103 F.2d 667 (9th Cir. 1939), 9034, Kobilkin v. Pillsbury

Docket Nº:9034.
Citation:103 F.2d 667
Party Name:KOBILKIN v. PILLSBURY et al.
Case Date:April 14, 1939
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 667

103 F.2d 667 (9th Cir. 1939)

KOBILKIN

v.

PILLSBURY et al.

No. 9034.

United States Court of Appeals, Ninth Circuit.

April 14, 1939.

As Amended on Denial of Rehearing May 23, 1939

Page 668

Gladstein, Grossman & Margolis and George Olshausen, all of San Francisco, Cal., for appellant.

Frank J. Hennessy, U.S. Atty., and S. P. Murman, Asst. U.S. Atty., both of San Francisco, Cal., for appellee Warren H. Pillsbury.

Herman Phleger, Maurice E. Harrison, Howard Finn, Gregory A. Harrison, Howard Finn, Gregory A. Harrison, M. B. Plant, and Brobeck, Phleger & Harrison, all of San Francisco, Cal., for appellee Matson Navigation Co.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

Appellant filed a claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. Upon denial of his claim he brought suit by petition in equity to set aside the order of the deputy commissioner, invoking Sec. 21(b) of the act. The appeal is from a decree granting a motion to dismiss, addressed to the petition.

Appellant, as the pleading discloses, was employed by the Matson Navigation Company as a longshoreman. On June 7, 1935, during the unloading of a vessel, a bag of sugar which was being raised from the hold dropped off a sling load and struck appellant on his left shoulder. It was found that he had sustained a bad bruise and in consequence he was wholly disabled for three weeks following the accident, during which time compensation was voluntarily paid him. Thereafter, although working with some physical impairment, he suffered no loss of wages on account of the injury until January 9,

Page 669

1937. On the latter date he had a severe pain in his shoulder, went to a physician of his own choice for treatment, and was later removed to a hospital, where he was operated upon on January 27, 1937 for excision of the subteloid bursa of the shoulder. At that time a separation of the bones of the shoulder at the acromio-clavicular articulation was noted. On March 3, 1937 appellant filed his claim.

The deputy commissioner denied the claim on the ground that it had not been filed within one year from the date of the last payment of compensation and was therefore barred. The question here is whether the ruling was proper. Sec. 13(a) of the act provides, 'the right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within one year after the injury * * * except that if payment of compensation has been made without an award on account of such injury * * * a claim may be filed within one year after the date of the last payment.' 33 U.S.C.A. § 913(a). Sec. 22, so far as material, provides that 'upon his on- initiative, or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed in respect of claims in section 919.' 33 U.S.C.A. § 922.

Appellant makes the contention, probably warranted by the record, that the acromio-clavicular dislocation had originally been overlooked and was not recognized until the performance of the operation for the removal of the bursa in January, 1937. The point involved is a novel one under the federal act, has been earnestly presented, and we have given it careful consideration. The argument is that the external injury or bruise was immediately recognized and compensated, but that the dislocation was not recognized until January, 1937, when it became disabling. The external and internal injuries, it is said, must be considered in effect as separate injuries; and since the latter...

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