Ennis v. O'Hearne

• Decision Date: 29 September 1954
• Docket Number: No. 3623.,3623.
• Citation: Ennis v. O'Hearne, 124 F. Supp. 498 (D. Md. 1954)
• Parties: Harrison ENNIS v. Stephen O'HEARNE, Deputy Commissioner Fourth Compensation District and Patapsco Ship Ceiling and Stevedore Company and The Travelers Insurance Company.
• Court: U.S. District Court — District of Maryland

124 F. Supp. 498

Harrison ENNIS v.Stephen O'HEARNE, DeputyCommissionerFourth Compensation District and Patapsco Ship Ceiling and Stevedore Company and The Travelers Insurance Company.

No. 3623.

United States District Court, D. Maryland, Admiralty Division.

September 29, 1954.

Avnet & Avnet (Albert Avnet, Advocate), Baltimore, Md., proctors for libelant.

George Cochran Doub, U. S. Atty., and James H. Langrall, Asst. U. S. Attorney, Baltimore, Md., and H. P. Miller, Atty., Dept. of Labor, Washington, D. C., proctors for respondentDeputyCommissioner, and Michael P. Crocker and Joseph H. Young, Baltimore, Md., proctors for respondentsPatapsco Ship Ceiling and Stevedore Co. and The Travelers Ins. Co.

THOMSEN, District Judge.

The question involved in this proceeding is whether there is substantial evidence on the record considered as a whole to support the finding of the Deputy Commissioner "that the claimant had recovered from the effects of his injury of 1 February 1952 prior to 21 June 1953", so that he no longer had any disability due to that injury.O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483.

There were two formal hearings before the Deputy Commissioner: at the first hearing the claimant, who was represented by counsel, testified; at the second hearing written reports from five doctors were admitted in evidence by stipulation, including a report from a psychiatrist, which the Deputy Commissioner had requested at the conclusion of the first hearing.

The Deputy Commissioner found as facts that on 1 February 1952the claimant was engaged as a stevedore in loading the S. S. C. G. Thelin, and while he was "standing on the head of an oil barrel, the barrel tipped as he moved to avoid a draft of oil barrels which were being lowered into the hold, and in turning to grab hold of the ship's ladder to prevent falling, he twisted his back, resulting in strain of the low back superimposed on a congenital condition described as second degree spondylolisthesis of the fourth lumbar vertebra on the fifth lumbar vertebra with a sacralized fifth lumbar with a spina bifida at the top of the sacrum"; that the employer and carrier furnished the claimant with medical treatment, etc., and paid compensation for temporary total disability at $35 per week until 21 June 1953; "that the claimant definitely refused surgery for his back condition; that the claimant refuses to wear the back brace furnished him on prescription of an orthopedic specialist; that the claimant has refused to seek any kind of employment; that the claimant had recovered from the effects of his injury of 1 February 1952, prior to 21 June 1953."

The order continued: "Upon the foregoing facts it is ordered by the Deputy Commissioner that the claim for compensation subsequent to 21 June 1953 be, and it is hereby Rejected, on the ground that the claimant made an uneventful recovery from his injury prior to the date for which he was last paid compensation."

It appears from the findings of fact and from the medical reports that the injury of 1 February 1952, alone, or in conjunction with or through aggravation of claimant's pre-existing back condition, caused temporary total disability.The question before the Deputy Commissioner was whether the claimant had recovered from the effects of that injury prior to 21 June 53, so that he no longer had any disability, total or partial, permanent or temporary, due to that injury.The word "disability" in the foregoing statement, as defined in the statute, means "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment."33 U.S.C.A. § 902(10).

The congenital condition remains, but if there was no aggravation of that condition by the injury which caused any disability (as defined in the statute) beyond 21 June 1953, nor any other effect of the injury which caused disability beyond that date, the Deputy Commissioner was correct in finding that the claimant had recovered from the effects of said injury, and in rejecting the claim for further compensation.

There was...