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equipment under the most trying circumstances and with a maximum of skill, dexterity, and efficiency. It has been equally demonstrated that many other amputees are fully qualified to operate smaller equipment under the same circumstances while meeting the highest standards of efficiency and safety. If this contention be true—and we submit that the Commission cannot hold otherwise 10 other argument need be presented to establish the wisdom of revising the Commission's rule.
It has already been stated that those opposed to a change in the Commission's regulation have studiously refrained from presenting a single witness possessed of medical and scientific knowledge of amputees and prosthetic devices. This omission is a glaring acknowledgement on their part that no such witnesses were available to aid their cause, otherwise they would have been produced regardless of cost or expense. Representatives of the oil and bus industry attended each of the four hearings before the examiner, traveling from the far reaches of the United States, undoubtedly necessitating the expenditure of vast sums of money. Hence, it is apparent that our opposition spared no expense to bring before the Commission any evidence which might be deemed advantageous to them, regardless of the remote and even inconsequential irrelevancy of their testimony to the issue before the Commission. Therefore, it must be most evident from the record that the numerous experts in the field of vocational rehabilitation, prosthetic appliances, surgery, and psychiatry who testified in support of regulation revision represented many more qualified experts on these subjects whose views were indubitably identical.
As an agency of the United States Government, we are sure that the Commission will give adequate consideration to the fact that numerous representatives were speaking officially for many important bureaus and departments of our Government. It is notable that without exception they all agree with the testimony of those specialists in these fields of activity including interested organizations, outside of Government, such as our own. This unanimity of opinion is neither accidental nor coincidental. It represents the advanced thinking of all those who are devoted to the betterment of mankind through the physical, economical, social and moral reestablishment of the handicapped. All of these things are involved in the question before the Commission and they are all the concern of persons and organizations who have joined in this appeal for a modern and humane application of Government regulations to the individual citizen.
We shall not endeaver to quote from the testimony of any of the many acknowledged experts who voluntarily expressed their views before the examiner. It is enough to say that without exception they concluded, based upon their vast experience in the field of rehabilitation, that amputees in many instances were equally capable of meeting every physical and psychological test which might be required of any driver of licensed motor vehicle carrier equipment. In view of this unusual lack of conflict on the part of those men who are best qualified to speak without bias and with intimate knowledge of their professions, the Commission would seem compelled to accept such testimony without equivocation.
Of the many outstanding authorities who testified on this subject, we should like to refer particularly to the late exhibit filed by us, being a letter from Commander T. J. Canty, Medical Corps., United States Navy, officer in charge, the amputation program, United States Naval Hospital, Mare Island, Vallejo, Calif., addressed to Mr. Robert C. Goodwin, Director, Department of Labor, United States Employment Service, Washington, D. C., dated June 2, 1948. This exhibit was secured through official channels of the United States Navy, with its approval, in response to a questionnaire which is included as part of the exhibit. Commander Canty is an eminent surgeon who has processed over 2,000 amputees since 1943, operating on and fitting protheses to about 1,000 cases. He states that of this number only 5 percent are failures in making a satisfactory adjustment, both emotionaly and socially, while another 5 percent are having further difficulties due to physical disabilities. He says "the 5 percent of failures is no greater than the percentage of the failures of men who have been separated from service uninjured in any respect."
It is interesting to note that:
"As part of our rehabilitation program at this amputation center, every amputee is taught to drive an automobile and is licensed by the State of California after passing examination of the California State Highway Patrol. The amputees take the same driving examination that any citizen takes. To date not a single case has failed to pass this examination."
In response to those who have stupidly assumed that amputees, as a group, constitute dangerous automobile driver risks, Commander Canty has the following to say:
“To my knowledge there has not been a single case of a qualified amputee driver who has been involved in an automobile accident which is directly or indirectly caused by his physical handicap. Further, it is my impression that the amputee, because he realizes, and has suffered a severe injury personally, is a better and a more careful driver than the average citizen.
“A number of our amputees drive tractors, trucks, bulldozers and as far as our knowledge their safety record is perfect.”
With a wealth of background and experience which is possessed by but few men in the entire world, Commander Canty puts finally at rest the nebulous theories and hypotheses emanating from pseudo experts that amputees cannot meet the requirements of the bus and truck industries. In a sweeping dismissal of such allegations, he states :
"In my opinion I believe amputees can successfully drive and operate any type of light pick-up, light panel, and stake-body types of vehicles. Large busses and trucks including semitrailers, interstate passenger busses, and dump trucks can be operated safely by unilateral amputees and if equipped with special driving apparatus even bilateral amputees can operate these types of vehicles. A number of our bilateral amputees are licensed and operate airplanes.
“I believe any individual amputee who is suitably fitted with a prosthesis can acquire sufficient skill to safely drive busses or ťrucks under all kinds of driving conditions and perform any other duty incidental to such driving."
And finally, Commander Canty blasts to oblivion the half-baked idea that amputees possess an innate sense of emotional disturbance which would plague them in time of distress or surprise hazard. His response to this suggestion is as follows:
"It is my opinion, based on reasonable medical knowledge, that amputees well fitted with prostheses and emotionally rehabilitated are subject to no greater emotional stress when confronted by surprise hazards, or unusual or unpredictable stress and they encounter no more emotional blocks or freezes under such conditions as occurs in any group of normal individuals."
It is earnestly and conscientiously felt that no more conclusive proof could possibly be exhibited in support of the justification and necessity for amending the Commission's regulation than is found in this enlightened discourse. All conflict, all doubt and all of the issues before the Commission seem to have been effectively and clearly resolved by the answers of this brilliant medical officer.
It has been our intention to set out in the foregoing brief a general analysis of the issues presented through 564 pages of oral testimony and numerous miscellaneous exhibits.
We are not unmindful of the fact that we seek to amend a regulation of the Commission which has been rigidly enforced without exception for many years. Too, we fully recognize the responsibility of the Commission to its licensed carrier as well as to the public, to maintain rules for the supervision of interstate commerce which will provide a maximum of safety, efficiency, and economy of operation on the highways. Nevertheless, we believe it to be the Commission's duty to carry out that responsibility without discrimination against any one or group of citizens. It is our contention that the minimum requirements for motor carrier drivers does unnecessarily and unwarrantedly discriminate against a large body of our citizenry, a good many of whom are entirely capable of meeting the highest standards required for safe and efficient interstate driving.
Contrary to the statement of the counsel for the National Association of Bus Operators, we do not seek nor can we properly expect sympathy to play any part in your determination of this question. Indeed, the amputees of America neither require nor desire sympathy on the part of their able-bodied contemporaries or any governmental agency. Instead, we urge upon you an impartial consideration of the undisputed facts as they appear in the record before you. It is true that there is a kind of selfishness which motivates the amputees in securing the revision of the Commission's rule. This is only natural since this restriction serves as a greater hardship than the physical deficiency of the amputee in numerous cases. Hence, they seek an economic advantage to themselves whereby additional opportunities for employment may be made available to them. However, they are supported in their demands by a great host of organizations, agencies, and individuals whose only interest lies in the promotion of the common good, to which goal the Commission itself is pledged to aspire. It may well be said that what is best for the amputee is best for the country as a whole. When we contrast these motives with the plain objectives of the two common carrier groups who have borne the burden of opposition to the amputee's case it must be self-evident that the latter are based upon selfish yet groundless fears which are unworthy and illogical.
It may very well be that the Commission might show some hesitancy in the revision of its motor carrier driver requirements because of the additional burden which might be placed upon its staff and the additional responsibilities which will have to be assumed in order to permit amputees to qualify for particular jobs on an individual basis. Therefore, we emphasize that this is not necessarily true because there are many State, Federal, and private agencies which would be happy to share in the promotion of a cause so worthy as this, if the Commission finds it necessary to seek such assistance. On the other hand, the price of justice cannot be weighed in terms of final cost in these instances. Whatever slight financial burden which the Commission might assume, requiring governmental appropriations, would be more than repaid by the infinitely more valuable contribution which would be made to the economic welfare of those who secure employment and the tremendous lift in morale which would accrue to all amputees and physically handicapped generally throughout the Nation. This issue cannot be allowed to rise or fall upon the mere question of how much it may cost our Government in terms of additional service to prospective amputee drivers and we are confident that the Commission will accept its responsibility in this respect and base its judgment on the incotnrovertible evidence which supports our case. Respectfully submitted.
HARRY S. WENDER, General Counsel for the American Federation of the Physically Handi
capped, Inc., and the American Foundation for the Physically Handi
capped, Inc. Mr. WENDER. I should like to have an opportunity, Mr. Chairman, to present to you a combination brief that was filed by the Federal Security Agency attorneys and myself as an exception to the findings of the hearing examiner before the Interstate Commerce Commission,
Mr. KELLEY. Without objection.
BEFORE THE INTERSTATE COMMERCE COMMISSION
BRIEF, OFFICE OF VOCATIONAL REHABILITATION, FEDERAL SECURITY AGENCY,
In atter of qualifications and maximum hours of service of employees of
motor carriers and safety of operations and equipment, and need, if any, for revision of paragraph 1.21 (a) of rule 1.2 of part I of the motor carrier safety regulations, revised. Docket No. ex parte No. MC-40
The issue before the Interstate Commerce Commission as stated in their "Notice of Proposed Rule Making" in their order entered March 1, 1948, is "for the purpose of receiving evidence upon which a determination can be made of the need, if any, for revision of paragraph 1.21 (a) of rule 1.2 of part 1 of the Motor Carrier Safety Regulations, Revised (49 CFR, Cum. Supp., 192.2 (a) (1)) which provides as follows:
“1.2 MINIMUM REQUIREMENTS.—No motor carrier shall drive, or require or permit any person to drive, any motor vehicle operated in interstate or foreign commerce, unless the person so driving possesses the following minimum qualifications:
"1.21 MENTAL AND PHYSICAL CONDITIONS (a) No loss of foot, leg, hand or arm."
STATEMENT OF THE POSITION OF THE OFFICE OF VOCATIONL REHABILITATION OF THE
FEDERAL SECURITY AGENCY
The Office of Vocational Rehabilitation together with State divisions of vocational rehabilitation is charged with responsibility for assisting all disabled civilians to prepare for and obtain suitable employment. In order to prepare
for employment, disabled persons are provided with appropriate training and with physical restoration services, such as artificial limbs and surgical correction of impairments. In order to find suitable employment, the disabled clients are provided with placement services.
It is futile to prepare clients for employment unless opportunities exist for their employment. Therefore, we are constantly waging an educational program in an effort to expand the employment opportunities of the disabled. We try to demonstrate to the public that even the seriously handicapped can be productively employed. Even more important is the constant educational campaign which is needed to fight against unrealistic job requirements. We constantly urge employers to look realistically at their job requirements. We emphasize that the important thing is not the disability but the person's actual capacity to perform an assigned task.
We are not unmindful of the duty imposed on the Interstate Commerce Commission (which we shall hereinafter refer to as the Commission) to regulate the safety of the operation of and equipment of motor vehicles engaged in interstate commerce. We are not proposing, nor would we propose, that existing regulations be relaxed so as to permit incompetents to operate motor vehicles which come under the jurisdiction of the Commission. It is our position that the fact that a person has lost a foot, leg, hand, or arm should not automatically prevent such person from operating a motor vehicle in interstate or foreign commerce, but that consideration should be given to the type of equipment being used, the type or kind of service being performed, and a determination made whether the amputee can safely operate a motor vehicle. We simply ask that the regulations in question be amended in such manner as to permit an amputee to demonstrate by an appropriate examination whether he is capable of operating with safety a motor vehicle. If he is capable he should be given a license —if not capable, he should be refused a license.
The basic question presented is whether amputees should be given an opportunity to compete for jobs as drivers of motor vehicles operated in interstate and foreign commerce, with persons who are nonamputees.
The record is replete with evidence that there is need for a change in the existing regulations. “It would seem to be in the public interest for job opportunities to be made available” to amputees, testified Admiral Ross T. McIntire (R. 232), former Surgeon General of the Navy and chairman of "The President's Committee on National Employ the Physically Hạndicapped Week.” Paul A. Strachan, national president of the American Federation of Physically Handicapped, testified: (R. 19)
“We are, Mr. Examiner, living in the year 1948 and not 1940 and 1941. In the past 7 years, during which time there was no revision of these particular rules governing this matter, there have been many changes of methods and people changed with it. Because of great improvements in treatment and training amputees and use of mechanical devices, artificial limbs and so forth, an amputee today is much different than the amputee of 1940.
"Eminent physicians, therapists, and scientists, as well as manufacturers, have collaborated to bring that amputee to a higher physical proficiency than was ever dreamed of eight or ten years ago. The amputee today can draw and carry water, build a fire, erect a building, run heavy machinery and of course, can drive a car, run a train, or do other useful labor that was not in the picture at the time the present rules were written.”
Donald Dabelstein, Assistant Director, Office of Vocational Rehabilitation, Federal Security Agency, testified that in 1947, 1,008 persons were rehabilitated as chauffeurs and bus drivers (R. 262). Others who testified that there was need for a change in the regulations were the National Employment Officers, for the Veterans of Foreign Wars (R. 44), and for the Disabled Veterans (R. 47), Dr. Verne K. Harvey, Medical Director of the United States Civil Service Commission (R. 258), also Dr. Joseph Duke Elkow (R. 368), Maj. Maurice Fletcher, who represented Maj. Gen. R. W. Bliss, Surgeon General of the United States Army (R. 237), and Roy S. Johnson, who was deprived of his job and whose employer was fined because of the existing regulation (R. 62).
It is our opinion that a proper analysis of the entire record sustains our position that the regulation should be amended.
Five hundred and sixty pages of testimony was heard by Examiner Rannells who permitted considerable latitude in the introduction of testimony by those
persons who favored or were opposed to amending the existing regulations. Similar courtesy was also extended to persons who testified who were neither for nor opposed to amending the regulations.
Examiner Rannells, who conducted the hearing, heard the testimony, had an opportunity to observe the witnesses and probably needs little, if any, assistance to make his recommendation. So it is with some hesitancy that we submit our analysis and comments on the evidence.
EVIDENCE OF THE SPECIALIZED MOTOR CARRIERS ASSOCIATION
The Specialized Motor Carriers Association and some of that association's members were represented by John N. Benckenstein, who in his opening statement (R. 9) said:
“Our position here is that the safety regulations as written now should not be altered insofar as these carriers are concerned.”
He reiterated this position at the May 17 hearing (R. 228). Approximately 90 pages of testimony of the April 6–7, 1948, hearing was consumed by Mr. Benckenstein's witnesses. Among other things, the evidence explained how pipe line was laid in the oil fields, how equipment was transported by barges out into the bay for the purposes of drilling an oil well; that the association was composed of 23 or 24 members (R. 81) whose equipment consists of tandem trucks and trailers which carry loads up to 60 tons (R. 87); that the trucks are equipped with winches: “A frames or gin poles” (R. 89); that handling this equipment is a hazardous occupation. Mr. E. H. Cassidy, who is secretary-manager and publication agent of the Specialized Motor Carriers Association testified in detail with respect to the differences between the mechanical devices on oil field trucks and those which are on ordinary over-the-road trucks. “It takes time to put a man in a position to drive a tandem truck.” He must have unusual mental agility, and “it takes a man eight or nine years to advance up to drive a tandem truck and some never make the grade" (R. 116). Mr. Cassidy testified on direct examination that he did not believe an amputee could operate the machinery he had described but on cross-examination he testified that he had not had any experience with amputees with respect to the “driving a tractor" or "driving a truck” (R. 121).
The next witness introduced by Mr. Benckenstein was Sam Quinn (R. 167), engaged in the business of oil-field trucking, who testified as to how complicated it is to handle the equipment used in such business; that he did not believe it would be reasonably safe for an amputee to drive one of the oil field trucks. He further testified, however, he never had an amputee “try to drive” his trucks (R. 170), and that no amputee was working for him.
The next witness was Jesse A. Willett, who is engaged in the business of "the stringing of pipe line" (R. 185). In connection with the operation of this business, the equipment used consists of “motor cranes, crane trucks, hauling trucks, side boom tractors, mud boats, and Athey wagons and winch tractors (R. 186). The Athey wagon described as a caterpillar tractor which has wide tracks so that it will not bog down in marshland (R. 186); that in order to operate this equipment it is necessary to use both hands and both feet (R. 191, 192); that it would not be safe for an amputee to operate any of the equipment (R. 193).
Richard Lear identified a number of picture exhibits which were introduced in evidence, among them a truck which was transporting equipment to be used in the refining of oil into_gasoline, such equipment weighing 180,000 pounds (R. 196); in his opinion (R. 203) an amputee could not safely and reasonably well operate any of this equipment. But he also testified that if a man applied for a job who was “an amputee with the lower leg off, well fitted with a phosthetic limb” he would not know whether such man was an amputee (R. 203).
V. H. Vallee (R. 204) and D. V. Mitchiner (R. 215) each described equipment used by members of the association represented by Mr. Benckenstein. They both stated that in their opinion, an amputee could not operate such equipment. Neither of these witnesses even so much as testified to having a speaking acquaintance with an amputee, let along any knowledge of how prosthetic devices are used by amputees.
The testimony of S. W. Plauche, Esquire, cocouncil with Mr. Benckenstein for the Specialized Motor Carriers, has absolutely nothing to do with the issue in this
We cannot see how the testimony of Mr. Charles Ray, director of personnel and safety for the Markel Service, Inc., and American Fidelity and Casualty Co., is at all relevent to the issue in this case.