Independent Stevedore Company v. O'LEARY

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation357 F.2d 812
Docket NumberNo. 20198.,20198.
PartiesINDEPENDENT STEVEDORE COMPANY et al., Appellants, v. J. J. O'LEARY, Deputy Commissioner, Bureau of Employees' Compensation, Department of Labor, Appellee.
Decision Date03 March 1966

Gray, Fredrickson & Heath, Nathan J. Heath, Portland, Or., for appellant.

Sidney I. Lezak, U. S. Atty., Portland, Ore., John W. Douglas, Asst. Atty. Gen., Morton Hollander, Lawrence R. Schneider, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before BARNES, BROWNING and DUNIWAY, Circuit Judges.

BROWNING, Circuit Judge.

This is an appeal from a judgment of the district court in a proceeding under section 21(b) of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1436 (1927), 33 U.S.C.A. § 921(b), sustaining a deputy commissioner's compensation award.

The record discloses that until 1951 or 1952 the employee performed hard work without physical difficulty as a sailor, logger, pile driver, carpenter, and longshoreman. In 1951 or 1952 he hurt his back while longshoring for appellant Independent Stevedore Company. In the years that followed, his condition was aggravated by other back injuries which he sustained while longshoring for Independent. On May 26, 1957, while still employed by Independent, he was disabled by a further back injury while moving timber on a cargo vessel. He has not worked since.

Appellants recognized the work-connected nature of the employee's disability, paying medical expense plus compensation for temporary total disability from May 26, 1957, to July 5, 1960. During this period, on February 25, 1958, the employee submitted to a spinal fusion. Following the operation, the employee wore a chair brace for three months and took heat treatments, but his condition continued to worsen. His physician informed him that he would be unable to work as a longshoreman again. He then filed a claim for permanent partial disability, based on the May 26, 1957, accident. In October 1960 appellants settled this claim by paying the employee additional compensation. The employee's back difficulty continued, culminating in an acute attack accompanied by a temporary paralysis. He then filed the present claim for permanent total disability, which the deputy commissioner allowed.

Appellants concede the employee's permanent total disability, but contend that the record does not support the deputy commissioner's conclusion that it was causally related to the employee's May 26, 1957 accident.

The deputy commissioner reached his conclusion in two steps. First, he found that as a result of the May 26, 1957, accident, the employee "suffered an acute lumbosacral strain which necessitated a spinal fusion from the 4th lumbar to the 1st sacral vertebraes on February 25, 1958." Second, he found "that as a result of the surgical operation on February 25, 1958, associated with pre-existing osteo-arthritic changes in the lumbosacral spine the disability of the claimant herein became permanent and total in character."

Appellants attack the first finding on the ground that no witness testified directly that the operation and the accident were related. But the lack of such direct testimony is not controlling. The deputy commissioner may infer a causal relationship from the general circumstances. Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962); Hampton Roads Stevedoring Corp. v. O'Hearne, 184 F.2d 76, 78 (4th Cir. 1950). See also Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 109, 80 S.Ct. 173, 175, 4 L.Ed.2d 142 (1959), where the Court said: "The jury's power to draw the inference that the aggravation of petitioner's tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause." We have sustained a deputy commissioner's inference of causal relationship from general circumstances even where the only direct evidence on the issue was a statement of medical opinion that no causal relationship existed. Crescent Wharf & Warehouse Co. v. Cyr, 200 F.2d 633, 637 (9th Cir. 1952).

As noted, the employee performed heavy work up to May 26, 1957, the day of the last injury. He ceased work immediately and remained totally disabled for nine consecutive months, at which time he submitted to a spinal fusion. These facts afforded a sufficient basis for the deputy commissioner's inference that the accident and the operation were related, particularly where, as here, there was no direct testimony to the contrary.

The deputy commissioner's second finding — that the employee's total disability resulted from "the surgical operation on February 25, 1958, associated with pre-existing osteo-arthritic changes in the lumbo-sacral spine —" was also a permissible inference from the record. It was supported both by the unbroken sequence of events from accident to surgery to permanent total disability, and by the medical evidence.1

While it is true that a doctor testified that only forty per cent of the employee's total disability was due to the spinal fusion, the fact that the fusion was not the sole cause of the disability is irrelevant. "It is well settled in compensation law that it is sufficient to justify an award if the accident was only a concurring cause * * *." Old...

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    • Longshore Complaints Court of Appeals
    • December 9, 2016
    ...condition and the aggravating injury are not weighed for purposes of this particular injury. Independent Stevedore Co. v. O'Leary, 357 F.2d 812 (9th Cir. 1966). We reject employer's contention that the administrative law judge failed to place the burden on claimant of establishing the work-......
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    ... ... Services of America and Homeport Insurance Company ... Daniel ... F. Valenzuela and Michael D. Doran ... distinguishable from Metropolitan Stevedore Co. v ... Crescent Wharf & Warehouse Co. [Price] , 339 F.3d ... BRBS at 75(CRT); Independent Stevedore Co. v ... O’Leary, 357 F.2d 812 (9 th Cir. 1966) ; see ... ...
  • Todd Shipyards Corp. v. Black
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    • October 4, 1983
    ...prior disease or infirmity. The relative contributions of the accident and the prior disease are not weighed. Independent Stevedore Co. v. O'Leary, 357 F.2d 812, 815 (9th Cir.1966); Amos v. Robert C. Herd & Co., 13 BRBS 1004, 1006 (1981); Moore v. Paycor, Inc., 11 BRBS 483 (1979).7 No party......
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    ...& Gulf Stevedores v. Director, etc., 542 F.2d 602 (CA3 1976). The problem before us is succinctly stated in Independent Stevedore Co. v. O'Leary, 357 F.2d 812, 815 (CA9 1966), where the court "If an employee is incapacitated from earning wages by an employment injury which accelerates a con......
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3 books & journal articles
  • The small personal injury practice
    • United States
    • James Publishing Practical Law Books Maximizing Damages in Small Personal Injury Cases
    • May 1, 2021
    ...citing Strachan Shipping Co. v. Nash , 782 F.2d 513, 18 BRBS 45 (CRT) (5th Cir. 1986) (en banc); Independent Stevedore Co. v. O’Leary , 357 F.2d 812 (9th Cir. 1966); Kooley v. Marine Industries Northwest , 22 BRBS 142 (1989); Mijangos v. Avondale Shipyards, Inc. , 19 BRBS 15 (1986); Rajotte......
  • The Small Personal Injury Practice
    • United States
    • James Publishing Practical Law Books Archive Maximizing Damages in Small Personal Injury Cases - 2014 Contents
    • August 19, 2014
    ...citing Strachan Shipping Co. v. Nash , 782 F.2d 513, 18 BRBS 45 (CRT) (5th Cir. 1986) (en banc); Independent Stevedore Co. v. O’Leary , 357 F.2d 812 (9th Cir. 1966); Kooley v. Marine Industries Northwest , 22 BRBS 142 (1989); Mijangos v. Avondale Shipyards, Inc. , 19 BRBS 15 (1986); Rajotte......
  • The Small Personal Injury Practice
    • United States
    • James Publishing Practical Law Books Archive Maximizing Damages in Small Personal Injury Cases - 2017 Contents
    • August 19, 2017
    ...citing Strachan Shipping Co. v. Nash , 782 F.2d 513, 18 BRBS 45 (CRT) (5th Cir. 1986) (en banc); Independent Stevedore Co. v. O’Leary , 357 F.2d 812 (9th Cir. 1966); Kooley v. Marine Industries Northwest , 22 BRBS 142 (1989); Mijangos v. Avondale Shipyards, Inc. , 19 BRBS 15 (1986); Rajotte......

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