Miller v. O'Hearne

• Decision Date: 25 February 1960
• Docket Number: Adm. No. 4068.
• Citation: 181 F. Supp. 105
• Court: U.S. District Court — District of Maryland
• Parties: Cubard MILLER v. Stephen O'HEARNE, Deputy Commissioner, Fourth Compensation District, and Atlantic & Gulf Stevedores, Inc., Employer & Self-Insurer.

181 F. Supp. 105

Cubard MILLER v. Stephen O'HEARNE, Deputy Commissioner, Fourth Compensation District, and Atlantic & Gulf Stevedores, Inc., Employer & Self-Insurer.

Adm. No. 4068.

United States District Court D. Maryland.

February 25, 1960.

Herbert B. Fineberg, Baltimore, Md., for plaintiff.

Leon H. A. Pierson, U. S. Atty., and H. Russell Smouse, Asst. U. S. Atty., Baltimore, Md., for Deputy Commissioner.

Jeffrey B. Smith and Smith, Somerville & Case, Baltimore, Md., for Atlantic & Gulf Stevedores.

THOMSEN, Chief Judge.

This is a proceeding filed by a longshoreman under 33 U.S.C.A. § 921 to review a compensation order.

Claimant, who had a weak back which had been injured before, sustained a lumbo-sacral strain on 25 June 1957, while working for Atlantic and Gulf Stevedores, Inc., and was paid compensation for temporary total disability through 6 August 1957. After several conferences and a formal hearing, the Deputy Commissioner entered an order on 16 January 1959, in which he found that "claimant returned to work as a stevedore on 7 August 1957, without loss of wage earning capacity", and rejected the claim for compensation for partial disability subsequent to 6 August 1957, "on the ground that the injury of 25 June 1957 did not leave residuals causing loss of wage earning capacity". Since claimant admittedly has no scheduled disability, he is not entitled to compensation unless he has an "incapacity because of injury to earn the wages which he was receiving at the time of the injury in the same or any other employment". 33 U.S.C.A. §§ 902(10), 908 (c) (21) and (h).

The Deputy Commissioner also filed a memorandum analyzing the evidence on which he based his decision and stating: "The claimant is not only inaccurate in his testimony, in that he denies prior injury or trouble with his back, but he is evasive in his answers."

Claimant seeks review on the grounds that the findings of the Deputy Commissioner arbitrarily ignore the evidence offered on behalf of claimant, are contrary to the weight of the evidence, and are not in accordance with the law. "It is well settled, however, that the Deputy Commissioner's finding is not to be disturbed if it is supported by substantial evidence in the record. O'Loughlin v. Parker, 4 Cir., 163 F.2d 1011; Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028. Moreover, any logical inference or deduction drawn from the evidence by the Deputy Commissioner must be taken as a fact and cannot be reviewed. See Contractors v. Pillsbury, 9 Cir., 150 F.2d 310; O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483; Cardillo v. Liberty Mutual, supra." Ennis v. O'Hearne, 4 Cir., 223 F.2d 755, 758.

The record shows the following facts, most of which are referred to in the memorandum of the Deputy Commissioner or are undisputed. At the time of his injury in June 1957 claimant was 53 years old, of slight build, with considerable arthritis in his back and a mild spondylolisthesis (a forward displacement of the body of the fifth lumbar vertebra on the sacrum), which was the result of a congenital defect, aggravated by heavy work and advancing arthritis. In 1951 he had sustained an injury to his right knee and a "twisting type" of injury to his back, a mild sprain. He received compensation based upon an estimated disability of his back of 5%. Again, in 1954, he had sustained an industrial accident, resulting in a hernia. His doctors also felt that he was entitled to compensation for a 5% disability of his back, and a compromise settlement of his compensation claim was approved by the State Industrial Accident Commission. There is no medical evidence with respect to the condition of his back between 1954 and the injury of June 1957.

Claimant had been dividing his time between pile-driving jobs and longshore work. The former was lighter work and through 1957 afforded more continuous employment. Longshore work was also plentiful in the contract year 1956-1957, and as a result claimant earned more money than he had since 1951-1952; his average weekly wage at the time of his injury was $122.20, including both types of work.

On 25 June 1957, while stowing bars of copper, his fellow worker slipped, letting the full weight of a bar come on claimant, causing a lumbo-sacral strain. He was treated by the employer's doctor and returned to stevedoring work on 7 August 1957. He was not a member of a regular gang, probably because he had spent so much time pile-driving, but during the next year he did a great deal of stevedoring work. His total hours for the contract year 1957-1958 compared to the contract year 1956-1957 were the same as the ratio for all longshoremen, 75%; the year 1957-1958 was a bad year, even for the regular gangs. Claimant's total earnings fell off sharply, because he did practically no pile-driving work, and gave up his membership in the Dock Builders' Union. Although claimant blamed this on his injury, the Deputy Commissioner did not believe him, and found that claimant gave up his membership in the Dock Builders' Union because economic conditions did not make enough work available to him to warrant the payment of dues.

It is unusually difficult to summarize and evaluate the medical evidence in this case, because the opinion evidence was necessarily based in part on claimant's statements, which were untrustworthy. The fact that plaintiff lied or exaggerated does not disentitle him to compensation for any disability he may have as a result of the injury, but it makes it difficult to determine the extent of his present disability and the cause or causes of such disability as may exist. Dr. Gutman, claimant's expert, concluded that claimant "does have some permanent disability, probably in the neighborhood of 20% loss of use...