John W. McGrath Corporation v. Hughes

• Decision Date: 10 April 1961
• Docket Number: No. 299,Docket 26725.,299
• Citation: 289 F.2d 403
• Parties: JOHN W. McGRATH CORPORATION, Employer-Plaintiff-Appellant, and The Fidelity and Casualty Company of New York, Insurance Carrier-Plaintiff-Appellant, v. Thomas F. HUGHES, Deputy Commissioner, United States Department of Labor, Bureau of Employees' Compensation, Second Compensation District and Luka Mezich, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

289 F.2d 403 (1961)

JOHN W. McGRATH CORPORATION, Employer-Plaintiff-Appellant, and The Fidelity and Casualty Company of New York, Insurance Carrier-Plaintiff-Appellant, v. Thomas F. HUGHES, Deputy Commissioner, United States Department of Labor, Bureau of Employees' Compensation, Second Compensation District and Luka Mezich, Defendants-Appellees.

No. 299, Docket 26725.

United States Court of Appeals Second Circuit.

Argued March 8, 1961.

Decided April 10, 1961.

Joseph Dean Edwards, New York City, for plaintiffs-appellants.

Morton S. Robson, U. S. Atty., Southern District of New York, New York City (Franklin G. Lehmeier, Burton M. Fine, Asst. U. S. Attys., New York City, of counsel), for defendant-appellee Hughes.

Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.

WATERMAN, Circuit Judge.

Plaintiff-appellants, John W. McGrath Corporation, employer, and The Fidelity and Casualty Company of New York, its compensation insurance carrier, sought to have the district court review and set aside a compensation order made pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., to Luka Mezich, the complainant. Both parties moved for summary judgment. Judge Metzner denied the plaintiffs' motion and granted summary judgment to the defendants. Plaintiffs bring this appeal, contending, as they did below, that the Deputy Commissioner's finding that the claimant was "permanently, totally incapacitated from engaging in gainful employment" is not supported by substantial evidence.

The award made by the Deputy Commissioner with which appellants take issue is the third made to the claimant as a result of a back injury he sustained on March 23, 1953 while engaged as a longshoreman in the employ of John W. McGrath Corporation. The two prior awards compensated claimant for "temporary total, temporary partial and permanent partial disability" arising from the injury. Appellants did not contest these awards and thereby conceded that the injury occurred and admitted responsibility to the claimant under the Longshoremen's and Harbor Workers' Act. Their sole contention is that the Deputy Commissioner erred in holding that the claimant is permanently totally disabled, and they seek to have this third award set aside.

We are of the opinion that the lower court reached a proper result, since the Commissioner's award was supported by substantial evidence.

The claimant is 63 years of age. He is an immigrant from Yugoslavia whose complete education consists of three years in the Yugoslavian public schools as a child. He cannot read or write English, and, as demonstrated by the record of his testimony before the Deputy Commissioner, he speaks the language poorly. His work experience prior and subsequent to his arrival in the United States has been confined to heavy manual labor as a farmer, fisherman, longshoreman and unskilled laborer. Claimant and his daughter testified that the only job he had undertaken since his injury was that of a superintendent of a five floor walkup apartment house in Brooklyn. He was able to be so employed because his wife and daughter performed the heavy custodial labor. He was forced to quit after his daughter married and she was no longer able to be of assistance to him. He and his daughter testified that the reason he could not work was the intense and constant pain he experienced in his lower back. This testimony was supported by a Dr. Rosen, the medical expert who appeared at the claimant's request. Dr. Rosen testified that in his opinion the claimant was not now and never would be capable of performing any physical work and that this condition resulted from a traumatic low back derangement sustained in the lumbosacral region when claimant was injured. A Dr. Rizzo, a medical expert who testified for the appellants, contradicted Dr. Rosen's testimony. Dr. Rizzo implied that the claimant was malingering and was capable of...