LUMBERMEN'S MUTUAL CASUALTY COMPANY v. Einbinder

• Decision Date: 25 February 1965
• Docket Number: No. 18269.,18269.
• Citation: 343 F.2d 338,120 US App. DC 56
• Parties: LUMBERMEN'S MUTUAL CASUALTY COMPANY et al., Appellants v. Charles EINBINDER, Deputy Commissioner, United States Department of Labor, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

120 US App. DC 56, 343 F.2d 338 (1965)

LUMBERMEN'S MUTUAL CASUALTY COMPANY et al., Appellants v. Charles EINBINDER, Deputy Commissioner, United States Department of Labor, Appellee.

No. 18269.

United States Court of Appeals District of Columbia Circuit.

Argued October 2, 1964.

Decided February 25, 1965.

Mr. Warren E. Magee, Washington, D. C., for appellants.

Mr. Martin Jacobs, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Asst. Atty. Gen. John W. Douglas, David C. Acheson, U. S. Atty., and Sherman L. Cohn, Atty., Dept. of Justice, were on the brief, for appellee. Mr. Robert C. McDiarmid, Atty., Dept. of Justice, also entered an appearance for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and BASTIAN and McGOWAN, Circuit Judges.

WILBUR K. MILLER, Senior Circuit Judge.

This case arises under the Workmen's Compensation Act.¹ On September 29, 1958, Roy Jackson Mock, an employee of Thompson's Dairy, Inc., was injured in an accident which occurred in the course of his employment. He fell down a flight of four concrete steps while carrying two cans of milk, was hospitalized for ten days, and remained away from work through October 30, 1958. The doctors thought he had a back injury and treated him accordingly. Compensation and medical expenses for that period were paid by Lumbermen's Mutual Casualty Company, which was then Thompson's insurance carrier. On May 21, 1959, Mock filed a claim for compensation on account of the injury sustained on September 29, 1958, which he describes as a "disk injury to back."

In another accident, which occurred February 4, 1961, the claimant, while loading a truck, had one foot on the truck and one on a conveyor rack. "His foot slipped or * * * his right leg gave way and he fell down between the chute and the truck as a result he sustained contusions of the chest and right groin and right hip."² At this time, Thompson's insurance carrier was American Mutual Liability Insurance Company, instead of Lumbermen's. On account of the injury, Mock filed a claim for compensation on January 30, 1962.

The record discloses no action as to either claim until November 23, 1962, when the Deputy Commissioner conducted an evidentiary hearing on both, which were numbered respectively 284-926 and 284-1076. At the outset, the Deputy Commissioner made the following announcement:

"This is a consolidated hearing and not a consolidated cause of action proceeding. I want a record in each case. This hearing is being held upon the application of the interested parties."

Also at the outset of the hearing, the attorney for the claimant said, "We are claiming specifically medical benefits resulting from the injury of September 29, 1958," and "* * * Specifically we are claiming medical benefits resulting from the injury of February 4, 1961."

During the hearing it developed that Mock was injured in an earlier accident — on December 17, 1957. At that time, "the patient claimant Mock fell out of a truck and injured his right leg and left elbow. Shortly after that he began to have pain in his low back and right hip."³ Apparently the pain in the right hip continued, for on February 4, 1958, he was examined and treated by Dr. Kenmore, who gave him injections of novocaine into the right hip area on February 4, 7 and 11, 1958. This accident is the subject of the Deputy Commissioner's file No. 284-881, which appears as an exhibit in the present record. What steps, if any, have been taken in No. 284-881 the exhibit does not disclose.

After the consolidated hearing concerning the injuries of September 29, 1958, and February 4, 1961, the Deputy Commissioner on February 15, 1963, made an award with respect only to the first of the two claims he was considering. Whether he has made any findings or an award concerning the claim based on the injury of February 4, 1961, does not appear in the record. He found that as a consequence of the accident of September 29, 1958, the claimant suffered, among other things, "aggravation of pre-existing osteoarthritis of his right hip,"⁴ but did not find that any subsequent treatment would be required. He also found that after October 30, 1958, "the claimant continued to have pains in his right hip and required treatment, including injections into his right hip joint; that the need for the treatment was due to the injury of September 29, 1958 * * *." Upon these findings of fact, the Deputy Commissioner then made the following award:

"The employer and the insurance carrier shall also pay the reasonable value of all medical expenses, including hospitalization and care, incurred by the claimant as a result of the injury of September 29, 1958, and shall continue to furnish the claimant with such necessary medical treatment, hospitalization and care as the nature of the injury and the process of recovery may require."

On March 15, 1963, Thompson's Dairy and Lumbermen's sued the Deputy Commissioner in the United States District Court praying that the award be adjudged to be not in accordance with law. In an opinion filed September 27, 1963, the District Judge stated:

"The question in this Workmen\'s Compensation case is whether the findings of fact made by the Deputy Commissioner * * * are sustained by substantial evidence. Specifically the question * * * is whether the Deputy Commissioner was warranted in finding that the employee\'s present hip condition resulted from an injury that he sustained in September 1958 * * *."

He then summarized the evidence as follows:

"The employee testified that he has experienced pain `all along\' after the accident (Tr. p. 160). His wife testified that he required treatment after the accident, but not before. Lay testimony may be considered in such matters, Independent Pier Co. v. Norton, (C.A.3th) 54 F.2d 734, 735. Dr. Ferry, a medical witness, expressed the opinion that the employee\'s symptoms were due to his 1958 injury (Tr. p. 215). Dr. Ormandy expressed the view that a major accident would aggravate a prior arthritic condition (Tr. p. 102), and that in any event the need for medical treatment was hastened by the injury (Tr. p. 108). He also stated that there is a probability that the present traumatic arthritic condition of the right hip is connected with the 1958 injury. Dr. Rizzoli was of the opinion that arthritis of the hip can be aggravated by an injury."

After which he added:

"While perhaps this evidence is not strong, nevertheless, it is more than a scintilla and meets the test of substantiality. * * *"

Consequently, the District Judge entered an order October 7, 1963, granting summary judgment to the Deputy Commissioner. The employer and the insurance carrier appeal.

A question is, as stated by the District Court, whether the Deputy Commissioner's findings of fact are sustained by substantial evidence. Another question, not stated by the District Court, is whether the findings of fact, if sustained by substantial evidence, justify the award. "Specifically," said the District Court, "the question * * * is whether the Deputy Commissioner was warranted in finding that the employee's present hip condition resulted from an injury that he sustained in September 1958 * * *." The Deputy Commissioner made no express finding that a "present hip condition" resulted from the September, 1958, injury. He merely found that pre-existing osteoarthritis was aggravated by that injury and that as a further result the claimant continued to have pains in his right hip, for which he was given injections. The question is whether these findings are supported by substantial evidence.

The District Judge quoted statements made by five witnesses as substantial evidence that the diseased condition of the claimant's hip resulted from the injury of September, 1958. An examination of the testimony of those witnesses reveals that the statements quoted by the District Judge did not have the significance which he attributed to them. When the statements are read in full context, it is apparent that they do not constitute substantial evidence of causation.

For example, Mock testified that he has experienced pain "all along" after the accident of September, 1958. Without more, this statement might be thought to furnish some support for the Deputy Commissioner's finding that after October 30, 1958, the claimant continued to have pains in his right hip and that the need for treatment therefor was due to the September, 1958, injury. The fact is, however, that Mock had had pains in his right hip and had received injections therefor in February, 1958, and the Deputy Commissioner so found. It is therefore obvious that Mock's testimony of pains and treatment after October 30, 1958, did not amount to substantial evidence that the injury of September, 1958, was the causative factor.

Mrs. Mock's statement that her husband required treatment after the accident, but not before, referred only to home "treatment" which she herself gave; as already shown and found by the Deputy Commissioner, there was medical treatment of the right hip before the injury of September, 1958.

It is true, as the District Court said, that Dr. Ferry, a medical witness...