I want to say, Mr. Vickery, when we set this up first, as you know, we had 3 days' hearings here.

This was postponed until today, and this is the only day's hearing we will have this year-additional day. Now that is not enough to complete this. We will have a minimum of 3 days of hearings in January, maybe more; and I note what you say in this last paragraph on page 3, "It is not possible to accurately estimate the additional cost."

Well, that was true with the tightened schedule; however, with the delay in the conclusion of the hearings, I trust that will give you time to get all of this data together.

Mr. VICKERY. Thank you, sir.

Senator YARBOROUGH. And as the principal author of the bill, it is, of course, my responsibility to see that all parties have an opportunity to put all the data in the record for the Subcommittee on Labor and the full committee to consider before we start to mark up the bill.

While there are very few of us here to hear it, under our rules a physical majority must be present before the committee can report out a bill to the Senate.

The motion of the Senator from Oregon is granted. We have two able counsel, able attorneys, well educated in the law, and one of them, the senior counsel, Mr. Harris, has wide experience in the field, and with a number of articles in law journals, and formerly with NLRB, and we are fortunate in two very, very able counsel.

I have never served on a committee, I think, with more able counsel, and the minority counsel, and Republican aside, he is also a very able counsel in labor law, and so this committee has the benefit of exceptionally able counsel, and they are young enough to work hard. Mr. VICKERY. Young enough to still be energetic. I am reaching that stage where I am losing most if not all of mine, I am afraid. I am pleased to hear that both counsel will brief this question, and I am sure that Mr. Scanlan's statements, in fact, I know Mr. Scanlan's statement, who will follow me, will be much more helpful in this regard than I have been, and it was to avoid unnecessary duplication that I have deferred to Mr. Scanlan's detailed presentation on this particular point. But the injustice and inequity is in these proceedings and are so gross that I felt that it was important to call to the committee's attention at the outset that I felt the basic premise of the Department in introducing the bill was incorrect, and I believe that the briefing by counsel for the committee will confirm that this is true.

And I shall also see that this additional information to which I referred in the last paragraph of my prepared statement, I will see that this is submitted to the committee in written form.

Now, if I may, in turning again to my prepared statement, I would like to consider each section of the bill as it has been introduced, and make a few brief comments with respect to each of these.

I will try to summarize rather than attempting to read verbatim the statement which I have prepared for the committee, hoping that by summarizing some time can in fact be saved.

Section 2 of the proposed bill proposes to reduce the waiting period from 28 days to 21 days for the payment of compensation over the first 3 days. This is primarily, I think, a factor of cost evaluation, and here I believe that the Bureau of Employees' Compensation could be very helpful to the committee and to the industry, if they would furnish us

statistics as to how much, how many cases would be involved in this amendment, how many more cases would be picked up, and how much more compensation approximately would have to be paid.

I am confident that they have these statistics, and I would like to suggest, if it is appropriate for me to do so, that in order to evaluate the cost factors, that the Bureau be requested to furnish the committee with a statement as to the approximate number of cases that would be involved insofar as this particular amendment is concerned.

Senator YARBOROUGH. I will instruct counsel to confer with the Bureau and see if that data can be obtained, and if we can't, within reason, they can't furnish it, we will advise you.

Mr. VICKERY. Thank you very much.

Section 3 of the act has two separate amendments in there.

The first one is to increase the maximum weekly compensation to $70 a week to $105 a week. This is the portion of this amendment that I do not yet have complete information on.

Information from other parts of the country will have to be made available. I think I am safe in saying that since the preparation of my statement, in which I indicated that the average weekly wages overall for longshoremen in the gulf coast area, from Texas to Florida, is approximately $110 a week, has now been confirmed by additional information received from these ports and also from the Port of Pensacola.

Based on this, $110 per week would justify a maximum rate increase to only about $74. I recognize that on the west coast and east coast that the earnings are higher, but here again, I think the committee needs full and detailed information on the average weekly wages before they can arrive at a decision as to what is fair and reasonable, insofar as the weekly compensation rate is concerned.

The principal danger from both a cost and in a practical administration of the act in this proposed amendment is contained in paragraph B, which provides that all maximum limits of compensation are

to be removed.

You will undoubtedly recall that, at this time, there is a $24,000 maximum for all cases, other than total permanent and death cases. This would mean, if this amendment is adopted, that any payment for partial loss of wage-earning capacity would not be paid until a certain sum of money had been paid out, as is true now, but would require payments of compensation to the injured longshoreman for the balance of his life, or so long as this disability extended into the future. I think it is particularly important that this monetary limitation be maintained in the act. This is true primarily because it is particularly difficult, once a deputy commissioner, in administering the act, has found that a man has a permanent partial loss of wage-earning capacity, although it may be only $20 or $30 or $40 a week, it is extremely difficult to ever get that deputy commissioner, or one of his successors, to acknowledge that he made a mistake in determining that fact, even though 10 or 15 years later it may turn out that he does not have any loss of wage-earning capacity.

Theoretically, the act provides that his compensation should be terminated if his wages go up to the point where he does not have a loss, but as a practical matter, deputy commissioners being human,

simply find it extremely difficult to bring themselves to acknowledging that they made a mistake when they found that his loss of wage-earning capacity was permanent in the first place.

So as a practical matter, it means compensation would be paid for the balance of that man's life, on the basis of whatever award the original deputy commissioner made to him, following his recovery or the stage of maximum medical improvement.

This section of the act, of the bill, to remove this monetary limitation, was supported by the Department of Labor's statement, on the theory that this would give limited and certain liability to the employers.

I submit to this committee that removing the monetary limitation removes all certainty, and removes all limitations on the amount of compensation that would be payable, in all cases. If we are trying for certain and limited compensation, as the distinguished Secretary indicated in her testimony, this amendment is not going to do it but will in fact create more uncertainty and more unlimited liability under the act than any other amendment that has been proposed to it in the history of the act.

This amendment was also justified on the theory that the employer could not be sued for damages. As we have already said, this is no longer true, and it was further attempted to justify this on the theory that the cases would not be numerous, and usually present circumstances of hardship.

I believe that here again the Bureau of Employees' Compensation can probably give us some idea of what this would involve.

I do know that approximately 11,000 disabling injuries a year are sustained under the Longshoremen's Act, based on figures contained in the annual report of the Department of Labor with reference to the Bureau of Employees' Compensation.

If you take the maximum limit off, you have a potential of unlimited and uncertain liability, each year, in the 11,000 cases. With this monetary limit, it is possible for the employers and the insurance carriers working under this act to make some reasonable computation as to their potential exposure in the future, but if you take the limit off, it removes almost entirely any possibility of determining anything on an accurate basis, with respect to the potential exposure of employers and insurance carriers trying to adequately set up reserves insofar as a self-insured is concerned, or if an insurance carrier is involved, these problems are almost insurmountable with this maximum taken off. Senator YARBOROUGH. Mr. Vickery, that is one bell, and that is a

vote.

When they ring on the floor they ring in all the offices, and we have to go vote, and we will recess for 10 minutes.

(Whereupon, a short recess was taken.)

Senator MORSE (presiding). The committee will come to order. Mr. Counsel, I am going to insert in the record at the very beginning of your testimony your full statement as it is written, because you are paraphrasing it, and I think it is so excellent in its written form that we ought to have the full statement. Then you may proceed to paraphrase, summarize, and add to it as you have been doing in your testimony.

Mr. VICKERY. Thank you very much, I had hoped that this would be the approach. I felt it would save some time this morning if we could approach it that way.

Senator MORSE. Yes. It always makes more interesting testimony, too. Mr. VICKERY. Yes, sir.

Senator MORSE. The official reporter will insert the witness' prepared testimony at the beginning of his statement.

You may proceed.

Mr. VICKERY. Thank you. I believe I was just in the process of completing a discussion with respect to paragraph B of section 3 of the bill, dealing with the removal of the monetary limit of $24,000. I believe that this poses so many problems from the standpoint of practical handling of claims

Senator MORSE. Mr. Counsel, may I interrupt you?

I am terribly sorry. I have an emergency call from the White House. I have to take it, and I will come right back.

Mr. VICKERY. Yes, sir.

(Off the record.)

Senator MORSE. I am sorry, Mr. Vickery.

Mr. VICKERY. That is quite all right, Senator. I certainly understand. I will go on to the next section of the bill, if I may, section 4, in my prepared statement. This deals with an amendment which provides that the deputy commissioner can have a medical examination made of a claimant and charge this to the insurance carrier or to the employer, even though the previous medical information in the file indicates that the doctor that had treated the man had been fair and impartial, in estimating his disability.

It seems to me the careful amendments made several years ago by the Congress to this section of the act more than take care of the possibilities of an impartial estimate of disability by a treating doctor.

This is what this is directed at. Most people have the common conception that the doctors who treat these men are doctors of the employers' or the insurance carriers' selection. This is not true: they are approved by the employers and the insurance carriers, but the man selects his own doctor from a panel of doctors that the deputy commissioners must approve and set up; so, in our area, at least, there is a panel of doctors, I believe, some 12 to 15 in number, and the man can select a doctor from this panel.

If he is displeased, he is entitled to select another doctor from this same panel, and these are all doctors that have been approved ahead of time by the deputy commissioner.

The deputy commissioner can have the man examined at the U.S. Public Health Service facility. He can have him examined by still another doctor, and if the doctors that the man himself selected from the panel have not been impartial in estimating his disability, then the employer can be required to pay for this examination.

It seems to me that this is more than enough protection, insofar as employees are concerned, to insure that the estimates of disability are fair and reasonable.

I am skeptical with respect to the administration of this amendment if the deputy commissioners are given carte blanche to order examinations at the cost and the expense of employers and insurance carriers from any doctor that the deputy commissioner might select.

This could force employers and carriers to use doctors that they themselves considered to be not properly qualified in a given situation. I think the act presently contains adequate safeguards as far as the employees are concerned on the estimates of their disability.

Section 5 deals with disfigurement and this amendment is designed to extend awards for disfigurement to any normally exposed area likely to handicap the employee in securing or maintaining employ

ment.

Now, the act provides that for serious disfigurement of the face, head, or neck, compensation can be awarded. My concern with respect to this amendment is based on the experience that I have had with the administration of the present provisions in the act.

One would think that serious disfigurement of appearance and face, head, or neck, would require some scar of some substance before any payment would have to be made. It has been my experience under this act that almost any kind of a scar or a laceration that produces any kind of a scar, some award allegedly for serious facial disfigurement is made.

Sometimes they are small, only a hundred dollars, $200 or $300.

Now, then, I would think that anything that seriously disfigured a person's face would at least be observable as far as you and I are a part, Senator Morse, but it might surprise you to know that I have three scars on my face that would be, in my opinion, compensated as serious facial disfigurements under the Longshoremen's and Harbor Workers' Compensation Act, if I had sustained them in the course of employment as a longshoreman.

One is in the middle of my forehead, one is here, and the other one is over here on my temple. They are not observable to you; I daresay they are not observable to the reporter who is sitting within 2 yards of me.

This is the type of administration the serious facial disfigurement provisions of the act has been receiving, so what I am saying to you is that, if this amendment is passed, I look for the same type of administration to be given to any other normally exposed areas of the body, so that maybe 100 to 200 will be paid for a laceration on a hand or a finger or an arm, and I do not believe that this is what Congress intended by this disfigurement or this serious facial head disfigurement provision in the Longshoremen's Act.

This is the thing that concerns me insofar as that amendment is concerned.

Now section 6 of the act contains a provision that also is going to eliminate the limited and certain liability of employers in a substantial number of cases. This provision provides for the payment of compensation on a partial loss of wage-earning capacity, after compensation has been paid in full for the prescribed period of weeks for the loss of use of a hand or an arm or a leg or an eye, or insofar as loss of hearing is concerned.

This means after 5, 6, or 7 years, possibly, depending on the seriousness of the disability, say, to an arin, that, if the man still has a loss of wage-earning capacity that compensation will then have to be continued.

It is even more onerous and more uncertain if the $24,000 limitation is taken out of the act. This means that, once you have paid the man