Bernatowicz v. Nacirema Operating Co.

• Decision Date: 10 December 1942
• Docket Number: Civil Action No. 2499.
• Parties: BERNATOWICZ v. NACIREMA OPERATING CO., Inc., et al.
• Court: U.S. District Court — Western District of Pennsylvania

48 F. Supp. 4

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

Civil Action No. 2499.

District Court, E. D. Pennsylvania.

December 10, 1942.

Paul M. Goldstein, of Freedman & Goldstein, of Philadelphia, Pa., for plaintiff.

J. B. H. Carter and Philip H. Strubing, of Evans, Bayard & Frick, all of Philadelphia, Pa., for Nacirema Operating Co. and Travelers Ins. Co.

Gerald A. Gleeson, U. S. Atty., and J. Barton Rettew, Asst. U. S. Atty., both of Philadelphia, Pa., for Augustus P. Norton, Deputy Commissioner.

BARD, District Judge.

John Bernatowicz, plaintiff in the present action, while employed as a stevedore on July 21, 1939, sustained a severe injury to his foot. At the time of the injury he was suffering from Buerger's disease. He applied for compensation for total permanent disability under the Longshoremen's and Harbor Workers' Compensation Act, Act of March 4, 1927, c. 509, 33 U.S.C.A. § 901 et seq. After hearing, the Deputy Commissioner found as a fact that the accident had aggravated and accelerated the disease from which plaintiff was suffering and thereby rendered him permanently and totally disabled. The sufficiency of the evidence to sustain these findings and the award of compensation based thereon was challenged by an action for review brought in this court, in which the order of the Deputy Commissioner was sustained. Travelers Ins. Co. v. Norton, D.C., 43 F. Supp. 531.

On March 7, 1942, the defendant filed a petition with the Deputy Commissioner seeking modification of the award made by him. This petition was based upon Section 22 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 922, which permits an application for modification of an award on the ground of a "change in conditions" since the award was made. Hearings were held at which medical testimony was produced that within two years from the date of the accident plaintiff would have been disabled as a result of the disease with which he was afflicted if the accident had not occurred. The Deputy Commissioner thereupon found as a fact 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." He thereupon allowed the application of the defendant and directed that compensation payments be terminated as of March 6, 1942. In accordance with the procedure provided for in Section 21(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 921(b), plaintiff instituted the present action to review this order of the Deputy Commissioner. The Nacirema Operating Company, Inc. and The Travelers Insurance Company filed the present motion to dismiss the complaint.

The finding of the Deputy Commissioner that plaintiff would have been totally disabled within two years from the date of the accident is supported by the medical testimony produced before him and cannot be attacked in the present proceeding. The question presented, therefore, is whether this fact justifies the termination of compensation. The defendant contends that the medical opinion that the accident is no longer the cause of the total disability of the claimant, because such disability would have occurred in the absence of the accident, justified the legal conclusion that the accident is no longer the cause of the claimant's disability and that compensation payments may therefore be terminated. Upon a consideration of the terms of the Longshoremen's and Harbor Workers' Compensation Act this contention cannot be sustained. Section 8 of the Act, 33 U.S.C.A. § 908, provides that in the case of total disability adjudged to be permanent, compensation shall be paid to the employee "during the continuance of such total disability." It has been adjudged in the earlier stages of this case that the accident suffered by plaintiff resulted in his permanent total disability. It is conceded that this total disability continues and that there is no change in plaintiff's physical condition in this respect. Under the language of the Act referred to above, defendant is obliged to pay compensation during the continuance...