Alaska Industrial Board v. CHUGACH ELECTRIC ASS'N, 14616.
| Decision Date | 07 June 1957 |
| Docket Number | No. 14616.,14616. |
| Citation | 245 F.2d 855 |
| Parties | ALASKA INDUSTRIAL BOARD, and Carl E. Jenkins, Appellants, v. CHUGACH ELECTRIC ASSOCIATION, Inc., a corporation and General Accident, Fire and Life Assurance Corporation, Ltd., a corporation, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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J. Gerald Williams, Atty. Gen. of Alaska, John H. Dimond, Juneau, Alaska, for appellants.
Robertson, Monagle & Eastaugh, Juneau, Alaska, for appellees.
Before DENMAN, Chief Judge, and STEPHENS, HEALY, POPE, LEMMON, FEE, CHAMBERS, BARNES, and HAMLEY, Circuit Judges.
In this case, which arises under the Workmen's Compensation Act of Alaska, two questions are presented on appeal. The first of these is whether, under the circumstances of this case, the Alaska Industrial Board had jurisdiction to reopen a previously-rejected claim for a temporary total disability award. The second is whether, if the board had such jurisdiction, it correctly granted such an award for injuries arising from the same accident in which a lump-sum award for permanent total disability had previously been granted.
The following facts, essential to a consideration of these questions, are not in dispute. On September 21, 1950, Carl E. Jenkins received serious injuries when he came into contact with a high voltage electric line while in the course of his employment. His employer was Chugach Electric Association, which had insured its liability under the act with General Accident Fire & Life Assurance Corporation.
As a result of the accident, it was necessary to amputate Jenkins' left arm near the shoulder, his right leg below the knee, and four toes of his left foot. These amputations were made in a series of three surgical operations, the last of which was performed on October 28, 1950. The left foot failed to heal and was still under treatment at the time of his doctor's last report, on December 17, 1953.
Following this injury, his employer and the insurance company began paying Jenkins compensation for temporary total disability, under the "Temporary Disability" provision of Alaska Comp.Laws Ann., § 43-3-1 (1949). This compensation was paid at the rate of $95.34 per week, for approximately thirty-eight weeks.
On July 25, 1951, the employer and the insurance company reversed their position. They decided that Jenkins had been permanently and totally disabled since October 28, 1950, when the last amputation (the right leg) occurred. Accordingly, they granted him a lump sum of $8,100, as a permanent total disability award, but deducted from it the $3,645 which had been paid to Jenkins as temporary total disability. A check in the sum of $4,455 was sent to Jenkins on July 25, 1951, for the purpose of closing the claim.
On August 14, 1951, Jenkins filed with the board, on its printed form, an application for adjustment of claim. The evident purpose of this application was to claim continuing benefits for temporary disability, despite the allowance of a lump-sum award for permanent total disability.1 It was so treated by the employer and insurance company, which filed a joint answer denying that temporary disability continued.
It was also so treated by the chairman of the board, who, on November 12, 1952, filed a decision granting the application. It was held in this decision that temporary disability had continued since October 28, 1950. Jenkins was awarded the $3,645 which had been deducted from his lump-sum payment, and continuing temporary disability payments "until a medical end result is reached."
On February 6, 1953, after review by the full membership of the board, the two members other than the chairman filed a decision vacating the chairman's decision and award of November 12, 1952. It was held that, Jenkins' condition having been rated as a total permanent disability on October 28, 1950, "no compensation for total temporary disability is thereafter payable." He was, however, granted a temporary total disability award of $476.70, representing compensation for a period of thirty-five days prior to the operation on October 28, 1950. Jenkins did not seek a district court review of this award, as he might have done under Alaska Comp.Laws Ann., § 43-3-22 (1949).
On May 14, 1953, Jenkins wrote to the chairman of the board, requesting a copy of the decision of February 6, 1953. On November 10, 1953, Jenkins' attorney wrote to the board, requesting that the claim be reopened. On November 21, 1953, Jenkins filed an application for adjustment of claim. He there stated that he was entitled to temporary disability until there was an end to disability through medical means. The employer and the insurance company answered contending that the decision of February 6, 1953, was res judicata, and that the board was without jurisdiction to reopen the claim.
The board, on January 8, 1954, filed a decision reversing its action of February 6, 1953, holding that a condition of temporary total disability existed on and after October 29, 1950, "no end medical result having been reached." The employer and the insurance company thereupon instituted this action to set aside the board's decision.
In granting judgment for plaintiffs, the district court held that the board was without jurisdiction to reopen the claim following its decision of February 6, 1953, from which no appeal was taken. Alternatively, it was held that an award for temporary total disability may not be granted for physical disability arising from the same accident in which an award for total permanent disability has been granted.
We will first consider the jurisdictional question which is presented.
The power and duty of the board with respect to the modification of compensation awards is governed by Alaska Comp. Laws Ann., § 43-3-4 (1949), quoted in the margin.2
Appellees contend that Jenkins did not file a claim, within the meaning of the proviso at the end of § 43-3-4, prior to the expiration of the three-year period specified in that proviso. In this connection, it is pointed out that certain medical reports relied upon by appellants as constituting such a claim were dated prior to the hearing resulting in the decision and award of February 6, 1953. It is further argued that Jenkins' letter of May 14, 1953, does not constitute a claim or seek a rehearing. The letter of November 10, 1953, which his counsel filed with the board, and Jenkins' application for adjustment of claim, filed November 21, 1953, were not filed within three years of the injury, which occurred on September 21, 1950.
Appellees' argument is apparently based upon the premise that, in order to constitute a "claim" within the meaning of the proviso to § 43-3-4, the document must be filed subsequent to the decision establishing the lower rate of compensation. If this premise is correct, we would agree with appellees that such a claim has not been filed within the statutory three-year period. The letter of May 14, 1953, constituting the only document filed subsequent to the decision and prior to the expiration of the three-year period, was a mere inquiry, and not a claim.
But we find nothing in the statutory language warranting the view that, to constitute a "claim" under this proviso, the document must be filed subsequent to the decision establishing the lower rate of compensation. The "claim" referred to in the proviso is not intended to serve the purpose of an application for rehearing. Under § 43-3-4, no such application need be filed, since the board is expressly authorized to review a prior decision "upon its own motion."
All that the "claim" need contain is a request for an increased rate of compensation over that presently in effect. Jenkins' application of August 14, 1951, amended on December 10, 1951, contained such a request. It was so treated by the employer and insurer in their answer, by the chairman in his decision of November 12, 1952, and by the board in its decision of February 6, 1953. Both the original and amended applications were filed within three years after the injury.
It is of no consequence that the board may actually have reopened the matter in response to Jenkins' insufficient letter of May 14, 1953, or his tardy claims of November 10 and 21, 1953. Since the board had power to reopen the matter on its own motion, and since it did desire to reopen, the action taken is to be deemed a reopening on the board's own motion.
We hold that Jenkins filed a timely claim for increased compensation, within the meaning of the proviso of § 43-3-4.
Appellees further contend that the board's reviewing power under § 43-3-4 is limited solely to the adjustment of the rate of compensation where there is a change in the physical condition of the claimant within three years of the original injury. Appellees argue, and we agree, that the temporary total disability award here in question is not for a changed physical condition, but for a physical condition which has existed since the accident.
Appellees' contention that there must have been a change in the physical condition of the claimant since the prior award is supported by a decision of the same trial judge, in Suryan v. Alaska Industrial Board, 12 Alaska 571.
We agree that § 43-3-4 provides a method whereby the board may reconsider a previous decision, for the purpose of awarding increased compensation to cover adverse changes in physical condition subsequent to a prior award.3 We find nothing in § 43-3-4, or elsewhere in the act, however, which limits the power to reopen to cases involving changed physical condition. The words "and it shall afterwards develop" are broad enough to include not only changes in physical condition, but the disclosure of errors of law in connection with the award.4
The immediately-following words, "that he or she is or was entitled to a higher rate emphasis added," add substance to this construction. The word "was" indicates that the...
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Alaska Industrial Board v. Chugach Electric Association
...disability had been granted. 122 F.Supp. 210. The Court of Appeals, sitting en banc, affirmed, by a divided vote, modifying the judgment. 245 F.2d 855. By that modification the lump-sum award was not to be reduced by the amount received as temporary disability prior to that time. The case i......