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

DONALD RUSSELL, Circuit Judge,

dissenting:

I respectfully dissent.

The claimant received an award in 1967 under a decision of the Benefits Review Board based upon a finding of permanent partial disability. He did not appeal that determination and accepted the full pay *452 ment allowable under such award. It was only after payments under that award had been exhausted that the claimant raised his claim of permanent total disability and sought disability payments therefor. There had been no real change in his disability between 1967, when the Board found the claimant partially disabled, and 1974, when it found him totally disabled. It is true that he had had a minor repair operation, but his disability was not enhanced by such operation. He did testify that he is now subject to pain, but he also testified to pain in his 1967 hearing. It is significant that both in 1967 and at this time the medical testimony is the same: There is no objective evidence now and there was no evidence in 1967 of any cause for pain; the evidence of pain in both cases was based solely on the subjective testimony of the claimant himself. In short, there is no substantial difference in the evidence of the claimant’s disability in 1967 and at the time of the hearing on his present claim. The only differences between the two situations are:

1. After collecting some $24,000, the claimant has exhausted the payments due him under the 1967 award as made him by the Board; and

2. He now has a job at which he earns $524 per month.

Those differences do not, in my opinion, justify what is in effect a reconsideration and reversal of the 1967 decision, that the claimant had suffered a permanent partial disability. On the contrary, they, and particularly his present employment, are such as to confirm the propriety of the 1967 award.

Even if we look at the present claim apart from the earlier 1967 claim, I think that the determination of permanent total disability is unsupported by substantial evidence. To'be totally disabled, one must be unable to engage in any substantial employment available in his community. Godfrey v. Henderson (5th Cir. 1955), 222 F.2d 845 ; Eastern S. S. Lines v. Monahan (1st Cir. 1940), 110 F.2d 840 . The Godfrey and Monahan Courts had the same view of total disability:

“Disability is defined in the act as ‘incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.’ 33 U.S.C.A. § 902 (10). Total disability would seem to exist when there is a complete incapacity to earn wages in the same or any other employment.” Monahan at 842; Godfrey at 849 (emphasis supplied).

In neither of those cases was the claimant able to find even limited employment at the time of his disability hearing, although in Monahan there was a finding that the claimant possessed the present ability to do certain light work. Both Courts recognized that “[t]here is no actual inconsistency between a man being totally disabled for the purposes of the Longshoremen’s and Harbor Workers’ Compensation Act, and possessing a present ability to do work of a very limited nature.” However, these Courts also recognized that, “[i]f there is an ability to do work of a limited nature, and that work is available in the community in which the employee resides, and can be secured by him, then a different situation will arise.” Monahan at 841 ; Godfrey at 849 . The clear implication to be drawn from these two decisions is that where, as in the present case, a claimant can secure employment which is within his power to perform, his claim of permanent total disability should be denied.

In affirming the finding of the Administrative Law Judge that the claimant was under a permanent total disability, the Board dismissed the fact of his employment with the observation that there was no assurance that the claimant would “be able to continue working so indefinitely.” This is true in every case; there is never an assurance that even the healthiest employee, much less one with any disability, will be able “to continue working indefinitely.” This reasoning, if accepted, could be a fulcrum to turn any partial disability into a permanent disability. There is no basis in law for grounding a disability determination upon such mere speculation regarding claimant’s future outlook. Godfrey at 849 ; *453 Watson v. Gulf Stevedore Corp. (5th Cir. 1968), 400 F.2d 649, 655 . Thus, in the present case, the fact that claimant’s employment situation may change at some undefined point in the future should not be relevant to a determination of his present disability status.

The majority suggests that we should disregard claimant’s employment since he testified that he worked at some discomfort and despite pain. This, however, is no different from his condition in 1967 and in my opinion could not justify a reversal of the 1967 decision. In addition, the claimant has cited no case, and I have found none, wherein a claimant engaged in substantial employment has been found to be totally disabled.

Accordingly, I would reverse the decision of the Board and remand for entry of an order for judgment in favor of the employer-appellant.