Atlantic Coast Shipping Co. v. Golubiewski, 2044

• Decision Date: 28 December 1934
• Docket Number: 2045.,No. 2044,2044
• Citation: 9 F. Supp. 315
• Parties: ATLANTIC COAST SHIPPING CO. et al. v. GOLUBIEWSKI et al.
• Court: U.S. District Court — District of Maryland

9 F. Supp. 315

ATLANTIC COAST SHIPPING CO. et al. v. GOLUBIEWSKI et al.

Nos. 2044, 2045.

District Court, D. Maryland.

December 28, 1934.

Boyd B. Graham (of Marbury, Gosnell & Williams), of Baltimore, Md., for complainants.

Marion A. Figinski, of Baltimore, Md., for insured.

Bernard J. Flynn, U. S. Atty., and G. Randolph Aiken, Asst. U. S. Atty., both of Baltimore, Md., for deputy commissioner.

CHESNUT, District Judge.

These cases arise in the course of administration of the Longshoremen's and Harbor Workers' Compensation Act (33 USCA §§ 901-950). The single question presented is whether an injured employé who has been receiving compensation for temporary partial disability under a valid order of the Deputy Commissioner ceases to be entitled thereto by reason of his imprisonment in the penitentiary under a sentence for life consequent upon conviction for murder in the first degree.

The relevant facts which are not in dispute may be shortly stated. The injured employé was a deckman in the employ of the Atlantic Coast Shipping Company who was severely injured in the course of his employment on November 6, 1931. He was accidentally knocked overboard from a steamship in the Baltimore Harbor, falling first to the wharf and then into the water. His injuries included a severe and extensive fracture of the skull with other consequential damages including apparently an injury to one ear with partial loss of hearing and also possibly some dizziness resulting from the ear injury. The employé was paid compensation at the rate of $20 a week (two-thirds of his average weekly wages prior to his accident and injury) for a period of 58 weeks, or $1,160 in all, on the basis of a temporary total disability for that period; but thereafter on December 16, 1932 the Deputy Commissioner as a result of further hearing made an award that effective as of that date compensation should be paid at the rate of $15 per week to continue until further review was had. This rate of compensation was based on the finding that the employé was then partially disabled to the extent of 75% of his earning capacity at the time of injury, thus constituting what seems to be properly classified as a temporary partial disability. The employer's insurer paid compensation to the employé in accordance with this award at the rate of $15 a week for 86 weeks, but on August 9, 1934 discontinued payments and petitioned the Deputy Commissioner to modify the former award, on the ground that on June 8, 1934, the employé had been sentenced to the Maryland Penitentiary for life consequent upon his conviction of murder (of his wife) in the first degree (in the Criminal Court of Baltimore), and his then present confinement under said sentence in the Maryland Penitentiary. The Deputy Commissioner, however, by order dated October 15, 1934, after finding that there had been "no change in the physical condition of the claimant since the filing of the order of December 16, 1932" refused the relief requested "for the reason that the imprisonment of the claimant is not a change in conditions within the meaning of section 22 of the Act 33 USCA § 922." Under date of September 10, 1934 the Deputy Commissioner also made a further award of $350 to be paid to the employé "for serious facial disfigurement" resulting from the injury. This latter sum has been paid by the insurance carrier and is not involved herein. And it is stipulated by counsel that the employé's "condition has remained unchanged from a medical standpoint" since the order of December 16, 1932. On October 16, 1934 the Deputy Commissioner, on the application of the employé, passed a further order directing the employer to pay the accumulated and unpaid sum of $159 as the amount of compensation in default. See Longshoremen's and Harbor Workers' Compensation Act § 18 (33 USCA § 918).

Two separate suits have now been filed by the employer and its insurance carrier, one (case No. 2044) being for the purpose of setting aside the order of the Deputy Commissioner dated October 15, 1934, and the other (case No. 2045) praying for similar action with regard to the order of the Deputy Commissioner dated October 16, 1934.

The contention advanced by the employer and its insurance carrier is to the effect that, as the compensation payments now in question are given for only temporary partial disability and not for permanent total or partial disability they must be considered as given only for the purpose of indemnifying the employé against loss of wages due to partial loss of earning capacity. Reference is made to the definition of "disability" contained in section 2 (10) of the Act, 33 USCA § 902 (10), where it is defined as follows:

"`Disability' means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment."

The argument is that one confined in the penitentiary is thereby precluded from earning wages and therefore it is said that the disability from the original injury is no longer the effective cause of loss of wages. And it is further said that as the state has now assumed charge of the care and maintenance of the former employé there is no further occasion for the employer to be burdened with disability payments.

However, in my opinion the exact legal question depends upon the proper construction and application of section 22 of the Act (33 USCA § 922) which provides for modification of awards. The provision is as follows:

"Upon his own 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, review a compensation case in accordance with the procedure prescribed in respect of claims in section 919 of this chapter, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation." (Italics supplied.)

The wording to be construed and applied is that italicized. Looking at the context, in relation to the whole scope and general purposes of the Act, the most natural meaning to be given to the expression "change in conditions" would seem obviously to refer to a change in the physical condition of the employé caused by the accident. And this has been the meaning generally attributed to similar phraseology in state workmen's compensation acts. Independence Indemnity Co. v. White (Tex. Com. App.) 27 S.W.(2d) 529; Skelly Oil Co. v. Thomas, 147 Okl. 86, 295 P. 213; South v. Indemnity Insurance Co., 39 Ga. App. 47, 146 S. E. 45; Indianapolis Pump & Tube Co. v. Surface, 86 Ind. App. 55, 155 N. E. 835; Franklin County Mining Co. v. Industrial Commission, 322 Ill. 555, 153 N. E. 608. And it has recently been held in the 9th Circuit that this language in section 22 of the act (33 USCA § 922) does not apply to a change in earnings due to economic conditions. McCormick S. S. Co. v. U. S. Employees' Comp. Commission (C. C. A.) 64 F.(2d) 84.

While the case lacks precise precedent, there has been some little judicial approach to it. In Neal v. Stuart Foundry Co., 250 Mich. 46, 229 N. W. 595, 597, where the employé was confined in jail awaiting trial, and not as here in consequence of conviction of crime, the court said:

"During a portion of the period for which compensation has been allowed, plaintiff was confined in the Wayne county jail. The defendants urge that the weekly award for that period should be suspended because the award is in lieu of earnings, and while the injured employee is in jail he has no earning capacity and hence he should receive nothing through the award. W...