Di Giorgio Fruit Corporation v. Norton

• Decision Date: 05 November 1937
• Docket Number: No. 6458.,6458.
• Citation: 93 F.2d 119
• Parties: DI GIORGIO FRUIT CORPORATION et al. v. NORTON, Deputy Commissioner, et al.
• Court: U.S. Court of Appeals — Third Circuit

93 F.2d 119 (1937)

DI GIORGIO FRUIT CORPORATION et al. v. NORTON, Deputy Commissioner, et al.^*

No. 6458.

Circuit Court of Appeals, Third Circuit.

September 27, 1937.

Rehearing Denied November 5, 1937.

Rawle & Henderson, George M. Brodhead, Jr., Thomas F. Mount, and Joseph W. Henderson, all of Philadelphia, Pa., for appellants.

E. Herman Fuiman, of Philadelphia, Pa., for appellees.

Argued before BUFFINGTON, THOMPSON, and BIGGS, Circuit Judges.

BIGGS, Circuit Judge.

Upon July 25, 1932, Andrew H. Henson, one of the appellees, a longshoreman employed by the appellant, Di Giorgio Fruit Corporation, suffered contusions and lacerations to the globe of his left eye by being struck by the stalk of a bunch of bananas which fell upon him while he was unloading the steamship Princess May at dock upon the Delaware river at Philadelphia, Pa. Henson was disabled for about a week. At the end of this time he continued his work as a longshoreman until the month of May, 1933, when he was confined to Holmesburg prison for 18 months. While he was in prison the injured eye hurt him and it was treated by the prison authorities. After his release, he himself attempted further treatments to decrease the discomfort that the eye caused him. It was not until August 11, 1936, however, that he filed a claim under the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C.A. § 901 et seq.) with the Deputy Commissioner for the Third Compensation District for compensation for permanent disability from the loss of the sight of his eye. Thereafter, extended hearings were had before the Deputy Commissioner, who conscientiously weighed the evidence submitted. At the hearing which took place on August 22, 1936, Henson was asked by the Deputy Commissioner: "Now, when did you begin to find anything serious the matter with your eye, more or less?" Henson replied: "Well, it was about — last Friday it has been about three Wednesdays ago when I first went to the — three or four Wednesdays. * * *" It is therefore apparent, since the hearing took place upon August 22, 1936, that the purport of Henson's answer is that he became aware of the serious condition of his injured eye in August, 1936.

In our opinion, the Deputy Commissioner had before him sufficient evidence to support his finding that the injury to Henson's eye was by its nature a progressive one and originally resulted from the accident which occurred upon July 25, 1932; that the globe of the eye with its lens proceeded through various progressive stages of degeneration culminating in lenticular opacities and a cataractous condition; and that Henson became aware of this condition in the month of August, 1936, when the injury became compensable. It is true that there is a conflict of evidence in respect to the nature and extent of his injuries. Henson stated that he had made no claim on account of his injury until he needed money. The medical testimony is far from clear. The physicians of the United States Public Health Service, who examined Henson could not conclude definitely that the accident of July 25, 1932, was the cause of the cataractous condition of the eye as it existed in 1936, and that such condition should have been observable by Henson long prior to the time of the filing of his claim. One of the physicians stated, however, that the lenses of the injured eye might have been somewhat opaque following the accident and not have been observed by Henson; that it was a doubtful case.

Under the act the merits of the facts of the case must be determined by the Commissioner. We do not have the power to revise or modify the findings of fact of the Deputy Commissioner if they are supported by the evidence and are neither arbitrary or capricious. Crowell v. Benson, 285 U. S. 22, 52 S.Ct. 285, 76 L.Ed. 598; Green v. Crowell (C.C.A.) 69 F.(2d) 762, certiorari denied 293 U.S. 554, 55 S.Ct. 88, 79 L.Ed. 656; Rothschild & Co., Inc. v. Marshall (D.C.) 56 F.(2d) 415; Wheeling Corrugating Co. v. McManigal (C.C.A.) 41 F.(2d) 593; Hoage, Deputy Commissioner et al. v. Employers' Liability Assurance Corp., 62 App.D.C. 77, 64 F.(2d) 715. In the case at bar, the Deputy Commissioner has weighed the evidence carefully and made his findings of fact. These findings are not capricious or arbitrary, but represent the mature judgment of an experienced officer. We will not disturb them.

A most important question remains, however, one of law which is almost of original imprint in the federal courts. Section 13(a) of the Longshoremen's and Harbor Workers' Compensation Act (33 U.S. C.A. § 913(a) provides: "The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within one year after the injury."

It is the contention of the appellants that the phrase "within one year after the injury" bars any claim not filed within one year of the date of accident. Since the federal courts are devoid of decisions relating to the construction of this phrase of the act, save one decision, which we will discuss hereafter, the appellants argue from the analogy of state workmen's compensation laws which use this phrase and which have been construed in favor of the appellants' contention. Typical of the cases cited by the appellants is Cooke v. Holland Furnace Company, 200 Mich. 192, 202, 166 N.W. 1013, 1017, L.R.A.1918E, 552. The facts of this case are as follows: The plaintiff received an injury to his head by reason of being struck by a flying bolt, and at the time of the accident was given first aid treatment. Nonetheless, he continued his work, but within a period of 3 months developed headaches and dizziness which within a year had increased to such an extent that he was forced to undergo an operation. He made no claim until one year after the accident, though the time limitation set forth in the statute was six months. The Supreme Court of Michigan denied compensation, and stated: "While the words `accident' and `injury' are not synonymous, the accident produced the injury, and in point of time they were concurrent. We are compelled to hold, must hold, unless we resort to judicial legislation, that the Legislature * * * fixed the date of the injury at the date of the accident, and not some remote date thereafter, when the injured employee became definitely satisfied that he was disabled as a result of the accident."

The phraseology of the Michigan statute in respect to the time of limitation of claims is similar to that used in the Longshoremen's and Harbor Workers' Compensation Act.

On the other hand, the courts of many other states have construed substantially similar language in their respective Compensation Acts in the manner here sought by the appellees; namely, that the period of limitation in which the claim must be filed begins to run from the time the injury becomes apparent in a final and definite way and is therefore compensable. A typical ruling to such effect is that contained in Stolp v. Department of Labor & Industries, 138 Wash. 685, 245 P. 20, 22. In this case the Supreme Court of Washington passed upon the following state of facts: Stolp in the course of his employment accidentally struck his left eye on an air compressor pipe. Thereafter, he consulted a physician, but neither he nor the physician apprehended that any serious injury would result from the blow. Stolp continued his work for a period of 14 months after the date of the accident without knowledge that the sight of his eye was impaired, and then learned of the condition which afflicted him for the first time. He filed an application for compensation under the Workmen's Compensation Law of Washington approximately 4 months after his discovery that he had lost the sight of his eye, and approximately 18 months after the accident had occurred. The Workmen's Compensation Law of Washington, section 7686, subd. (d), Rem. Comp.Stat. provided: "No application shall be valid or claim thereunder enforceable unless filed within one year after the day upon which the injury occurred or the rights of dependents or beneficiaries accrued."

In respect to the time of the commencement of the period of limitation, the Supreme Court of Washington ruled: "The question in the case now before us is not when the accident or the fortuitous event happened, but when the injury occurred. It seems to us that the reasonable and proper construction of the act of this state is that the employee has one year within which to file a claim after the injury has developed which was the result of the fortuitous event."

As might be expected, the state courts differ in their...