseling for it. Mr. Knudsen’s next contact with the VA was in 1992 when he
admits the VA provided him with the care he needed.

       Because the FTCA has a two year statute of limitations, 28 U.S.C. § 2401(b),
the government argues that Mr. Knudsen’s claim based on the VA’s primary negligence
is barred. Relying on U. S. v. Kubrick, 444 U.S. 111, 120-122 (1979), Mr. Knudsen
counters that the statute of limitations was tolled until he knew both the existence of his
injury and its cause.

       An FTCA claim accrues when the injured person knows or reasonably should
know both the existence and cause of his injury. U.S. v. Kubrick, 444 U.S. 111, 120-
122 (1979); Slaaten v. U. S., 990 F.2d 1038, 1041 (8th Cir. 1993). Accrual occurs at
that point even if the injured person does not know that the injury is legally redressable.
K.E.S. v. U.S., 38 F.3d 1027, 1030 (8th Cir. 1994).

      The gravamen of Mr. Knudsen’s claim is that the VA did not follow its own
standards or the standards mandated by Congress, and as a result Mr. Knudsen did not
get referred for additional counseling, and his PTSD progressed until he was
permanently and totally disabled. In his Amended Complaint, Mr. Knudsen stated:
“Dr. Zitzow first saw Plaintiff on or about November of 1983. He diagnosed Plaintiff
as having Post Traumatic Stress Disorder and recommended that Plaintiff have
continued therapy and possible inpatient treatment in an appropriate VA program to
prevent this condition for (sic) becoming worse.” ¶ 17, Amended Complaint, J.A. 34
(emphasis added). In his deposition Mr. Knudsen confirmed that the statement he

                                           -8-
made in ¶ 17 of his Amended Complaint was true. J.A. 189. He also stated: “I
wouldn’t have filled [the Agent Orange form] out there with [Dr. Zitzow] that particular
night and had it sent in. I wouldn’t have done that if he would not have been
suggesting that in order for things not to progress at a rate that he said it’s treatable, but
it isn’t – you know, basically, the old adage of its treatable but not curable and take
care of business now and continue.” J.A. 178.

     In response to the government’s motion for summary judgment, however, Mr.
Knudsen filed an affidavit in which he stated that Dr. Zitzow never told him that his
PTSD condition would worsen without treatment.

       Putting aside for a moment Mr. Knudsen’s affidavit that was filed in response
to the government’s motion for summary judgment, the record is clear that as of 1984,
Mr. Knudsen knew that he had PTSD, that it was a progressive disease, and that he
needed counseling for it. When he was explicitly denied counseling by the VA in 1984,
he knew, or reasonably should have known, both the existence and cause of his injury.
He needed counseling to prevent his PTSD from becoming worse, and he was denied
treatment. His failure to understand exactly how debilitating his disease would become
without treatment does not justify tolling the statute of limitations. K.E.S. v. United
States, 38 F.3d 1027, 1029-1030 (8th Cir. 1994).

       Mr. Knudsen’s affidavit stating that he did not know that PTSD would get worse
without treatment does not alter the Court’s conclusion that the statute of limitations
bars his claim. In his Amended Complaint, Mr. Knudsen alleged that Dr. Zitzow told
him that he had PTSD and recommended continued treatment to prevent his condition
from becoming worse. In a deposition, Mr. Knudsen confirmed this fact. Mr.
Knudsen’s later affidavit contradicting his pleading and his deposition testimony cannot
create a genuine issue of material fact for purposes of summary judgment. American
Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997);
Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir. 1983).

                                             -9-
Furthermore, factual statements in a party’s pleadings are generally binding on that
party unless the pleading is amended. Missouri Housing Development Comm’n v.
Brice, 919 F.2d 1306, 1314 (8th Cir. 1990); State Farm Mutual Automobile Ins. Co.
v. Worthington, 405 F.2d 683, 686 (8th Cir. 1968). “[A] party is bound by what it
states in its pleading . . . . [A]lthough the rule smacks of legalism, judicial efficiency
demands that a party not be allowed to controvert what it has already unequivocally
told a court by the most formal and considered means possible.” Soo Line R. Co. v. St.
Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997).

      While Mr. Knudsen’s later affidavit states that he did not know his PTSD would
get worse without treatment, a fair reading of his Amended Complaint shows that Dr.
Zitzow told Mr. Knudsen that he should continue treatment to prevent his PTSD from
becoming worse. This fact is further supported by Mr. Knudsen’s deposition
testimony.

       Because the statute of limitations bars his claim against the VA for failing to
provide him with the care to which he was entitled, the District Court did not err in
granting summary judgment for the United States.

      The judgment is affirmed.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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