Bethlehem Shipbuilding Corporation v. Cardillo
| Decision Date | 02 March 1939 |
| Docket Number | No. 3392.,3392. |
| Citation | 102 F.2d 299 |
| Parties | BETHLEHEM SHIPBUILDING CORPORATION, Limited, et al. v. CARDILLO et al. |
| Court | U.S. Court of Appeals — First Circuit |
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La Rue Brown, of Boston, Mass. (Elias Field and Brown, Field & McCarthy, all of Boston, Mass., on the brief), for appellants.
Samuel B. Horovitz, of Boston, Mass. (B. A. Petkun, of Boston, Mass., on the brief), for appellee Archie Adams.
John A. Canavan, U. S. Atty., of Boston, Mass., and Z. Lewis Dalby, Chief Counsel, U. S. Employees' Compensation Commission, of Washington, D. C., for Deputy Commissioners.
Before BINGHAM and WILSON, Circuit Judges, and PETERS, District Judge.
This is an appeal from a final decree on July 25, 1938, of the federal District Court for Massachusetts dismissing a libel brought under Section 21(b) of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1436, Title 33 U.S. C. Section 921(b), 33 U.S.C.A. § 921(b), to set aside an order of deputy commissioner Cardillo, in the First Compensation District, filed March 3, 1937, and awarding compensation under the Act to the claimant Adams.
It appears that the claimant, a longshoreman, sustained an injury on April 14, 1932, arising out of and in the course of his employment by the Bethlehem Ship-building Corporation, Ltd., while repairing a certain vessel on the navigable waters of the United States; that the injury was caused by the falling of a plank upon his head; that on December 26, 1934, the defendant Monahan, the regular deputy commissioner for the district, awarded the claimant compensation for temporary total disability from the date of the injury (April 14, 1932) to and including December 26, 1934, at the rate of $16.67 a week; that, thereafter, on August 21, 1936, the same deputy commissioner awarded the claimant further compensation for temporary partial disability from December 26, 1934, to December 27, 1935, at the reduced rates of $10 per week for a portion of the time and $3.20 per week for the balance, rejected his claim for further compensation after December 27, 1935, and found that the claimant had not been disabled as a result of his injury since that date (December 27, 1935); that the last payment of compensation under the order of August 21, 1936, was made September 2, 1936; that, thereafter and within one year of said last payment, the claimant made an application under Section 22 of the Act, as amended, May 26, 1934, 48 Stat. 807, Title 33 U.S.C. Sec. 922, 33 U.S.C.A. § 922, alleging a mistake in the determination of a fact by the deputy commissioner and a change in conditions relative to the period and extent of his disability, and further proceedings were had before deputy commissioner Cardillo (temporarily detailed to act as deputy commissioner during deputy commissioner Monahan's absence), who, after a hearing and the submission of new evidence and that previously taken by deputy Monahan, found that the claimant, after December 27, 1935, and before February 9, 1937, the date of the Cardillo hearing, was temporarily totally disabled and entitled to compensation at the rate of $16.67 per week; that at the hearings before deputy Monahan the claimant had no physicians to testify in his behalf while several experts testified in behalf of the plaintiffs; that at the hearing before Cardillo several doctors, who qualified as experts, were called by the respective parties and testified; that stenographic reports of the evidence before deputy Monahan and numerous reports of doctors who had examined or operated on the claimant, were submitted in evidence, and the claimant and other witnesses testified.
Based on this evidence deputy Cardillo made the above finding of temporary total disability after December 27, 1935, and, among other things, further found that the claimant had sustained definite brain damage with scar formation; that he now had distinct nystagmus and a deficient eye muscle balance due to the injury; that since the injury, and as a result of it, he has suffered and continued to suffer headaches, dizziness, impaired hearing in both ears, sleeplessness, nervousness and epileptic seizures; that the symptoms developed immediately following the injury and had persisted since without independent or intervening cause; that the injury had also resulted in a definite retarding of mentality, impairment of efficiency, and a change in personality; that prior to the injury the claimant indulged in the use of alcoholic liquors; that the injury had reduced his tolerance for alcohol but had increased his desire for it; that such sensitivity to alcohol was a symptom of brain injury; that the claimant's behavior and alcoholism following the injury were casually related to the injury; that as a result of his injury the claimant was permanently and wholly incapacitated for performing his regular work as an iron worker and holder-on; that he was unable to climb, bend, lift or perform any hard or laborious work or to do anything requiring sustained effort; that any attempt to perform work would be dangerous to himself and to others; and that he is only able to do some special light work, such as sitting at a bench doing basketry.
The plaintiffs' libel, brought under Section 21(b), 44 Stat. 1436, Title 33 U.S. C. Sec. 921(b), 33 U.S.C.A. § 921(b), seeking to set aside and restrain the enforcement of the Cardillo order of March 3, 1937, was seasonably brought, for it was filed March 6, 1937, within three days after the entry of deputy Cardillo's order, which the plaintiffs allege was not in accordance with law.
The questions raised by the plaintiffs' assignments of error, in support of their contention that the award of Cardillo is not in accordance with law, are: (1) that Section 22, as amended, 48 Stat. 807 does not apply to a case where the injury was sustained prior to the effective date of the amended section; (2) that if the section, as amended, applied, deputy Cardillo failed to make an express finding of a "change of conditions" or "a mistake in a determination of fact", as required by the Section; and (3) that no "change of conditions" of the employee, or "mistake in the determination of a fact" by deputy Monahan, could be found to exist within the meaning of those words as used in Section 22.
The plaintiffs' first contention that Section 22, as amended, does not apply to a case where the injury was sustained prior to the effective date of the amended statute, is without merit. Section 22, as amended, as to which this assignment of error relates, reads as follows:
It is to be noted that Section 22, as amended, expressly authorizes a review by the deputy commissioner of "a compensation case in accordance with the procedure prescribed in respect of claims in section 19, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation", "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", predicated "on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner". And the last sentence of Section 22, as amended, means that while the new order "may be made effective from the date of the injury", it "shall not affect any compensation previously paid", but any prior payments in excess of a decreased award "shall be deducted from any...
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...conclusion, the First Circuit characterized Section 22 as remedial, calling for a liberal construction. Bethlehem Shipbuilding Corporation v. Cardillo, 1 Cir., 1939, 102 F.2d 299, 303. By analogy, amended Section 913(a) should receive similar treatment. This is in accord with the establishe......
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