American Mutual Insurance Co. of Boston v. Jones

• Decision Date: 28 April 1970
• Docket Number: No. 22054.,22054.
• Citation: 426 F.2d 1263
• Parties: AMERICAN MUTUAL INSURANCE COMPANY OF BOSTON and Rose Brothers Company, Appellants, v. Willie B. JONES, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

426 F.2d 1263 (1970)

AMERICAN MUTUAL INSURANCE COMPANY OF BOSTON and Rose Brothers Company, Appellants, v. Willie B. JONES, Appellee.

No. 22054.

United States Court of Appeals, District of Columbia Circuit.

Argued April 30, 1969.

Decided April 28, 1970.

Mr. Thomas J. Ahern, Jr., Washington, D. C., for appellants.

Mr. Gerald Herz, Washington, D. C., with whom Messrs. Philip J. Lesser and I. Irwin Bolotin, Washington, D. C., were on the brief, for appellee.

Professor Ralph S. Spritzer, Philadelphia, Pa. (See FN4), by invitation of this Court, filed a brief as amicus curiae.

Messrs. Morton Hollander and Leavenworth Colby, Attys., Dept. of Justice, by invitation of this Court, filed a brief for the Department of Labor as amicus curiae.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT, Circuit Judge.

BAZELON, Chief Judge:

Appellants, an employer and his insurance carrier, seek to reverse an order of the District Court which found, notwithstanding a contrary determination by a Deputy Commissioner of the Department of Labor, that appellee was entitled to benefits for permanent total disability¹ under the Longshoremen's and Harbor Workers' Act.² Three questions are presented by the record. First, whether the Deputy Commissioner's finding that appellee was not permanently totally disabled was supported by sufficient evidence to make a contrary conclusion by the District Court improper. Second, whether appellee is barred from receiving compensation for total disability because the Act provides a scheduled award for his injury. Third, whether appellee's limited intelligence constitutes a "previous disability" within the meaning of § 8(f) of the Act,³ so that compensation for permanent total disability should be paid not by the employer but rather by the Special Fund created by § 44 of the Act.⁴

I.

Appellee is a 63-year-old man of limited intelligence⁵ whose only past work has been as a laborer. In 1951, he twice fractured his right arm while working for appellant Rose Brothers as a roofer's helper. Because of these injuries, he lost the use of his right hand for all but the lightest work. He can lift less than seven pounds with the hand, and can barely use it to hold a pencil to write.

At the hearing before the Deputy Commissioner, a physician, Dr. Wenger, characterized appellee's injury as a "35 to 45 percent" disability of the hand. He stated that appellee could "probably function well in a suitable employment." Dr. Horlick, a clinical psychologist, testified that because of appellee's limited intelligence, he could not be trained for jobs that "would require a minimum of ability," and that he would be a "liability in any employment." A counsellor with the United States Employment Service testified that appellee had registered with them in 1958⁶ and that, as of the time of the hearing in 1963, they had been unable to find him employment. Nevertheless, apparently basing his conclusion upon Dr. Wenger's testimony alone, the Deputy Commissioner concluded "that the claimant's disability * * * was and is confined solely to the right upper extremity."

By its own terms, this finding indicates that the Deputy Commissioner misapprehended the controlling law. The Act makes clear that "disability" is an economic and not a medical concept.⁷ "The degree of disability in any case cannot be measured by physical condition alone, but there must be taken into consideration the injured man's age, his industrial history, and the availability of that type of work which he can do."⁸ Even 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.⁹

Here, the evidence of economic disability is overwhelming. Even if the burden is on the claimant to show the unavailability of other employment,¹⁰ appellee's unsuccessful search for work over a period of years, and the testimony of Dr. Horlick, are sufficient to meet that burden. Appellants cannot sustain the Deputy Commissioner's finding on the basis of Dr. Wenger's conclusion that appellee could "probably" perform "suitable employment." There must be some showing that such "suitable employment" is actually available.

II.

Appellants suggest that, since § 8(c) of the Act¹¹ provides a specific award for loss of a hand, such an injury can never be the basis for an award of compensation for total disability. The suggestion is without merit. As § 8 (a)¹² makes clear, in certain enumerated cases permanent total disability shall be conclusively presumed, and "in all other cases permanent total disability shall be determined in accordance with the facts."¹³ Where, as here, the facts show permanent total disability, claimants are not limited to the scheduled awards.¹⁴

III.

Testimony at the hearing before the Deputy Commissioner indicated that appellee's injury would not have resulted in permanent total disability had his intelligence not been substantially below normal.¹⁵ This raises the question whether appellee's mental deficiency should be considered a "previous disability" so as to bring into play the provisions of § 8(f) (1) of the Act:¹⁶

If an employee receives an injury which of itself would only cause permanent partial disability but which, combined with a previous disability, does in fact cause permanent total disability, the employer shall provide compensation only for the disability caused by the subsequent injury; Provided, however, That in addition to compensation for such permanent partial disability, and after cessation of the payments for the prescribed period of weeks, the employee shall be paid the remainder of the compensation that would be due for permanent total disability. Such compensation shall be paid out of the special fund established in 33 U.S.C. § 944 (1964).

Not without some hesitation, we conclude that § 8(f) (1) should not apply in the circumstances of this case.

Section 8(f) (1), sometimes referred to as the "second injury provision," was included in the Act as a protection to both employers and employees. "It protects that employer who has hired, say, a one-eyed worker who goes and loses his other eye and becomes a total disability. The employer without this sort of thing would have to pay total permanent disability compensation. Then, on the other hand, this also protects the worker with one eye from being denied employment on account of his being an extra risk."¹⁷

Neither the language nor the purpose of the Act would seem to support any distinction between physical and mental disability for the purpose of § 8(f) (1).¹⁸ Likewise, it is immaterial whether the disability is the result of a previous work-connected injury, an injury not connected with employment,¹⁹ a congenital defect,²⁰ or perhaps even a disability resulting from social and economic causes.²¹ Nevertheless, § 8(f) (1) does not apply to every case of permanent total disability in which a present injury is not the sole cause of the disability.²² It was not intended to provide a windfall to employers, nor to actively encourage employment of the handicapped. Its purpose was simply to remove that aspect of discrimination against the disabled which would otherwise be encouraged by the very statute intended to protect them.²³

Any such discrimination, however, must rest upon knowledge of the characteristic upon which the discrimination is to be based. In consequence, courts have distinguished between "manifest"²⁴ and "latent"²⁵ conditions for purposes of apportioning claims between employers and special funds such as the present one. Although some jurisdictions make the question turn upon the employer's actual knowledge of the employee's condition,²⁶ such a test has obvious practical difficulties in application.²⁷ Practice under the Longshoremen's Act has followed the more general rule, and sought to define certain classes of disability as "manifest" or "latent" without regard to the employer's actual knowledge of the employee's condition.²⁸

Clearly, some degrees of mental retardation are so severe that they cannot fairly be characterized as other than "manifest."²⁹ The question is whether appellee's disability was of such degree during the time of his employment. On the present record, we cannot say that it was. As of 1963, his intelligence quotient on the Wechsler-Bellvue scale was measured as 69; according to any of the standard nomenclatures, this would place him at the borderline of mental retardation.³⁰ But even aside from all the problems regarding the accuracy of such tests,³¹ the degree of mental retardation cannot be adequately gauged by intelligence quotient alone.³² Its true measure is the extent to which, because of inadequately developed intelligence, an individual's ability to learn and to adapt to his environment is impaired. We need not here decide where the line should be drawn. It is sufficient for present purposes that nothing in the record gives any indication that appellee, up to the time of his injuries, showed a sufficient degree of social maladaption due to limited intelligence that his disability could be fairly classed as "manifest."

We are constrained to add a final word. It may well be true that the Congress which passed the Longshoremen's and Harbor Workers' Compensation Act in 1927 had no real expectation that mental disabilities would ever become significant in its operation. But by using general language in the statute, Congress indicated an intention not to fix compensable injuries forever into the molds that could be cast by the medical and behavioral sciences forty years ago. Perhaps to a greater extent than any similar group in our society, the mentally retarded are underemployed in terms of their capacity for useful and productive work.³³ We are aware of no information that would indicate to what, if any, extent this underemployment is due to the discrimination sought to be avoided by § 8(f) (1) of the...