Alfonso Calderon v. United States Railroad Retirement Board ( 1986 )

J. BLAINE ANDERSON, Circuit Judge:

Alfonso Calderon appeals the decision of the Railroad Retirement Board which affirmed the appeals referee’s decision that June 19, 1982 was the beginning date of Calderon’s disability annuity. We affirm the decision of the Board.

FACTUAL BACKGROUND

On November 23, 1981, Calderon was disqualified from railroad service pending a medical evaluation. Disputing the disqualification, he applied for unemployment benefits. Calderon was thereafter recalled to work in June 1982, working from June 16 to June 18 and receiving $249.21 in compensation.

On September 2, 1982, Calderon filed an application for a disability annuity under the Railroad Retirement Act of 1974 (45 U.S.C. § 231, et seq.). An accompanying statement alleged that his disability began in November 1981. The Bureau of Retirement Claims granted his request for an annuity on November 22,1982, but because of the three-day work period in June 1982, made the annuity effective June 19, 1982.

Calderon appealed the decision on May 2, 1983, contending that his annuity should have commenced on November 23, 1981, the date of his disability. His request for a hearing was denied because no factual issues were deemed to be in controversy. The appeals referee affirmed the June 19, 1982 date as the earliest date Calderon’s annuity could begin. The Railroad Retirement Board affirmed and adopted the decision of the appeals referee. Calderon then appealed to this court.

STANDARD OF REVIEW

This court will not set aside a decision of the Board “if it is supported by substantial evidence, is not arbitrary and has a reasonable basis in law.” Akins v. Railroad Retirement Board, 721 F.2d 652, 653 (9th Cir.1983); Lowe v. Railroad Retirement Board, 294 F.2d 115,116 (9th Cir.1961) (per curiam).

DISCUSSION

Calderon’s employer reported that it paid Calderon $249.21 in compensation for one month of service in 1982 and that the date he last worked was June 18, 1982. The Railroad Retirement Act provides that an annuity shall begin “not earlier than ... the date following the last day of compensated services of the applicant.” 45 U.S.C. § 231d (a)(iii). Calderon does not dispute the fact that he worked from June 15,1982, to June 18, 1982. He does, however, allege that the three-day period was only a “trial work period” and, therefore, did not change his date of disability. Calderon, while admitting that there is no trial work provision in the Railroad Retirement Act (RRA), argues that this court should look to the Social Security Act for disability guidelines. We decline to do so.¹

Congress, when passing the RRA, provided for occupational disability annuities. In so doing, Congress enacted provisions to define the qualifications and conditions of awarding such annuities. Nothing is mentioned regarding a trial work period and this court does not have the power to amend an act of Congress to provide such a work period. United States v. Rutherford, 442 U.S. 544, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1979). Justice Marshall, speaking for a unanimous court in Rutherford, 442 U.S. 544, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1979), stated that:

Under our constitutional framework, federal courts do not sit as councils of revision, empowered to rewrite legislation in accord with their own conceptions of prudent public policy. See Anderson v. Wilson, 289 U.S. 20, 27, 77 L.Ed. 1004, 53 S.Ct. 417 [420] (1933). Only when a literal construction of a statute yields results so manifestly unreasonable that they could not fairly be attributed to congressional design will an exception to statutory language be judicially implied. See TVA v. Hill, 437 U.S. [153] at 187-88, 57 L.Ed.2d 117, 98 S.Ct. 2279 [2298 (1978)]. Here, however, we have no license to depart from the plain language of the Act.

Id. at 555, 99 S.Ct. at 2477.

This court must look to the RRA to determine when Calderon’s annuity begins. 45 U.S.C. § 231d(a) provides that “... an annuity ... shall begin with the month in which eligibility therefor was otherwise acquired, but ... not earlier than ... the date following the last day of compensated service of the applicant.” “Compensation” is defined in 45 U.S.C. § 231(h)(1) as “any form of money remuneration paid to an individual for services rendered as an employee to one or more employers____” 45 U.S.C. § 231(d)(1) states that:

“An individual is in the service of an employer whether his service is rendered within or without the United States if—

(i) (A) he is subject to the continuing authority of the employer to supervise and direct the manner of rendition of his service, or (B) he is rendering professional or technical services and is integrated into the staff of the employer, or (C) he is rendering, on the property used in the employer’s operations, personal services the rendition of which is integrated into the employer’s operations; and

(ii) he renders such service for compensation, or a method of computing the monthly compensation for such service is provided in section 231b(j) of this title.”

Based on the foregoing facts and statutes, it is clear that Calderon’s disability annuity cannot begin until after his last day of compensated service: June 18, 1985. This court is satisfied upon the record that the Board’s decision was supported by substantial evidence, was not arbitrary, and had a reasonable basis in law.

The decision of the Board is

AFFIRMED.

1 . We disagree with the dissent's argument that in this case we should look to cases interpreting the Social Security Act. The dissent bases this argument on the similarity of 42 U.S.C. § 1382c(a)(4)(A) of the SSA and 45 U.S.C. § 231a(e)(3) of the RRA. This section of the RRA speaks of an individual already in receipt of an annuity when compensated service is rendered. Calderon, at the time he rendered compensated service, was not yet in receipt of an annuity. Therefore, 45 U.S.C. § 231a(e)(3) of the RRA is not applicable to the case at hand.