Petition for review of a decision of the United States Railroad Retirement Board, denying claimant a disability annuity. Petitioner argues that the Board erred in failing to include five months of "lost time" in his total railroad service. Reversed.
Feinberg, Chief Judge, Mansfield and Meskill, Circuit Judges.
This case concerns petitioner Alfred Jacques's attempts for over a decade to enforce his right to a disability annuity under the Railroad Retirement Act. In 1965, following a long period of service for a railroad covered by the Act, Jacques was seriously injured in the course of his employment. Since the date of the accident, he has been unable to perform his previous occupation. He has not worked at all since 1971. Jacques now seeks review of an August 1982 decision of the Railroad Retirement Board, denying him a disability annuity. For the reasons given below, we find that the Board erred in determining that Jacques had not completed the required period of service to qualify for such an annuity. We reverse the decision of the Board.
On February 19, 1965, Jacques, a thirty-five- year old assistant signal repairman with the Delaware and Hudson Railway Company, fell from a telegraph pole and suffered a serious injury. He was immediately hospitalized and placed under the care of Dr. Leo Weinstein, whose diagnosis was that Jacques had fractured his ninth thoracic vertebra. Following an initial hyperextension treatment on a fracture board, Jacques was placed in a body cast on February 22. He was discharged from the hospital three days later. After the discharge, Jacques was examined by Dr. Weinstein on several occasions. Dr. Weinstein also performed necessary repairs on the cast.
Jacques's cast was replaced by a brace on June 3, 1965. He wore the brace until August 19. Dr. Weinstein stated that Jacques was totally disabled until August 23, 1965, and partially disabled from that date until October 1966.
Jacques returned to work with the railroad on August 23, 1965, and initially attempted to perform his previous work of digging ditches and putting up poles. He found, however, that he was not physically able to do this, and was subsequently reassigned to lighter duties. Jacques has not worked since November 1971.
In September 1969, Jacques filed in the United States District Court for the Northern District of New York a complaint against his railroad employer under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60. The complaint alleged that
while plaintiff was employed as a signal maintainer . . . and while he was descending from a wooden pole about twenty-five feet in height equipped with climbers and a belt, upon reaching a point about 12' or 14' above the ground he was advised by his co-worker who was on the ground that it was safe for him to proceed, and when he attempted to do so his climbers failed to hold in the pole and he violently fell to the ground. . . .
Jacques sought $100,000 in damages "for pain and suffering already endured and to be undergone in the future; for the loss of services and earnings in the past and those to be sacrificed in the future, for moneys laid out and expended for medicine, medical bills and hospital expenses, treatment and care." (Emphasis added).
The case was settled for $13,500 in October 1970. The settlement did not indicate how the money was allocated to the different categories of damages alleged in the complaint. Jacques then reimbursed the Board $1,213.80 for sickness benefits paid to him by the Board following the accident. See 45 U.S.C. § 362(o). In a letter dated June 21, 1972, the Board acknowledged receipt of the reimbursement. At the time of the accident, Jacques's salary was approximately $400 per month.
In August 1972, Jacques filed with the Board his first application for a disability annuity under the Railroad Retirement Act. Jacques claimed that he was entitled to an annuity under either of two statutory bases set forth in 45 U.S.C. § 231a(a)(1),*fn1 which provides that:
The following-described individuals . . . shall . . . be entitled to annuities. . . .
(iv) individuals who have a current connection with the railroad industry, whose permanent physical or mental condition is such as to be disabling for work in their regular occupation, and who (A) have completed twenty years of service or (B) have attained the age of sixty; and
(v) individuals whose permanent physical or mental condition is such that they are unable to engage ...