McCormick SS Co. v. UNITED STATES EMPLOYEES'C. COM.

• Decision Date: 13 March 1933
• Docket Number: No. 6817.,6817.
• Citation: 64 F.2d 84
• Parties: McCORMICK S. S. CO. et al. v. UNITED STATES EMPLOYEES' COMPENSATION COMMISSION et al.
• Court: U.S. Court of Appeals — Ninth Circuit

64 F.2d 84 (1933)

McCORMICK S. S. CO. et al. v. UNITED STATES EMPLOYEES' COMPENSATION COMMISSION et al.

No. 6817.

Circuit Court of Appeals, Ninth Circuit.

March 13, 1933.

Bronson, Bronson & Slaven, of San Francisco, Cal., for appellants.

Geo. J. Hatfield, U. S. Atty., and Leo C. Dunnell, Asst. U. S. Atty., both of San Francisco, Cal., for appellees.

Before WILBUR, SAWTELLE, and MACK, Circuit Judges.

WILBUR, Circuit Judge.

This is an appeal from a decree dismissing appellants' bill of complaint in which they sought an injunction restraining the enforcement of a compensation award made by appellees in favor of Verner Kallstrom.

On February 11, 1928, while an employee of the McCormick Steamship Company, Verner Kallstrom suffered an injury to his fourth cervical vertebra, which resulted in a permanent partial disability, coming under section 8(c) (21) of the Longshoremen's and Harbor Workers' Compensation Act, 33 US CA § 908(c) (21), entitling him to an award of compensation for his disability amounting to "66 2/3 per centum of the difference between his average weekly wages before his injury and his wage-earning capacity thereafter in the same employment or otherwise. * * *" Prior to his injury, Kallstrom had acted as foreman of his own stevedoring gang, and had occasionally worked as a stevedore. Several compensation orders have been made from time to time by the appellee commission covering Kallstrom's disability, but it will be sufficient to consider, in addition to the order complained of, only the last order prior thereto, which was made on July 5, 1930. The order of July 5, 1930, fixed the compensation to be paid to Kallstrom at $3.96 a week based on the wages earned by him from November 4, 1929, to April 11, 1930, which aggregated $717.01, a loss of $5.94 a week from his average weekly earnings prior to the date of his injury. The order complained of in this proceeding is as follows:

"* * * It appearing to the Deputy Commissioner that claimant is still suffering from permanent partial disability, that his physical condition has not changed since the last order, that his wages have diminished since said date because of decreased stevedoring work resulting from depressed economic conditions, that claimant is precluded by his disability from successfully gaining and retaining employment as a stevedore and is limited to lighter physical work as a foreman, that claimant's restricted earning capacity by reason of his disability is not in excess of his actual earnings as a foreman and that claimant's average weekly wages from and after September 18, 1930, have been $25.19, and that claimant is entitled to compensation at the rate of $8.21 a week, beginning with September 18, 1930, indefinitely,

"It is hereby ordered that the compensation order of July 5, 1930, be and it is hereby modified to fix claimant's weekly compensation rate from and after September 18, 1930, at $8.21 a week, and defendants are directed to pay claimant compensation at said rate of $8.21 a week beginning with September 18, 1930, to be paid until a change in claimant's disability or the further order of the Deputy Commissioner." (Italics ours.)

Appellants contend that this order was based upon Kallstrom's decrease in his actual wages after September 18, 1930, rather than a decrease of his wage-earning capacity, and that therefore the award was not in accordance with law. Section 8(c) (21) of the act 33 USCA § 908(c) (21), permits a "reconsideration of the degree of such impairment," that is, of wage-earning capacity, and section 22 of the act (33 USCA § 922), authorizes a modification of the order due to a "change in conditions," but we do not think this applies to a change in earnings due to economic conditions. We agree with the statement of Commissioner A. J. Pillsbury of the California Industrial Accident Commission, concurred in by his associates, in an early decision of that commission (Johnson v. Cluett Peabody Co. et al., 2 C. I. A. C. 10, decided in January, 1915) as follows: "Compensation is awarded only for loss of earning power, and the evidence clearly shows that the applicant was able to do some work during this period if he could find employment. The measure of temporary partial disability is the difference between the wages which the injured employee earned at the time of the accident and the amount which he could earn by the exercise of reasonable...