Grays Harbor Stevedore Co. v. Marshall

• Decision Date: 16 December 1929
• Docket Number: No. 671 and 693.,671 and 693.
• Citation: 36 F.2d 814
• Court: U.S. District Court — Western District of Washington
• Parties: GRAYS HARBOR STEVEDORE CO. et al. v. MARSHALL et al. ROTHSCHILD & CO. et al. v. SAME.

36 F.2d 814 (1929)

GRAYS HARBOR STEVEDORE CO. et al. v. MARSHALL et al.

ROTHSCHILD & CO. et al. v. SAME.

Nos. 671 and 693.

District Court, W. D. Washington.

December 16, 1929.

In Case No. 671:

Roy E. Bigham, of Seattle, Wash., for plaintiffs.

Lord & Moulton, of Portland, Or., for defendants.

In Case No. 693:

Roberts, Skeel & Holman, of Seattle, Wash., for plaintiffs.

Vandeveer, Bassett & Levinson, of Seattle, Wash., for defendants.

BOURQUIN, District Judge.

These are proceedings pursuant to the Longshoremen's and Harbor Workers' Compensation Act, title 33, section 902 et seq., USCA, to review and set aside certain compensation orders made by the deputy commissioner upon evidence presented in hearings before him. To that end, plaintiffs allege only that the orders are contrary to law, for that there was no evidence presented as aforesaid which supports them.

The deputy has not certified the evidence as he should, but transcripts are filed which the parties agree contain it. Of course, upon it alone have been the instant hearings. For although the law as in decisions construed or established in respect to court review of the orders of administrative boards and officers is more or less affected by the trend of the times and in flux and confusion (see the opinions in the Ben Avon Case, 253 U. S. 287, 40 S. Ct. 527, 64 L. Ed. 908), it is believed that in this statutory review, as distinguished from a suit in equity, the court is limited to the evidence before the boards or officers, is not to substitute its judgment for theirs in respect to mere conflicts in or weight of evidence, but is to determine only whether, as plaintiffs allege, the orders are without substantial evidence legally sufficient to sustain them. See Oregon, etc., Co. v. Fairchild, 224 U. S. 526, 32 S. Ct. 535, 56 L. Ed. 863; Com'n v. Railway Co., 222 U. S. 547, 548, 32 S. Ct. 108, 56 L. Ed. 308; cases, dissenting opinion, Ben Avon Case, supra, 253 U. S. 297, 40 S. Ct. 529, 64 L. Ed. 908.

Adverting to the second case, the evidence discloses that at the hearing before the deputy on August 19, 1929, the employee testified that March 11, 1929, while engaged in lifting, he "was hurt in the back, * * * got a wrench in my back, * * * gave me a sharp pain in the back, * * * I couldn't continue with no work, * * * I had to quit"; that thereupon he drove his car to the hospital, and he is "still disabled." In addition is the testimony of two witnesses, referred to as doctors, who for the employer testified examination of the employee discloses that for years he had been and now is afflicted with arthritis of the spine, which might disable him at any time, that his lifting aggravated that condition, and that his present condition rendered it doubtful if he could presently engage in hard labor; "the time may come when he can do hard labor; I think he can do some light job now." Upon this, literally all the material evidence, the deputy found total disability from March 11, 1929, to and continuing at the time of his award accordingly.

The evidence is scanty, ambiguous, indefinite, and uncertain in respect to the elements of effect, continuity, and time, and is not legally sufficient to warrant what appears to be the deputy's arbitrary finding. Neither expressly nor by reasonable implication does it appear that the employee has been continuously or at all totally disabled in respect to any and all employment.

In so far as it is urged that the employee's previous diseased condition abates compensation in part at least, it is without warrant in the statute, which contains no exception in that behalf. The employee's disease is not a "previous disability," within the statutory limitation. See sections 902(10), 908(f). The employer assumes the risk of an employee's diseased condition aggravated by injury, to avoid which he must X-ray him before injury rather than after it; in...