provision allows Board to increase compensation to cover adverse changes in physical condition subsequent to an award
How later courts described this case
- provision allows Board to increase compensation to cover adverse changes in physical condition subsequent to an award
Written by the judges who cited it.
The opinion
POPE, Circuit Judge
(dissenting).
What Judge Denman has pointed out in his footnote, 4, namely, that the lump-sum payment under the Alaska statute is in no way related to the wage scale of the injured workman, has convinced me that it is not proper to apply here what the majority opinion calls a “basic principle of all workmen’s compensation”, that is, that “benefits relate to loss of earning capacity and not to physical injury as such.” My difficulty is in seeing how we can read a “basic principle” into a statute like this one which bears evidence of having been drawn on a very different theory.
The majority opinion says: “One may have a permanently injured arm and a temporarily injured leg.” Just as self-evident is the proposition that one may have a permanently injured arm and leg and a temporarily injured leg, or he may lose an arm and a leg and have a temporarily injured leg. That is this case.
The opinion further says: “The individual receiving such an award [i. e., for loss of an arm and a leg] may actually be able to continue some work.” I have not been able to find in the statute anything which says that if that ability to continue to do some work is temporarily impaired by injury of the remaining leg, he shall receive no compensation for that distinct temporary disability.
' The majority opinion appears to get away from that by asserting the existence of a conclusive presumption that “cuts both ways”. According to the opinion it “cuts both *208 ways” so that although the person receiving the lump sum award may “actually be able to continue some work” yet he is conclusively presumed not to be able to do what he is “actually” able to do. The opinion arrives at this conclusive presumption that “cuts both ways” by extending the presumption discussed by Larson (see footnote 7) in a manner for which the cases cited by Larson furnish no authority. Those cases indulge the conclusive presumption for the protection of the workman and to prevent him from losing his total permanent disability award. I think the Alaska statute does not warrant creating a presumption that cuts the other way and minimizes the compensation which the workman might otherwise claim.
It is a universally accepted rule relating to workmen’s compensation laws that they should be liberally construed in favor of the injured workman. When I know it is a fact, as the majority opinion concedes, that a workman who has lost an arm and a leg may actually be able to continue some work and that such work may for the time being be prevented by what the opinion calls a “temporarily injured leg”, I cannot be persuaded that I should create a new double-edged presumption that what I thus know to be possible is a matter of law impossible.
I am persuaded that if we would not import into this unique statute any “basic principle” or “conclusive presumption” not actually found in the act itself, and would just take this statute by its four corners and apply the usual liberal construction in favor of the injured workman, we would have to find that it provides that the fixed award for certain specified injuries was not intended to bar further compensation for the temporary loss of such earning power as remained after the injury.
With Judge Denman I think the judgment should be reversed.