Flamm v. Hughes

• Decision Date: 20 March 1964
• Docket Number: Docket 28297.,No. 299,299
• Citation: 329 F.2d 378
• Parties: Margaret Donohue Mullin FLAMM, as Executrix of the Last Will and Testament of Charles Flamm, deceased, Plaintiff-Appellant, v. Thomas F. HUGHES, Deputy Commissioner, Second Compensation District and Bethlehem Steel Company, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

329 F.2d 378 (1964)

Margaret Donohue Mullin FLAMM, as Executrix of the Last Will and Testament of Charles Flamm, deceased, Plaintiff-Appellant, v. Thomas F. HUGHES, Deputy Commissioner, Second Compensation District and Bethlehem Steel Company, Inc., Defendants-Appellees.

No. 299, Docket 28297.

United States Court of Appeals Second Circuit.

Argued February 11, 1964.

Decided March 20, 1964.

Dora Aberlin, New York City, for plaintiff-appellant.

Edward Berlin, Department of Justice, Washington, D. C. (John W. Douglas, Asst. Atty. Gen., Sherman L. Cohn, Dept. of Justice, Washington, D. C., and Joseph P. Hoey, U. S. Atty. for Eastern Dist. of New York, Brooklyn, N. Y., on the brief), for defendant-appellee Thomas F. Hughes.

Leonard J. Linden, New York City (Theodore H. Goding, New York City, on the brief), for defendant-appellee Bethlehem Steel Co., Inc.

Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.

LUMBARD, Chief Judge:

On March 30, 1950, while in the employ of the Bethlehem Steel Company, Charles Flamm sustained personal injuries when a ladder which he was descending gave way. On July 20, 1951, pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., Deputy Commissioner Willard found that, from March 31, 1950 to January 30, 1951, Flamm had suffered a temporary total disability, as the result of a back injury, and a 30% permanent partial disability of the left foot.

In two suits brought in the Eastern District of New York, Flamm sought unsuccessfully to challenge the determination of the Deputy Commissioner. A third suit in the Eastern District was stayed in 1960 pending further proceedings before Deputy Commissioner Hughes. On October 6, 1961, following further hearings, Deputy Commissioner Hughes modified the 1951 compensation award to provide temporary total disability from March 31, 1950 to January 31, 1952, and permanent partial disability from February 1, 1952 to April 22, 1961. Meanwhile Flamm had died on April 23, 1961. The 1951 award of permanent partial disability, predicated upon partial loss of one leg, was limited under 33 U.S.C. § 908(c) to a prescribed number of weeks. The 1961 award of permanent partial disability, however, predicated upon a combination of infirmities not specifically enumerated in § 908(c), was limited to the remainder of Flamm's life.¹

Upon payment of the 1961 compensation award, the district court action was dismissed. In March, 1962 Mrs. Flamm, as executrix of her husband's estate, requested the Deputy Commissioner to reconsider his decision. When that request was not acted upon, she instituted this action in the Eastern District, charging that § 908 of the Compensation Act is "discriminatory, void and unconstitutional in that it denies to injured workmen the equal protection of the laws and discriminates unfairly against more seriously injured workmen," and requesting the convocation of a three-judge court to enjoin enforcement of that provision. 28 U.S.C. §§ 2282, 2284. Judge Mishler denied that application and dismissed the complaint and from that action Mrs. Flamm appeals.

The plaintiff's claim in essence is that § 908(c) erects unconstitutional distinctions among various types of injuries in that it provides a specific schedule of compensation for a limited number of weeks for those injuries resulting in permanent partial disability which are explicitly enumerated in that provision but fails to provide for compensation in accordance with such schedules for permanent partial disability resulting from a combination of injuries not explicitly enumerated. The primary issue here presented is whether this claim raises a substantial federal question; "the lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this Supreme Court as to foreclose the subject." California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938). As the claim is obviously without merit as manifested by a decision of the Supreme Court, we hold that the plaintiff's claim fails to raise a substantial federal question.

Congress enjoys great latitude in promulgating a statutory scheme for the compensation of workers who may suffer a broad range of injuries in terms of duration and severity. That one may receive greater compensation in certain circumstances for temporary disability than for permanent disability does not lead to the conclusion that ...