Duluth, M. & I. R. Ry. Co. v. U.S. Dept. of Labor

• Decision Date: 18 April 1977
• Docket Number: No. 76-1586,76-1586
• Citation: 553 F.2d 1144
• Parties: DULUTH, MISSABE AND IRON RANGE RAILWAY COMPANY, Petitioner, v. U. S. DEPARTMENT OF LABOR et al., Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1144

553 F.2d 1144

DULUTH, MISSABE AND IRON RANGE RAILWAY COMPANY, Petitioner, v. U. S. DEPARTMENT OF LABOR et al., Respondents.

No. 76-1586.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 14, 1977.

Decided April 18, 1977.

William P. O'Brien, Duluth, Minn., for petitioner.

Harry L. Sheinfeld, U. S. Dept. of Labor, Washington, D. C., for respondents; William J. Kilberg, Sol. of Labor, Laurie M. Streeter, Associate Sol., Washington, D. C., on brief.

Rerat Law Firm, P.A., Charles A. Collins (argued), Minneapolis, Minn., for Warner C. Holten.

Before BRIGHT and HENLEY, Circuit Judges, and HARPER, Senior District Judge. ^*

BRIGHT, Circuit Judge.

The Benefits Review Board, affirming a decision of an administrative law judge, ordered the Duluth, Missabe and Iron Range Railway Company (Employer) to pay to Warner C. Holten disability benefits for total and permanent disability pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (Act). In this petition for review the Employer challenges the administrative determinations, contending that the Employee, Holten, did not sustain an injury entitling him to benefits under the Act; that Holten's claim, in any event, is barred by the Employee's failure to give adequate notice to the Employer of the alleged injury; that the Employer, in any event, is not liable for certain medical expenses because they were incurred without the Employer's authorization; and, finally, that the Special Fund established under § 44 of the Act, 33 U.S.C. § 944, is responsible for the portion of disability benefits due Holten, if any, resulting from an existing permanent partial disability from which the Employer asserts Holten suffered. The claimant also participates in this appeal as an intervenor.

We sustain the decision of the Benefits Review Board with one exception that of the Employer's liability for Holten's medical expenses incurred by physicians retained through his attorneys. As to that issue, we remand for further consideration and determination.

I. Facts.

Holten worked as a "lift man" in the loading of iron ore boats in Duluth, Minnesota. On April 29 or 30, while manipulating levers which operated spouts through which iron ore flowed into the boats, a lever suddenly released, thrusting Holten backwards. He released his hold on the lever and felt a sharp pain in his right shoulder. Holten testified that he reported the injury to his supervisor, Varner Engstrom. Further, according to Holten's testimony, Engstrom advised him to file a written report immediately, but Holten failed to do so. Holten continued to work until May 1973, but during that period he received medical treatment for neck and shoulder difficulties on a number of occasions. On June 1, 1973, Holten took his annual vacation. He never thereafter returned to work.

Holten sought treatment at the emergency room of St. Luke's Hospital in Duluth on May 18, 1973. He returned to the emergency room on May 26th, 28th, and 30th for further treatment. On June 6th, he entered the hospital on an inpatient basis. Holten was examined the next day by Dr. W. D. Rudie. Dr. Rudie's report on this examination indicates that Holten claimed that he had sustained his injury on April 29th while working for the Employer railroad; he was apparently moving a lever and had a sudden, severe pain in his right shoulder. Dr. Rudie's preliminary diagnosis was "degenerative cervical disc disease with resultant neuritis."

On July 13, 1973, Holten underwent a cervical disc operation at St. Luke's Hospital. The surgeon was Dr. W. S. Pollard. The spinal discs at the 4-5 and 5-6 cervical interspaces were removed and these areas were fused with bone plugs. The surgical diagnosis was that of "neuralgia right arm secondary to cervical disc degeneration and spurring cervical 4-5, C 5-6."

The operation was not entirely successful, but the patient did improve, became ambulatory, and was ultimately discharged from the hospital. Dr. Pollard felt that he might benefit from further therapy such as a "sympathetic block and/or consideration of sympathectomy." The hospital report indicates that such therapy was offered Holten but he declined waiting recommendation of his attorney in Minneapolis.

Holten was referred by his attorney to Dr. A. Ross Lerner of Minneapolis on October 4, 1973. Holten was hospitalized at Mt. Sinai Hospital in Minneapolis from October 31 to November 19, 1973. Dr. Lerner called in Dr. Leonard Titrud, a Minneapolis neurosurgeon. On November 26, 1973, Holten again underwent surgery, this time by Drs. Titrud and Lerner, who loosened the nerve roots at the 5th and 6th cervical levels, and made more room for the spinal cord to move away from the bony ridges of the spinal canal. The operation did not greatly change Holten's condition but was of some limited success, permitting claimant to move his body more freely.

At the hearing the testimony established that the claimant, then age 65, suffers from a stiff neck, limited range of motion in his right shoulder, and a clawed, generally unusable right hand. He also complains of pain in his right upper extremity and shoulder as well as in his right leg.

The medical records reveal that Holten suffered neck problems as early as 1959. The records of St. Luke's Hospital in Duluth disclose that he was hospitalized from February 13 to February 21 in that year, with complaints of dizziness diagnosed as low-grade labyrinthine (inner ear) disturbance that probably was Meniere's Syndrome, plus painful stiffness in the neck, particularly on the right side. Spinal x-rays demonstrated marked hypertrophic ridging from the third to seventh cervical levels. At that time the patient underwent halter traction and an occipital nerve block for nerve root inflammation secondary to osteoarthritis of the cervical spine. This treatment gave considerable relief from the pains in the neck and occipital area.

The working diagnosis issued by Dr. Pollard in 1959 included the following comment:

Surgery may be necessary on this man considering the onset of this pain without specific trauma. However, a period of cervical traction therapy should be vigorously pursued before we consider operating on what is ess. (essentially) a degenerative process.

The testimonial record in this case discloses that after the 1959 treatment until the date of the alleged work-related injury in 1973, Holten performed jobs involving heavy manual labor without apparent problem.

Drs. Lerner and Titrud, who testified before the administrative law judge, attributed Holten's present disabilities to aggravation of Holten's preexisting condition caused by the alleged accident Holten suffered while loading the iron ore boat on April 29 or 30, 1973.

Dr. Pollard, who did not testify at the hearing, indicated in his reports that no connection existed between the alleged injury and Holten's present condition. Other medical reports in the medical history recite the occurrence of the injury without offering any medical opinion as to a causal connection between that alleged incident and Holten's present condition.

II. Proof of Injury, Causation, and Notice.

The Employer's claims that Holten did not sustain a compensable accident in the course of his employment, and that Employer did not receive the statutory notice of the accident, merit little discussion. These issues rest on factual matters upon which the administrative agency has made findings.

Our scope of review is governed by well-established principles. The administrative findings of fact in cases arising under the Longshoremen's and Harbor Workers' Compensation Act may not be disturbed unless they are unsupported by "substantial evidence on the record considered as a whole," O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 508, 71 S.Ct. 470, 472, 95 L.Ed. 483 (1951); see also Banks v. Chicago Grain Trimmers Association, 390 U.S. 459, 467, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968).

The substitution of administrative law judges for the deputy commissioners, who previously adjudicated cases under the Act, and the Benefits Review Board, which now officially reviews compensation orders rather than district courts, has not changed the settled principles of appellate review in a court such as ours. ¹

The administrative law judge found that Holten suffered an injury in the course of his employment which resulted in permanent disability and required medical treatment, which he has undergone. His findings are supported by Holten's own testimony. That some incident occurred during his employment which triggered his present medical condition is supported by medical histories given to physicians that Holten saw while being treated in the Duluth area. And, as we have already noted, Drs. Lerner and Titrud opined that the incident of April 29th or 30th did in fact trigger his present complaints.

Thus, the record as a whole, which we have reviewed, offers sufficient support to substantiate the administrative law judge's findings, affirmed by the Benefits Review Board, that Holten suffered an injury giving rise to compensation under the Act. Accordingly, the Employer's contentions going to the factual basis of the claim must be rejected.

The failure of notice defense offered by the Employer likewise rests upon a factual determination. The relevant statute, 33 U.S.C. § 912(a), requires claimant-employees to give their Employer written notice of injury within 30 days of the date of such injury. Section 912(d) provides, however, that failure to give such notice does not bar the claim if the Employer or its agents had knowledge of the injury and the Secretary determines that the Employer was not prejudiced by the employee's failure to give notice.

Holten testified that he gave his supervisor notice of his injury on or about the date of the accident. He further testified that he "told them in the office" that he was taking his vacation...