Jacques v. U.S. R.R. Retirement Bd., 911

• Decision Date: 30 May 1984
• Docket Number: No. 911,D,911
• Citation: 736 F.2d 34
• Parties: 15 Fed. R. Evid. Serv. 2068 Alfred L. JACQUES, Petitioner, v. UNITED STATES RAILROAD RETIREMENT BOARD, and the United States Government, Respondents. ocket 83-4161.
• Court: U.S. Court of Appeals — Second Circuit

Page 34

736 F.2d 34

15 Fed. R. Evid. Serv. 2068

Alfred L. JACQUES, Petitioner, v. UNITED STATES RAILROAD RETIREMENT BOARD, and the United

States Government, Respondents.

No. 911, Docket 83-4161.

United States Court of Appeals, Second Circuit.

Argued March 16, 1984.

Decided May 30, 1984.

Thomas P. O'Sullivan, Delanson, N.Y., for petitioner.

Arthur A. Arfa, General Atty., Railroad Retirement Board, Chicago, Ill. (Edward S. Hintzke, Asst. General Counsel, Steven A. Bartholow, Deputy General Counsel, Washington, D.C., of Counsel), for respondent.

Before FEINBERG, Chief Judge, MANSFIELD and MESKILL, Circuit Judges.

FEINBERG, Chief Judge:

This case concerns petitioner Alfred Jacques's attempts for over a decade to enforce his right to a disability annuity under the Railroad Retirement Act. In 1965, following a long period of service for a railroad covered by the Act, Jacques was seriously injured in the course of his employment. Since the date of the accident, he has been unable to perform his previous occupation. He has not worked at all since 1971. Jacques now seeks review of an August 1982 decision of the Railroad Retirement Board, denying him a disability annuity. For the reasons given below, we find that the Board erred in determining that Jacques had not completed the required period of service to qualify for such an annuity. We reverse the decision of the Board.

I.

On February 19, 1965, Jacques, a thirty-five year old assistant signal repairman with the Delaware and Hudson Railway Company, fell from a telegraph pole and suffered a serious injury. He was immediately hospitalized and placed under the care of Dr. Leo Weinstein, whose diagnosis was that Jacques had fractured his ninth thoracic vertebra. Following an initial hyperextension treatment on a fracture board, Jacques was placed in a body cast on February 22. He was discharged from the hospital three days later. After the discharge, Jacques was examined by Dr. Weinstein on several occasions. Dr. Weinstein also performed necessary repairs on the cast.

Jacques's cast was replaced by a brace on June 3, 1965. He wore the brace until August 19. Dr. Weinstein stated that Jacques was totally disabled until August 23, 1965, and partially disabled from that date until October 1966.

Jacques returned to work with the railroad on August 23, 1965, and initially attempted to perform his previous work of digging ditches and putting up poles. He found, however, that he was not physically able to do this, and was subsequently reassigned to lighter duties. Jacques has not worked since November 1971.

In September 1969, Jacques filed in the United States District Court for the Northern District of New York a complaint against his railroad employer under the Federal Employers' Liability Act (FELA), 45 U.S.C. Secs. 51-60. The complaint alleged that

while plaintiff was employed as a signal maintainer ... and while he was descending from a wooden pole about twenty-five feet in height equipped with climbers and a belt, upon reaching a point about 12' or 14' above the ground he was advised by his co-worker who was on the ground that it was safe for him to proceed, and when he attempted to do so his climbers failed to hold in the pole and he violently fell to the ground ....

Jacques sought $100,000 in damages "for pain and suffering already endured and to be undergone in the future; for the loss of services and earnings in the past and those to be sacrificed in the future, for moneys laid out and expended for medicine, medical bills and hospital expenses, treatment and care." (Emphasis added).

The case was settled for $13,500 in October 1970. The settlement did not indicate how the money was allocated to the different categories of damages alleged in the complaint. Jacques then reimbursed the Board $1,213.80 for sickness benefits paid to him by the Board following the accident. See 45 U.S.C. Sec. 362(o ). In a letter dated June 21, 1972, the Board acknowledged receipt of the reimbursement. At the time of the accident, Jacques's salary was approximately $400 per month.

In August 1972, Jacques filed with the Board his first application for a disability annuity under the Railroad Retirement Act. Jacques claimed that he was entitled to an annuity under either of two statutory bases set forth in 45 U.S.C. Sec. 231a(a)(1), ¹ which provides that:

The following-described individuals ... shall ... be entitled to annuities ....

....

(iv) individuals who have a current connection with the railroad industry, whose permanent physical or mental condition is such as to be disabling for work in their regular occupation, and who (A) have completed twenty years of service or (B) have attained the age of sixty; and

(v) individuals whose permanent physical or mental condition is such that they are unable to engage in any regular employment.

Thus, under the latter provision, which we shall refer to hereafter as subsection (v), an individual must show that he is unable to engage in any regular employment. But under the former provision, which we shall refer to as subsection (iv), an individual must show only disablement for work in his regular occupation, if he has "completed twenty years of service." Pursuant to regulations in effect at the time, an individual could satisfy the twenty-year requirement of subsection (iv) by completing 234 months of service. 20 C.F.R. Sec. 208.7(a)(3) (amended 1982).

Jacques's first contact with the Board was not successful. In January 1973, the Board's Director of Retirement Claims denied Jacques's application for a disability annuity on the grounds that (1) with regard to subsection (v), he was not "permanently disabled for all regular work," and (2) he was not eligible under subsection (iv) because he had completed only 230 months of regular employment and was thus four months short of the required length of service. The denial notice did not set out the formal steps to be followed in seeking administrative and judicial review of the adverse decision. Instead, it merely stated that a claimant dissatisfied with the decision could contact the nearest Board office.

The record suggests that Jacques attempted to seek a reconsideration of the Board's initial decision. Jacques's file with the Board contains a copy of a 1973 letter from Jacques to Senator Jacob Javits, and a letter from the Board to Senator Javits dated February 23, 1973. These letters are not part of the administrative record before us but were described by a Board referee at an April 1978 hearing--which is before us and which we discuss below--and apparently dealt with the denial of the disability annuity. The record also indicates that Jacques was under the impression that he was pursuing the administrative remedies available to him under the Railroad Retirement Act.

During 1974, Jacques communicated intermittently with the Board, arguing that he had filed an appeal from the Board's 1973 decision. The Board replied that no appeal had been filed and that the period for filing such an appeal had expired.

In December 1975, Jacques filed a new application for a disability annuity. This second application was also denied. Jacques was informed that (1) he was not "permanently disabled for all regular work" under subsection (v), and (2) he was not eligible under subsection (iv) because he had not completed the required period of service. This time, however, Jacques was credited with 231 months of service--up from 230 months in the previous application--and was thus only three months short of the subsection (iv) requirement.

Jacques appealed from this decision, and in April 1978 he appeared pro se before a referee of the Board's Bureau of Hearings and Appeals. The referee stated at the hearing that Jacques would probably have been awarded an annuity in 1973 if he had only completed the required period of railroad service. Jacques disputed the Board's contention that he could not be credited with 234 months service, but the referee made no effort to elicit answers that might indicate the source of the discrepancy. In June 1978, the referee sustained the denial decision. She stated:

The appellant's complaints have been persistent and the objective and radiographic findings made in 1976 would preclude work in a heavy, arduous occupation. The impairments, however, were not shown to be of such severity as to prevent the appellant from engaging in a light work activity such as small parts assembler or inspector in any industry.

Despite this implicit finding that Jacques could not perform his former job as a signal repairman, the referee did not even address Jacques's argument that his length of railroad service was sufficient for a subsection (iv) annuity. Instead, the referee focused exclusively on the question of total disability for the purposes of subsection (v) and sustained the denial decision.

The referee's decision was affirmed by the Board in November 1980. In its opinion, the Board found that Jacques had "the functional capacity to do some light or sedentary work such as simple bookkeeping and payroll clerical work," but concluded that the condition was not "so severe as to permanently disable him for all regular employment." Like the referee, the Board failed to address the question of Jacques's length of service.

Before recounting the third--and last--attempt by Jacques to enforce his rights under the Railroad Retirement Act, it is useful to step aside and review a parallel development. While the various proceedings before the Board were taking place, Jacques applied for Supplemental Security Income (SSI) benefits under the Social Security Act. ² In November 1976, Jacques received a favorable decision. The opinion of the Administrative Law Judge (ALJ) stated that

[t]he evidence as a whole is quite clear and consistent to the effect that claimant's back had been seriously and permanently affected and injured when he fell down a pole in 1965. Since that time, really heavy...