BOYD-CAMPBELL COMPANY v. Shea

• Decision Date: 26 February 1966
• Docket Number: Civ. A. No. 66-C-4.
• Citation: BOYD-CAMPBELL COMPANY v. Shea, 254 F.Supp. 483 (S.D. Tex. 1966)
• Parties: BOYD-CAMPBELL COMPANY, Inc., et al. v. R. J. SHEA et al.
• Court: U.S. District Court — Southern District of Texas

254 F. Supp. 483

BOYD-CAMPBELL COMPANY, Inc., et al. v. R. J. SHEA et al.

Civ. A. No. 66-C-4.

United States District Court S. D. Texas, Corpus Christi Division.

February 26, 1966.

Fulbright, Crooker, Freeman, Bates & Jaworski, S. G. Kolius, Houston, Tex., for plaintiffs.

Mandell & Wright, Herman Wright, Houston, Tex., for defendant Harvey Jack Austin.

Woodrow Seals, U. S. Atty., Jack Shepherd and Carl Walker, Asst. U. S. Atty., Houston, Tex., for defendant, R. J. Shea.

GARZA, District Judge.

This is an appeal by Plaintiffs, Boyd-Campbell Company, Inc., and Texas Employers' Insurance Association, from an award of compensation benefits made by the Defendant R. J. Shea, Deputy Commissioner of Labor, Eighth Compensation District, Bureau of Employees' Compensation, United States Department of Labor.

Pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., the Defendant Harvey Jack Austin, claimant below, was found to be totally and permanently disabled as a result of an injury received in the course of his employment with Plaintiff-employer, Boyd-Campbell Company, Inc., on November 26, 1954.

The Deputy Commissioner modified an award for temporary total disability granted in a compensation order of April 9, 1958, and awarded to the claimant compensation for total and permanent disability at the rate of $31.00 per week and a lump sum of $775.00 for accrued back compensation.

Plaintiffs filed their complaint in this Court, attacking this latter compensation order of January 10, 1966, and praying for a temporary and permanent injunction restraining the Defendants from enforcing this award and staying the payments required thereby pending final decision by this Court.

On January 19, 1966, a hearing was held on the motion for temporary injunction, and an order entered on January 28, 1966, granting an interlocutory injunction against Defendants, restraining them from enforcing the lump sum payment of $775.00 to Defendant-claimant pending final decision in this cause, and further ordering that Plaintiffs pay and continue to pay the bi-weekly compensation benefits provided in the award.

At the hearing, the parties were directed to submit their motions for summary judgment and briefs thereon; and the Plaintiffs and each Defendant have filed motions for summary judgment and briefs, which are before the Court at this time.

On November 26, 1954, Defendant-claimant, Austin, while working as a longshoreman for the Plaintiff-employer aboard a ship in the Port of Corpus Christi, Texas, sustained personal injuries, primarily to his back, when he was caught between the beam of the ship and a load of cotton seed meal. After undergoing two operations on his back, claimant was awarded temporary total disability by the Deputy Commissioner, payments to be made "during the continuance of such disability, subject to the limitations of the Act or until further order of the Deputy Commissioner."

Although § 14(m) of the Act limited compensation at the time of this injury to $10,000.00, the Plaintiff-insurance carrier continued payments under the award until the amount of $17,205.00 was paid. This, it claims, was due to inadvertence or a mistake of fact as to the limit applicable to this injury.

On July 8, 1965, payments were terminated, and on August 4, 1965, counsel for claimant filed with the Deputy Commissioner a letter applying for a modification of the original compensation order on the grounds that the disability was now total and permanent.

The Deputy Commissioner held a formal hearing on December 4, 1965, at which claimant testified and called as adverse witnesses two employees of Plaintiff-insurance carrier. Three medical witnesses testified on behalf of the Plaintiffs.

Claimant testified that he was unable to do any kind of work and had been since his injury. He had undergone a third operation on his back after the award of April 9, 1958, but still had pain each time he attempted to do any sort of physical exercise or manual labor. Up until the time of his injury of November 26, 1954, he had performed manual labor as a farmer, an oil field worker and a longshoreman without any pain or difficulty except for short periods of time when he was recovering from prior injuries.

The medical witnesses testified that the claimant had congenital anomalies of the lumbar spine which caused the claimant to have a mechanically unstable back and which in their opinion produced some disability for continued hard manual labor before his 1954 injury. The fourth and fifth lumbar vertebrae were partially fused from birth, and the three operations were performed in efforts to fuse the spine from the third lumbar vertebra to the sacrum. It was felt after the third spinal fusion that the graft was solid.

The...