Haughton Elevator Company, and the Aetna Casualty and Surety Company, Employer/carrier v. Ernest A. Lewis

572 F.2d 447, 1978 U.S. App. LEXIS 12544

Opinions

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 Haugh-ton, 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 hernio-tomies. 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 Or-kin, 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.

Although the injury occurred while Lewis was working for Haughton in Arlington County, Virginia, the law of the District of Columbia is made applicable because Haughton was “carrying on employment” in the District. See § 36-501, District of Columbia Code, 1967, adopting the Longshoremen’s and Harbor ' Workers’ Compensation Act, supra. The appeal is properly addressed to this court because this Circuit embraces the place of the injury. 33 U.S.C. § 921(c) as amended in 1972.