Haughton Elevator Co. v. Lewis, 76-2450

• Decision Date: 17 February 1978
• Docket Number: No. 76-2450,76-2450
• Citation: 572 F.2d 447
• Parties: HAUGHTON ELEVATOR COMPANY, and the Aetna Casualty and Surety Company, Employer/Carrier, Petitioners, v. Ernest A. LEWIS, Claimant, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 447

572 F.2d 447

HAUGHTON ELEVATOR COMPANY, and the Aetna Casualty and Surety Company, Employer/Carrier, Petitioners, v. Ernest A. LEWIS, Claimant, Respondent.

No. 76-2450.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 7, 1977.

Decided Feb. 17, 1978.

Ted R. Manry, III, Tampa, Fla. (MacFarlane, Ferguson, Allison & Kelly, Tampa, Fla., on brief), for petitioners.

Tim Moran, Tampa, Fla. (Webster & Caltagirone, Tampa, Fla., on brief), for respondent.

Before BRYAN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit Judges.

ALBERT V. BRYAN, Senior Circuit Judge:

The Benefits Review Board of the United States Department of Labor readjusted the basis of compensation awarded Ernest A. Lewis from that of permanent partial disability in 1967, to permanent total disability in 1973. The disability arose from a single injury which was covered by the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C. § 901 et seq., as amended. ^* His employer, Haughton Elevator Company, with its surety appeals. Id. 921. The thrust of their appeal is that despite the findings of present permanent total disability by the Administrative Law Judge and the Board as a matter of law, there could not be a total disability of Lewis since at the time of the change in compensation status he was employed at a "substantial" monthly wage. We affirm.

The facts as found follow. Lewis was accidentally hurt April 4, 1963 while working in an elevator installation, earning $184.80 per week; he had been so employed for more than 16 years. Upon his application he was granted weekly benefits on December 14, 1967 for permanent partial disability. 33 U.S.C. § 908(c)(21). After his misfortune, he was reemployed by Haughton, but discharged in January 1967 for refusing to load frames weighing in excess of 145 pounds each. His refusal was due to diminished strength following three herniotomies. The weekly compensation awarded Lewis in the aggregate of $24,000.00 terminated on July 17, 1973. 33 U.S.C. § 914(m).

After discharge Lewis worked during brief periods for other elevator companies as a constructor. In 1973 his continued pain was diagnosed as a return of the left-side hernia. Another operation was performed in November when fluid was observed in the right testicle. The medical advisors warned that he should forego elevator employment and obtain light work.

Finally, in 1974, he procured employment with Orkin Exterminating Company at a salary of $524.00 per month. This was the only job he found obtainable in his weakened condition, though not comparable to his lost weekly earnings of $184.80. Lewis had no other income; continuance of the Orkin employment was not assured since his strength had deteriorated, and his benefits under the Act had terminated.

It was in these straits on July 14, 1974, just less than one year after the exhaustion of the 1967 award but while still with Orkin, that Lewis sought reclassification into permanent total disability. If successful, this request would not have increased his prior benefits but would have restored his entitlement to them throughout the continuance of total disability. 33 U.S.C. § 908(a).

The Administrative Law Judge, with the Benefits Review Board concurring, on November 12, 1975 rated him in this more helpless category as of July 17, 1973, the date of the expiration of the permanent partial disability period. It is this determination of present total disability that is the salient of the appellants. They charge that in neither law nor fact is this decision permissible as Lewis was employed at the time. This argument must fail.

For a change in conditions a modification of a prior order is authorized by the Act, to decrease or increase an award. 33 U.S.C. § 922. Prior to the instant appraisal the ALJ and the Board reviewed the uncontested facts just sketched. This reexamination revealed to them a disability in Lewis traceable to his injury, preventing him from any longer making the wages he was receiving when injured, a disability plainly more desperate than the partial disability accorded him in 1967.

In so concluding the Board said, "His 1975 rate of earnings in full time employment as an exterminator ($524.00 each month) were only two-thirds of his weekly earnings ($184.80) at the time of his injury in 1963 when employed as an elevator mechanic". This comparison was drawn: "(C)onsidering the change in economic conditions over those twelve years, his real earnings in terms of purchasing power have been more significantly reduced". (Accent added.) Thus the impairment of earning capacity suffered in 1963 had become more defeating by 1974.

In arriving at this judgment of existing permanent total disability, the ALJ and the Board thus obeyed the instructions of the Act to make their finding "in accordance with the facts", § 908(a), and to mind that "(d)isability means incapacity because of injury to earn wages which the employee was receiving at the time of injury in the same or any other employment". § 902(10). In the light of the "facts" already noted, the near-destitute condition of Lewis is laid bare. His "incapacity . . . to earn" was virtually complete. The Board, we think, was not unwarranted in anticipating, and not awaiting, the actual end of his capacity discharge by Orkin because the Act would have barred another application "one year after the date (July 17, 1973) of the last payment of compensation", which would have been July 17, 1974. 33 U.S.C. § 908(a). The instant application was filed July 14, 1974 three days before the bar. 33 U.S.C. § 922. This determination is a finding of fact "conclusive" upon the court, for we cannot say it is not "supported by substantial evidence in the record considered as a whole". 33 U.S.C. § 921(b)(3).

Upon the facts and law outlined herein, together with the more detailed and specific findings and conclusions set forth in the decisions and orders of the Administrative Law Judge and of the Benefits Review Board, the judgment on appeal is approved.

Affirmed.

WINTER, Circuit Judge, concurring:

For the following reasons, I agree with Judge Bryan that the order of the Benefits Review Board should be affirmed:

Lewis indisputably sustained an industrial injury in 1963. He was found then to be permanently partially disabled and awarded benefits. The question which this case presents is whether the Board's later finding that Lewis subsequently became permanently totally disabled is supported by substantial evidence. An aspect of this ultimate question is the effect of the fact that at the time that the Board found him permanently totally disabled, he was working for an exterminating company. Another is the burden, if any, on his former employer to offer proof that he was capable of engaging in other substantial employment in order to defeat his claim when in fact he was actually employed as an exterminator.

I have no doubt that the proof is ample to support the finding that between 1963, when Lewis sustained the injury for which the first award of compensation was made, and 1974, when Lewis asserted that he was permanently totally disabled, Lewis had become permanently totally disabled. His original injury was a double hernia. This was surgically repaired. Although he was not injured again, single and double hernias requiring additional surgical repairs recurred in 1964, 1965, 1966 and 1973. Lewis' work history throughout this period shows that he was not physically able to continue his occupation as an elevator constructor and mechanic, or, stated more precisely, his employer was unwilling to retain him since he could not do, and refused to do, the heavy lifting that his occupation required. Both treating and examining physicians are agreed that Lewis cannot work as an elevator constructor or elevator maintenance man, although they are of the view that Lewis can perform light work not including lifting of heavy objects, prolonged walking, climbing or standing.

Following his discharge as an elevator constructor by Haughton, the employer in this case, Lewis did obtain short-term employment with two other elevator companies, light work with computers for an electronics company, work at an amusement center, and a job with an electronics firm doing light bench work on radar equipment. In each instance, Lewis' physical condition and his recurrent hernias caused a cessation of his employment. His testimony that other potential employers refused to hire him because of his physical condition is undisputed.

This brings me to a consideration of whether the fact of Lewis' present employment defeats his claim of permanent total disability. At the outset, I am mindful that the Act ¹ under which benefits are claimed is to be liberally construed in favor of injured workers, Voris v. Eikel, 346 U.S. 328, 74 S.Ct. 88, 98 L.Ed. 5 (1953). More importantly, the concept of "disability" under the Act is an economic and not a medical one. One does not have to be bedridden to be totally disabled. Watson v. Gulf Stevedore Corp., 400 F.2d 649, 654 (5 Cir. 1968). It has long been recognized that an employee who is only partially disabled in the medical sense may be totally disabled in the economic sense when his age, education, work experience and the availability of suitable employment are considered. American Stevedores, Inc. v. Salzano, 538 F.2d 933, 935-36 (2 Cir. 1976); Cunnyngham v. Donovan, 328 F.2d 694, 697 (5 Cir. 1964); Eastern S. S. Lines, Inc. v. Monahan, 110 F.2d 840, 842 (1 Cir. 1940); Norfolk, Baltimore and Carolina Line, Inc. v. Bergenon, 351 F.Supp. 348, 350 (D.S.C.1972).

The administrative law judge, impliedly, and the Board, explicitly, found that Lewis' present employment as an exterminator was not "suitable" and, therefore, did not preclude a finding that Lewis was, in economic terms, permanently totally disabled. There is substantial support for this finding in Lewis' undisputed testimony concerning the nature of his present...