Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge.
Emil Bruno Gube, an employee of the Baltimore & Philadelphia Steamboat Company, on descending from a boat of this company, then in navigable waters of the United States, fell and sustained an injury to his left arm. He instituted proceedings against his employer for compensation under the Longshoremen's and Harbor Workers' Compensation Act, approved March 4, 1927, 44 Stat. 1424 (33 USCA §§ 901-950). The Maryland Casualty Company was joined as insurance carrier for the Steamboat Company.
At a hearing before the Deputy Commissioner for the proper Compensation District it appeared that the claimant was totally disabled for a period of 34 weeks and that, thereafter, he was permanently disabled by a partial loss of use of his arm, estimated at 40%. It also appeared that his regular weekly wages were $31.50 and his average weekly wages including wages for overtime were $36.06. On the Deputy Commissioner's award of compensation for 146 weeks at the weekly rate of $24.04, being two-thirds of the average weekly wages, the Steamboat Company and Casualty Company filed a bill for review in the District Court of the United States averring that the Deputy Commissioner should not have included the claimant's overtime earnings in the wage factor of compensation and that instead of the claimant being entitled to 146 weeks' compensation, he was entitled to compensation for only 125.6 weeks. The District Court sustained the findings and award of the Deputy Commissioner both in respect to the amount of weekly compensation and the period of payment. 40 F.2d 530. The Steamboat Company and the Casualty Company join in this appeal. Three questions are involved: two raised by the appellants and one arising out of an inquiry of our own as to whether the questions are moot in view of the fact that the Steamboat Company, the employer, has paid its injured employee the compensation awarded.
Of course if the questions in this case were moot we should not decide them. If moot as to one party, we think they are not as to the other. True, the Baltimore & Philadelphia Steamboat Company paid its employee the compensation awarded, as it was bound to do, without awaiting an appeal. Section 21 of the act (33 USCA § 921). If the Steamboat Company were the only party to the action the question might, conceivably, be moot. But there are two parties; the Steamboat Company, the principal, and the Maryland Casualty Company, the assurer on the obligation to the employee. The Casualty Company is a real party here. It still desires and has a right to demand that the question of proper payment as affecting its liability to its principal be decided. If the Steamboat Company unwisely or improvidently paid a compensation claim which in law it was not required to pay, that is not a reason why the Surety Company should pay the Steamboat Company and, similarly, that is not a reason why the Surety Company should not have the question tried out and decided so as to fix its legal liability. We hold the questions are properly here for review; and they are two, both dealing with compensation, one reckoned in dollars and the other in weeks.
The first is whether in estimating the compensation to be paid weekly to the injured employee his weekly wages ($31.50) under a contract as to days and hours should control, or the amount of actual wages earned and paid ($36.06) which include not only his weekly wages but also wages earned outside the time of the contract. Stated differently, the question is whether the compensation should be based on regular weekly wages fixed by contract of employment or on actual weekly wages earned for a period long enough to determine an average. As the statute accords the injured employee compensation for wages lost, we think the compensation should conform to actual wages which, but for the accident, he would have earned. And so, evidently, thought the learned district judge, whose finding in this regard is affirmed.
The next question calls for an interpretation of the vital part of the Longshoremen's and Harbor Workers' Compensation Act because it is the money part of the act. The purpose of this act, as its title denotes, is to provide compensation to an injured longshoreman for his "disability," or incapacity occasioned by an injury, to earn the wages he had been receiving. Section 2, subd. 10 of the act (33 USCA § 902, subd. 10). The provision of the act pertinent to this case is section 8 (33 USCA § 908) which provides a method of computing such compensation to employees who have suffered injuries of different kinds resulting in disabilities of different characters and different qualities. First stating these differences in injuries and in their characters and qualities, the statute then deals with an employee's compensation (in dollars) for lost wages reckoned by weeks. As the statute speaks in figures rather than in words, we find it difficult to construe its terms in the abstract and feel compelled to follow its own structure and devote our interpretation more to figures than to words, believing that out of the figures which the Congress used and out of the order in which it used them its intent will stand out clearly and, we think, with certainty.
Section 8 provides compensation for different degrees of disability:
(a) Permanent total disability;
(b) Temporary total disability;
(c) Permanent partial disability; and
(d) Temporary partial disability.
We are not concerned in this case either on the facts or in interpreting the law with (a) permanent total disability or (b) temporary partial disability. The claimant was totally disabled for a time and partially disabled for all time. Therefore we are concerned only with (b) and (c), temporary total disability and permanent partial disability, for it is manifest that these two ...