Bermudez v. Government of the Virgin Islands

9 V.I. 385, 1973 U.S. Dist. LEXIS 5185
CourtDistrict Court, Virgin Islands
DecidedFebruary 28, 1973
DocketCivil No. 225-1970
StatusPublished
Cited by2 cases

This text of 9 V.I. 385 (Bermudez v. Government of the Virgin Islands) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bermudez v. Government of the Virgin Islands, 9 V.I. 385, 1973 U.S. Dist. LEXIS 5185 (vid 1973).

Opinion

CHRISTIAN, Chief Judge

OPINION

The plaintiff in this cause seeks review of a final Order of the Commissioner of Labor, entered by the District Director, in which Order, dated May 21, 1970, the director determined that plaintiff suffered a permanent partial disability and awarded him compensation therefor in accordance with applicable law. In the alternative, the plaintiff asks this court to hear the matter “de novo and acting [387]*387upon the evidence adduced, enter an Order or Judgment fixing the proper award to plaintiff on his claim for compensation benefits.”

Francisco Bermudez, the plaintiff herein, and a native of Aruba, Netherland West Indies, was employed in St. Croix, Virgin Islands by Chicago Bridge and Iron Company, Ltd., as a structural fitter. On December 5, 1967, while in the course of his employment, a heavy piece of iron pipe, described as a “structural buggy-boom” somehow became disengaged, fell and struck him on the right leg causing the severe injuries for which he applied for workmen’s compensation. He was hospitalized briefly in the Virgin Islands and thereafter in Puerto Bico. Treatment continued over a period of years, at first for his obvious injuries which were a fracture of the mid-shaft of the right femur and a closed comminuted fracture of the upper third of the right tibia and fibula. As his treatment progressed, it was found that he complained of pain in his back. X rays taken revealed that there was some injury to the lumbosacral spine which it was determined was resultant upon the injury and the accident mentioned above. This latter ailment was rectified by operative procedure. The lamina of L5 was removed and an H graft was performed. Plaintiff’s treatment continued for quite some time. In the course of that period he was regarded by the compensation authorities as temporarily totally disabled. He was compensated accordingly.

As late as August 8, 1969, it was plaintiff’s doctor’s opinion that he was still temporarily totally disabled for manual work. It was then estimated that he should be rechecked monthly for a period of six additional months, by which time the doctor would determine when he could return to gainful employment.

As of August 13, 1969, the medical opinion was that his partial permanent impairment of the right lower ex[388]*388tremity was approximately 25 to 80 percent and that he could then engage in “a light job”, but could not “perform work . . . necessitating bending or lifting.” Subsequent to the letter last mentioned, the patient reported to the District Director that he could not secure light work. It should be borne in mind that at this time plaintiff had returned to his native Aruba, making it somewhat difficult, though by no means impossible, for the District Director to verify his inability to obtain “light work.”

Matters continued in this posture with the government making payments to plaintiff in the maximum amount allowable for temporary total disability. On April 20,1970, however, the Deputy Commissioner of Labor wrote to Dr. Horn, the physician to whom I have alluded above, inquiring whether or not an evaluation of the plaintiff’s condition could then be made so that the government might make a final award and close his case. Responding to that inquiry, Dr. Horn, by letter of April 29, 1970, stated:

I estimate the permanent disability consequential to the fractures of the right lower extremity and consequential to the injuries to the lumbosacral spine at about 35% of the general physiological functions of his body.
It is recommended that this case be closed with a final award which I consider also of therapeutic valúe.

Evidently acting solely upon the authority of Dr. Horn’s letter of April 29, the District Director entered the final Order, here challenged, in which he found the facts to be as follows:

1. That, claimant received compensation for temporary total disability up to and including May 15,1970.
2. That, according to competent medical authority, it is estimated there exists permanent partial disability consequential to the fractures of the right lower extremity and to the lumbosacral spine of about thirty-five percent (35%) of the general physiological functions of the body.
[389]*3898. That, the disability is associated with and resembles mostly that of the legs, that compensation for the loss of a leg is one hundred eighty (180) weeks at the compensation rate in this case of Forty-Five Dollars ($45.00). per week or Eight Thousand One Hundred Dollars ($8,100.00); that Seventeen and One-Half Percent (17%%) of each leg is equal to One Thousand Four Hundred Seventeen Dollars Fifty Cents ($1,417.50) or a total of Two Thousand Eight Hundred Thirty-Five Dollars ($2,835.00) for both legs.

Based on those factual findings, the director concluded that the plaintiff was entitled to a lump sum award for permanent partial disability in the amount of $2,835.00. It was so Ordered and plaintiff’s case was closed. These proceedings followed.

At the outset, I should dispose of plaintiff’s alternative prayer for relief. The de novo hearing for which the plaintiff prayed is not available to him. This court is limited to a review of the findings of the Commissioner of Labor to ascertain if such findings are based on substantial evidence, Hammer v. Workmens Compensation Commission 156 F.2d, 402, 2 V.I. 478 (3 Cir. 1946). If on review it is found that the findings of the Commissioner are supported by substantial evidence, this Court is without authority to disturb them, 24 V.I.C. § 256(c). It follows that the application for de novo hearing must be denied.

We turn then to a review of the Commissioner’s findings, conclusions and Order.

Plaintiff, in challenging the Commissioner’s Order, contends that his true classification is that of “permanent total disability”. Title 24, V.I.C. § 264(d), in force as of the times pertinent hereto, defined permanent total disability in part as,

such other injuries as result in the total and permanent disability of the person to perform any kind of labor in renumerative occupations.

[390]*390It is clear, therefore, that the enactment encompasses a concept of permanent total disability which includes not only medical aspects of a given case but economic factors as well. Our research has uncovered no case in this jurisdiction which has heretofore dealt with this precise problem of statutory construction, nor with the issue raised when the Commissioner makes a determination of disability based solely on medical evaluation. The issue then before the Court is of first instance, and might best be analyzed and determined in the light of similar statutes designed and enacted to effect like purposes.

Analogizing with the Longshoremen and Harbor Workers Compensation Act, 33 U.S.C., § 901, 44 Stat., § 1424 (Longshoremen Act), we find that it has been held that a claimant who no longer was employable except for light work which he found very hard or impossible to find, was, in economic terms, “totally disabled”, U.S. Fidelity & Guaranty Company v. O’Keefe, 24 F.Supp., 816 (S.D. Fla. 1962); and in Quick v. Martin, 397 F.2d 644 (D.C. Cir.

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Related

Arts-Bermudez v. Commissioner of Labor
31 V.I. 51 (Supreme Court of The Virgin Islands, 1995)
Phillip v. Government of the Virgin Islands
18 V.I. 269 (Virgin Islands, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
9 V.I. 385, 1973 U.S. Dist. LEXIS 5185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bermudez-v-government-of-the-virgin-islands-vid-1973.