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148 F.2d 392

Docket No. 10749.

Case v. Pillsbury

Ninth Circuit Court of Appeals

Decided March 17, 1945.

Ninth Circuit Court of Appeals · decided 1945-03-17

2 counsel of record

Key passage — most relied on by later courts

““Section 6998-09. Compensation for disability. — Compensation for disability shall be paid to the employee as follows: < < # # # “(c) Permanent partial disability: In case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two thirds per centum (66%%) of the average weekly wages, subject to the maximum limitations as to weekly benefits as set up in this act, which shall be paid following-compensation for temporary total disability paid in accordance with subdivision (b) of this section, and shall be paid to the employee as follows: “Member lost Number Weeks Compensation ( i * * # “(5) Eye 100 ( ( & “ (16) Binocular vision or per centum of vision: Compensation for loss of binocular vision or for eighty per centum (80%) or more of the vision of an eye shall be the same as for loss of the eye. í Í * * # “(18) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for loss of the member. i ( * * & “(20) Disfigurement: The commission, in its discretion is authorized to award proper and equitable compensation for serious facial or head disfigurements not to exceed two thousand dollars ($2,000.00). Provided, however, no such award shall be made until a lapse of one year from the date of the injury resulting in such disfigurement. ’ ’”

quoted by 1 later decision, including Williams v. Boy Motor Co.

Applies 33 U.S.C. § 908

Relies on South Chicago Coal & Dock Co. v. Bassett · Parker v. Motor Boat Sales, Inc. · Arizona Employers' Liability Cases

Good law ✅— No negative treatment on recordhow we know

Decided 1945-03-17

How this case has been cited

Cited by 17 later decisions — most recently March 1969

11 federal appellate · 1 district · 3 state decisions

150194519501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1R. P. Wisecarver, of San Francisco, Cal., for appellants.

¶2Frank J. Hennessy, U. S. Atty., and James T. Davis, Asst. U. S. Atty., both of San Francisco, Cal. (Ward E. Boote, Chief Counsel, U. S. Employees’ Compensation Com., and Herbert P. Miller, Associate *393Counsel, both of New York City, of counsel), for appellees.

¶3Before GARRECHT, MATHEWS, and STEPHENS, Circuit Judges.

¶4GARRECHT, Circuit Judge.

¶5This is an appeal from the lower court’s decree dismissing a libel to review a compensation order and for an injunction suspending and setting aside an award of $750 for serious facial disfigurement under the Longshoremen’s and Harbor Workers’ Compensation Act.1

¶6The libelants and appellants are L. S. Case, employer, and the Travelers Insurance Company, the insurance carrier. The appellees are the Deputy Commissioner for the Thirteenth Compensation District and the injured workman.

¶7On October 1, 1941, David M. Young sustained injury to his right eye while employed as a carpenter in the repairing of the S.S. “West Portal” at Oakland, California. A foreign body entered the eye, causing an ulcer and loss of 80% vision. On February 12, 1943, in addition to temporary disability of $503.57, 140 weeks of compensation at $25.00 a week for permanent partial disability, the Deputy Commissioner made an award of $750 for serious facial and head disfigurement.

¶8There is no question here as to the sufficiency of the evidence to support the Deputy Commissioner’s finding that Young suffered serious facial and head disfigurement, and therefore that finding is final and conclusive.2

¶9The only question for review is the proper interpretation of the Act. The appellants contend that the award of $750 for facial and head disfigurement is not in accordance with the law; that awards for facial disfigurement are allowed where there is no other compensation for the same member.

¶10Section 8, Subdivision (c) (20) 33 U.S. C.A. § 908 provides:

“(20) Disfigurement: The deputy commissioner shall award proper and equitable compensation for serious facial or head disfigurement, not to exceed $3,500.”

¶11This subdivision is just one of a series'of classifications of injuries for permanent partial disability. There is no provision in (he section itself that each of the listed disabilities such as “Arm lost”, “Leg lost”, “Hand lost”, “Foot lost”, etc., is exclusive of another. It is provided [subdivision (c) (22)] that an employee may receive compensation for both the loss of a leg and an arm or for the loss or loss of use of each of any member. Subdivisions (1) to (19) under (c) provide specific awards for impairment due to loss of members and subdivision (c) (20) provides a separate award for disfigurement. The act does not provide that the award for disfigurement should be limited to those cases where no award is made for the loss of the member.

¶12Viewing Section 908, Title 33, U.S. C.A., in its entirety, it is apparent the framers of the statute deemed facial or head disfigurement an element or damage distinct from each of the preceding classified types of disability. It is evident that Congress did not intend to make a distinction where the disability and disfigurement were concurrent. We believe there is a clear intent to allow compensation for handicaps-caused by personal unsightliness separately and as in this case in addition to disability caused by the loss of use of a member of the body or head. To hold otherwise would be reading a condition into the law which is not there. The weight of authority regards disfigurement as a basis for an award separate from that made for loss or loss of use of a member itself.3 Some jurisdictions have held otherwise but in most of those cases there is a special *394statutory provision that the allowance for disfigurement shall not be in addition to other compensation. As the lower court has pointed out, the New York courts have construed the New York compensation law to allow both compensation for disability and disfigurement, and these decisions are of added weight as the Act in question was modelled after the New York Workmen’s Compensation Act, Consol.Laws N.Y., c. 67.

¶13Affirmed.

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