Earl Warren: Number 303, Alaska Industrial Board and Carl E. Jenkins, Petitioners, versus Chugach Electric Association, Inc. Mr. Dimond, you may proceed.
John H. Dimond: May it please the Court? This case rises under the Alaska Workmen's Compensation statute. In September 1951, the petitioner Carl Jenkins while in the course of his employment with Chugach Electric Association got a 1200 volt arc into his arm on the high power line, and it exploded out both his feet. Within one month following this accident, three amputations had been performed because of the electrical burning. The left arm had been amputated near the shoulder, the right leg below the knee, and four toes of the left foot. Within one year after the accident, the medical reports in the record show that Jenkins had been fitted with artificial limbs. He had an artificial left arm and artificial right leg and had it not been for the injury to the left foot where four toes were amputated. He could have sought and probably obtain some type of employment. But, the left foot failed to heal and this failure continued on for a period of over three years. At the conclusion of the case before the Industrial Board and when this case went to the District Court, the evidence showed even then in December 1953 that the foot had not healed. If the case were remanded to the Board, I suspect that a finding could be made now that healing process was completed in 1954, early part of 1955. Now, right after his injury, the insurance carrier commenced paying Jenkins what they called temporary compensation specifically provided under the Alaska statute. That statute provides that for all injuries causing temporary disability, the injured employee shall be paid 65% of his daily average wages during the period of the disability, and that has always been construed by the Industrial Board and by Alaska Courts as meaning that he gets, during the healing period until his wages, I mean until his injuries have stabilized or have been healed, 65% of his average wages whatever the board finds him to be, and in the average case at the end of that healing period, if there's any permanent injury, the Industrial Board makes a finding of what percentage permanent injuries involved and also gives employee an additional award under the permanent injury schedule of the Alaska Act.
William O. Douglas: Award for permanent disabilities is not related to wages.
John H. Dimond: I think it does not Your Honor.
William O. Douglas: Lump sum is it?
John H. Dimond: Sir?
William O. Douglas: It's a lump sum?
John H. Dimond: It's a lump sum, it's not related to wages, it has no relation -- it's not computed on wages. A man might for example Your Honor, a man might lose the hearing in both ears and receive the maximum award for total and permanent disability and yet he might go back to employment and earn just as much as he did before, so it's not related directly at least to loss of wages.
William J. Brennan, Jr.: Well, didn't the Court of Appeals say that it was?
John H. Dimond: The court of Appeals did say that it was Your Honor, yes.
William J. Brennan, Jr.: I am wondering, is that -- is that an issue we have to determine here?
John H. Dimond: I don't think you have to determine that issue Your Honor, no. The only issue I think the Court has to determine is whether the Court of Appeals was correct in saying that when a man has received the maximum permanent award that he has conclusively presumed not to have any further or remaining earning capacity.
William J. Brennan, Jr.: And basically is this a question of the construction of the Alaska Act --
John H. Dimond: That's the case in a nutshell Your Honor.
William J. Brennan, Jr.: Yes.
John H. Dimond: It's based on the construction of those two provisions of the act; the permanent scheduled award section and the temporary compensation section.
William J. Brennan, Jr.: I gather his one foot had not -- was still under treatment, was it not, that hadn't reached the point of --
John H. Dimond: Yes, after the left arm and right leg had been fitted with artificial limbs, he couldn't go back to work because the left foot wouldn't heal. There was an ulceration and all kinds of trouble there, causing by electrical burns and the doctors said they have to do further amputations, and skin grafts and plastic repairs and so on.
William J. Brennan, Jr.: So that even though perhaps with the artificial limbs he might have been able to do some limited kind of work, he was disabled by reason of the foot conditions from even doing that, is that --
John H. Dimond: That's exactly our position Your Honor that he had some remaining earning capacity after he got his artificial limbs. That earning capacity was temporarily impaired by an injury to a left foot which just happened to happen with the same accident.
William J. Brennan, Jr.: So that he should be under your view entitled a temporary compensation until a period of finality or judgment of finality as to the leg injury had been reached?
John H. Dimond: That's correct Your Honor. That's precisely the position of the petitioner in this case.
Earl Warren: As I understand you're saying Mr. Dimond, it was the practice under your act to pay the petitioner compensation until he was healed, and then after he was healed to make the permanent award.
John H. Dimond: Generally Your Honor, the Industrial Board I think almost in every case does not decide what degree of permanent injury had been incurred until after the healing period is over, and the man has returned to work or until the doctors say there's nothing further we can do with you.
Earl Warren: Courts have sustained that --
John H. Dimond: I don't think it's ever -- I did mention Your Honor that it's been the practice of the board and the courts, I don't think that question has ever come up as an issue in a case as to whether that was proper, I think that (Inaudible). The act says that for all injuries and I emphasize the word all causing temporary disability, there shall be paid during the period of the disability and I contend that the period of the disability is the entire period and not just the period preceding the amputations of two limbs.
William J. Brennan, Jr.: Well, may I ask –-
Earl Warren: Is there any indication here why they didn't follow that practice and wait to lose till that left foot has healed?
John H. Dimond: Well Your Honor, the respondents took this position. They paid him temporary compensation from the date of injury until July 1951, about a year later, and I think they finally looked at the law and said that this man lost an arm and a leg, therefore he is totally and permanent disabled, we've been paying him too much. In other words, at the time of the amputation they contend that he was totally and permanently disabled, and therefore, he couldn't get any temporary disability. They thought those two things were inconsistent.
Earl Warren: So they quit –-
John H. Dimond: They paid him $8100 maximum less the amount they have paid him for temporary disability for the preceding 38 weeks. So the total – excuse me?
Charles E. Whittaker: Does your statute make the loss of an arm and a leg permanent total disability?
John H. Dimond: Yes Your Honor, the statute on page 6 of the petitioner's opening brief in the appendix, that's roman numeral 6, the loss of both hands or both arms or both feet or both legs and so on shall constitute total and permanent disability and be compensated according to the provisions of the act with reference to total and permanent disability.
Speaker: Could I ask you one question?
John H. Dimond: Yes sir.
Speaker: Am I correct and understanding that the Court of Appeals said it's wrong (Inaudible) temporary disability advantage from the permanent $8100 award.
John H. Dimond: Yes Your Honor, the --
Speaker: So they -- so what's your claim now is that he was entitled to something over and above the $8100 by reason of the temporary disability?
John H. Dimond: Yes Your Honor, the Court of Appeals held that and as much as the insurance carrier had voluntarily paid this temporary disability for 38 weeks without questioning this business of having an arm and a leg loss, that they should have at least paying that much, at least up to the time that he was classified to follow the classification.
Speaker: Now the Court of Appeals to that extent overruled the District Court.
John H. Dimond: To that extent, they said Jenkins was entitled to $3645 but nothing beyond that point.
Speaker: Yes.
William J. Brennan, Jr.: Mr. Dimond, I connect this as in dollars and cents.
John H. Dimond: Yes sir.
William J. Brennan, Jr.: I gather from the date of the accident until some particular date that was the time of the second amputation, there's no question that he was entitled to temporary allowance.
John H. Dimond: That's the bottomline, yes, no question about that.
William J. Brennan, Jr.: That was just one month?
John H. Dimond: Yes sir.
William J. Brennan, Jr.: And then it was that they continued paying him after the second amputation for 38 weeks.
John H. Dimond: Yes sir.
William J. Brennan, Jr.: And it was at that time that they classified him as permanent total, they tried to relate it back to the date of his second amputation and Court of Appeals said, no, they couldn't.
John H. Dimond: That's right.
William J. Brennan, Jr.: Is that right?
John H. Dimond: That's right.
William J. Brennan, Jr.: But the Court of Appeals nevertheless did for the purposes of construction of the statute relate back to the time of the second amputation, the interpretation of the statute as well as the sum in total.
John H. Dimond: No we relate it back the time of the insurance carrier said you are totally disabled.
William J. Brennan, Jr.: For the time out to the classification.
John H. Dimond: For the classification.
William J. Brennan, Jr.: Now if you are right, how long after that date of classification would he still be entitled to temporary disability.
John H. Dimond: He was classified by the insurance career in July 1951, and in December 1953 which is the last medical evidence in the record, he was still unable to go back to work, his foot is still not healed.
William J. Brennan, Jr.: So we had it for that period up to December '53 --
John H. Dimond: (Inaudible) and perhaps the period longer depending on what the facts are, Your Honor.
William J. Brennan, Jr.: Now when finally either those healing or the doctor said nothing more could be done, what would be the basis slab of the permanent award on your approach?
John H. Dimond: Well if the healing was completed or else the doctor said we can't do anything more, the board would stop the temporary compensation because it's no longer temporary.
William J. Brennan, Jr.: Yes.
John H. Dimond: And at that time award him permanently total --
William J. Brennan, Jr.: What would be the permanent until then be 8100 or --
John H. Dimond: 8100 dollars,
William J. Brennan, Jr.: Still 8100.
John H. Dimond: Under the Act in Effect at that time, the Act has been changed since then Your Honor.
William J. Brennan, Jr.: I see.
John H. Dimond: At that time it was $8100, that was the total he could receive for total and permanent disability, if he lost all four limbs, he would only get 8100 dollars --
William J. Brennan, Jr.: I see.
Harold Burton: But Mr. Dimond you regard the permanent disability and temporary disability as separate awards, each independent with the other.
John H. Dimond: Yes Your Honor.
Harold Burton: So you (Inaudible) basis and don't pay attention to the other.
John H. Dimond: I think you are right Your Honor yes.
Harold Burton: One relates the wages and the other is not up for an award for a lost limb.
John H. Dimond: But that's my contention Your Honor. To a certain extent the permanent award may has some relation to wages, I don't know just how you can tie them now.
William O. Douglas: Well it's not in a formula, cast in terms of earning power.
John H. Dimond: No, it isn't Your Honor.
William O. Douglas: As I read Page 2 of your appendix he kept the 9000 of this amendment Act, whether he was making 10 dollars a week or 500 dollars a week.
John H. Dimond: That's correct Your Honor.
William O. Douglas: Is that right?
John H. Dimond: That's right Your Honor, yes. It doesn't matter how much he is earning or how much he'll earn after the injury, he may go back to the same job and get an increase in salary. He still gets the maximum award, if he looses certain members of his body.
William J. Brennan, Jr.: Well suppose you're right after 1953 that he is entitled temporary up to that date, will there be another proceeding to determine whether he is entitled to temporary beyond that date?
John H. Dimond: Well if the case ever goes back to the board that it will have to call in Jenkins and then doctors and say now when did this foot heal, or when was it stabilized and came up to that date?
William J. Brennan, Jr.: It may still be unstabilized type. Well this is five years --
John H. Dimond: Yeah it's possible. I don't think that's the fact Your Honor but there's nothing in the record not being point of.
William J. Brennan, Jr.: But there have to be a new determination of the terminal date in any event of the temporary disability.
John H. Dimond: Yes, Your Honor by the industrial board, which is the fact finding body. I wanted to emphasize the provisions of the temporary compensation provision which is somewhat unique and not like the state statutes on this provision. I think most states have your partial permanent and total permanent awards which go over a number of weeks. Here you get a lump sum provision for permanent injury whether it's partial or total and I suppose the legislature had in mind that to -- that in the average case a man who has -- loses an arm or a leg has some adverse effect on his future earning power and perhaps this was the only way they could compensate him in some measure for what may be an adverse effect, whether it is or not. Whereas the other section which is entirely separate says for all injuries throughout the temporary disability, not just those injuries which are without a loss of two limbs. They should be paid daily average wages and then the second sentence of that provision I think requires some emphasis and attention. It says in all cases where the injury develops or proves to be set as to entitle the workman to some compensation under any other provision of this schedule; then the two awards shall be paid at the same time. In other words the Court of Appeals admitted that other cases are cases of permanent injury, and so if a man loses his arm Your Honors, and is paid temporary compensation during the healing period, he can also receive the permanent award for the loss of an arm. Of course the Court of Appeal stops when you get two limbs gone and say that after the second amputation and in fact or after the classification when they make up their mind that he's permanently and totally disabled, even though he's not healed, even though it might be two years before he can go back to work and earn wages, he can't receive any more temporary compensation. And I respectfully submit that that is contrary to the clear express language of the Alaska legislature in temporary provision statute.
Charles E. Whittaker: You say that (Inaudible) someone makes up the time?
John H. Dimond: Well that's what did disturb me Your Honor about the decision by the Court of Appeals. I thought logically the Court of Appeals if it were going to hold the way it did, would say that after the second amputation he was -- he should be then totally and permanently disabled and should receive no further compensation. But the Court of Appeals said that if the insurance carrier continues to pay him temporary disability, mistakenly for another 38 weeks that they're stuck with that payment.
Charles E. Whittaker: On a period that what they've paid him did not return.
John H. Dimond: I think that if the Court of Appeals said that these payments are treated by the employee as income and they would prejudice him in some way if he had to pay it back, I wasn't quite sure of what the -- of their reasoning there.
Charles E. Whittaker: (Inaudible) this section of the statute on page 4 of your appendix, this Page 6 of your appendix which provides that the loss of both hands or both arms or one of each constitutes total and permanent disability?
John H. Dimond: Your Honor, it constitutes total and permanent disability so far as the amount of money the man gets, but it may not totally disable him for earning the living as a matter of fact.
Charles E. Whittaker: Or does it -- can he recover, can he be both temporarily disabled and permanently disabled at one and the same time?
John H. Dimond: He can not, in literal sense be temporally and permanently disabled at the same time Your Honor, but if the man loses an arm and a leg, it's true the legislature said he's totally and permanently disabled. But I think you have to read this in the context of the whole statute which indicates that for a total and permanent disability the total amount of money you can get is $8,100, and the legislature must have recognized the fact that people who lose arms and legs are not necessarily completely unable to earn a living. Now the facts in this case show that after this man had lost his arm and his leg a year later, he could have gone back to work, except the fact that his other injury didn't heal, and so he had some remaining earning capacity despite the conclusive presumption assumed by the Court of Appeals that he had an earning. He actually did have some and that was temporarily impaired by this second injury. I think an example Your Honor of why this must be the case is let's assume Jenkins lost the hearing in both the ears in his employment, and he went back to work a month a later as the line man again, now he was totally and permanently disabled because he's lost the hearing in both the ears, and yet if he received an electrical burn and hurt his left foot under the theory of the Court of Appeals he could receive nothing, even though the act says for all injuries causing temporary disability he shall receive so much money.
Harold Burton: Well the fact that the Act talks about total or permanent disability really doesn't make any difference (Inaudible) except in terms of it's the arms, the legs or ear (Inaudible) they could have left up that total and permanent --
John H. Dimond: They could have left it out --
Harold Burton: And left that alone, that you could have put them in.
John H. Dimond: Well I think they should have left it out Your Honor and just talk about the maximum award a man should receive for certain loss of memory.
William J. Brennan, Jr.: But then it is the jargon of Workmen's Compensation Act, isn't it Mr. Dimond?
John H. Dimond: Yes it is Your Honor.
William J. Brennan, Jr.: And as I understand it ordinarily as you've just said. It doesn't mean that one is utterly unable to do anything --
John H. Dimond: No, it doesn't --
William J. Brennan, Jr.: -- gainful employment, he may still be able to do something.
John H. Dimond: There are state cases cited in our brief where a man has received total and permanent award and then later in other employment received an injury and is compensated for it. He was able to work and as they took him back to work so they should pay for the injuries that occurred for him.
Speaker: What is the total amount of money that the Court of Appeals decided?
John H. Dimond: The total amount that he is entitled to earn in Court of Appeal's theory is $3,645 I think Your Honor.
Speaker: Well, he has earned this for temporary disability --
John H. Dimond: It was $470 I think, roughly. If he were entitled to the temporary disability Your Honor until the time of healing was over he would get around.
Speaker: He gets 15000.
John H. Dimond: Around 15,000. Yes.
Hugo L. Black: Does this act apply to all employees?
John H. Dimond: All employees, except those on government projects, Your Honor. In the Alaska where you have defense construction under government auspices they are under the Defense Base's Act, but otherwise it applies to all employees --
Hugo L. Black: Will it apply to the general manager of this company if he should lose a leg and an arm?
John H. Dimond: Yes Your Honor, it would.
Hugo L. Black: He could still be satisfied under this act?
John H. Dimond: Yes.
Hugo L. Black: Totally impairment and capacity (Inaudible)
John H. Dimond: Yeah, right up to the time of amputations that can classify them. You can say here is all you're going to get, you know it takes years to your wounds to heal and that's why we think the decision is unjust.
Hugo L. Black: Is there any -- temporary disability and as you refer this to called to say the relating cases other temporary disability --
John H. Dimond: Yes Your Honor.
Hugo L. Black: Cases other than temporary disability either?
John H. Dimond: Cases other than temporary disability Your Honor would be cases of permanent injuries.
Hugo L. Black: Have to be there or is it some other --
John H. Dimond: Well, these cases are disfigurement, Your Honor which maybe classified as permanent type of injury. I don't know of any other --
Charles E. Whittaker: [Inaudible].
John H. Dimond: Yes, Your Honor. I didn't include the disfigurement provisions. I guess I did provide it in here on page V, Roman numeral V, the appendix of the brief, Industrial Board may award proper and adequate compensation with serious head, neck, facial, or other disfigurement. That would be another type of --
Hugo L. Black: And this provision says the amount shall be for temporary disability, argued here shall be an addition to the amount that which should be withheld under central provision.
John H. Dimond: Yes, Your Honor. In other words, if the man is receiving temporary disability and then the board finds that he was permanently injured, he is entitled to the certain permanent award, he gets both types of compensation.
Charles E. Whittaker: (Inaudible)
John H. Dimond: In the average case that happens Your Honor, but then the Court of Appeals said in effect that when it's determined it's permanent he can't draw anymore temporary, but my contention here is, the petitioner's is that if he loses an arm and a leg, right away they can classify him as permanent the day of the injury even though the facts show that he can't go back to work for two years, because of the slowness in healing. So the Court of Appeals modified the words, so paid or due by the word theretofore. In other words, up to the time of the classification of the permanent injury, he can get both types of compensation, but as soon as he is classified as a total and permanent disability then that's the case is restricted to that he is no longer temporarily disabled and that's why he can't draw any compensation. That's the precise position of the Court of Appeals and the respondent. But my contention is that the provision for temporary disability very clearly contemplates that a man should be compensated for loss of wages during the healing period regardless of what finding is made in that period as to the degree of permanent impairment of it's earning power or as to what scheduled allowance he is limited to have.
Hugo L. Black: What effect did the Court of Appeals give to the language in the definition of healing once it is a temporary disability? The language which says that the amount received for other types of disability shall be in addition to the amount to which he is entitled under the temporary disability. What meaning did they give us here?
John H. Dimond: Your Honor I can find the exact place in the Court of Appeals' decision. I don't have it marked in the records, but I do in this printed copy of the decision. The court said cases of permanent injury are cases other than temporary disability within the meaning of the statute and that's the way they admitted that and that's on page -- here on page 94 of the records Your Honor, the last sentence cases of permanent injury are cases other than temporary disability within the meaning of that section statute related to temporary disability.
Hugo L. Black: When they said that what did they say that what affects then that they give to that language which said that the amount so paid be an addition to the amount which is entitled under the temporary --
John H. Dimond: Well here is the language they used Your Honor in bottom page 94 and the top of page 95 of the record. They said this language means only that a lump sum award for permanent total disability shall be in addition to any benefits theretofore pay.
Hugo L. Black: Theretofore pay.
John H. Dimond: They added the words theretofore which aren't in the statute. Theretofore pay, that is paid before the finding of a permanent injury.
Earl Warren: That is if a man at the time of the accident had his arms and legs severed and the insurance carrier came right in and said we acknowledge that he is permanently disabled that he would get nothing for his disable --
John H. Dimond: That's correct Your Honor, he could get nothing. That of course is what the insurance guy would do under these decisions.
Earl Warren: Then that carried to of an injury which he might have recovered and it went along for a year or maybe two years as a temporary disability and then it developed into a permanent disability he would be entitled to --
John H. Dimond: To both types.
Earl Warren: To both?
John H. Dimond: Yes. Judge Demon gave an example here to sent his opinion of where a man might crush his arm and leg and the fight to save it for two years and finally amputated he gets all the temporary compensation for two years plus the total impairment for one.
Charles E. Whittaker: (Inaudible)
John H. Dimond: Well, Your Honor, I don't know if I can explain that. It means that it's total and it's a permanent injury and it's total in the sense that this is all you're going to get for this type of injury. That's the maximum you can receive. I don't think the legislature really meant in the light of the other provision that a man was totally and permanently disabled from earning any money at all for the rest of his life, but I see your question Your Honor. I don't know how to answer it. Literally speaking, that's what it means of course total and permanent disability, the understanding is he is permanently and totally disabled and yet the facts are, in every case almost, there is some remaining earning capacity after a man loses two eyes or two ears or two hands.
Charles E. Whittaker: Nonetheless, but (Inaudible)
John H. Dimond: The amount -- that's correct Your Honor. That statute has that power and it were not for the temporary disability provision I wouldn't be able to argue anything, but they said in addition to the amount for permanent award that the man is entitled to temporary compensation.
Charles E. Whittaker: (Inaudible)
John H. Dimond: Well, there is --
Charles E. Whittaker: (Inaudible) and entitled to the award (Inaudible)?
John H. Dimond: Well, that's what it says, Your Honor, but the two types are based on different concepts. The permanent award is based on a concept not related to earning power and the temporary position schedule is directly related to earning power. And the language is susceptible of allowing him temporary compensation even after total and permanent award if he is out of work because of an injury until the injury is stabilized.
Charles E. Whittaker: One more question, how did plaintiff used to be (Inaudible) Chief Justice does not get back talk (Inaudible)?
John H. Dimond: He gets -- Your Honor he's been paid a total of $8100 already and he gets an additional $3645.
Charles E. Whittaker: (Inaudible)
John H. Dimond: That seems different Your Honor, yeah.
Charles E. Whittaker: We get (Inaudible)
John H. Dimond: Which he's said before, yes Your Honor.
Hugo L. Black: Well if the Court of Appeals is right (Inaudible) decided where they do not need when they say in addition to -- how can you justify the fact that he gets $8100 in addition to the other, if they are separate, why aren't they separate? Why would the DNA, why would the company not be entitled to get its deduction $3100?
John H. Dimond: Your Honor, I can't justify it, I don't see if there're anything loss even the Court of Appeals decision and in that point even though I hate to talk to our client on $3625, I have to be frank about it, I don't see the reasoning of the Court of Appeals.
Earl Warren: Mr. Eastaugh?
Frederick O. Eastaugh: Mr. Chief Justice, Your Honors. The respondents are here without having sought a writ and they're here not having cross-petitioned. And the --
William O. Douglas: You did not having the cross-petition?
Frederick O. Eastaugh: We did not cross-petition before a writ and the point I would first like to raise is the question of jurisdiction. Now I know that ordinarily under the rules, the – nothing can be raised except raised by the writ and a respondent or appellee is not allowed to attack the judgment in a lower court, but the serious question of jurisdiction commences from the time of the -- that the Industrial Board in January of 1954 took cognizance of the petitioner's claim dated November 21, 1953, and that application for adjustment of claim was after the three-year limitation. The court below --
William O. Douglas: What claim was presented within his agreement, the claim of injury?
Frederick O. Eastaugh: Nothing Mr. Justice Douglas except the petitioner's original application and amended application both of which were adjudicated, awards were made, awards were paid and no appeal was taken. But the court below in order to -- get around this question --
William O. Douglas: Can they decide where (Inaudible)?
Frederick O. Eastaugh: On the jurisdictional matter, yes they do. And --
William O. Douglas: You say jurisdiction is art and parcel of the claim.
Frederick O. Eastaugh: Right. They held two things. They held that the petitioner filed a timely application and his original application and in his amended application, both of which were prior to the two-year limitation and the three year limitation, the latter of which is contained in Section 4 of the act. Then the court below went on to say that even so the board of -- on its own motion, can at anytime correct a previous decision or reopen a case, but the Section 4 under which they did so, carries a proviso that says to the effect that matters can be reopened only where a subsequent change of condition or different injury becomes manifest and application therefore is made. So --
William O. Douglas: You insist on – you trying to set aside (Inaudible)
Frederick O. Eastaugh: Well, it would go to the whole judgment Justice Douglas, because we've consistently maintained from the start of this case, that is before the Industrial Board hearing on January 8th of 54, and then in the District Court and again, in the Court of Appeals. And we still think it's a very serious question.
Speaker: But how would this openly argued now when you haven't cross petitioned?
Frederick O. Eastaugh: Well, Your Honor, I believe that jurisdiction is always in order and I believe that –-
Speaker: (Inaudible) in this Court but not of the (Inaudible)
Frederick O. Eastaugh: Well then it would follow right through I believe Your Honor.
Felix Frankfurter: I have a question to ask you. Assume you're right about the so called jurisdiction, jurisdiction let me (Inaudible) about the board, is that going without jurisdiction, or that board is without jurisdiction, so it automatically followed or it did, it's not employed and it's not been there and therefore it's nothing new (Inaudible) Court of Appeals?
Frederick O. Eastaugh: I believe it --
Felix Frankfurter: You do have (Inaudible) contend that in order to (Inaudible)
Frederick O. Eastaugh: Yes. That's our position.
Felix Frankfurter: (Inaudible)
Frederick O. Eastaugh: Well, the answer is yes.
Felix Frankfurter: In other words, this (Inaudible) the thought is limited, so that it would not curable by, anyway it does, the regularity Court of Appeals does reflected (Inaudible), is that your position?
Frederick O. Eastaugh: Yes it is. I think I --
Felix Frankfurter: What is you think in it?
Frederick O. Eastaugh: I beg your pardon?
Felix Frankfurter: What is in your view is the patent effect which makes the whole proceeding (Inaudible)?
Frederick O. Eastaugh: That after three years, after the injury under the act there being no application before it and the Board not having on its own motion move to reopen the case, that it then lost its jurisdiction, and I would --
Speaker: Statue of limitation (Inaudible)
Frederick O. Eastaugh: Right.
Speaker: (Inaudible) waive that.
Frederick O. Eastaugh: I don't believe that we can waive the jurisdiction to Board. I think that it goes right to the jurisdiction of the subject matter, and the subject matter of this case, before this Court, before the District Court and the Court of Appeals has been that judgment of January 1954, January 8.
William J. Brennan, Jr.: Are there any decisions of your courts would say that that's failed to the jurisdiction to take an action at the time?
Frederick O. Eastaugh: Well, I have a decision. I think that is in point and that is an order in case Iwanicki versus State Industrial Accident Commission.
William J. Brennan, Jr.: Is it an Oregon case?
Frederick O. Eastaugh: Yes.
William J. Brennan, Jr.: We are dealing with Alaska here.
Frederick O. Eastaugh: Well, we often have to go outside for authorities because we don't have too many.
William J. Brennan, Jr.: Well, I'm just wondering whether may we independently arrive at an interpretation of your Alaskan Statute if the courts haven't said so.
Frederick O. Eastaugh: Well –-
William J. Brennan, Jr.: And actually in this instance, at least we have a interpretation (Inaudible) Court of Appeals that you are wrong.
Frederick O. Eastaugh: I agree.
William J. Brennan, Jr.: Well, doesn't that rather settle definitely that question so far as Alaskan Statute is concerned?
Frederick O. Eastaugh: I don't see how the Court of Appeals decision on that is kind of under the wording of that statute and I feel obliged to call it to this court's attention.
Frederick O. Eastaugh: Yeah.
William J. Brennan, Jr.: Well, what's the practical effect if you're right on this judgment, it gets nothing?
Frederick O. Eastaugh: The practical effect if I'm wrong --
William J. Brennan, Jr.: If you are right, if you are right, what happens?
Frederick O. Eastaugh: Well, if I'm right, it would go right back to the Jenkins, that is the petitioner, would lose the $3,645. That would be the most immediate effect.
William J. Brennan, Jr.: What else would you lose?
Frederick O. Eastaugh: Nothing unless he were to gain additional compensation, for example by, if this were to go back to the Board and if the Board were to find that he were still, that his left foot was still slipping, he would lose compensation from July of 51 at $84 a week to the present date in addition to the permanent payment that he has already received for permanent total and the 15,000 medical that has been paid.
William J. Brennan, Jr.: You are actually then asking is to reinstate the District Court judgment, aren't you?
Frederick O. Eastaugh: I just felt that it was my obligation to bring out --
William J. Brennan, Jr.: Well I'm not, I'm not --
Frederick O. Eastaugh: Yes. That would be its effect, Justice Brennan.
William O. Douglas: Are you going to argue the merits of the petitioner's case?
Frederick O. Eastaugh: Yes, I think I should pass on to that now. I'd like to start out with just a very brief review of the Alaska Act. A comment has been made that the scheduled payments are not in lieu of, are not based or related to earning capacity and I think that's an important distinction. It is true that the lump sum payments are not computed by the earning capacity of the worker, but they are related to it. Now generally under a State Compensation Statute, the worker for a permanent partial disability, the worker would get two-thirds of his earnings for a stated period of time usually expressed in weeks. It's true that that system relates it to earnings. The higher paid worker gets a little bit more than the others, but the legislature in effect, regardless of the ratio use has determined that the compensation will be paid for certain of time. Now in Alaska, we have lump sum payments and possibly that might relate back to when we had more itinerant workers going back and forth. I don't think it's material. I think the thing is that the legislature has taken from the Board the prospect of computing benefits for permanent partial and permanent total, and said this is what they shall get and those payments are in lieu of the earnings that they would have otherwise received during the period of their disability.
Earl Warren: What language do you rely upon for the last interpretation?
Frederick O. Eastaugh: I think that the citation in Volume two of Larson's Workmen's Compensation where --
Earl Warren: Was he dealing with Alaska?
Frederick O. Eastaugh: He was not dealing but he discusses all compensation acts generally.
Earl Warren: they are different as you just stated?
Frederick O. Eastaugh: They are different to that respect but I --
Earl Warren: I thought you said, it wasn't a material difference.
Frederick O. Eastaugh: But I don't see how any other interpretation could be. We don't subscribe to petitioner's interpretation of that difference. Now on the temporary disability, Alaska Act has quite a unique provision or did at this time, 65% of the Workers' wages without limitations in time or in amount. Most of the states as you, the Court will know, have a weekly limitation. For example, a very highly paid worker might by reason of the computation of 65% of the earnings be entitled otherwise to maybe a $102 a week. In Alaska he would have gotten that. In for example, in most of the Western states they generally have about $30 or $35 a week maximum which can be obtained and of course under the modification of the Longshore Act, we have $54 in addition. Counsel has always spoken of the modification of the Alaska Act of 1953 and later in 55. When they doubled the schedule payments in 53, they put a $75 a week limitation on temporary which is still twice as much as any of the western states had at that time. In 55, we now have a $100 a week limitation. So I think that those explanations of the Alaska Act might be of assistance in looking into this problem.
Earl Warren: On this (Inaudible) or temporary disability, do they make any distinctions (Inaudible) power?
Frederick O. Eastaugh: Well, sir they don't.
Earl Warren: It's just the same for the General Manager of the company as well as with one of the labors.
Frederick O. Eastaugh: That's exactly correct?
Earl Warren: Yes.
Hugo L. Black: May I feel to you know how (Inaudible), are there any states opposition however, if you have to decide through the same language and had a huge temporary disability, statements about the admission the payments or be an addition to the amount, if so what states?
Frederick O. Eastaugh: I can't answer that question, I don't know Justice Black, but this particular section you've been interested in, has been in review and the Court of Appeals in the (Inaudible) cases which were cited in the respondent's brief, stated that the temporarily disability payments, when the result that is the end medical result, whatever we want to call it is fixed, maybe followed by permanent partial or permanent total payments and that is the ruling to date on that language.
Hugo L. Black: But what I am interested in is I think it would be quite different as the general (Inaudible) statement has understood, I want to know if there is any other state statute that has that precise language, if you know that.
Frederick O. Eastaugh: I know of none, your Honor.
Hugo L. Black: One other question, how did despite this fund, do they have insurance industrial fund and the next (Inaudible).
Frederick O. Eastaugh: There are two methods under -- permitted under the act, one is to provide proof of insurance, the other is to provide proof of financial ability to entitle an employer to receive self insurance, in other words it takes a big company with considerable monitory assets to followed by as a self insurer.
Hugo L. Black: Otherwise the fund is administered by the sate.
Hugo L. Black: There is no, there is no fund -- no fund administrated by the state (Inaudible)
Hugo L. Black: (Inaudible)
Frederick O. Eastaugh: Yes.
William J. Brennan, Jr.: I was wondered why the Attorney General was on the speech of (Inaudible)
Frederick O. Eastaugh: The Alaska Industrial Board is defending its decision and award of January 8th 1954.
Felix Frankfurter: may I advert to Chief Justice's question, (Inaudible) that Alaska statue is rather unique (Inaudible)
Frederick O. Eastaugh: It's different in many respects Your Honor.
Felix Frankfurter: (Inaudible)
John H. Dimond: I think the –-
Felix Frankfurter: The question I want to put you is would you be good enough to be more specific in answering (Inaudible) My difficulty as you see is how (Inaudible)
Frederick O. Eastaugh: I found it.
Felix Frankfurter: In (Inaudible) -- would you say that is the fair characterization of the issue of the (Inaudible) court's opinion below?
Frederick O. Eastaugh: I –-
Felix Frankfurter: (Inaudible)
Frederick O. Eastaugh: No, I don't believe that's correct Mr. Justice Frankfurter, I don't --
Felix Frankfurter: Would you mind telling us (Inaudible) why isn't correct?
Frederick O. Eastaugh: Because the scheduled awards for permanent partial or permanent total under the Alaska Act are in lieu of earning capacity.
Felix Frankfurter: (Inaudible) determination to be made, isn't it? (Inaudible) isn't that almost the entire problem before us (Inaudible)
Frederick O. Eastaugh: I –-
Felix Frankfurter: If you say this (Inaudible)
Frederick O. Eastaugh: Well, I believe that the whole basic concept of Workmen's Compensation --
Felix Frankfurter: Generally --
Frederick O. Eastaugh: (Inaudible)
Felix Frankfurter: Yes now the question is whether this specialized legislation (Inaudible) Compensation act in many ways and the question is whether that general concept infuses this specialized formulation of the Workmen Compensation (Inaudible) isn't that really (Inaudible)
Frederick O. Eastaugh: Yes! I think that -- my answer is still the same Mr. Justice Frankfurter. I believe that when the act was first passed in Alaska and I believe the year was 1917 as an Employers' Liability Act, the legislature found it incumbent to make lump sum settlements for permanent, partial and permanent total rather -- and indeed as many states did in those days, many of the states then went over to the weekly payments. It was apparently found out that the legislature that didn't fit the Alaska (Inaudible)
Felix Frankfurter: Now I think it's relevant to ask you this what is there either or (Inaudible) of the statue all provisions that (Inaudible) include all act legislative history that (Inaudible) that the manner in which the (Inaudible) provision was drawn would cause (Inaudible) having due regard to the way Workmen Compensation Act is to be construed that the Alaska act did not mean (Inaudible) and clean it all after one payment when there is (Inaudible). I think that's the question (Inaudible) that either by express terms that they are not leased but by fair, reasonable and appropriately considered construction of the entire statute including it's different from other statutes (Inaudible) one should must come or reasonably must come to the conclusion that Alaska meant to have just one final settlement in case of a permanent disability?
Frederick O. Eastaugh: Well, I think I will have to answer your question in two parts. I think this is not a Hospital Act, a Disability Act, it is a Workmen's Compensation Act, and I believe that all payments under the act are in lieu of workmen's (Inaudible) and then --
Charles E. Whittaker: (Inaudible)
Frederick O. Eastaugh: Well, that again brings in one of the basic concepts of Workmen's comp that the common law tort is replaced by this absolute right to gain certain specified and specific payments for injuries arising out of employment.
Felix Frankfurter: (Inaudible) that the fact that it's compounded into so many dollars and cents, the regular (Inaudible) so many dollars and so many whatever it is (Inaudible) so many dollars have been added to those, here is a fixed amount -- withdraw the whole matter from any further litigation, is that what you are saying?
Frederick O. Eastaugh: No Mr. Justice Frankfurter, there is two ways of looking at these lump sum payments. Petitioner is looking at it the other way. Now, for example, you take two injured workmen, one earns 100 a week, and one earns 50 a week. If they both receive the identical, permanent partial injury, the poorly paid worker will receive the identical amount as the well paid worker. Now, he thinks that's good. This other fellow doesn't think it's so good. Now, that is the only difference between the Alaska Act and the general act in the states.
Earl Warren: How can you equate it to the payment, to earnings, if it applies to manager of corporation who is making $50,000 a year and also the same degree a worker who gets say $5000 a year?
Frederick O. Eastaugh: I don't think it's necessary to equate it to earnings Mr. Chief Justice. For example, supposing we take the case of a permanent total disability, every state in the Union has a -- with the exception of several that go on for life, I'll take that back, but, many of them, most of them in fact have maximums. Now, those maximums would have absolutely no relation to the earning power of a high paid executive.
Felix Frankfurter: (Inaudible) that mode of repayment of a physical injury is a function of wage (Inaudible).
Frederick O. Eastaugh: I believe it is a function of wages, but I believe that the legislature has the right --
Felix Frankfurter: (Inaudible)
Frederick O. Eastaugh: The legislature has the right to say in which way this will be computed and how much they shall be.
Felix Frankfurter: (Inaudible)
Frederick O. Eastaugh: A comment has already been made on the effect if this should go back to the board, and I would like to point attention to page 49 of the record, which is the petitioner's application for adjustment of claim, which incidentally is dated 3 years after the period of limitation. And about 8 lines up from the bottom of page 49, here is meat of the request, the leave entitlement to temporary disability until there is an end to disability. Now, this request again made three years after the period of limitation was made after he have been awarded and paid permanent total disability under the act, which we maintain and we believe that the opinions support us is the maximum payment under Workmen's Compensation and as the Circuit Court said, presumes a complete loss of earning capacity.
Hugo L. Black: Well, that's involved in an assumption to accept that (Inaudible)
Frederick O. Eastaugh: I don't --
Hugo L. Black: (Inaudible) that an educated man capable of being manager or official ever going earn any more money because he got one leg and arm cut off. I am not talking about legislature having the right to speak (Inaudible), he never have worked in --
Frederick O. Eastaugh: Mr. Justice Black, I think it's all through the act. We have the case of a death case. We have a case of a man that is permanently totally disabled that would never be able to work under any conditions, and the legislature fixed that amount. Here we have a man that presumably will some day be able to work -- enter the labor market again. Now if he does so, after he gets the maximum benefit and he is again hurt he can start in on total disability -- temporary disability payments, when his condition becomes fixed, they can ripen again into total, permanent total --
Charles E. Whittaker: (Inaudible)
Frederick O. Eastaugh: Yes, we do Justice Whittaker.
Charles E. Whittaker: (Inaudible)
Frederick O. Eastaugh: Yes, whenever there is a permanent injury of any nature, the person against, that is the carrier pays in addition to the injured workman a 2% of the award, and that goes in to the second injury fund and is used for those cases where before this accident, there is a pre-existing condition and --
Charles E. Whittaker: (Inaudible)
Frederick O. Eastaugh: Right. Well, I would also like to in connection of that application refer to page 52 of the record --
William J. Brennan, Jr.: Which page?
Frederick O. Eastaugh: 52 --
William J. Brennan, Jr.: Thank you.
Frederick O. Eastaugh: -- which shows the decision of the Alaska Industrial Board dated January 8, 1954. Now, that decision shows that in 1954, the petitioner was then totally disabled on a temporary basis that the condition continued to this date. So, we don't have --
Earl Warren: (Inaudible) it says and continues -- no end medical result having been reached.
Frederick O. Eastaugh: Right. So, it is quite possible that if this goes back to the Industrial Board and Jenkins' left foot never heals, that he could be having, could well have been paid permanent total disability, the maximum under the act, and temporary total for 8 years or 7 years for an indefinite period of time. There is nothing in the record to show that he has reached his --