738 F.2d 474 (D.C. Cir. 1984), 83-1825, Crum v. General Adjustment Bureau

Docket Nº:83-1825, 83-1876.
Citation:738 F.2d 474
Party Name:Frank D. CRUM, Petitioner, v. GENERAL ADJUSTMENT BUREAU and Home Indemnity Company, Respondents. GENERAL ADJUSTMENT BUREAU and Home Indemnity Company, Petitioners, v. Frank D. CRUM, Respondent.
Case Date:July 06, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 474

738 F.2d 474 (D.C. Cir. 1984)

Frank D. CRUM, Petitioner,

v.

GENERAL ADJUSTMENT BUREAU and Home Indemnity Company, Respondents.

GENERAL ADJUSTMENT BUREAU and Home Indemnity Company, Petitioners,

v.

Frank D. CRUM, Respondent.

Nos. 83-1825, 83-1876.

United States Court of Appeals, District of Columbia Circuit

July 6, 1984

Argued May 23, 1984.

Page 475

Petitions for Review of an Order of the Benefits Review Board.

Peter J. Vangsnes, Washington, D.C., with whom James A. Mannino, Washington, D.C., was on the brief, for Crum, petitioner in No. 83-1825 and cross-respondent in No. 83-1876.

Joseph W. Pitterich, Chevy Chase, Md., for Gen. Adjustment Bureau, et al., respondents in No. 83-1825 and cross-petitioners in No. 83-1876.

Janet R. Dunlop and Donald S. Shire, Attys., Dept. of Labor, Washington, D.C., for Dept. of Labor, respondent in Nos. 83-1825 and 83-1876.

Before WRIGHT, TAMM and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

In these consolidated cases, Frank D. Crum and his former employer, the General Adjustment Bureau ("General Adjustment"), and the employer's insurer, Home Indemnity Company, 1 petition for review of a decision of the Department of Labor's Benefits Review Board ("BRB" or "Board"). The Board's decision awarded Mr. Crum temporary total disability benefits under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA" or "the Act") 2 for his work-related angina.

Page 476

Mr. Crum argues that the BRB should have awarded him permanent total disability benefits. General Adjustment, on the other hand, contends that Mr. Crum should be denied benefits completely, or alternatively, that the BRB erred in awarding Mr. Crum total, albeit temporary, disability benefits as a result of his angina. We uphold the Board's order insofar as it awards benefits for total disability, but reverse the Board's determination that Mr. Crum's disability was merely temporary.

I

Mr. Crum was employed as an insurance claims adjuster with the General Adjustment Bureau. With the exception of three years, from 1950-53, he was employed by General Adjustment from 1948 until January 3, 1977, when he retired at the age of 58. The events leading to Mr. Crum's retirement can be traced to 1969, when he first began experiencing chest pains upon any strenuous exertion. After being hospitalized for these pains, Mr. Crum returned to work, but continued to experience chest pains approximately once every two months. In 1975, Mr. Crum was transferred from Tennessee to General Adjustment's Washington, D.C. office. By this time, his chest pains were occurring approximately two or three times per week, even when he was not exerting himself. The pains had also become more severe and longer in duration.

Quite apart from his chest pains, Mr. Crum injured his neck during work on November 6, 1975, and underwent surgery for that injury. 3 While he recuperated from this surgery, his chest pains abated. Upon returning to work, however, the pains increased in frequency and were occurring two to three times per week. Mr. Crum's physician, Dr. Cioffi, advised him to quit his job if the pains did not cease. Although he requested alternative work involving reduced hours and pressure, General Adjustment refused this request and informed Mr. Crum that he would have to maintain his production level or risk being fired. Mr. Crum finally retired on January 3, 1977, whereupon his chest pains decreased. At the time of the hearing before the Administrative Law Judge ("ALJ"), the chest pains were significantly reduced. Mr. Crum has not sought other work since his retirement from General Adjustment.

The ALJ, after a hearing, found that claimant's chest pains were symptomatic of his underlying coronary artery disease and that they arose out of and occurred during the course of his employment and were causally related to his employment. Crum v. General Adjustment Bureau and Home Indemnity Company, Nos. 78-DCWC-5, 6 (June 1, 1978), reprinted in Appendix ("App.") at 40. The ALJ further concluded that although claimant's injury was permanent, it was only a partial disability. App. 41. Thus, the ALJ awarded Mr. Crum $55.00 per week for this permanent partial disability.

On appeal, the Board agreed with the ALJ's determination that Mr. Crum's angina constituted compensable work-related injury within the meaning of the LHWCA. Crum v. General Adjustment Bureau, 12 B.R.B.S. (BNA) 458, 461-62 (1980). The Board reversed the ALJ's determination that Mr. Crum's injury was a permanent partial disability, and instead strongly suggested that the injury was a temporary total disability. Id. at 465-66. It based this conclusion in part on the fact that the employer, General Adjustment, had failed to adduce evidence that Mr. Crum was not totally disabled. The Board therefore remanded the case to the ALJ for further consideration.

Page 477

On remand, the ALJ determined that claimant was entitled to benefits for a partial, temporary disability. On appeal, the BRB once again reversed the ALJ's determination that Mr. Crum was entitled to benefits for only a partial disability. The Board found that the employer had failed to meet its burden of proof of showing that suitable alternate employment opportunities existed for Mr. Crum. Thus, in the Board's view, General Adjustment failed to demonstrate that Mr. Crum was not totally disabled. Crum v. General Adjustment Bureau, No. 80-1457, slip op. at 4-6 (June 10, 1983), reprinted in App. at 4-6. The Board therefore modified the ALJ's award to provide for temporary total disability benefits. Id. at 8. These...

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