District of Columbia Workmen's Compensation Act, Matter of

• Decision Date: 04 October 1976
• Docket Number: No. 74-1164,74-1164
• Citation: 554 F.2d 1075,180 U.S.App.D.C. 216
• Parties: In the Matter of the claim for compensation under the DISTRICT OF COLUMBIA WORKMEN'S COMPENSATION ACT. Charles SWINTON, Appellant, v. J. FRANK KELLY, INC. (Employer), et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1075

554 F.2d 1075

180 U.S.App.D.C. 216

In the Matter of the claim for compensation under the

DISTRICT OF COLUMBIA WORKMEN'S COMPENSATION ACT.

Charles SWINTON, Appellant, v. J. FRANK KELLY, INC. (Employer), et al.

No. 74-1164.

United States Court of Appeals,

District of Columbia Circuit.

Argued Jan. 14, 1975.

Decided Feb. 3, 1976.

Certiorari Denied Oct. 4, 1976.

See 97 S.Ct. 67.

Norman H. Heller, Wheaton, Md., for appellant.

John D. Duncan, III, Washington, D.C., for appellees J. Frank Kelly, Inc. and Hartford Acc. & Indem. Co.

Joshua T. Gillelan, II, Atty., U. S. Dept. of Labor, with whom Earl J. Silbert, U. S. Atty., and George M. Lilly, Atty., U. S. Dept. of Labor, were on the brief, for appellee Garrell.

Before WRIGHT and ROBINSON, Circuit Judges, and OSCAR H. DAVIS, ^* Judge, United States Court of Claims.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

We are summoned on this appeal to determine whether the denial of an employee's claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act ¹ comports with statutory standards. At the administrative level, the employee's effort to obtain a disability award for his ailing back succumbed to a finding that it was not causally related to his prior job-connected accident. An action ensuing in the District Court to set that decision aside foundered on a summary judgment in favor of the employer. Our review of those proceedings leads us to conclude that in neither forum was the Act's presumption of compensability ² given its just due. Accordingly, we reverse.

I

Appellant Charles Swinton was employed by appellee J. Frank Kelly, Inc., ³ for eighteen years. On May 12, 1969, while on the job and in the process of positioning a three-hundred pound beam on a truck, he lost his footing, fell off the truck. and was knocked unconscious. On the next day, he went to the office of Dr. Louis E. Lowman, who found abrasions at several bodily points and, importantly, a muscle spasm in the lumbosacral spine. Swinton remained under Dr. Lowman's care until May 26, when the doctor was shot and robbed, and forced to absent himself from practice for several months. When this occurred, Swinton was referred by his employer to the Farragut Clinic, where he was treated until he returned to his job on June 23.

Swinton continued to work until the following February. At that time, complaining of back pain, he returned to Dr. Lowman, who thereupon referred him to an orthopedist, Dr. Julius Neviaser. After an examination, Dr. Neviaser ordered x-rays of the back and prescribed diathermy treatment to be administered by Dr. Lowman. When, after a three-week period, this treatment did not alleviate Swinton's distress, Dr. Neviaser placed him in Prince George's Hospital for another three weeks. There he was kept in traction for about ten days, and on complete bed rest for the remainder of the period.

Swinton's last examination took place in September, 1970, at the office of Dr. Neviaser. Swinton was informed that surgery was necessary, but it was never performed because Swinton could not bear the expense. Thereafter, Swinton continued to complain of back pain and discomfort in his legs. Except for one day during the summer of 1970 when he tried to work but lasted only four hours, he has not engaged in gainful employment since March 6 of that year.

On March 30, 1970, Swinton filed a claim under the Longshoremen's and Harbor Workers' Compensation Act for total disability, attributing his back condition to his fall from the truck. ⁴ At the hearing, before a Deputy Commissioner, there was no dispute as to the occurrence of the accident or the fact that any injuries associated with it arose out of and in the course of Swinton's employment. ⁵ Temporary total disability from May 14, 1969, to June 22, 1969, was not contested; compensation therefor had already been paid. ⁶ The focal issue was the extent of Swinton's injuries; specifically, whether his back problem was causally related to the mishap on the truck.

In his compensation order, the Deputy Commissioner rejected Swinton's claim for further benefits. He found

1. That the claimant did not suffer a back disability as a result of the injury of May 12, 1969.

2. The claimant's need for treatment and care of a back condition which became manifest in February, 1970, was neither causally related to nor the natural and unavoidable consequence of the injury sustained on May 12, 1969. ⁷

Swinton then instituted an action in the District Court to set this determination aside. On cross-motions for summary judgment, the court upheld the Deputy Commissioner. Swinton now brings an appeal here.

II

Before considering the merits, we must address a jurisdictional problem, to which none of the parties has adverted. ⁸ In 1972, while Swinton's action remained pending in the District Court, Congress amended the Longshoremen's and Harbor Workers' Compensation Act. ⁹ Numerous changes were made, the most significant for our purposes being administrative reforms, ¹⁰ particularly the addition of a review stage to the administrative process. ¹¹

Congress created a three-member Benefits Review Board to resolve appeals from decisions of administrative law judges, ¹² to whom the hearing functions previously performed by deputy commissioners were assigned. ¹³ The Board's decision is reviewable in the court of appeals for the circuit in which the injury occurred. ¹⁴ In establishing the new board, Congress evidently believed that two-tiered judicial review was no longer necessary, ¹⁵ and the provision for initial review in a district court was accordingly removed. ¹⁶ Thus the present two-step review process board and court of appeals replaces the previous procedure whereby one aggrieved by a deputy commissioner's decision first sought injunctive relief in a district court and, if unsuccessful, by appeal to the appropriate court of appeals.

Prior to the 1972 amendment of the Act, Swinton, having lost his disability claim before the Deputy Commissioner, came properly to the District Court. But, as we have stated, while the case remained unresolved in that court, the amendments were passed and became effective. Thus the question we face is whether, despite jurisdiction in the District Court when the action was filed, the subsequent legislation destroyed that jurisdiction, and in turn the power of this court to hear and decide the appeal. ¹⁷

The effect of a statutory amendment on pending litigation is ultimately a matter of congressional intent. ¹⁸ In this instance, however, both the legislative language and its history are noncommittal in that regard. We look, then, to judicial precedent and policy for guidance, and thereby are led to conclude that the procedure followed by Swinton was correct, and that our jurisdiction of his appeal remains intact.

A judicial preference for prospective as opposed to retrospective legislative endeavor is well entrenched. "Retroactivity," the Supreme Court has declared, "even when permissible, is not favored, except upon the clearest mandate." ¹⁹ For "statutes are addressed to the future, not to the past;" ²⁰ those looking back encounter "the principles of our jurisprudence which are repellant to retrospective operation of a law and the repeal by implication of one law by another." ²¹ Consequently, "statutes are not to be applied retroactively 'unless the words used are so clear, strong and imperative that no other meaning can be annexed to them or unless the intention of the legislature cannot otherwise be satisfied.' " ²²

This canon is as apropos to procedural as to substantive statutory amendments. ²³ Since Congress evinced no particular intent in enacting the 1972 amendments of the Act, we hold that they leave unaffected the litigation now before us. Indeed, the wisdom of the judicial preference and the conclusion it dictates is apparent in cases such as the present. Swinton had exhausted all administrative remedies available to him at the time he instituted suit in the District Court. To require him now to abandon his three-year quest for judicial relief, and to reenter the administrative process simply because a new administrative review step has been inaugurated, would obviously involve a great waste of time, energy and money. Surely if Congress had thought that such a price was warranted, it expectably would have said so unequivocally. We have no such expression by Congress, and we are satisfied that Swinton need not return to the administrative forum.

These considerations lead also to the conviction that the District Court did not lose jurisdiction over challenges to compensation orders brought before it prior to the effective date of the amendments. To conclude otherwise might well leave claimants like Swinton out of time for the new administrative review ²⁴ and, as a result, without any review at all. ²⁵ The fact is that there has always been an opportunity for judicial scrutiny of workmen's compensation decisions, ²⁶ and Congress, in fashioning the 1972 amendments, obviously sought to improve the efficacy of the process. To say that Congress intended to deprive claimants caught in the amending interval of judicial oversight historically afforded all other claimants would border on the ridiculous. We find additional support for our position in the body of other cases adjudicated since the amendments. While none discusses the problem, the treatment uniformly accorded them harmonizes with the result we reach. In all cases where judicial review was sought before the effective date of the amendments, the courts have exercised jurisdiction. ²⁷

After careful consideration of the problem, then, we are constrained to maintain the same course here. The constructional canon favoring prospective application of amending legislation, the folly and inequity of returning Swinton to the administrative process, and the absence of any countervailing authority combine to persuade us to hold that the District...