James L. Keehn v. Alaska Industrial Board, Bellingham Canning Co., and D.K. MacDonald & Co.
230 F.2d 712
9th Cir.
1956
Check Treatment

*1 DENMAN, Judge, Chief Before HEA- LY, Judge, and Circuit JAMES M. Judge. CARTER, District CARTER, Judge. JAMES M. District This case involves a claim for settlement of an industrial 43-3-6, A.C.L.A.1949, under Sec. awarding partial perma- subsequent attempt and a claim further thereafter Keehn, herein, appellant the Alaska Industrial August 20, claimed employed lifting mattresses while Canning Company. Bel- *2 against lingham’s that made tem- Keehn’s claim insurance carriers highly compromise questionable, the the was porary payments in sum to Keehn approval with supplied had been into the $2,264.00; medical and entered and Board; applicant including had op- attention, of the that the hospital fusion amounting ex- $3,- and maintenance back, recovered to $5000 eration on the original injury prior report- penses to May 1953, from the doctor In the 987.00. Bellingham; fixed, with ed condition as inju- Keehn had was fit for sustained indicated that treatment involving ries, par- work; two of the back. them that there was disability “equivalent of the tial to 40% and The Board found decided claim be and recommended the back” aggrava- “there was no such an closed with award. (Aug. by injury” tion caused second the signed permanent partial compromise was “exceeds A release 40% disability which was parties for the release June Board on Alaska Industrial ap- describing dated June 1953” and denied “40% brought settling plication. “any The matter was then the back” and alleging injury court before district claims” on account all $2,880.00 Board’s erroneous as payment in decision was Keehn matter law. “for pre- ability,” sums in addition to the trial The court found that while work- viously paid. ing employer, for a had different Keehn in involv- May sustained to work for Keehn went In disability; boat, recited employer the amounts had further another by Bellingham’s September paid back, carrier insurance and in trouble with his totaling growing $9,131.00 per- was out fusion 1953 another August injury; recited the Health Service. the Public formed Board; report and award of the concluded The indicates no hernia- doctor’s upon found, was substantial evidence vertebral disc but decision, spinal based previous which its fusion had time the affirmed. Within matter been successful. brought appeal. here on ques- application indicates two 43-3-6, presented (1) provides Sec. Beard: A.C.L.A.1949 tions were “temporary disability in “ * * * part, employer for * * * ending right period 31, 1953, May shall have the agreement regard any to reach an in have been at instead $10.00 ** day.” per (2) “Symptoms claim in be- accordance $8.00 hereof, May with the schedule came worse instead but a mem- anticipated, agreement, orandum of the had in form better prescribed by Board, the Industrial and further Board, filed be approved by with the due.” If *. Board, agreement application Sep- recites that shall be enforceable the same as performed, tember 1953 the fusion was Board, order award of the and sub- anticipated disability that proximately ap- Keehn ject in accordance modification months, op- six and that the provisions hereof”, with Section 4 grew eration and original out of the 43-3-4, A.C.L.A.1949. injury. Company, by an- swer denied the The Alaska Industrial Board is tem- au- alleged porary 43-3-4, thorized under Sec. A.C.L.A. injury prior carrying pro- sustained a serious 1949 to make rules em- out ployment Bellingham Canning 17(a) cedure under the Act Art. alleged Company; despite of Practice of its Rules fact Procedure presented Disputed pursuant issued and claim be Claims thereto, “Agreements years injury.” (3) within three after the reads as follows: — provide payment less which *3 Findings The Trial Court compensation than of the full amount question No the was raised before due, and which under- due or to become here, trict court the difference or about employer all from take release the in rate between and $8.00 $10.00. liability, future will be question sole raised the claim is appears doubt where it that a reasonable Keehn to further rights parties or exists as to the findings not are district court approval in- that best would be the working for artful. It found that while parties.” terest the employer a different provides, 43-3-4, A.C.L.A.1949 Bellingham, sustained Keehn had (is) injured employee entitled “If an involving injury in any or subdivision under disability, and it that the found schedule, part after- and it shall of this application rea- for the denied or was he or she is wards that no that the son that there was higher compensa- rate entitled aggravation by in- the second caused part of under or some same jury (Aug. exceeds 40% schedule, and in then of this subdivision disability, partial com- for which such shall receive that event he or she paid pensation com- had been under the deducting higher rate, first Inferentially promise and release. already paid him amount that has finding was that there was no end the Industrial or her. To that occurring injury to the attributable granted given hereby con- and Board is Belling- working while tinuing every claim, jurisdiction and ham, any and that which exceeded 40% any upon may, at time and said Board might disability presently suffered which application, review or on its own motion amount, such was the result exceed award, any agreement, or or- decision previous injury. review, may der, and, an such make diminishing ending, or judgment or order We think should increasing compensation previously ground affirmed on the be .the agreed to, subject awarded, ordered, or substantial evidence before district provided findings. minimum maximum or to the court for such The alternative review affect No such shall in this Act. to send it would be back to district award, or settlement as re- order such court for more direct and detailed find already paid, except gards any moneys ings. record, In view of the this would increasing undoubtedly act, or order that an award an be idle since we may clearly be made effec- rate court think the indicated injury, except and from tive date its decision. basis for compensation due part if ample support were There facts to unpaid award or due is an become or to findings and conclusions. Keehn suf- decreasing compensation rate order to his in fered back in 1949 from may the date made effective be lifting, employed by while Kodiak Fish- any payments injury, made and eries. He suffered in November rate of such decreased in excess thereto working 1951 while for another em- any unpaid com- be deducted diagnosis following ployer. The made manner and such such pensation, in part in referred to “restric- be determined compression methods tion of motion irrita- * * Board; provided, however, peripheral Industrial nerves re- tion of sulting peripheral sensory motor signs, paid symptoms particularly unless the dis- nerve rate creased right entitling femoral sciatic distribu- thereto is Act, paid there is description once the sum is the tion.” This classic nothing diminish end to do to of hernia- more often low back extremely it.” record tion of a disc. alleged, injury while sketchy as to what We do reach Bellingham. employed by Keehn was deter- if it were would be result aggravation facts, mined doubtful, liability insurance With nevertheless carrier for temporary higher al- supplied rate than the now be payments, settlement, lump lowed treatment, made an *4 impact 4 in an in- $9,131.- or the of Sec. settlement, a cost all at sum stance. We can conceive of situations finding permanent dis- 00. The 40% might problem, which raise the well ample ability, cover was to g. applicant perma- an is awarded 40% back case. partial disability nent for a head Question o Com- Increase of an ^pen goes as a result of the insane Ag- or pensation for Increased an original injury. There the dis- further Disability gravated Is Permanent have would not been witbin the Us. Not Before contemplation parties to the set- . Co., 9 Exploration Hilty v. Fairbanks tlement or the Board. do not We Sec. involved Cir., F.2d 82 pags meaning need ^ on tbe 4 0f Sec. Act, Comp.Laws Sec. Alaska ag appbed such situation. became with amendments which Temporary Disability Compensation pur For the 43-3-4, A.C.L.A.1949. Sec. Approval Payment problem, sections are poses of our Lump Sum for Permanent Partial said, substantially The court the same. Disability. progressive “By this section suggests language provided”, Keehn expressly 82 are disabilities ending, diminishing 4 Sec. refers to page or 79. F.2d at increasing temporary disability compen for If our case involved a claim an in- Hilty sation. Exploration v. Fairbanks aggravated permanent creased or dis- Co., supra, does not assist as to whether ability, 40%, now contended to exceed temporary disability may a total be com helpful. be case would But Keehn pensated after a settlement award for contention; any such diselaims partial permanent disability, express must because aggra- temporary disability court that the Whether further compensation ap- ap- vation does not exceed be allowed while 40% proved plicant receiving compensation in the settlement. dis- for partial permanent disability, 4 to claims effects increase or has re- ap- lump ceived a approved so sum award or states, perma- therefor, presents proved. He “insofar settlement a serious disability compensation question, is con- and one on which nent we have been lump authority.1 cerned, Alaska Act is sum able find little nothing we or little on this fact find numerous A.L.R. phases problem, indicates from our read- annotations on this on various of Work- many cases, Compensation. men’s See: 165 A.L.R. ordinary question usually 9, (Workmen’s Compensation; Review, arises original perma- etc.) (lump reopening); at a contention 37 awards — aggravated (Aggravation inju- has been 105 nent or A.L.R. increased, ries); (New “new or under the fur- A.L.R. and disability” “changed disability) (Right or tlier condi- 88 A.L.R. 385. provisions temporary Com- tions” pensation statutes, of Workmen’s total disa- bility ordinarily claim is addition permanent partial disability). made for an increased bility disa- rating nothing or award. findWe further, happenings appear diffi- problem more awards would granted situations, temporary than in should be cult in the ability, partial. applicant re- or whether total the cases where an ceiving. payments periodic Again logic, as a would matter of In the latter applicant apply to seem an should first opportunity case, would be some reopen an award or settlement comparison what make a between ground aggravation on the of an being compensation for the received as applica- creased and if this permanent partial and what granted, tion was the case would then might tem- claimed for the be received posture inbe to seek disabili- disability compensation. There porary ty compensation, pending decision general most rule under seems claim for an increased award. compensation statutes of the workmen’s properly dis- We think the case was although situations, in similar posed the Board the decision of one, is en- this identical find- and court below in its inferential *5 greater amount. But titled disability any present suffered made lump has been where a sum award prior from the acci- Keehn resulted comparison paid, basis of this now dent. need not decide We therefore not available. is day save it for another logic, have we As matter of and another case. question of an amount trouble with judgment The is affirmed. disability temporary following payment approval and DENMAN, Judge (dissenting). Chief par lump for a sum award clearly error in con- The court is disability been a there has where tial struing 43-3-4, A.C.L.A., pre- Section perma percentage venting recovery for a tem- Keehn’s disability increased. partial has nent arising porary disability from a suc- perma fixing very rate for a of a The ceeding Sep- operation on his back disability partial indicates that nent 12, 1953,1 tember after settlement permanently thereafter will 25, 1953, prior June on the amount of a Certainly disability. would this suffer disability prior op- temporary from a temporary dis within its terms include his eration on back' of his time, ap time to from disability. partial pertinent nent The proval payment of the portion of that section is: appear would terminate claims award temporary To injured (is) employee “If an en- lead would hold otherwise absurd under titled g. situations, perma “A” receives schedule, part subdivision or of this develop award for and it shall afterwards * * * Periodically leg. stump he entitled to a loss is or was higher he irritated cannot work becomes During part of [or] or some or so. this time same a month he schedule, temporarily totally this then clearly subdivision dis is * * logical he in that event seem It would abled. higher rate, contemplated first such receive spinal ago agreed (Tr. months another facts Three statement of The fusion Oregon.” Portland, Gray performed “Dr. then was done states: patient “Physical Laminectomy pain: The Examination: is relief from with chronically ill, perspiring, spinal pale, January 26, 1953, white fusion was On weighing stripped. (Usu- Gray. male, 158 lbs. This afforded Dr. also done lbs.) pres- weight pain patient. His al is 170 blood no relief [Emphasis supplied.] sure is 120/70.” judgment be reversed al- deducting has amount Alaska Indus- the case remanded to the ready *.” him whether trial Board to determine repeatedly Supreme has Court temporary after the liberally held that such statutes September was caused injured workma in favor of the construed employment happenings in Keehn’s 2 Construing “rate” in words n. Bellingham Canning Company, or as liberally of the in favor Section 43-3-4 Board, suggested, found but not dic Webster’s we find that employ- to his from other gives synonyms tionary as the ment. “amount” and noun the words “rate” therefore, has “quantity”. jurisdiction determine whether arose from second since the statute should act “if

means that so that he or she

it afterwards amount, higher to a or was entitled compensation.” Thomas P. KNAPP et al. if Keehn suf- It is clear that therefore succeeding temporary fered a BANKERS SECURITIES CORPORA- increased amount recover an *6 TION et al. temporary disabilities, his total Appeal of Bankers Securities “the amount which shall be deducted Corporation. already him”, paid for his that has No. 11613. prior partial disability. Appeals United States Court considering Instead of Third Circuit. September, 1953 Argued 16, Jan. 1956. the Board declined so to 15, Decided March 1956. act and instead in effect held had that it finding: power no such in its ag- “there was no gravation caused the second

jury forty percent perma- exceeds partial disability for which Compromise and Release dated June 25, 1952 opinion, The court’s I with which

agree, unlikely is most if

the matter were sent back to the Alaska likely

Industrial Board it would be

come to a different conclusion is entire-

ly important thing irrelevant. The opinion establishes for the Alaska highly

law is a contention adverse to rights injured workmen. See, g., 187, 366; Industrial Commission of Wisconsin Ct. 76 L.Ed. Old Dominion cCartin, 1947, 622, Stevedoring Corp. O’Hearne, v. 330 Cir., U.S. M 886, 1140; 651; 67 S.Ct. 91 L.Ed. Balti 218 F.2d Robinson v. Brad Philadelphia shaw, U.S.App.D.C. more & Steamboat Co. v. Norton, 284 U.S. 52 S. F.2d 435.