Jarka Corporation of Philadelphia v. Norton, 5577.
| Decision Date | 23 January 1930 |
| Docket Number | No. 5577.,5577. |
| Citation | 56 F.2d 287 |
| Parties | JARKA CORPORATION OF PHILADELPHIA v. NORTON, Deputy Commissioner. |
| Court | U.S. District Court — Western District of Pennsylvania |
J. T. Manning, Jr. (of Acker, Manning & Brown), of Philadelphia, Pa., for complainant.
Herbert E. Millen, of Philadelphia, Pa., for claimant.
The plaintiff in this bill for injunction complains that the award of the deputy commissioner is not in accordance with law in that it is without any evidence to support it. The case is undoubtedly a close one, but I have carefully examined the testimony taken before the deputy commissioner and I think there is evidence to support the findings.
The claimant was injured on December 8, 1928, by being struck on the back by a falling lump of clay. He was unable to return to work until March 18, 1929, at which time he worked one day, found he was unable to go on, and was compelled to lay off until May 12, 1929. From May 12 until the middle of September he worked with a fair degree of regularity, but was unable to do certain kinds of work and suffered considerably from pain while working. In September he gave up entirely and has done no work since.
It appears that the accident of December, 1928, resulted in fracturing or splitting a bone of the spinal column. It also appears that the claimant, since birth, has had a deformity or displacement of another part of the spinal column eight or ten inches down. The point made by the plaintiff is that there is no evidence to show that the claimant's present disability (the existence of which is undisputed) is the result of the fracture. On the contrary, it is argued that it must be the result of the congenital deformity because: (1) The claimant was able to work from May to September, 1929, after the accident; (2) the pain which he now suffers is located lower in the spinal column than the place of the fracture, and is approximately at the place of deformity; (3) the opinion of a medical witness called by the plaintiff is positive to the effect that the present disability is not due to the fracture, and this evidence is uncontradicted.
On the other hand, to support the deputy commissioner's conclusion, we have (1) the facts that this man, now thirty seven years of age, was able to perform the heavy labor of a stevedore for years prior to the accident without suffering pain, discomfort, or disablement, and that, with the exception of a few months of labor with impaired efficiency, the accident...
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