Godfrey v. Henderson

• Decision Date: 25 May 1955
• Docket Number: No. 15373.,15373.
• Citation: 222 F.2d 845
• Parties: J. R. GODFREY, Appellant, v. Joseph H. HENDERSON, Deputy Commissioner, Seventh Compensation District, Federal Security Agency, Bureau of Employees Compensation, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

222 F.2d 845 (1955)

J. R. GODFREY, Appellant, v. Joseph H. HENDERSON, Deputy Commissioner, Seventh Compensation District, Federal Security Agency, Bureau of Employees Compensation, Appellee.

No. 15373.

United States Court of Appeals Fifth Circuit.

May 25, 1955.

Vincent F. Kilborn, W. Jack Edwards, Mobile, Ala., for appellant.

Charles B. Arendall, Jr., Paul W. Brock, Mobile, Ala., amici curiae.

Percy C. Fountain, Asst. U. S. Atty., Smith, Hand, Arendall & Bedsole, Thomas M. Haas, Asst. U. S. Atty., Mobile, Ala., Stuart Rothman, Solicitor of Labor, Ward E. Boote, Asst. Solicitor, Herbert P. Miller, Attorney, U. S. Department of Labor, Washington, D. C., of counsel, for appellee.

Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and DAWKINS, District Judge.

DAWKINS, District Judge.

In 1950 appellant was severely injured in the course of his employment as a dock worker at Mobile, Alabama. On May 24, 1951, the Commissioner made an award finding him temporarily totally disabled. On July 9, 1953, the employer filed application for review pursuant to Section 22 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., based upon the contention that there had been a change in the condition of the claimant. After a hearing, the Deputy Commissioner found that there had been such a change in appellant's condition and that his disability was permanent partial, consisting of loss by amputation of his right leg, 25 per cent loss of use of his left foot and 60 per cent loss of use of his left arm but that he was not totally disabled. This finding was based upon the testimony of two doctors who thought appellant would be able to do limited work if he were fitted with an artificial leg. Appellant petitioned the district court to review the Commissioner's findings and require reinstatement of total temporary or a finding of total permanent disability. The trial court upheld the Commissioner's findings and dismissed the petition.

In this appeal, appellant argues the evidence shows by the doctors' examinations that his condition is the same as originally and that he is unable to do any work at the present time. He contends that the Commissioner's finding is based purely upon speculation that he might be able to do some limited work at some time in the future, if he acquires an artificial limb and if he learns how to use it properly and if he is able to obtain employment. Commissioner argues that his finding is final if there is evidence in the record to substantiate it and points to the testimony of the two doctors as indicating appellant's condition had changed from temporary to permanent and his disability is only partial.

Appellant does not dispute the percentages thus found, but contends these are not the only criteria to be considered in determining whether he is totally disabled. He denies there has been any change in his disability status, but if so, the facts show that he is now permanently and totally disabled. The Commissioner determined that his total disability ended as of November 8, 1953, leaving "permanent partial" (scheduled) disabilities in the percentages above stated. The monetary value of the injuries was computed according to the statute, resulting in a decree of $11,000 to be paid by December 26, 1956.

The court below wrote no opinion but found as follows:

"The findings of fact made by Joseph H. Henderson, Deputy Commissioner, as set out in said new compensation order and modification of award dated December 14, 1953, and as filed in this cause, are supported by substantial evidence on the record considered as a whole, and are hereby adopted by this Court and made a part hereof as fully and as completely, and with the same effect, as if set out herein."

and that:

"Said new compensation order and modification award dated December 14, 1953, was entered in conformity with the law."

It cited O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483, and South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732.

The percentages of impairment were stipulated. Appellant testified that he was born March 9, 1891, and hence was 62 years old at the time of the Commissioner's ruling; that he completed the fourth grade in school, and except for longshore work, his adult life had been spent as a seaman; that for twenty-five years he had been employed by Alabama Dry Dock Company, his employer at the time of his injury (which carried its own insurance); that he cannot undress himself, and demonstrated at the trial the difficulties he experiences in dressing; that although he has tried, he has been unable to do any work since his injury, because he cannot stand; that "something on his left heel" causes him "considerable trouble" and now and then the doctor has to cut it and pus flows therefrom; that the doctor advised him to stay off his feet as much as possible; that the left foot is still painful and callous has developed thereon. He further stated that his left arm had to be operated on and that there is a "little lump that comes up there and it feels like something hitting down there all the time * * *" and the condition has been "growing worse"; that the stump of his right leg is still sore and tender but otherwise gives him no trouble; that the trouble with the left leg is confined to the foot; that the left foot has no bone for the flesh to stick onto; that he has been to three or four employment bureaus but was unable to obtain employment; that he doesn't rest well at night and his wife helps him to and from the toilet since he cannot take down his pants without someone holding him up. In the course of his testimony the Commissioner commented that it was obvious that Godfrey was greatly handicapped, since his locomotion was made possible only with crutches, but that if he had an artificial limb he might do better.

Appellant offered no medical evidence, but stated he would "adopt" that presented by the employer.

For the employer, Dr. W. C. Hannon testified that he was an orthopedic specialist of some 28 years experience; that he had examined appellant and reported to the employer in the form of a letter, which was offered in evidence, in which he expressed the professional opinion that the condition was "permanently fixed and stationary"; that there was no evidence of neurosis, and that the left heel was not likely to become ulcerated; that while he has considerable impairment of the left hand, he has some useful function of the fingers and thumb; that the condition of the left foot and ankle was permanent; that the stump of the right leg is suitable for the fitting of a "prosthetic appliance", or artificial leg, and that this was supported by the X-Ray; that appellant could get along very well with an artificial leg which will relieve pressure on the left foot; that he saw no reason for a "flare up" in the left foot and ankle, although a fracture of the lower bone of the fibula, which makes a portion of the ankle, is not completely healed, but "is fixed permanently"; that there are some circulatory changes in this leg and foot due to non-use; that no further surgical or medical treatment will improve appellant's left foot, which has reached a maximum of recovery; that there is no prospect of further improvement in claimant's left hand, except for more use of it; that because of scar formation and contraction, there is tenderness in the left ankle; that there is nerve involvement and that the ulceration was probably...