(dissenting).

I dissent from the majority opinion’s harsh and unjust conclusion resulting from its failure to apply to the relationship between the statutory provisions for total permanent and total temporary disability, the same liberal rule of interpretation of the Supreme Court and this court, 1 that the maj ority opinion does in considering the statute’s time limitations.

It is obvious and admitted by the majority opinion that an employee’s loss of two limbs, here a hand and a foot, does not create his total disability to work. There are many employments for a person with one good hand who can walk with an artificial leg or for one who has two good hands and a wheel chair.

Hence the statement of the statute that such loss “shall constitute total and permanent disability and be compensated according to the provisions of this act with reference to total and permanent disability’’ can well be construed liberally as providing no more than that one having such an injury shall receive a certain amount of money in any event. Since such a liberal construction would leave to the injured man after the amputation the right to claim compensation *202 for the actual continuing temporary disability from the infections in his left foot, we are required to make it.

The statute provides for payment from the employer for “all injuries causing temporary disability”. 2

If this provision covers all temporary disabilities from a single industrial accident, the narrow and strict construction of the majority which reads “all” to mean all injuries except those accompanied by a loss of two limbs, etc., distorts the statutory language by depriving the word “all” of its plain meaning in violation of long established principles of statutory construction. 3

The court’s narrow construction leads to a most anomalous result. Under the opinion’s rationale, a man like Jenkins who loses two limbs in or shortly after an accident is entitled to total permanent compensation immediately ($8,-100), 4 but receives nothing thereafter during a long period *203 of hospitalization which may last for several years. On the other hand, a worker who has both legs crushed in an accident (his injury being less serious initially), and is hospitalized for several years while physicians fight to save his legs, gets temporary disability as long as he is in the hospital until a medical end result is reached. This may amount to many thousands of dollars (65% of his weekly pay). If at the end of that time amputation is found necessary, he then receives the total permanent disability lump sum payment in addition. Thus although the end result in each case is the same, the man whose injury was apparently less severe initially gets more compensation. And if the man whose legs were merely crushed did not have to have them eventually amputated, he still could receive more compensation than one in Jenkins’ position if his period of temporary disability was long enough. 5

Nothing in the statute compels this result. In fact the second sentence of the provision of Section 43-3-1 defining temporary disability suggests that permanent and temporary disability payments may both be payable at the same time *204 for one injury, and nothing therein restricts this result to cases where the workman becomes entitled first to temporary disability and thereafter to permanent disability. 6 In my view the argument of the opinion based on the distinction between “injuries” and “disabilities” ignores the realities of the situation and relies on semantics. Such semantical refinements are not sufficient to support the harsh and unreasonable construction of the statute which leads to the conclusion that one who is less severely injured (and suffers less disability) may receive more compensation than one who is more seriously disabled. The words of the Supreme Court in Baltimore & Philadelphia Steamboat Co. v. Norton, 1932, 284 U.S. 408, 413 , 52 S.Ct. 187, 188 , 76 L.Ed. 366 , appear pertinent :

The temporary disability provisions of the Alaska statute are typical of those of most other jurisdictions in this country. In the absence of a clear statutory mandate to the contrary, the Alaska statute should be construed, as have those of other jurisdictions, as providing temporary disability compensation during the healing period until a medical end result is reached. 7

*205 There is nothing contrary to this in this court’s opinion in Keehn v. Alaska Industrial Board, 9 Cir., 1956, 230 F.2d 712 . There the physicians had determined that a medical end result had been reached, a 40% permanent disability award had been made and “A compromise and release was signed by the parties.” 230 F.2d at page 713 . Here no such result had been reached and no compromise settlement made, and we are concerned with the initial healing period prior to the occurrence of a medical end result.

It appears to me that the statement of the majority opinion that “in the case of the loss of certain members, total and permanent loss of earning power is conclusively presumed for the purpose of awarding compensation under the act” 8 which, the opinion asserts, is supported by Larson, has no such support as applied to the issue presented in this case. This conclusive presumption is applied, as Larson’s text shows, to prevent the deduction of any wages actually earned by a worker who is totally and permanently disabled within the meaning of a workmen’s compensation statute from his total permanent disability award. 9 Nothing in the text *206 supports the majority’s statement that “this conclusive presumption cuts both ways” and therefore that it must be applied to reduce the injured workman’s compensation. 10 So applied, the presumption defeats the purpose which it was created to serve (i. e., to maximize the recovery of the injured man), and as applied to the present facts, results in a construction of the statute which violates the principle of the Norton case, supra.

It is significant that under other workmen’s compensation statutes which closely resemble the Alaska statute in their provisions for the determination of permanent and temporary disability, a large number of cases have held that where “the effects of the loss of a member extend to other parts of the body * * * the schedule allowance for the lost member is not exclusive.” 11 These cases are but another illustration of the liberal rule of construction in workmen’s compensation cases. 12 Since temporary disability compensation covers the healing period, 13 it appears to me that a fortiori the same rule of construction requires us to hold that where the failure of an amputation to heal has inflicted upon the workman a temporary disability in fact far greater than the loss of the limb itself he is entitled to total temporary disability compensation until the healing of the amputation is completed.

*207 Instead of the liberal treatment to which this unfortunate man and his family are entitled the majority is leaving him unpaid for the long period of actual total disability admittedly arising from the electric burning in his employer’s service, and a most harmful rule of construction is established for this circuit.

Voris v. Eikel, 1953, 346 U.S. 328, 333 , 74 S.Ct. 88 , 98 L.Ed. 5 ; Baltimore & Philadelphia Steamboat Co. v. Norton, 1932, 284 U.S. 408, 414 , 52 S.Ct. 187 , 76 L.Ed. 366 ; Libby, McNeill & Libby v. Alaska Industrial Board, 9 Cir., 1951, 191 F.2d 262, 264 .

The pertinent portion of Section 43-3-1 reads as follows:

“(Temporary disability.) For all injuries causing temporary disability, the employer shall pay to the employee, during the period of such disability, sixty-five per centum (65%) of his daily average wages. And in all cases where the injury develops or proves to be such as to entitle the employee to compensation under some provision in this schedule, relating to eases other than temporary disability, the amount so paid or due him shall be in addition to the amount to which he shall be entitled under such provision in this schedule.” [Emphasis added.]

Rice v. Minnesota & N. W. R. Co., 1861, 1 Black. 358 , 379, 66 U.S. 358, 379 , 17 L.Ed. 147 (“ * * * it is not competent for this court to reject or disregard a material part of an act of Congress, unless it be so clearly repugnant to the residue of the act that the whole cannot stand together.”); United States v. Raynor, 1938, 302 U.S. 540, 547 , 58 S.Ct. 353, 356 , 82 L.Ed. 413 (“A construction that creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the act, and will carry out the intention of Congress.”); 2 Sutherland, Statutory Construction § 4705.

The provision of the Alaska statute for a lump sum award for total permanent disability which is fixed in amount regardless of the *203 injured man’s previous wage rate is unique. All other workmen’s compensation statutes in this country provide for periodic payments which in all jurisdictions except three vary in amount according to the workman’s pay rate prior to his injury. See 2 Larson, Workmen’s Compensation Law, App.B, Table 8, pp. 524-6 (1952), consisting of a comparison of the total permanent disability provisions of the workmen’s compensation laws of 53 jurisdictions. Liberal interpretation of this unique statute requires that we not construe it to deprive the injured man of the temporary compensation which is based on his wage loss and limit him to a mere fixed sum unrelated to his loss of wages in the absence of a dear statutory mandate to that effect.

At the rate of total temporary compensation to which Jenkins was entitled ($95.34 per week) the temporary compensation would exceed the total permanent lump sum payment ($8,100) after only 20 months of total temporary disability. According to the determination of the Board, Jenkins’ total temporary disability continued more than three years after his injury.

That sentence reads: “And in all cases where the injury develops or proves to be such as to entitle the employee to compensation under some provision in this schedule, relating to cases other than temporary disability, the amount so paid or due him shall be in addition to the amount to which he shall be entitled under such provision in this schedule.”

See, e. g., McCall v. Potlatch Forests, 1949, 69 Idaho 410 , 208 P.2d 799, 801 ; Shell Oil Co. v. Industrial Commission, 1954, 2 Ill.2d *205 590 , 119 N.E.2d 224, 230 ; Gorman v. Atlantic Gulf & Pacific Co., 1940, 178 Md. 71 , 12 A.2d 525 ; Laurel Daily Leader v. James, Miss.1955, 80 So.2d 770, 773 ; Fallis v. Vogel, 1940, 137 Neb. 598 , 290 N.W. 461 ; Petersen v. Foundation Co., 1942, 128 N.J.L. 234 , 25 A.2d 1 ; Peerless Sales Co. v. Industrial Commission, Utah 1944, 154 P.2d 644 ; Johnson v. Cox, Ala.App.1955, 82 So.2d 562 .

Majority opinion, 245 F.2d 861 .

2 Larson, Workmen’s Compensation Law § 58.10, p. 42 (1952). See e. g., Great American Indemnity Co. v. Segal, 5 Cir., 1956, 229 F.2d 845 , where the court, in affirming a total disability award and disallowing a deduction for wages earned by the disabled worker, quoted a Texas decision, Davies v. Texas Employers’ Ass’n, Tex.Com.App., 29 S.W.2d 987 , as follows:

“[T]otal incapacity does not mean utter inability to do any work at all, but that a man’s disability is total, within [the meaning of the statute], when he can no longer ‘secure and hold employment for physical labor’ such as he had to do to make a living prior to his injury.” 329 F.2d at page 846.

Majority opinion, 245 F.2d 861 .

Larson, op. cit. supra note 9, § 58.20, p. 44, casis cited note 38.

Larson, op. cit. supra note 11, p. 45. The text writer suggests that “destruction of the most favorable remedy should not he read into the act by implication.” Ibid. In contrast to other workmen’s compensation statutes, the provision of the Alaska Act for temporary disability compensation is more adequate than its permanent disability compensation provisions (note 4 supra). Hence the above quoted principle here strongly supports affirmance of the Board’s decision.

Note 7, supra.