James L. Keehn v. Alaska Industrial Board, Bellingham Canning Co., and D.K. MacDonald & Co.

(dissenting).

The court is clearly in error in construing Section 43-3-4, A.C.L.A., as preventing Keehn’s recovery for a temporary disability arising from a succeeding operation on his back on September 12, 1953, 1 after a settlement on June 25, 1953, on the amount of a prior temporary disability from a prior operation on his back' and of his permanent partial disability. The pertinent portion of that section is:

The Supreme Court has repeatedly held that such statutes shall be liberally construed in favor of the injured workman. 2 Construing the words “rate” in Section 43-3-4 liberally in favor of the employee we find that Webster’s dictionary gives as the synonyms of the noun “rate” the words “amount” and “quantity”. The Board, therefore, has jurisdiction to determine whether the second temporary disability arose from Keehn’s employment since the statute means that the Board so should act “if it afterwards develop that he or she is or was entitled to a higher amount, of compensation.”

It is therefore clear that if Keehn suffered a succeeding temporary disability he may recover an increased amount for his total temporary disabilities, from which shall be deducted “the amount…

This case involves a compromise and settlement of a claim for an industrial injury under Sec. 43-3-6, A.C.L.A.1949, awarding a lump sum for partial permanent disability and a subsequent attempt to thereafter claim further temporary disability.

Keehn, appellant herein, and applicant before the Alaska Industrial Board, claimed injury on August 20, 1952, from lifting mattresses while employed by the Bellingham Canning Company. Bel- *713 lingham’s insurance carriers made temporary payments to Keehn in the sum of $2,264.00; and supplied medical and hospital attention, including a fusion operation on the back, amounting to $3,-987.00. In May 1953, the doctor reported Keehn’s condition as fixed, no further treatment indicated that he was fit for work; that there was a permanent partial disability “equivalent to 40% of the back” and recommended the claim be closed with such an award.

A compromise and release was signed by the parties and approved by the Alaska Industrial Board on June 25, 1953, describing the disability as “40% disability of the back” and settling “any and all claims” on account of the injury by the payment to Keehn of $2,880.00 in a lump sum “for permanent partial…

230 F.2d 712 16 Alaska 101 James L. KEEHN, Appellant, v. ALASKA INDUSTRIAL BOARD, Bellingham Canning Co., and D.K. MacDonald & Co., Appellees. No. 14699. United States Court of Appeals Ninth Circuit. Jan. 25, 1956. William L. Paul, Jr., Seattle, Wash., for appellant. Faulkner, Banfield & Boochever, Juneau, Alaska, J. Gerald Williams, Atty. Gen., Territory of Alaska, for appellees. 1 Before DENMAN, Chief Judge, HEALY, Circuit Judge, and JAMES M. CARTER, District Judge. 2 JAMES M. CARTER, District Judge. 3 This case involves a compromise and settlement of a claim for an industrial injury under Sec. 43-3-6, A.C.L.A.1949, awarding a lump sum for partial permanent disability and a subsequent attempt to thereafter claim further temporary disability. 4 Keehn, appellant herein, and applicant before the Alaska Industrial Board, claimed injury on August 20, 1952, from lifting mattresses while employed by the Bellingham Canning Company. Bellingham's insurance carriers made temporary payments to Keehn in the sum of $2,264.00; and supplied medical and hospital attention, including a fusion operation on the back, amounting to $3,987.00. In May 1953, the doctor reported Keehn's condition…