Army & Air Force Exchange Service v. Greenwood

585 F.2d 791
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 8, 1978
DocketNo. 77-2903
StatusPublished
Cited by26 cases

This text of 585 F.2d 791 (Army & Air Force Exchange Service v. Greenwood) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Army & Air Force Exchange Service v. Greenwood, 585 F.2d 791 (5th Cir. 1978).

Opinion

FAY, Circuit Judge:

Appellee, Mrs. Margaret Greenwood, sought compensation under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq. (Supp.1970-1977), for permanent total disability or, in the alternative, permanent partial disability, as a result of a back injury she sustained during the course of her employment at the Keesler Air Force Exchange. Administrative Law Judge George A. Fath denied compensation to Mrs. Greenwood. This decision was reversed by the Benefits Review Board which remanded the case to the Administrative Law Judge with instructions to enter a finding of permanent disability pursuant to Section 8(a) of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 908(a),1 and to make an appro[793]*793priate award of benefits. The employer, the Army & Air Force Exchange Service (AAFES), and the carrier, Employers Mutual Liability Insurance Co., appeal the decision of the Benefits Review Board. We affirm.

I. FACTS

Mrs. Greenwood, age 61, had worked at the Exchange as a relief employee from May 1, 1971 until her injury on July 30, 1974. On July 30, Mrs. Greenwood lifted a crate of lettuce from a shelf onto the floor, pushed it across the floor and lifted it onto a “buggy”. Shortly thereafter her lower back began hurting, but she continued to work until half an hour before the end of her regular workday. The morning after the injury she was unable to get up and return to work as a result of the pain she was experiencing. The injury appellee sustained while lifting the crate of lettuce was diagnosed as a “chronic lumbosacral strain.” Mrs. Greenwood has not worked since the injury except for a brief period between October 28, 1974 and November 3, 1974.

Appellee consulted with a number of specialists after her injury. In addition to the lumbosacral strain, these physicians found a number of degenerative and congenital back conditions which existed before the injury of July 30, 1974. Among these conditions were scoliosis (abnormal curvature of the spine) and spondylolisthesis (protruding vertebral disc). An orthopedist, Dr. John O’Keefe, diagnosed Mrs. Greenwood’s condition as a strain of the lower back. Dr. O’Keefe prescribed “hot soaks” and a “lum-bosacral corset” and gave appellee some medication for her injury. At the administrative hearing Dr. O’Keefe testified that on a follow-up examination on August 26, 1974, Mrs. Greenwood complained of pain in her right thigh. After an examination on October 28, 1974, Dr. O’Keefe released ap-pellee to return to full duty at work. However, appellee testified that she was forced to leave her employment after one week beeause of constant pain. Since that time, she has not returned to work. There was testimony from Mrs. Greenwood that she was unable to work due to the pain in her back and in her legs. Another physician, Dr. Magruder Sullivan Corban, testified that it was his opinion, based on the history given by Mrs. Greenwood, that the injury in question contributed to her back pain. However, Dr. Corban further testified at the administrative hearing in July, 1976 that in November, 1975 he felt Mrs. Greenwood would be able to function at the same level she had functioned before the accident.

Appellee’s weekly wage at the time of the injury was $88.80. She was paid $72.85 weekly compensation from July 31, 1974 until October 28, 1974 and from November 3, 1974 until November 20, 1974. At the time of the administrative hearing, Mrs. Greenwood’s income consisted of $45 per week alimony and $150 per month for rent from land she owned at a trailer park. In addition, two of her children were contributing $50 weekly for her support.

II. RECOVERY OF WORKMEN’S COMPENSATION

It should be noted that there are two important and often competing theories in workmen compensation appeals to this Court: the first concerns the strong judicial and legislative policy favoring awards to injured workers; the second concerns the well-settled rule that if the administrative law judge’s decision is supported by the evidence as a whole and is not inconsistent with the law, it should be upheld. Cardillo, Deputy Comm’r, United States Employees’ Compensation Comm’n. v. Liberty Mutual Ins. Co. et al., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028 (1947). The legislative policy is best stated as follows:

It is important to note that adequate workmen’s compensation benefits are not only essential to meeting the needs of the injured employee and his family, but, by [794]*794assuring that the employer bears the cost of unsafe conditions, serves to strengthen the employer’s incentive to provide the fullest measure of on-the-job safety.

H.R.Rep.No.1441, 92d Cong., 2nd Sess., reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 4698, 4699.

Similarly, the judicial policy has long been to resolve all doubts in favor of the employee and his family and to construe the Act in favor of the employee for whose benefit it is primarily intended. See Strachan Shipping Co. v. R. J. Shea, 406 F.2d 521 (5th Cir. 1969).

In the case before us, the Administrative Law Judge found that Mrs. Greenwood was not eligible for continued workmen’s compensation. Mrs. Greenwood appealed to the Benefits Review Board as authorized by 33 U.S.C.A. § 921(b)2 which found that the Administrative Law Judge erred in holding that no doubts existed concerning her lack of permanent injury. The power of this Court to affirm, modify or set aside the Review Board’s Order is found in 33 U.S.C.A. § 921(c).3 Referring to the standard of review this Court is to apply when faced with an appeal from the Review Board, this Court stated:

Although the standard of review in this Court is not set out in the statute, it is evident that we are to review only errors of law, and to make certain that the Board adhered to its statutory standard of review of factual determinations. This then is unlike a review of a labor [795]*795board decision where the Board may disagree with an administrative law judge as to factual matters and must be sustained if its own determinations pass the substantial evidence test.

Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir. 1976). Thus, although the Review Board cannot substitute its views for those of the administrative law judge or engage in a “de novo review of the evidence”, the Board has the power to reverse the administrative law judge if his determinations are not supported by substantial evidence in the record as a whole.

In the case before us the Review Board stated that, in denying compensation to Mrs. Greenwood, Administrative Law Judge Fath acknowledged the principle that all doubts must be resolved in favor of the person making the claim but the Administrative Law Judge nevertheless held that this presumption had been overcome by substantial evidence on the record which showed that the injury was not disabling and that it did not aggravate a pre-existing condition.

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585 F.2d 791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/army-air-force-exchange-service-v-greenwood-ca5-1978.