Dillingham Corp. v. Massey
| Decision Date | 29 October 1974 |
| Docket Number | No. 72-2555,72-2555 |
| Citation | 505 F.2d 1126 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | DILLINGHAM CORPORATION, a corporation-employer, and Employers Mutual Liability Insurance Company of Wisconsin, a corporation-insurer, Appellants, v. W. L. MASSEY, Deputy Commissioner Fourteenth Compensation District under the Longshoremen's & Harbor Workers' Compensation Act and Allan G. MacDonald, Claimant, Appellees. |
Ridgway K. Foley, Jr. (argued), of Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, Or., for appellants.
Raymond J. Conboy (argued), of Pozzi, Wilson & Atchison, Portland, Or., Ronald R. Glancz, Atty. (argued), of Appellate Section, civil Div., Dept. of Justice, Washington, D.C., for appellees.
Before KILKENNY and SNEED, Circuit Judges, and JAMESON, District Judge. 1
Appellee MacDonald (claimant) submitted a claim against appellant Dillingham Corporation (employer) for a work-related injury under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq. After an evidentiary hearing, appellee Massey, Deputy Commissioner under the Act, found that claimant's pre-existing condition did not constitute a 'previous disability' pursuant to the Act and, therefore, that employer was liable for the full amount of the award. The district court upheld the Deputy Commissioner's findings, and this appeal follows.
The primary issue on appeal is whether the Deputy Commissioner committed error in finding that a previous disability did not exist. A secondary issue relates to the finding on percentage disability.
Claimant suffered a broken hip at age 12 which resulted in a slightly shorter left leg and a minor limp. He, nevertheless, led a physically active adolescence and participated in high school athletics. He was rejected for military service because of the condition, but still engaged in years of strenuous physical employment. He worked as a shipfitter, a logger, and a marine machinist, all occupations which involved considerable heavy work, including climbing, bending and lifting. His leg condition in no way prevented him from engaging in normal employment.
In 1963, claimant fell while working as a machinist on a ship being repaired by employer. He suffered an injury which severely aggravated his pre-existing condition. Further degeneration developed, in 1966, culminating in a falling accident at home in 1970, inability to continue employment, and a bleeding duodenal ulcer, all found to be caused by the aggravated condition. In appropriate proceedings in 1972, the employer was found liable for 85% Permanent partial disability of the left leg and compensation retroactive to 1964.
Section 8(f)(1) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. 908(f)(1), provides a limited exception to the general rule of full liability for the employer in workmen's compensation cases. If a claimant's injury coalesces with a 'previous disability,' his award is prorated between the employer and the Second Injury Fund provided by the government.
The principal purpose of this special provision is to aid the handicapped in obtaining employment. It protects them from discrimination by employers who might otherwise refuse to hire them due to the increased risk of disability. Lawson v. Suwanee Fruit & Steamship Co., 336 U.S. 198, 201-202, 69 S.Ct. 503, 93 L.Ed. 611 (1949).
However, Congress did not intend that all pre-existing conditions come under coverage by the Fund, but only those 'manifest' at the time of initial employment. American Mutual Ins. Co. of Boston v. Jones, 138 U.S.App.D.C. 269, 426 F.2d 1263, 1267 (1970). An underlying condition which is not manifest to a prospective employer cannot qualify as a previous disability. United States Fidelity & Guaranty Co. v. O'Keeffe, 240 F.Supp. 816 (S.D.Fla.1962). Thus, the key to the issue is the availability to the employer of knowledge of the pre-existing condition, not necessarily the employer's actual knowledge of it. American Mutual, supra. 426 F.2d at 1267.
The determination of a previous disability's manifestation is a factual one, and a number of factors may come into play. The employee's appearance, medical reports and work experience are relevant, but the critical element is what the employer has available to him when the hiring occurs, should he decide to take notice of it. Boyd-Campbell Co. v. Shea, 254 F.Supp. 483 (S.D.Tex. 1966), is clearly in point.
Because the administrative determination at issue is a factual one, American Mutual Ins. Co. of Boston, supra, 426 F.2d at 1268, we are bound by the findings of the Deputy Commissioner unless we can say that they are unsupported by substantial evidence taking the record as a...
To continue reading
Request your trial
-
District of Columbia Workmen's Compensation Act, Matter of
...also Sun Shipbuilding & Dry Dock Co. v. Bowman, 371 F.Supp. 365 (E.D.Pa.1974), rev'd, 507 F.2d 146 (3d Cir. 1975); Dillingham Corp. v. Massey, 505 F.2d 1126 (9th Cir. 1974). While it is always hazardous to speculate why a court did not adhere to an issue, it is hard to believe that all of t......
-
Hastings v. Earth Satellite Corp.
... ... § 928(a)); accord, Matthews v. Walter, 512 F.2d 941 (D.C. Cir. 1975); Dillingham Corp. v. Massey, 505 F.2d 1126 (9th Cir. 1974) ... 21 See Cooper Stevedoring of La., Inc. v. Washington, 556 F.2d 268 (5th Cir. 1977) (holding ... ...
-
Castro v. General Construction Co.
... ... 1990), cert. denied , ... 498 U.S. 1073 (1991); Hairston v. Todd Shipyards ... Corp. , 849 F.2d 1194, 21 BRBS 122(CRT) (9 th ... Cir. 1988). The Director argues that Abbott ... Department of ... Labor, 553 F.2d 1144, 5 BRBS 756 (8 th Cir ... 1977); Dillingham Corp. v. Massey, 505 F.2d 1126 ... (9 th Cir. 1974); American Mutual Ins. Co. v ... ...
-
Atlantic & Gulf Stevedores, Inc. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor
...either the Special Fund or the employer, is liable for death benefits after the 104th week.5 See, e. g., Dillingham Corp. v. Massey, 505 F.2d 1126 (5th Cir. 1974) (per curiam); American Mutual Insurance Co. v. Jones, 138 U.S.App.D.C. 269, 426 F.2d 1263 (1970); Boyd-Campbell Co. v. Shea, 254......