# National Homeopathic Hospital Ass'n of District of Columbia v. Britton, Deputy Com'r > Court of Appeals for the D.C. Circuit · January 8, 1945 · 147 F.2d 561 URL: https://www.frixlaw.com/law-library/cases/9636128 ## Case - **Full name:** NATIONAL HOMEOPATHIC HOSPITAL ASS’N OF DISTRICT OF COLUMBIA Et Al. v. BRITTON, Deputy Com’r - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** January 8, 1945 - **Citations:** 147 F.2d 561; 79 U.S. App. D.C. 309; 1945 U.S. App. LEXIS 3444 - **Precedential status:** Published - **Opinion:** Dissent by Groner - **Judges:** Roner, Groner, Miller, Edgerton - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9636128 ## Opinion text GRONER, C. J. (dissenting). The question in this case is important in the administration of the Longshoremen’s Act, and, so far as I am advised, is new and undecided. It arises out of a statutory exception to the general provision of employer liability and turns upon the meaning of Section 908 (f) of the Act: “(1) If an employee receive an injury which of itself would only cause permanent partial disability but which, combined with a previous disability, does in fact cause permanent total disability, the employer shall provide compensation only for the disability caused by the subsequent injury.” 1 This language, as the majority concede, read in its ordinary sense, leaves nothing for construction, but it is held that since Congress has defined certain words used in the Act, the intent and purpose — where *565 those words are used — must be ascertained by giving them the precise meaning which Congress has applied to them; and I am not disposed to quarrel with this conclusion. But in my opinion the method of construction adopted goes beyond the allowable limit. The answer to the question depends upon the meaning of the word “disability”, in the third line of the section, and the statutory definition is — ■ “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.” Accordingly, by omitting the word “disability” and inserting in its place the statutory definition, the sentence in question would be made to read: “If an employee receive an injury which of itself would only cause permanent partial disability but which, combined with previous incapacity because of injury to earn the wages which the employee was receiving at the lima of injury in the same or any other employment, does in fact cause permanent total disability, the employer shall provide compensation only for the disability caused by the subsequent injury.” But since the inclusion of the language of this definition in the paragraph in place of the word “disability” would leave the ordinary and accepted sense of the original words unchanged, it is argued by the Commissioner and decided by the court that there should be tied in to the paragraph also the statutory definition of the word “injury”, which is, “accidental injury or death arising out of and in the course of employment * * and as a result of this tying-in method, the paragraph would then be made to read: “If an employee receive an injury which of itself would only cause permanent partial disability but which, combined with a previous incapacity because of accidental injury or death arising out of and in the course of employment, does in fact cause permanent total disability, the employer shall provide compensation only for the disability caused by the subsequent injury.” But it is obvious that these inter-replacements of words will not fit into this exception sentence. To insert the statutory definition of “injury” within the statutory definition of “disability”, all within the paragraph here considered, produces a manifest incongruity, for, as shown above, it would literally result in this: “* * * a previous incapacity because of accidental injury or death”— And if to avoid this it be argued that only a portion of the definition of injury should be inserted, the result would be to change or at least to limit the statutory definition only to produce a desired result, which no one would urge or defend. It is evident, therefore, that these definitions were not made with watch-lilce precision and should not be so applied. If the intent of Congress has been, as the opinion holds, to limit the applicability of § 908 (f) to cases in which the “previous disability” was the result of an industrial or occupational injury, protected by a compensation statute, it could easily have accomplished this by the insertion of the word “compensable” between the words “previous” and “disability”, in which case the exception clause would have read: If an employee receive an injury which of itself would only cause permanent partial disability but which, combined with a previous compensable disability, does in fact cause permanent total disability, the employer shall, etc. But I am unabile to find anything in the Act, or in its legislative history, or in fair reasoning, which indicates that Congress had that purpose in mind. On the contrary, it seems to me clear that the statutory definition of the word “disability” from its very language was considered necessary only as a guide to the Commissioner in determining the classes of cases which under the Act are compensable, and as to which his jurisdiction extended, and that it has no proper setting or relevancy to the exception clause. Accordingly, I am of opinion that the word “disability,” as used in that clause, was intended to be given its ordinary and accepted meaning and was not intended as a “studied enumeration of subtle shades of meaning.” But whether this be correct or not, I can find no warrant anywhere for tying-in the two definitions on the theory that Congress used the word “disability” or the word “injury” as a convenient symbol, to avoid the repeated use of elaborate and complicated language, when, as we have seen, the purpose — if there was such purpose — could have been obtained by the insertion of a single word. It seems to me clear that when Congress inserted the clause in question, its object and concern were to make an exception to the provisions of the Act which impose on the em *566 ployer a fixed liability in all cases of industrial or occupational injury; and while securing full compensation to the injured by charging part of the cost to the special fund, to hold the employer responsible only for that part which arose out of the then employment. It is accordingly, I think, clearly incorrect to argue, as the Board does, that by construing the term “disability” in its ordinary sense, the effect would be to bring within the exception clause cases of injury from weak heart, diseased back, congenital deformity and such like afflictions. For, as was said by the New York Court of Appeals, 2 and as has been said by us, and indeed by practically all the circuits, weakness, whether pathological or traumatic, which does not become manifest until a subsequent accident, is not ordinarily thought of as prior - disability under any provision of the Act. And this generally accepted view is borne out by the great volume of decisions holding that a subjective ailment, as a diseased heart, a diseased kidney, or a congenital deformity, or a pathological condition contributing to an- injury or a death, does not relieve the employer from the obligation of total indemnity. 3 Doubtless, also, this would be true in cases like the one we have but for the exception which Congress wrote into the law; and it is not unreasonable, I think, to assume that Congress recognized that a one-legged man, a one-armed man, or a one-eyed man whose disability may have ’existed for years, would have little chance in the ordinary labor market if the employer is forewarned that in the event of an injury, he would be faced with full liability. The facts of this case seem to me to emphasize the correctness of the reasoning, for it is most unlikely, every one will agree,, that the injured man in-this case, with only one leg and one arm, would ever have found a job if the employer knew that, in the event of a minor accident, liability would be calculated on the basis of both the new and the old. It seems therefore a fair conclusion that to avoid this discrimination in employment between an apparently sound and an obviously unsound man, Congress wrote in the exception and this, I think, is confirmed in a fair consideration of the evidence of the spokesman for labor, at the Congressional hearings, where, advocating the inclusion of the exception, he said: “The second injury proposition is as much to the advantage of the employer and his interest as it is for the benefit of the employee. It ¡protects that employer who has hired, say a one-eyed worker who goes and loses his other eye and becomes a total disability. The employer without this sort of thing (i. e. the exception clause) would have to pay total permanent disability compensation. Then, on the other hand, this also protects the worker with one eye from being denied employment on account of being an extra risk. Now, by simply taking this up in this way it is possible to protect both the employer and to protect the one-eyed ’ employee also s|« >(e :fc » 4 Clearly, this speaker understood and presumably the Congressional Committee likewise understood and intended the paragraph in question to mean precisely what the plain import of the language conveys. And as lending some weight to this conelusion, it may not be out of place to suggest that the Longshoremen’s Act is a national Act and, except in the District of Columbia, applies only to maritime workers. Is it then, it may be asked, only to persons previously injured in a maritime employment that the exception section applies? Or, if not, does it embrace only workers whose injury occurred in a State which had adopted the compensation principle (and there were some States which then had not), and without regard to the differing and divergent definitions of compensable injury? And if this be answered *567 yes, wheye then is the language to be found on which to support such a Congressional intent or purpose, and what would have been the Congressional motive? I am wholly unable to find either the language or the intent in the Act or its legislative history. I have carefully considered the Board’s argument that the view expressed is not sustained by the New York compensation cases under the New York law, and several intermediate court decisions are cited to sustain this assertion. But an examination of these cases discloses that none of them decides the precise point we have here. Besides, the language of the New York and the Federal Acts discloses marked differences. Accordingly I am of opinion the judgment below should be reversed. 33 U.S.C.A. § 908 (remainder of paragraph f): “ * * * •Provided, however, That in addition to compensation for such permanent partial disability, and after the cessation of the payments for the prescribed period of weeks, tbe employee shall be paid the remainder of the compensation that would be due for permanent total disability. Such additional compensation shall be paid out of the special fund established in section 944 of this chapter.” The nature and cause of the prior injuries are shown in the Deputy Commissioner’s findings, as follows: “ * * * that prior to the said injury the claimant had suffered accidents as follows: (1) when he was a child a railroad train ran over his left lower leg, as a result of which his left lower leg was amputated two and one-half inches below the knee; (2) approximately 28 years ago he was attacked by a man who struck Mm on the left arm with a stick, as a result of which his left arm was amputated at its surgical neck; and (3) in January 1942, he slipped on a wet pavement and fell, striking his right knee, as a result of which his right patella was fractured Schurick v. Bayer Co., 272 N.Y. 217 , 5 N.E.2d 713 . New Amsterdam Casualty Co. v. Cardillo, 71 App.D.C. 172 , 108 F.2d 492 ; Commercial Cas. Ins. Co. v. Hoage, 64 App.D.C. 158 , 75 F.2d 677 ; Hoage v. Employers’ Liability Assur. Corp., 62 App. D.C. 77 , 64 F.2d 715 (and cases there cited), Employers’ Liability Assurance Corp. v. Kerper, certiorari denied, 290 U.S. 637 , 54 S.Ct. 54 , 78 L.Ed. 554 ; Pacific Employers’ Ins. Co..v. Pillsbury, 9 Cir., 61 F. 2d 101 ; Gray’s Harbor Stevedore Co. v. Marshall, D.C.W.D.Wash., 36 F.2d '814; Liberty Stevedoring Co. v. Cardillo, D.C. E.D.N.Y., 18 F.Supp. 729 ; Wood Preserving Corp. v. McManigal, D.C.W.D.Ky., 39 F.Supp. 177 . Book I, House Committee Hearings, before Committee on Immigration, Naturalization and Insular Affairs, Interstate and Foreign Commerce, Irrigation and Reclamation, Judiciary, 1920, Vol. 43S. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9636128. Public record. Not legal advice.