C & P Tel. Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 05 August 1977
• Docket Number: No. 76-1663,76-1663
• Citation: 564 F.2d 503,184 U.S.App.D.C. 18
• Parties: The C & P TELEPHONE COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 503

564 F.2d 503

184 U.S.App.D.C. 18

The C & P TELEPHONE COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR, Respondent.

No. 76-1663.

United States Court of Appeals, District of Columbia Circuit.

Argued June 13, 1977.

Decided Aug. 5, 1977.

Vincent H. Cohen, Washington, D. C., with whom Anne White Foley, Washington, D. C., was on the brief, for petitioner.

Joshua T. Gillelan, II, Atty., U. S. Dept. of Labor, Washington, D. C., with whom Alfred G. Albert, Acting Solicitor of Labor and Harry L. Sheinfeld, Atty., U. S. Dept. of Labor, Washington, D. C., were on the brief, for respondent.

Before WRIGHT and ROBINSON, Circuit Judges and HOWARD T. MARKEY, ^* Chief Judge, United States Court of Customs and Patent Appeals.

Opinion for the Court filed by Chief Judge MARKEY.

MARKEY, Chief Judge, United States Court of Customs and Patent Appeals:

This petition ¹ by C & P Telephone Co. ("C & P") seeks to set aside the order of the Benefits Review Board ("Board") which affirmed the refusal of the Administrative Law Judge ("ALJ") to invoke § 8(f) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 908(f) (1970), in a claim for compensation arising under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq., as made applicable to the District of Columbia by the Workmen's Compensation Act of the District of Columbia, 45 Stat. 600, 36 D.C. Code § 501 et seq., (the combined Acts are referred to hereinafter as "the Act"). The respondent is the Director of the Office of Workers' Compensation Programs, United States Department of Labor. ² We grant the petition and set aside that portion of the Board's order which refused to invoke § 8(f).

STATUTORY PROVISIONS

The relevant statutory provisions are:

§ 8(f) of the Act, as amended in 1972 by Pub.L. No. 92-576, 86 Stat. 1257, 33 U.S.C. § 908(f) (Supp. V 1975), effective November 26, 1972 ("new § 8(f)") § 908. Compensation for disability.

Compensation for disability shall be paid to the employee as follows:

(f) Injury increasing disability:

(1) In any case in which an employee having an existing permanent partial disability suffers injury, the employer shall provide compensation for such disability as is found to be attributable to that injury based upon the average weekly wages of the employee at the time of the injury. If following an injury falling within the provisions of subdivision (c)(1)-(20) of this section, the employee is totally and permanently disabled, and the disability is found not to be due solely to that injury, the employer shall provide compensation for the applicable prescribed period of weeks provided for in that section for the subsequent injury, or for one hundred and four weeks, whichever is the greater. In all other cases of total permanent disability or of death, found not to be due solely to that injury, of an employee having an existing permanent partial disability, the employer shall provide in addition to compensation under paragraphs (b) and (e) of this section, compensation payments or death benefits for one hundred and four weeks only. If following an injury falling within the provisions of subdivision (c)(1)-(20) of this section, the employee has a permanent partial disability and the disability is found not to be due solely to that injury, and such disability is materially and substantially greater than that which would have resulted from the subsequent injury alone, the employer shall provide compensation for the applicable period of weeks provided for in that section for the subsequent injury, or for one hundred and four weeks, whichever is the greater.

In all other cases in which the employee has a permanent partial disability, found not to be due solely to that injury, and such disability is materially and substantially greater than that which would have resulted from the subsequent injury alone, the employer shall provide in addition to compensation under paragraphs (b) and (e) of this section, compensation for one hundred and four weeks only.

(2) After cessation of the payments for the period of weeks provided for herein, the employee or his survivor entitled to benefits shall be paid the remainder of the compensation that would be due out of the special fund established in section 944 of this title. (Emphasis added.)

§ 8(f) of the Act, prior to the 1972 amendment, 33 U.S.C. § 908(f) (1970) ("old § 8(f)"):

§ 908. Compensation for disability.

Compensation for disability shall be paid to the employee as follows:

(f) Injury increasing disability:

(1) If an employee receive 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 the 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 additional compensation shall be paid out of the special fund established in section 944 of this title.

(2) In all other cases in which, following a previous disability, an employee receives an injury which is not covered by (1) of this subdivision, the employer shall provide compensation only for the disability caused by the subsequent injury. In determining compensation for the subsequent injury or for death resulting therefrom, the average weekly wages shall be such sum as will

reasonably represent the earning capacity of the employee at the time of the subsequent injury. (First emphasis added.)

BACKGROUND

On October 16, 1972, claimant Mrs. Jacqueline M. Glover filed a claim for workmen's compensation benefits for a back injury sustained on September 23, 1971 at her place of employment by C & P in the District of Columbia when an elevator in which she was riding is alleged to have descended too rapidly from the sixth floor to the first floor causing her to fall to her knees.

Mrs. Glover had a long history of recurring back ailment prior to this accident on September 23, 1971. In 1962 she injured her back when she fell on the street. This injury was sufficiently severe to require five treatments from a chiropractor, Dr. Angel, and treatment by a physician, Dr. Fitzgerald. She advised C & P that she was unable to work for three days as a result of this accident. Mrs. Glover also sued the District of Columbia to recover for this back injury.

In 1967, Mrs. Glover injured her back again when she fell down her basement steps. She was absent from work and her chiropractor, Dr. Angel, advised C & P that she was absent due to acute lumbosacral strain.

In April, 1968, Mrs. Glover was unable to arise from a chair because of severe back pain. As a result, she was treated for two weeks with traction and pain medication. She missed work for eleven days, and Dr. Traum, her family doctor, advised C & P that she was suffering from "(l)ow back syndrome, probable disc syndrome."

In August and September, 1968, Mrs. Glover had a recurrence of back trouble. She suffered a back injury from no identifiable cause when, in her words, "I just got out of bed one morning and my back was bad." As a result of this back injury, she was hospitalized, X-rayed, and put in traction for several weeks. Dr. Traum advised her to have a myelogram and surgery, but Mrs. Glover was apprehensive.

From August through October, 1968, Mrs. Glover was absent from work 52 days because of back problems. Dr. Traum advised C & P that Mrs. Glover's absence was due to "(a)cute low back strain, probably disc" and "(a)cute disc syndrome." In November and December, 1968, Mrs. Glover missed 15 days from work because of recurring back trouble.

Mrs. Glover testified that in 1969 she injured her back from no identifiable cause. As she explained, "my back just went out again." During the first half of 1969, she worked part-time for 32 days and was absent from work for 10 days due to back trouble.

By June, 1969, Mrs. Glover's absence rate at C & P was so excessive that her supervisor requested that she be examined by C & P's Medical Department. Her supervisor asked the Medical Department:

I'd like to know if this girl is really able ph(y)sically to work and if not what would Medical recommend.

The C & P Medical Director reported back to Mrs. Glover's supervisor on July 22, 1969 as follows:

At the time of this employee's health evaluation examination in the Medical Department at the request of the Commercial Department the significant findings were her marked obesity and the fact that she is wearing a back brace to control a back disorder. There is no doubt that her back condition would improve if she reduced her weight considerably. Certainly, her absence has been excessive, but I am unable to forecast her attendance in the future. Much will depend on the condition of her back. * * * Unless she can be motivated to bring her weight down to a more average figure, I expect that she will continue to have trouble with her back and consequently, have more absence.

Mrs. Glover's absences from work because of back trouble continued. She testified that in March, 1970 she suffered a back injury while stepping out of her car. Following this accident, Mrs. Glover was out of In March, 1971, Mrs. Glover again missed 3 days from work because of back trouble. On September 23, 1971, the elevator accident occurred which gave rise to this compensation claim.

work 47 days and worked part-time for 27 days. She was placed in traction and medicated. In April, 1970, Dr. Hustead, a neurosurgeon who examined Mrs. Glover, diagnosed that she had a ruptured lumbar disc. Dr. Hustead recommended hospitalization for traction and physical therapy, and if sh...