FH McGraw & Co. v. Lowe

• Decision Date: 29 November 1944
• Docket Number: No. 111.,111.
• Citation: 145 F.2d 886
• Parties: F. H. McGRAW & CO. et al. v. LOWE et al.
• Court: U.S. Court of Appeals — Second Circuit

145 F.2d 886 (1944)

F. H. McGRAW & CO. et al. v. LOWE et al.

No. 111.

Circuit Court of Appeals, Second Circuit.

November 29, 1944.

Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Raymond Parmer, of New York City, of counsel), for appellants.

James B. M. McNally, U. S. Atty., of New York City (John F. Ryan, Asst. U. S. Atty., Ward E. Boote, Chief Counsel, U. S. Employees' Compensation Commission, and Herbert P. Miller, Assistant Chief Counsel, all of New York City, of counsel), for appellee Lowe.

Isaac M. Rothenberg, of New York City, for appellee Rick.

Before SWAN, CLARK, and FRANK, Circuit Judges.

SWAN, Circuit Judge.

This is an appeal by the plaintiffs from a summary judgment for the defendants in an action seeking judicial review of an order of the deputy commissioner for the second compensation district which awarded compensation under the Longshoremen's and Harbor Workers' Act, 33 U.S.C.A. § 901 et seq., to the claimant, Harry Rick. The plaintiffs were Rick's employers and their insurance carrier; the defendants were the deputy commissioner and the compensation claimant. The complaint alleged that the compensation order was not made in accordance with law for reasons hereafter to be stated.

On May 18, 1942, Rick sustained an accidental head injury in the course of his employment in Bermuda.¹ Alleging that such injury resulted in a condition known as Parkinson's disease, he filed a claim for compensation against his employers and their insurance carrier. They defended upon the ground that the disease was not causally related to the injury. This was the sole disputed issue at the hearing before the deputy commissioner. One expert neurologist gave testimony that such a causal relationship existed; two other expert witnesses expressed a contrary opinion. The deputy commissioner's compensation order contains a finding of fact that "the disease resulted from the accidental injury sustained on or about May 18, 1942." But he also filed a paper entitled "Memorandum for the File", bearing his signature and the same date as the compensation order, and a copy thereof was served upon the insurance carrier together with a copy of the compensation order. The appellants contended in the District Court, and repeat the contention here, that this memorandum contradicts the deputy commissioner's finding of causal relationship between the claimant's head injury and the later developed Parkinson's disease, and proves that the deputy commissioner had not actually determined the disputed issue upon the evidence presented but acted arbitrarily and did not give a hearing which meets the requirements of due process of law. The complete text of the memorandum is printed in the margin.²

The appellants' action is based on section 21(b) of the Act, 33 U.S.C.A. § 921(b), which provides that "If not in accordance with law, a compensation order may be suspended or set aside * * *." If we are required to confine our consideration to the deputy commissioner's order and the transcript of the evidence taken before him, it cannot be doubted that the award must stand. Citation of authority is scarcely needed for the proposition that the weight of the evidence and the credibility of witnesses are not open to judicial review. Crowell v. Benson, 285 U.S. 22, 46, 52 S.Ct. 285, 76 L.Ed. 598; Steamship Terminal Operating Corporation v. Schwartz, 2 Cir., 140 F.2d 7, 8. Indeed, the appellants do not question that Dr. Kennedy's testimony would be ample support for the finding of causal relationship, despite the contrary opinion of two other experts. They contend, however, that the hearing officer's "Memorandum for the File" shows that his formal finding was not the result of an exercise of judgment upon the evidence. The appellees reply that the memorandum is no part of the compensation order and may not properly be considered by the court. See American Mut. Liability Ins. Co. of Boston v. Lowe, 3 Cir., 85 F.2d 625; Aetna Life Ins. Co. v. Hoage, 64 App.D.C. 185, 76 F.2d 435.

Neither of these cases is precisely in point. If a deputy commissioner should file a memorandum so clearly contradicting the formal findings of his order as to show that he had not exercised his duty of basing his findings upon the evidence — for example, to assume the most extreme case conceivable, if the memorandum showed that the hearing officer had made his findings by tossing a coin — we are not prepared to hold that the formal finding of the compensation order must be accepted without regard to the accompanying memorandum. The requirement that a hearing be accorded has regard to "judicial standards", Morgan v. United States, 304 U.S. 1, 19, 58 S.Ct. 773, 999, 82 L.Ed. 1129, and means that the hearing...