Crum v. General Adjustment Bureau

• Decision Date: 06 July 1984
• Docket Number: Nos. 83-1825,83-1876,s. 83-1825
• Citation: 238 U.S. App. D.C. 80,738 F.2d 474
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 474

738 F.2d 474

238 U.S.App.D.C. 80

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.

Argued May 23, 1984.

Decided July 6, 1984.

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. 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.

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 petitions for review followed.

II

Under the LHWCA, the Board is obligated to treat the ALJ's findings of fact as conclusive if supported by substantial evidence on the record as a whole. ⁴ 33 U.S.C. Sec. 921(b)(3). O'Keeffe v. Smith, Hinchman & Grylls Associates, 380 U.S. 359, 362, 85 S.Ct. 1012, 1014, 13 L.Ed.2d 895 (1965) (per curiam). In reviewing the BRB's decision, therefore, this court must ascertain (1) whether the Board adhered to the applicable scope of review, (2) whether the Board committed any errors of law, and (3) whether the ALJ's findings are supported by substantial evidence on the record as a whole. Stevenson v. Linens of the Week, 688 F.2d 93, 96-97 (D.C.Cir.1982); Maurice P. Foley v. Balderson, 569 F.2d 132, 134 (D.C.Cir.1977), cert. denied, 439 U.S. 818, 99 S.Ct. 80, 58 L.Ed.2d 109 (1978). Findings such as those at issue here--the extent and nature of the disability--are entirely factual in nature, as this court has previously recognized. Maurice P. Foley, 569 F.2d at 134 n. 2. With this standard of review clearly in mind, we turn to each of the parties' contentions.

A

General Adjustment first argues that the Board and the ALJ erred in awarding Mr. Crum any benefits whatsoever for his angina. In essence, General Adjustment contends that because angina is not a disease, but merely a manifestation or symptom of coronary artery disease, and since claimant's employment concededly did not cause his disease, he has suffered no compensable injury within the meaning of the Act. General Adjustment maintains that to conclude otherwise would be tantamount to declaring that the Act "provided general health insurance ... rather than insurance for work-related injuries or illnesses." Brief for Respondents at 12. We disagree.

Under section 903(a) of the LHWCA, compensation is available for, among other things, the "disability" of an employee covered by the Act. Section 902(10) defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury." Section 902(2), in turn, defines "injury" in the following manner:

"Injury" means accidental injury or death arising out of and in the course of employment and such disease or infection as arises naturally out of such employment....

The ALJ and the Board both rejected General Adjustment's argument that angina does not fit within this definition of "injury." First, both the ALJ and the Board observed that the evidence, which consisted primarily of the testimony of Mr. Crum's personal physician and General Adjustment's examining physician, clearly demonstrated that claimant's chest pains were causally related to his employment. The pains were greatly exacerbated by his work and abated when he was not working. Second, the ALJ and the BRB reasoned that symptoms or manifestations of diseases, to the extent they cause disability and are work-related, constitute compensable injuries within the meaning of the Act. App. 40.

We see no reason to disturb this conclusion. The Board was bound to adhere to the ALJ's determination that Mr. Crum's angina was causally related to his employment at General Adjustment if that conclusion was supported by substantial evidence. O'Keeffe, supra, 380 U.S. at 362, 85 S.Ct. at 1014. Of that there can be no doubt, in view of the complete accord between both physicians that the stress and conditions of Mr. Crum's work precipitated and aggravated the pains, which in turn disabled him from working.

Further, as the Board explained, its conclusion that Mr. Crum's angina was compensable under the Act is fully consistent with prior precedent interpreting the meaning of "injury." Crum, supra, 12 B.R.B.S. (BNA) at 461-62. See Gardner v. Bath Iron Works, 11 B.R.B.S. (BNA) 556, 557 (1979) (pain resulting from varicose veins that prevented claimant from standing for long periods of time was a compensable injury under the LHWCA), aff'd, Gardner v. Director, Office of Workers' Compensation Programs, 640 F.2d 1385, 1389 (1st Cir.1981); Furlong v. O'Hearne, 144 F.Supp. 266, 270 (D.Md.1956), aff'd, 240 F.2d 958 (4th Cir.1957) (per curiam) (claimant had a compensable injury when the strain of heavy lifting caused back pain, despite the fact that he had a pre-existing condition of spina bifida); cf. Hensley v. WMATA, 655 F.2d 264, 268-69 (D.C.Cir.1981), ...