Potomac Electric Power Company v. Director, Office of Workers' Compensation Programs, United States Department of Labor, and Terry M. Cross ( 1979 )

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. PEP-CO 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 Longshoremen’s and Harbor Workers’ Compensation Act.¹ Because he and PEPCO could not agree on a method for computing compensation, the matter proceeded to a formal hearing before an Administrative Law Judge (ALJ). After receiving medical testimony that characterized Cross’s injury as a five to 20 percent disability of the leg, the ALJ concluded that “Claimant has become permanently partially disabled because of the accident [and] can no longer perform the rigorous work of a Cable Splicer A * * ² Noting that Cross lost overtime work and pay raises due to the injury, the ALJ awarded him compensation under Section 8(c)(21) of the Act.³ The award, as specified by that section, was based on the difference between Cross’s pre-injury weekly wages and his post-injury wage-earning capacity.⁴

PEPCO appealed the ALJ’s decision to the Department of Labor’s Benefits Review Board and urged there that Sections 8(c)(l)-(20) of the Act,⁵ providing scheduled allowances for specified injuries, ought to have been used as the basis for awarding compensation rather than Section 8(c)(21). The Board held, however, that the scheduled benefits contained in Sections 8(c)(1)-(20) are not exclusive remedies and that, if a claimant can prove a loss in wage-earning capacity greater than that provided for in the schedule, he may pursue a claim under Section 8(c)(21).⁶ Because the ALJ had found that Cross had sustained a loss in earning capacity greater than the compensation provided by the schedule, the Board affirmed the initial decision.⁷ PEPCO, contending that the Board’s analysis was premised on a faulty reading of the Act, petitions this court to set aside the Board’s decision.⁸

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 Sections 8(c)(l)-(20) as exclusive remedies is an error in law. If PEPCO is correct in this respect, of course, reversal is mandated.

Analysis must commence with the general proposition that the act whose construction is at issue is remedial in nature and must be construed in light of its humanitarian objectives. In the words of the Supreme Court,

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 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 Sections 8(c)(l)-{20) the Act enumerates specific injuries — ranging from loss of an arm to disfigurement— for which the successful claimant is to receive compensation totaling two-thirds of his average weekly wages for a prescribed number of weeks. A lost arm, for example, occasions 312 weeks’ compensation at that level.¹⁷ The second method of compensation, contained in Section 8(c)(21), applies to “all other cases” and provides for compensation amounting to two-thirds of “the difference between [the claimant’s] average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise * * ¹⁸

PEPCO’s contention that compensation based on Section 8(c)(21) is in error rests largely on its conception of the statutory scheme. Its argument, in brief, is that when Congress enumerated specific injuries in succession and then tacked on an additional provision applicable to “all other cases” it had in mind two mutually exclusive categories. This structural arrangement, according to PEPCO, makes clear that Sections 8(c)(l)-(20) represent the exclusive remedy for disabilities caused by the specified injuries. We believe, however, that there is another, more rational, way of reading the statute.

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 compensation for permanent partial disability may take — that contained in Section 8(c)(21). To establish an entitlement to compensation under this provision the claimant must prove that the injury has resulted in an actual diminution of earning capacity. Thus, although Cross’s work-related injury is confined to his left knee — -for which he is eligible for compensation under the scheduled benefits²¹ — the injury also renders his entire body, as a functioning economic unit, permanently partially disabled. Because he is capable of establishing the actual diminution in earning capacity required for compensation under Section 8(c)(21), he is brought within that part of the compensatory scheme. Reading the statute in this way yields the conclusion that a claimant’s showing of economic disability in excess of the scheduled loss is one of the “other cases” provided for in Section 8(c)(21).

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 “[ejven 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, Section 8(c)(21) is the remedial alternative.²⁸

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]

Although Professor Larson relies primarily on state cases to support his observation,³⁰ the reasoning in those cases applies with equal force at the federal level.³¹

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 Section 8(c)(21).

Accordingly, the decision of the Benefits Review Board is

Affirmed.

1 . 33 U.S.C. § 901 et seq. (1976). The Longshoremen’s and Harbor Workers’ Compensation Act is made applicable to the District of Columbia by 36 D.C. Code § 501 (1973).

2 . Joint Appendix (JA) 5-6.

3 . 33 U.S.C. § 908(c)(21).

4 . The ALJ concluded that Cross’s lost earning capacity owing to the injury equaled $130.13 per week. This figure was arrived at by determining the amount of the base pay increases that Cross was denied after the injury and the amount of overtime pay lost due to the injury. The latter amount was based on the ratio of overtime to base earnings for 1972, 1973, and 1974. JA 3-4. Under 33 U.S.C. § 908(c)(21) Cross was entitled to weekly compensation of 66²/3% of his lost earnings, which totaled $86.76 per week. The statute’s compensatory scheme is described in text at notes 13-18 infra.

5 . 33 U.S.C. §§ 908(c)(l)-(20). PEPCO specifically urged that compensation be based on 33 U.S.C. § 908(c)(2), which provides compensation for permanent partial disability based on lost use of a leg, and on 33 U.S.C. § 908(c)(19), which provides for proportional compensation for partial loss of use of a member.

6 . JA 13-14.

7 . Id

8 . 33 U.S.C. § 921(c).

9 . See Atlantic & Gulf Stevedores, Inc. v. Director, Office of Wkrs’ Comp. Programs, 542 F.2d 602, 608 (3d Cir. 1976); Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir. 1976).

10 . 33 U.S.C. § 921(b)(3).

11 . JA 12.

[12] 12. Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 189, 76 L.Ed. 366 (1932). Accord, Voris v. Eikel, 346 U.S. 328, 333, 74 S.Ct. 88, 98 L.Ed. 5 (1953). See 2 A. Larson, The Law of Workmen’s Compensation § 58.20 at 10-218 (1976).

13 . 33 U.S.C. § 908(a).

14 . 33 U.S.C. § 908(b).

15 . 33 U.S.C. § 908(c).

16 . 33 U.S.C. § 908(e).

17 . 33 U.S.C. § 908(c)(1).

18 . 33 U.S.C. § 908(c)(21).

19 . 33 U.S.C. § 902(10).

20 . JA 13 (citing Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2d Cir.) cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955)).

21 . 33 U.S.C. §§ 908(c)(2), (19).

22 . See text at note 12 supra.

23 . 138 U.S.App.D.C. 269, 426 F.2d 1263 (1970).

24 . 33 U.S.C. § 908(c)(3).

25 . 33 U.S.C. § 908(a).

26 . 138 U.S.App.D.C. at 271, 426 F.2d at 1265 (citing 33 U.S.C. § 902(10)).

27 . Id., 138 U.S.App.D.C. at 272, 426 F.2d at 1266.

28 . It may be argued that the scheduled benefits at times over compensate a particular claimant whose wage-earning capacity has not been diminished by a scheduled injury. An attorney who loses use of an arm, for example, is presumably as capable of performing his legal functions after as before his injury, but he would nonetheless be eligible for scheduled benefits. It follows, the argument continues, that this injury, too, would be subject to compensation based on § 8(c)(21), which is to say that the hypothetically injured attorney would go uncompensated.

The apparent symmetry achieved by this argument is only superficially pleasing, however, for §§ 8(c)(l)-(20) represent 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. (The latter term, it will be remembered, is an economically tied notion under the statute.) This congressional determination in effect constructs a compensatory floor that individual claimants, such as the present one, may exceed by resort to § 8(c)(21) if able to establish a sufficient level of disability owing to the injury.

[29] 29. 2 A. Larson, supra note 12, § 58.20 at 10-212 to 10-214 (footnotes omitted).

30 . See id. § 58.20 at 10-213 n.27 (citing cases); id. (Feb. 1979 Supp.) (citing cases).

31 . For an example of a state court’s reasoning, see, e. g., Van Dorpel v. Haven-Busch Co., 350 Mich. 135, 85 N.W.2d 97, 102 (1957):

[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[.] * * As a further indication of the clear trend away from exclusivity, the New Mexico case of Casados v. Montgomery Ward & Co., 78 N.M. 392, 432 P.2d 103 (1967), on which PEPCO relies as support for exclusivity, has recently been overruled by American Tank & Steel Corp. v. Thompson, 90 N.M. 513, 565 P.2d 1030 (1977), which held that a schedule is not an exclusive remedy.

32 . 234 F.Supp. 135 (E.D.La.1964), aff'd, 367 F.2d 825 (5th Cir. 1966) (per curiam), cert. denied, 386 U.S. 977, 87 S.Ct. 1174, 18 L.Ed.2d 139 (1967).

33 . The Benefits Review Board, which in 1972 replaced the District Courts as initial review tribunals under the Act, see 33 U.S.C. § 921(b), (c), has also found the reasoning in Williams unpersuasive in cases in addition to the one before us today. See, e. g., Dugger v. Jacksonville Shipyards, 8 B.R.B.S. 552 (1978); Brandt v. Avondale Shipyards, Inc., 8 B.R.B.S. 698 (1978).