This is a suit in equity brought by petitioners in the District Court for the Eastern District of Pennsylvania to set aside as not in accordance with law an order of the deputy commissioner awarding compensation to Gube under the Longshoremen's and Harbor Workers' Act of March 4, 1927, 44 Stat. 1424, 1427, 33 U.S.C. § 901 et seq. (33 USCA § 901 et seq.). The District Court dismissed the cause, 40 F.(2d) 530, and the Circuit Court of Appeals affirmed, 48 F.(2d) 57.
February 17, 1928, Gube, while engaged in work for the steamboat company as a longshoreman upon a vessel in the navigable waters of the United States, suffered an injury to his left arm. He filed with the deputy commissioner a claim against the employer and insurer for compensation in accordance with the act. The deputy commissioner found that claimant's average weekly wage amounted to $36.06; that as a result of the injury he suffered total disability for 34 weeks following and permanent partial impairment, amounting to 40 per cent. of the use of his arm and awarded compensation at the weekly rate of $24.04 for 146 weeks, amounting in all to $3,509.84.
Petitioners maintain that the award should be the full rate for 40 per cent. of 314, being 125.6 weeks, and that the amount allowed below is excessive by 20.4 weeks or $490.42. We are called on to determine, on the basis of the facts found, what amount the act requires the employer to pay claimant. No other question is presented.
'Sec. 8. Compensation for disability shall be paid to the employee as follows:
'(a) In case of total disability adjudged to be permanent 66 2/3 per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability. * *
*'(b) In case of disability total in character but temporary in quality 66 2/3 per centum of the average weekly wages shall be paid to the employee during the continuance thereof.
'(c) In case of disability partial in character but permanent in quality the compensation shall be 66 2/3 per centum of the average weekly wages, and shall be paid to the employee as follows:
'(1) Arm lost, three hundred and twelve weeks' compensation. * * *
'(18) Compensation for permanent total loss of use of a member shall be the same as for loss of the member.
'(19) Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member. * *
*'(22) In case of temporary total disability and permanent partial disability, both resulting from the same injury, if the temporary total disability continues for a longer period than the number of weeks set forth in the following schedule, the period of temporary total disability in excess of such number of weeks shall be added to the compensation period provided in subdivision (c) of this section: Arm, thirty-two weeks; * * * 'In any case resulting in loss or partial loss of use of arm * * * where the temporary total disability does not extend beyond the periods above mentioned for such injury, compensation shall be limited to the schedule contained in subdivision (c). * * *' (33 USCA § 908.)
The award is based on a construction of the section in substance as follows: Subdivision (b) allows compensation for temporary total disability during its continuance at the rate of two-thirds of the average weekly wage. Subdivision (c) allows for permanent partial loss of use of an arm compensation for 314 weeks at a rate that is the same proportion of two-thirds of the weekly wage as such partial disability is of the total use. (1), (18), (19), (22). Temporary total disability and permanent partial disability resulted from the same injury. The former continued 34 weeks, being two weeks in excess of the healing period allowed by c (22). The computation was: $36.06X2/3=$24.04X34=$817.36 for temporary total disability of claimant. 312+2=314-34=280X$24.04X.40 =$2,692.48 for permanent partial disability of his arm.
The allowance for temporary total disability was for its duration, 34 weeks. That is not authorized. The period of allowance is definitely limited to 32 weeks, and the statute expressly authorizes enlargement of the specified compensation period, 312 weeks, by the excess of actual temporary total disability over the time limited for healing, and so here the added two weeks take the proportionate rate. (c)(1)(22).