Potomac Elec. Power Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 24 August 1979
• Docket Number: No. 78-1073,78-1073
• Citation: 606 F.2d 1324,196 U.S. App. D.C. 417
• Parties: POTOMAC ELECTRIC POWER COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Terry M. Cross, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1324

606 F.2d 1324

196 U.S.App.D.C. 417

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.

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.

Before WRIGHT, Chief Judge, and SWYGERT ^* and MacKINNON, Circuit Judges.

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 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)(1)-(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) (1)-(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)(1)-(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)(1)-(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 benefits ²¹ 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 "(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...