Bernatowicz v. Nacirema Operating Co.

• Decision Date: 01 May 1944
• Docket Number: No. 8330.,8330.
• Citation: 142 F.2d 385
• Parties: BERNATOWICZ v. NACIREMA OPERATING CO., Inc., et al.
• Court: U.S. Court of Appeals — Third Circuit

142 F.2d 385 (1944)

BERNATOWICZ v. NACIREMA OPERATING CO., Inc., et al.

No. 8330.

Circuit Court of Appeals, Third Circuit.

Argued November 4, 1943.

Decided May 1, 1944.

Philip H. Strubing, of Philadelphia, Pa. (Evans, Bayard & Frick, of Philadelphia, Pa., on the brief), for appellants.

Charles Lakatos, of Philadelphia, Pa. (Freedman & Goldstein, Abraham E. Freedman, and Paul M. Goldstein, all of Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, GOODRICH, and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This appeal arises out of a compensation claim under the Longshoremen's and Harbor Workers' Compensation Act, U.S. C.A. Title 33, § 901 et seq. The appellee is a longshoreman. On July 21, 1939, he suffered a compensable accident when a crowbar struck his left foot, injuring it. He received medical treatment for some time thereafter and was paid compensation for the time he was disabled. On November 10, 1939, he returned to work. He continued working until February 16, 1940. On February 23, 1940, he was hospitalized and remained so until May 2, 1940. During that period one of the toes on his right foot became gangrenous and was amputated. He claimed compensation for this, alleging it arose as a result of his accident on July 21, 1939. Compensation was refused on the ground that the disability was the result of a preexisting condition of Buerger's disease which was neither caused by, nor related to, the original injury.

The matter was reopened on November 26, 1940, and on August 8, 1941, there was an order for compensation which set out that there had been a mistake in the finding of fact "that the disease suffered by the claimant and his disability therefrom was not caused by or related to the injury" and holding that the injury of July 21, 1939, had "caused acceleration of the progress of the vascular disease by which claimant was affected; that the subsequent disability, beginning on February 17, 1940, has been advanced in time and increased in degree by the results of the injury; that claimant has been totally disabled from the injury, in addition to the sixteen weeks awarded in order of August 9, 1940, from February 17, 1940, to the present date, and such disability continues;". This order was sustained on review, by the District Court. The present appellants then went back to the Compensation Commission on a petition alleging that the employee's admitted total disability was in no way related to the accident of July 21, 1939. After hearings, the Deputy Commissioner entered an order terminating compensation as of March 6, 1942. The basis of that order was "* * * that there is a change in conditions in that aggravation of the circulatory disease by the injury of July 21, 1939, had ceased by March 6, 1942; that trauma is no longer a factor in the causation of the claimant's disability."

The employee then filed a complaint in the District Court to review that order. There was a motion to dismiss that complaint, which was denied. 48 F.Supp. 4. Both sides moved for summary judgment and the plaintiff's motion was granted with an order, setting aside the Deputy Commissioner's order which ended compensation, and reinstating the order of August 8, 1941 which calls for compensation payments to the plaintiff during the continuance of total disability in accordance with Section 908 of the Act. It is from that order of the District Court that the defendants have taken this appeal. At the hearings before the Deputy Commissioner on the appellants' petition alleging that the employee's total disability was not connected with the July 21, 1939, accident, a Dr. Laplace testified for the employer. He had been a witness at the original hearing two years previously and his testimony was to the same effect as at that time. In answer to questions by the Deputy Commissioner he said:

"It must be understood that I simply expressed the opinion at the time of my previous testimony, that Mr. Bernatowicz' disease was one which in the majority of cases is progressive, and this fact lead me to assume that sooner or later it would arrive at a stage causing disability, whether or not any accident occurred to aggravate it.

"I stated at the time that in my purely arbitrary opinion, I considered that the manifestations of the arterial disease had been accelerated by about two years."

A Dr. Montgomery also testified on behalf of the employer and carrier. He insisted that Bernatowicz was not suffering from Buerger's disease at all but from arteriosclerosis. The inference from his evidence is that the accident of July 21, 1939, did not aggravate Bernatowicz' preexisting condition. This witness added nothing of importance to the record. The order of the Deputy Commissioner of August 8, 1941, found Bernatowicz suffering from Buerger's disease, aggravated by the accident. The hearing was not on the ground that the Deputy Commissioner had made a mistake but that there was a change in conditions.

This leaves the evidence of Dr. Laplace and the question as to whether or not it substantiated the changed conditions of the findings of fact of the Deputy Commissioner, above quoted. One of the changes found was "that the aggravation of the circulatory disease by the injury of July 21, 1939 had ceased by March 6, 1942." Dr. Laplace does not bear this out. He merely gives as his opinion that even without any accident, the Buerger's...