POTOMAC ELECTRIC POWER COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Terry M. Cross, Respondents.
No. 78-1073.
United States Court of Appeals, District of Columbia Circuit.
Argued March 22, 1979. Decided Aug. 24, 1979.
606 F.2d 1324
So ordered.
Richard W. Turner, Washington, D. C., with whom Nicholas D. Ward, Washington, D. C., was on the brief, for petitioner.
William F. Krebs, Washington, D. C., with whom Leslie Scherr, Washington, D. C., was on the brief, for respondent Terry M. Cross.
Mark C. Walters, Atty., Dept. of Labor, Washington, D. C., for respondent Dept. of Labor. Cornelius S. Donoghue, Jr., Atty., Dept. of Labor, Washington, D. C., entered an appearance for respondent Department of Labor.
Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.
Dissenting opinion filed by Circuit Judge MacKINNON.
J. SKELLY WRIGHT, Chief Judge:
On December 7, 1974 Terry M. Cross, Jr., a Class A cable splicer with the Potomac Electric Power Company (PEPCO), injured his left knee while on the job. The injury was sufficiently serious to require corrective surgery to remove the medial meniscus—fibrocartilage of the knee joint—from that knee. Because a Class A cable splicer performs many strenuous chores—including climbing ladders and scaffolding, crawling in and out of manholes, and lifting heavy equipment—the residual pain, discomfort, and unsteadiness experienced by Cross upon his return to work prevented him from discharging the duties of that position. PEPCO nonetheless continued to list Cross on the roster of Class A cable splicers and to pay him at the straight hourly rate for that classification. Cross found this arrangement unsatisfactory, however, because PEPCO refused to accord him the routine raises granted to others in his work classification and to allow him any of the overtime work that he had become accustomed to receiving over the years.
In February 1976 Cross filed a claim for compensation under the
* Of the Seventh Circuit, sitting by designation pursuant to
This court must determine whether the decision of the Benefits Review Board to affirm the judgment of the ALJ is consistent with applicable law.9 Under the Act the Board was bound to regard the ALJ‘s findings of fact as conclusive if supported by substantial evidence in the record considered as a whole.10 The Board decided that the ALJ‘s findings were so supported,11 and we see no reason to disagree. Nor does PEPCO press before us the claim that the Board misapplied the substantial evidence standard. Rather, PEPCO argues that both the Board and the ALJ erred by compensating Cross under the wrong provision of the Act. Specifically, PEPCO contends, as it did before the ALJ and the Board, that a failure to regard the scheduled benefits in
The measure before us * * * requires employers to make payments for the relief of employees and their dependents who sustain loss as a result of personal injuries and deaths occurring in the course of their work whether with or without fault attributable to employers. Such laws operate to relieve persons suffering such misfortunes of a part of the burden and to distribute it to the the industries and mediately to those served by them. They are deemed to be in the public interest and should be construed liberally in furtherance of the purpose for which they were enacted and, if possible, so as to avoid incongruous or harsh results. * * *12
Yet though a liberal construction of the Act is in order, we are mindful that no court has license to rewrite this or any other act of Congress.
The Act‘s compensatory scheme encompasses four classes of disability: permanent total,13 temporary total,14 permanent partial,15 and temporary partial.16 It is undisputed that Cross falls in the third category—permanent partial disability. The Act compensates disabilities of this type in one of two ways. First, in
PEPCO‘s contention that compensation based on
The statute defines “disability” as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.”19 Yet under the permanent partial disability classification the scheduled injuries are by their very nature considered to be compensable regardless of their concrete impact on the employee‘s wage-earning capacity. As the Board wrote, “The schedule * * * contemplates an easily administered system of compensation, where a claimant need not prove a loss in wage-earning capacity. Rather, the loss in wage-earning capacity is presumed without reference to claimant‘s actual occupation.”20 But there is another form that
The latter conception of the statutory scheme accords not only with the statute‘s remedial objectives,22 but also with this court‘s decision in American Mutual Ins. Co. of Boston v. Jones.23 In Jones we held that the compensation for a claimant who had lost use of a hand was not to be based on the scheduled injury provision,24 but rather on the method for computing compensation under the permanent total disability section of the statute.25 Pointing out that “‘disability’ is an economic and not a medical concept,”26 we concluded that “[e]ven a relatively minor injury must lead to a finding of total disability if it prevents the employee from engaging in the only type of gainful employment for which he is qualified.”27 Although Jones did not deal with permanent partial disability, the reasoning it employed to free the deserving claimant from the fetters of the scheduled injury provisions applies equally here. Permanent partial disability, no less than total disability, is an economic concept whose meaning in any single case is tied inextricably to the claimant‘s wage-earning capabilities. Where the scheduled benefits fail adequately to compensate for a diminution in those capabilities,
Notes
Our refusal to confine the claimant in this case to the scheduled injury provisions accords as well with the recent trend in workmen‘s compensation law away from the idea of exclusivity of scheduled benefits. As Professor Larson has written,
Although it is difficult to speak in terms of a majority rule on this point, because of significant differences in statutory background, it can be said that at one time the doctrine of exclusiveness of schedule allowances did dominate the field. But in recent years there has developed such a strong trend in the opposite direction that one might now, with equal justification, say that the field is dominated by the view that schedule allowances should not be deemed exclusive, whether the issue is treatment of a smaller member as a percentage loss of a larger, or treatment of any scheduled loss as a partial or total disability of the body as a whole.29
PEPCO also contends that the exclusivity of the scheduled benefits is supported by precedent in the federal system. In particular, PEPCO relies on Williams v. Donovan,32 a 1964 District Court judgment affirmed in a one-paragraph per curiam opinion by the Fifth Circuit. The claimant in Williams also suffered an injury to his knee. In authorizing compensation under the scheduled benefits, the District Court expressly endorsed the exclusivity of those benefits. The Fifth Circuit did not discuss the exclusivity issue in its brief opinion affirming.
In light of the clear trend in workmen‘s compensation law away from exclusivity, we simply find the District Court‘s conclusion in Williams unpersuasive.33 Moreover, Williams was decided prior to this court‘s opinion in Jones, and we see nothing in the District Court‘s opinion to deflect the force of the reasoning in Jones. Drawing upon that reasoning, and upon the remedial thrust of the statute at large, we hold that a showing of economic disability in excess of the scheduled loss is one of the “other cases” provided for in
Accordingly, the decision of the Benefits Review Board is
Affirmed.
MacKINNON, Circuit Judge, dissenting:
I
The material facts in this case are not in dispute. Respondent Cross worked for the Potomac Electric Power Company (PEPCO) as a Class A cable splicer, a position in which he was able to obtain some overtime work. The concededly rigorous work of a Class A cable splicer requires one to possess the physical agility to climb ladders and scaffolds, lift heavy equipment, get in and out of manholes, and the like. In December 1974, while working in a manhole, Cross twisted his left knee and tore a cartilage which had to be surgically removed. The doctor who performed the operation later testified that the operation had been a success but that Cross had sustained a 5% partial disability of his left leg. Another physician rated Cross’ disability somewhat higher—approximately 20% disability of his left leg.
PEPCO and Cross were unable to agree on a method for compensating the latter‘s disability and so the matter was referred to an administrative law judge. Following a hearing on the claim, the administrative law judge filed findings of fact in which he recounted the testimony of the two physicians whose joint estimate rated Cross’ disability as a 5% to 20% loss of use of his left leg. There was no other testimony relating to injuries Cross sustained. There was no finding that Cross’ injury extended to a part of his body other than the left leg.
PEPCO contended that on this evidence the statute compelled an award under
On PEPCO‘s appeal, the Benefits Review Board upheld the administrative law judge‘s findings of fact and conclusions of law. Citing no authority other than two recent decisions of its own, the Board reasoned that “if a claimant can prove a loss in wage-earning capacity greater than that provided in the schedule, he may pursue a claim under Section 8(c)(21).” It is this conception of
II
I fully agree with the majority that our chore here is to interpret a statute, not second guess resolutions of disputed fact. I concur in its view that if the Board erred in compensating Cross under
The touchstone of statutory construction is the language of the statute. The inquiry begins not with conjecture about what Congress would have liked to have said when it wrote the statute or with what Congress would say today given the chance, but rather with what Congress indeed expressed in the statutory text. See 2A C. Sands, Sutherland Statutory Construction § 45.07 (4th ed. 1973). The plain and ordinary meaning of the words Congress used guides this inquiry. Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1961); Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370, 45 S.Ct. 274, 69 L.Ed. 660 (1925). “Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise and the rules which are to aid doubtful meaning need no discussion.” Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1916); accord, Jay v. Boyd, 351 U.S. 345, 357, 76 S.Ct. 919, 100 L.Ed. 1242 (1956); Packard Motor Car Co. v. National Labor Relations Board, 330 U.S. 485, 492, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). Although the identification of the ordinary meaning of a statutory term is itself an exercise in interpretation, see 2A C. Sands, supra, § 45.02, the Caminetti principle counsels courts to avoid exploratory frolics into subjective policy considerations when the common and natural meaning of the words in a statute directs the court to a particular and unavoidable result.
There is no difficulty in identifying the meaning of the words Congress used in
Compensation for disability shall be paid as follows:
(c) Permanent partial disability: In case of disability partial in character but permanent in quality the compensation shall be 66 2/3 per centum of the average weekly wages, which shall be in addition to compensation for temporary total disability paid in accordance with subdivision (b) or subdivision (e) of this section, respectively, and shall be paid to the employee, as follows:
(2) Leg lost, two hundred and eighty-eight weeks’ compensation.
(19) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of a member.
The clear import of this language is that when a claimant sustains a permanent partial disability owing to the partial loss of use of a leg he is to receive two-thirds of his average weekly wage for a period corresponding to the proportion of 288 weeks which his injury bears to the loss of a leg. In this case, Cross is permanently partially disabled owing to a 5-20% loss of use of a leg. That was the finding of the administrative law judge and there is no finding of injury beyond that. We cannot second guess his factual resolutions. Cross is thus entitled to two-thirds of his average weekly wage for a period comprising some portion of 288 weeks.
The majority‘s contrary result springs from
Other cases: In all other cases in this class of disability the compensation shall be 66 2/3 per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the deputy commissioner on his own motion or upon application of any party in interest.
This “other cases” clause certainly contains a compensatory scheme different from that applicable to the specified injuries immediately preceding it in the statute. Whereas permanently partially disabled claimants falling under the specific schedule receive two-thirds of their average weekly wages for a pre-determined period of time, permanently partially disabled claimants falling into the “other cases” provision receive two-thirds of the difference between their pre- and post-injury earning capacity for an indefinite period. But the existence of two avenues of compensation does not necessarily mean that claimants have a choice between the two. It is the availability of the choice, not the existence of two schemes, that is the issue in this case. I submit that the language of the statute is barren of any indication that the choice the majority presumes indeed exists.
The key is the underscored word “other.” To my mind this word manifests that Congress intended to fashion two different schemes for two different species of permanently partially disabled claimants. The dictionary defines “other” as describing something “[d]ifferent or distinct from that already mentioned.” Black‘s Law Dictionary 1253 (4th ed. 1968); see Missouri Pacific Railroad Co. v. Campbell, 502 S.W.2d 354, 358 (Mo.1973); Webster‘s New International Dictionary 1729 (2d ed. 1959). The “all other cases” to which
I would hold that only a finding of an injury different from or more extensive than one of those specified in the schedule triggers the “other cases” provision. There being no such finding here, I would vacate the Board‘s order.
IV
The legislative history of the Longshoremen‘s Act contains no clear answer to the question at bar, but I think it is fair to infer from that history that Congress did not intend the construction the majority endorses. Congress enacted the Longshoremen‘s Act in 1927. Act of March 4, 1927, Pub.L.No. 803, chap. 509, 44 Stat. 1427. The proposal that ultimately became law was introduced in the Senate the year before as S.3170. As recommended by the Senate Committee and adopted by the Senate, S.3170 had no schedule of benefits. See 67 Cong.Rec. 10614 (1926). The bill instead provided that the compensation provisions of the
The House Committee did not accept the earning capacity provision and amended S.3170 to include a schedule of benefits. H.R.Rep.No. 1767, 69th Cong., 2d Sess. 4 (1927); 68 Cong.Rec. 5404 (1927). The Report accompanying this change explained that the Committee had reshaped the Senate bill along the lines of a House proposal that the Committee had recommended for passage the year before. H.R.Rep.No. 1767, supra, at 20. The House Committee Report on that earlier proposal revealed that the provisions of the bill had been borrowed from the New York workmen‘s compensation statute. H.R.Rep.No. 1190, 68th Cong., 2d Sess. 2 (1926); see Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 143 (2d Cir.), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955); 68 Cong.Rec. 5412 (1927) (remarks of Rep. O‘Connor). The New York statute, like the House Committee version of S.3170, contained a schedule of benefits and an “other cases” clause. Compare N.Y. Workmen‘s Compensation Law § 15(3), ¶ v (1927) with H.R.Rep.No. 1767, supra, at 4. The House adopted the House Committee version, 68 Cong.Rec. 5414 (1927), and the Senate concurred in the bill as amended, id. at 5909.
Obviously, the phrase “in all other cases” signifies that the provisions of the paragraph shall apply only in cases where the injuries received are not confined to a specific member or specific members.
Sokolowski v. Bank of America, 261 N.Y. 57, 62, 184 N.E. 492, 494 (1933).
The construction of the “other cases” provision in
Congress has amended the Longshoremen‘s Act a number of times since 1927. See, e. g., Act of October 27, 1972, Pub.L.No. 92-576, 86 Stat. 1252; Act of July 26, 1956, Pub.L.No. 84-803, 70 Stat. 655; Act of June 24, 1948, chap. 623, 62 Stat. 602; Act of June 25, 1938, chap. 685, 52 Stat. 1164; Act of May 26, 1934, chap. 354, 48 Stat. 806. The “other cases” provision, however, remains unchanged since its original enactment in 1927. Congress has referred to the provision on at least two occasions in amending other provisions of the statute, and these two comments support an interpretation based on the plain meaning of the words in
In 1938, Congress amended the statute to include the current
V
Congress is no stranger to the problem we confront here of a permanently partially disabled claimant whose lost earning capacity from a scheduled injury is not fully redressed by the scheduled benefit, for Congress amended the Federal Employees’ Compensation Act to accommodate precisely this concern.
As noted above, when originally enacted the Federal Employees’ Compensation Act did not contain a schedule of benefits; it compensated claims based on all injuries with the same formula
There was one important addition in the 1949 amendments which distinguishes the Federal Employees’ Compensation Act from the Longshoremen‘s Act. The House Committee Report on the 1949 amendments explained:
The [House] bill adopts . . . the most frequently used . . . approach [to workmen‘s compensation for permanent partial disability] which consists of a schedule for such particularized permanent disability and for facial disfigurement, but with one important modification. If the injury results in permanent major impairment, such as total loss or loss of use of an arm, hand, leg, foot, or eye, or total loss of hearing in both ears, a scheduled indemnity would, in most cases, be seriously inadequate. To overcome this inadequacy, an employee suffering such serious injury to a member or function would, upon expiration of the compensation period specified in the special schedule, be protected against continued disability and impairment of his wage-earning capacity at the regular compensation rate applicable to such continued disability like other disabled employees. In these major injury cases, the schedule of compensation would thus be minimal rather than exhaustive; . . .
H.R.Rep.No. 729, supra, at 7 (emphasis added); see 95 Cong.Rec. 8755 (1949) (remarks of Rep. McConnell). The Senate version was to the same effect. See S.Rep.No. 836, supra, at 17-18.
The Federal Employees’ Compensation Act as amended in 1949 did not contain an “other cases” provision identical to the one in the Longshoremen‘s Act, but it did have a provision which operated the same way to cover cases not falling in the schedule. Despite this, Congress plainly assumed that the recovery for claims based on injuries contained in the schedule would be confined to the benefits therein described. Congress recognized that these benefits would not always compensate for lost earning capacity, and further recognized that some legislative action was required if claimants suffering scheduled injuries were to be eligible for benefits beyond that set out in the schedule. It therefore incorporated “one important modification” in the amendments which represented a departure from the “most frequently used” approach to compensating permanent partial disabilities arising from scheduled injuries. Even with this modification, a claimant must first go to the schedule that conclusively presumes the amount of recovery due him, and only after he receives the scheduled amount can he seek additional compensation.
Under existing law, certain persons suffering from specified permanent injuries (mostly the loss, or loss of use, of a member) are entitled to receive compensation for a specified number of weeks. If the employee has suffered a permanent partial loss, or partial loss of use, of the member listed in the schedule, but no other significant impairment of the body, he receives no further compensation after his scheduled award is exhausted. On the other hand, if he has received a partial loss or partial loss of use, of a listed member and has also suffered a significant impairment in a part of the body not listed in the schedule, he can be compensated for loss of wage-earning capacity, if any, but not for the scheduled loss. The committee‘s amendment treats the person with a scheduled partial loss, whether or not accompanied by another disability, as the act now treats persons suffering total loss or loss of use of a member—by allowing them the scheduled injury in each case, and by providing for compensation based on loss of wage-earning capacity after the scheduled award has been paid out.
S.Rep.No. 1285, 89th Cong., 2d Sess. 3 (1966) (emphasis added); see H.R.Rep.No. 1304, 89th Cong., 2d Sess. 3 (1966) U.S.Code Cong. & Admin.News 1966, pp. 2430, 2431 (to the same effect).
In the most recent amendment of the Federal Employees’ Compensation Act Congress adopted a formula the effect of which was to extend the benefits of a scheduled award to claimants who would otherwise be compensated under that statute‘s version of the “other cases” provision. Act of September 7, 1974, Pub.L.No. 93-416, § 4, 88 Stat. 1144. Congress once again indicated its understanding that claimants with injuries specified in the schedule would be confined to compensation described therein absent some explicit provision permitting compensation in addition to the scheduled benefit. See H.R.Rep.No. 1025, 93d Cong., 2d Sess. 4 (1974). This is particularly clear in one reference made in the Senate Report. The 1974 amendments permitted the Secretary of Labor to include non-scheduled injuries other than those Congress identified under the new schedule formula. The Senate Committee expressed its understanding that these other injuries would “not include any organs already included within the Act‘s existing schedule of compensation.” S.Rep.No. 1081, 93d Cong., 2d Sess. 5 (1974), U.S.Code Cong. & Admin.News 1974, pp. 5341, 5345.
VI
As noted, Congress enacted the “other cases” provision fifty-two years ago and has not changed it since. In the over half-century since 1927, no federal court has ever construed section 8(c) to provide two alternative compensation schemes for permanent partial disability claims based on injuries unquestionably confined as a matter of fact to members contained in the schedule. Conversely, every federal court that has considered this issue has either expressly or impliedly held that a claimant‘s wage-earning capacity is irrelevant when his claim is based on an injury specified in the schedule. This is especially apparent in cases dealing with whether a lack of loss of wage-earning capacity deprives the claimant of the scheduled benefit. See, e. g., Bethlehem Steel Co. v. Cardillo, 229 F.2d 735 (2d Cir. 1955), cert. denied, 351 U.S. 950, 76 S.Ct. 847, 100 L.Ed. 1474 (1956); Travelers Insurance Co. v. Cardillo, supra, at 144; Gulf Stevedore Corp. v. Hollis, 298 F.Supp. 426 (S.D.Tex. 1969), aff‘d per curiam, 427 F.2d 160 (5th Cir.), cert. denied, 400 U.S. 831, 91 S.Ct. 63, 27 L.Ed.2d 62 (1970); Cox v. American Store Equipment Corp., 283 F.Supp. 390 (D.Md.1968). Because the majority holds that wage-earning capacity can be relevant to a claim based on a scheduled injury, and because nothing in its analysis of the statute logically confines the relevance of wage-earning capacity to situations in which the claimant has actually suffered a loss, the majority effectively overrules the reasoning of this unbroken string of cases.
Two federal cases bearing on the issue here are illustrative. One is Williams v. Donovan, 234 F.Supp. 135 (E.D.La.1964), aff‘d per curiam 367 F.2d 825 (5th Cir. 1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1174, 18 L.Ed.2d 139 (1967). In that case, the employee injured his knee during the course of his employment. The testimony indicated that he had sustained a permanent partial loss of use of his leg. Compensation was awarded on the basis of the scheduled benefit. The employer argued that this method of compensation was in error because he was entitled to elect recovery under the “other cases” provision. The court categorically rejected the argument, reasoning on the basis of the statute that “it is evident that when considering compensation in a case of permanent partial disability, the form and language of the Act dictate that the wage-earning capacity test be applied only in those ‘other cases’ not listed in the schedule.” Id. at 139 (emphasis added).
Williams is on all fours with this case. The majority rejects its reasoning without discussing it, partly on the basis of the brevity with which the Fifth Circuit affirmed it and partly on the basis of an ostensible trend in some other workmen‘s
Another case of note is Flamm v. Hughes, 329 F.2d 378 (2d Cir. 1964), in which the plaintiff claimed that section 8 erects “unconstitutional distinctions among various types of injuries in that it provides a specific schedule of compensation for a limited number of weeks for those injuries resulting in permanent partial disability which are explicitly enumerated in that provision but fails to provide for compensation in accordance with such schedules for permanent partial disability resulting from a combination of injuries not explicitly enumerated.” Id. at 380. The precise issue for the Second Circuit was whether the district court erred in declining to convene a three-judge court to consider the question. The court of appeals affirmed on the ground that the plaintiff had failed to raise a substantial federal question. The claim was without merit because Congress “enjoys great latitude in promulgating a statutory scheme for the compensation of workers” and it did not act irrationally in deciding “to provide a specific schedule of compensation limited to a prescribed number of weeks for enumerated permanent partial disabilities and yet provide compensation for an indefinite period of time for all other injuries leading to permanent partial disability.” Id. The unarticulated predicate for Judge Lumbard‘s opinion for the Second Circuit was that the two schemes were mutually exclusive as between each other; otherwise the issue would never have been raised. And the predicate was unarticulated because the language of the statute made the proposition so clear.
VII
Lacking support in the statute, the legislative history, or the case law for its unique interpretation of section 8(c), the majority opts to rely on three general principles often invoked in workmen‘s compensation cases. In my view this reliance is misplaced.
A
First the majority cautions that the Longshoremen‘s Act, being a remedial statute, must be construed in light of its humanitarian purposes. It later concludes that its construction of section 8(c) is in accordance with this tenet of statutory construction.
I do not disagree with the general proposition that a remedial statute must be construed with its remedial purposes in mind, though the proposition is itself little more than a restatement of the principle that congressional intent guides the construction
In this case we are unconcerned with whether Cross is covered by the statute; everyone agrees that he is. The question is how shall he be compensated. That a court must construe a statute with its remedial purposes in mind does not give a court, as the majority acknowledges, a “license to rewrite this or any other act of Congress.” Maj. Op. at 1327 of 606 F.2d. Nor does it mean that the language in the statute is to be construed beyond all reason to ensure the claimant the largest conceivable award the statute offers. Rather courts are confined to what the statute can fairly be read to mean. If there is an element of ambiguity, then perhaps the majority‘s general proposition can sway a court in the direction of the broader meaning. But using every intrinsic and extrinsic aid to statute construction at a judge‘s command, I can find no ambiguity. Only by ignoring the language and history of the statute can the court achieve the result it does. This undermines the foundation of the proposition on which the majority relies—that congressional intent governs construction of a statute.
B
Next the majority stresses that “disability” is an “economic concept” rather than a medical one. To the majority this means that wage-earning capacity rather than physical injury governs compensation for disability. Fearful that this analysis might lead to a two-way street through section 8(c)(21) whereby a scheduled injury might go uncompensated if the employer can show no loss of wage-earning capacity, the majority contends that section 8(c)(1)-(20), the schedule, represents “a conclusive congressional determination that certain injuries entitle a claimant to benefit on grounds that he is injured, not on grounds that he is actually disabled.” Maj. Op. at n.28 of 606 F.2d (emphasis in original). Thus for the majority disability is exclusively an economic concept while at the same time compensation for permanent partial disability based on scheduled injuries is exclusively a medical concept. This is confusion compounded.
Earlier I stated that nothing in the majority‘s analysis logically confines the relevance of wage-earning capacity to situations in which the claimant who has sustained a scheduled injury actually suffers a loss in earning capacity, i. e., that the majority is creating precisely the two-way street through section 8(c)(21) which it purports to disclaim. This assertion is borne out by examination of the majority‘s treatment of disability as an “economic concept,” for that treatment displays a very basic misunderstanding of the concept of disability and its relationship to the schedule of benefits in the Longshoremen‘s Act.
Disability is neither exclusively economic nor exclusively medical in character; it draws from both. See 2 A. Larson, The Law of Workmen‘s Compensation § 57.10 (1976). To measure all compensation in terms of lost earning capacity would create a disincentive for the medically disabled employee who is able and eager to return to work. To measure all compensation in terms of physical injury would penalize the economically disabled employee who is eager but unable to return to his earlier job. Congress has long recognized the trade-offs involved in fashioning an administratively feasible system of compensation which accommodates both of these interests within reasonable limits. See, e. g., H.R.Rep.No. 729, supra, at 7-8; S.Rep.No. 836, supra, at 17-18. The system Congress adopted defines disability in terms of wage-earning capacity, see
The majority‘s principal error lies in its efforts to reconcile the definition of disability with the existence of a schedule of benefits based solely on physical injury. As noted, confronted with this seeming disparity, the majority declares that the schedule is designed to compensate for an injury, thus contradicting its insistence on disability as an exclusively economic concept. The disparity the majority fears, however, does not exist, and thus the confusion surrounding its attempts at reconciliation is unnecessary. The existence of scheduled benefits solely based on physical injury is wholly consistent with the definition of disability solely based in economic terms because the purpose of the schedule is to set out conclusive presumptions on lost earning capacity for specified injuries. Professor Larson explains it this way:
[The immateriality of lost wage earning capacity to determination of scheduled benefits] is not . . . to be interpreted as an erratic deviation from the underlying principle of compensation law—that benefits relate to loss of earning capacity and not to physical injury as such. The basic theory remains the same; the difference is that the effect on earning capacity is a conclusively presumed one, instead of a specifically proved one based on the individual‘s actual wage-loss experience. . . . To avoid . . . protracted administrative task[s], the apparently cold-blooded system of putting average-price tags on arms, legs, eyes, and fingers has been devised.
2 A. Larson, supra, § 58.11.
Hence the schedule of benefits is not only “a conclusive congressional presumption that certain injuries entitle a claimant to benefit on grounds that he is injured,” it is a conclusive congressional presumption that the injury creates a disability entitled to the specified amount as compensation. “Congress has determined that a loss of wage-earning capacity and its extent are conclusively established when one of the enumerated physical impairments is proven to have arisen out of employment.” Travelers Insurance Co. v. Cardillo, supra, at 144 (emphasis added). A conclusive presumption cannot be rebutted by any evidence, either of a greater or lesser loss of earning capacity; it is positive law. The majority‘s view transforms the presumption into one rebuttable by a claimant with evidence of lost earning capacity in excess of the scheduled benefit. Because heretofore the schedule itself represented final congressional judgments on the extent of the loss of earning capacity (rather than the effects of the physical injury), there is no reason why an employer cannot hereafter rebut the presumption of a scheduled loss with evidence of a lack of lost earning capacity. Hence my conclusion on the two-way street the majority paves through section 8(c)(21).
Confining a claimant who sustains an enumerated injury to the compensation contained in the schedule does no violence to the idea that disability is an economic concept. Instead it neatly accords with that idea. The majority‘s quarrel essentially is with Congress’ determination to establish a conclusive presumption on the amount of wages a claimant has lost by devising a “cold-blooded system of putting average price-tags” on specific body members. Absent questions of constitutional dimension, however, it is not within our power to quarrel with congressional judgments.
C
Finally the majority observes that the current trend in workmen‘s compensation law leans toward a notion that scheduled benefits are non-exclusive. Relying on state cases and Professor Larson‘s treatise, the majority concludes that its reading of section 8(c)(21) best accords with this trend.
Assuming for argument that such a trend exists and can be considered by this court, I question whether it has any application to
This was the situation involved in American Mutual Insurance Co. v. Jones, 138 U.S.App.D.C. 269, 426 F.2d 1263 (D.C. Cir. 1970), a case on which the majority relies. The claimant in Jones was “a 63-year-old man of limited intelligence whose only past work ha[d] been as a laborer.” Id., 138 U.S.App.D.C. at 271, 426 F.2d at 1265. He sustained a work-related injury to his hand which resulted in the loss of use of that hand for all but the lightest work. He was unable to find work for several years. The employer argued that because the injury was scheduled, the claimant was confined to compensation under the schedule of benefits for permanent partial disability. The claimant, noting that the statute contained only a partial listing of injuries and provided that “[i]n all other cases permanent total disability shall be determined in accordance with the facts,”
The holding in Jones is consistent both with the idea of disability as an economic concept and with the express language of the statute relating to permanent total disability. The claimant there was not trying to recover for a heart attack or a hernia when his injury was to his hand; he was arguing that the injury to his hand totally disabled him in light of his age, work skills and experience, and ability to obtain employment. In Jacksonville Shipyards, Inc. v. Dugger, supra, the Fifth Circuit had no difficulty reconciling Jones, which it followed, and Williams, which held the schedule to be exclusive (in relation to the “other cases” clause) when only a permanent partial disability was involved. Section 8 says that the “facts“—medical and economic—determine permanent total disability; it conclusively presumes compensation for a scheduled injury permanent in quality and partial in character.
It is noteworthy that the two state cases the majority cites, Van Dorpel v. Haven-Busch Co., 350 Mich. 135, 85 N.W.2d 97 (1957), and American Tank & Steel Corp. v. Thompson, 90 N.M. 513, 565 P.2d 1030 (1977), involved the same fact situation as Jones. The majority cites no cases applying the nonexclusivity trend to an “other cases” provision in a situation like the one at bar where the only finding of fact is that the injury was confined to the leg. As noted, Professor Larson does not relate the nonexclusivity trend to “other cases” provision. He notes several states which follow the trend, but some of these states have rejected extension of the nonexclusivity trend to other cases. E. g., compare Jaynes v. Industrial Commission, 7 Ariz.App. 78, 436 P.2d 172 (1968) (cited in 2 A. Larson, supra, § 58.20) (injury to leg which produces arthritis compensable under “other cases“) and Corbus Spring Service v. Cresswell, 359 P.2d 219 (Okl.1961) (cited in 2 A. Larson, supra, § 58.20) (injury to leg which extends to back compensable under “other cases“) with La Rue v. Ashton Co., 2 Ariz.App. 101, 406 P.2d 451 (1965) (injury confined to leg compensable only under schedule) and Thomas Concrete Products v. Robertson, 485 P.2d 1054 (Okl.1971) (injury confined to specific scheduled member compensable under schedule only).
Although the majority construes Larson to grant the claimant the advantage in every scheduled injury case, Professor Larson himself understands that the existence of a schedule causes disadvantages in some situations. See 2 A. Larson, supra, § 58.13 at 10-174. Other treatises directly address
Assuming for argument the trend has some application here, it is no substitute for legislation. We do not owe our allegiance to the latest fad, but to congressional intent. Thus whatever the current rage may be it supplies no warrant for ignoring the language of the statute. The majority‘s reasoning vests new congressional intent in a statute enacted fifty-two years ago. Congress has indicated that it will undertake efforts to conform workmen‘s compensation law “to the latest thinking in the area.” H.R.Rep.No. 1025, supra, at 1; see S.Rep.No. 1081, supra, at 1. We should let Congress continue those efforts; we have no choice.
VIII
The facts indicate that Cross sustained an injury to his leg alone. The plain meaning of the statute confines recovery for such an injury to the benefits contained in the schedule. Neither the text of the statute nor its legislative history supports the majority‘s interpretation of the “other cases” provision. Instead, the legislative history of the Longshoremen‘s Act and the Federal Employees’ Compensation Act exhibits Congress’ understanding that the “other cases” provision is confined to disabilities based on injuries not mentioned in the schedule. Every federal court that has considered the question has so concluded; no federal court has reasoned otherwise. The idea of “disability” as an economic concept is totally consistent with an interpretation of the statute which is faithful to its plain meaning. Nothing in the tenets of statutory construction or the trends in workmen‘s compensation law counsels a different construction. It is for Congress to make the policy judgments required to permit Cross to recover for lost wage earning capacity on the basis of an injury for which Congress has conclusively presumed the amount of that loss.
I would vacate the Board‘s order with directions to compensate Cross under
UNITED STATES of America v. William C. FARRELL, Appellant.
No. 78-1279.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 22, 1979. Decided Aug. 27, 1979.
[The purpose of the schedule is] to consult broad industrial experience and lay down an irreducible minimum number of weeks allowable for certain common specific losses—thus removing the issue from costly and delaying litigation at a time when the workman was most helpless and his need the greatest—leaving the question of further disability and compensation to be determined on proofs made at a hearing * * * having due regard for the nature and extent of the injuries, the then capacities and general condition of the workman, and the kind of job he had before his injury[.] * * *