Noble Drilling Corporation v. Donovan
| Decision Date | 16 March 1967 |
| Docket Number | Civ. A. No. 14814. |
| Parties | NOBLE DRILLING CORPORATION, Employer, and Aetna Casualty and Surety Company, Insurance Carrier, v. P. J. DONOVAN, Deputy Commissioner, United States Department of Labor, Bureau of Employees' Compensation, Seventh Compensation District. |
| Court | U.S. District Court — Eastern District of Louisiana |
W. Ford Reese, George V. Baus, Adams & Reese, New Orleans, La., for plaintiff.
Frederick W. Veters, Asst. U. S. Atty., for defendant.
This matter arises out of a suit brought by the former employer of one J. B. Goins, and the employer's compensation insurer, seeking review of a compensation award to Goins under the Longshoremen's and Harbor Workers' Act by the Deputy Commissioner of the Bureau of Employees' Compensation, U. S. Department of Labor (hereafter the "Commissioner"). The Commissioner moved for summary judgment dismissing the employer's suit; that motion was granted previously by the Court, Judge Ellis presiding, after supplemental findings of fact were obtained from the Commissioner on remand. The employer then moved for a rehearing of the Commissioner's motion; rehearing was granted and the motion was heard again and taken under submission. Due to Judge Ellis's illness, the matter stood in that posture until May 1966, at which time the Court requested that the attorneys re-argue the rehearing, after which the Court took the motion under submission again.
Review of the Commissioner's order is sought in this Court by the employer pursuant to § 21(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 921(b). Although that section states that the Commissioner's compensation orders may be suspended or set aside "if not in accordance with law" and that the method of seeking such review must be "through injunction proceedings * * * brought by the party in interest against the deputy commissioner * * *." (33 U.S.C.A. § 921(b)), it appears that the scope of judicial review under the section is governed by the Administrative Procedure Act, 5 U.S.C.A. § 551 et seq.1 We therefore look to the pertinent provisions of the latter Act, in particular to § 10. Regarding review of an agency's findings of fact, that section provides in part:
The question to be determined is thus whether or not the findings of fact by the Commissioner, entitling Goins to compensation, are supported by "substantial evidence" on a review of "the whole record."
* * * * * *
In his supplemental report upon remand, the Commissioner made the following findings of fact:
"That claimant's injury of April 23, 1961, resulted in (1) fracture of the acromion process of the left scapula with (2) ligament and muscle injury to the left shoulder area, (3) marked restriction of the cervical spine movements in all cardinal directions, (4) soreness to palpitation of the interspinous ligament in the mid and lower cervical area, and (5) traumatic paralysis of the right long thoracic nerve with resultant winging of the right scapula * * *." (numeration supplied)
The accident of April 23, 1961, and the initial injury of the claimant, Goins, resulting therefrom were admitted by the parties; the employer, however, claimed that all of Goins' injuries had healed to the point that he was able to return to his usual employment as of April 2, 1962, and employer denied any liability for compensation payments allegedly due after that date. The Commissioner's order was based in large part on his finding that Goins continued disabled past April 2, 1962, and until June 22, 1964, the date of the hearing. The employer now contests the Commissioner's finding of disability subsequent to April 2, 1962, and in effect seeks, through the injunctive process, a modification of the Commissioner's order only insofar as it was based on that finding.
In making his determination of continuing disability, the Commissioner found that injury (1) noted above—the fracture of Goins' collarbone—had healed as of March 21, 1962; he also noted that injury (5) required no further medical care. The Commissioner, in fact, only found that Goins' disability to work was due to original injuries (3) and (4):
"The marked restriction of the cervical spine movements with soreness of the interspinous ligament in the mid and lower cervical area prevent the claimant from raising his left arm above shoulder level and prevent him from performing normal duties of his occupation and require further medical care * * *." (Supplemental Report, January 26, 1965, page 2)
The only questions presented here are thus: (1) was there "substantial evidence on the record as a whole" to sustain a finding of "marked restriction" and "soreness" of the cervical spinous area subsequent to the date of April 2, 1962, (2) did such conditions, if they then existed, actually disable claimant from engaging in his former employment, and (3) were such conditions, if they did then exist, attributable to the accident of April 23, 1961? If there was "substantial evidence" for the Commissioner's finding of "marked restriction" and "soreness" of the cervical spinous area of the claimant, it could well be beyond the scope of the Court's reviewing power to question an inference of disability therefrom. See Davis, Administrative Law Treatise, § 29.05.
However, we cannot accept the conclusion that there was any abnormal physical condition of Goins' cervical spine to warrant the Commissioner's findings of "marked restriction of movement" and "soreness" of the cervical spine; there is no substantial evidence in the record to warrant such a conclusion, as a review of that evidence will show.
The evidence taken by the Commissioner consisted solely of (1) the testimony of Goins himself, and (2) the various medical reports of eleven doctors who examined and treated Goins, six of whom were made available to Goins by his employer, and five whom Goins contacted for himself.
From Goins' own testimony (Commissioner's Report, pp. 19-50) the following picture emerges:
Goins injured his left shoulder in the course and scope of his employment on April 23, 1961, when he fell from a pipe barge between that barge and a drilling barge. Following the accident, Goins continued at his job until May 22, 1961— about one month's time—on which date he was either discharged by the employer or absented himself from work voluntarily; nothing in the record gives the slightest indication of the reason for the layoff.
The employer voluntarily paid Goins compensation benefits from May 23, 1961, through April 2, 1962, but on that date ceased all payments. Goins claims that he has remained totally disabled since May 23, 1961, up to the date of the Commissioner's hearing on June 22, 1964, and continuing. His employer claims that Goins was actually fully cured and able to return to his work as of April 2, 1962, and perhaps as early as November 3, 1961. (Report, page 12) Goins' testimony establishes that he did do bartending work subsequent to April 1962—in particular from June 1963 to October 1963; however, in view of the diverse character of the employments of roughnecking and bartending, ability to do work in the second area would not preclude a finding of total permanent disability as to the first employment.
Although Goins' testimony is of little value in establishing the dates on which he consulted with the various physicians whose reports appear in the record, or the approximate length of treatment, it was admitted by all parties that he was examined and treated by doctors provided by his employer within one to two months of the accident and thereafter until approximately April of 1962, and that Goins' secured his own examinations and treatment by doctors of his own choosing after that time.
Goins' own testimony contains nothing to indicate either the extent or the cause of his disability, other than the following exchange with the Deputy Commissioner at page 25 of the Report:
Page 27 of the Commissioner's Report describes a demonstration by Goins of the winging of his right shoulder blade, made at the Commissioner's request; the Commissioner noted that Goins was "showing inability to raise the left arm not higher than shoulder level * * *" (R. 27), and that, "there is what I term an elevation of that area of the shoulder blade which I will estimate is at least one inch in depth and covers an area from the shoulder level extending downwards approximately six inches and approximately four inches in width." (R. 28).
The rest of the testimony, which comprises some thirty-one pages in the Commissioner's Report, consists entirely of information concerning Goins' bills for food and rent and medical treatment, and descriptions of his bartending work and his relationships with his wife and girl friend.
The only other evidence in the record consists of the various medical reports submitted by the two parties; it was admitted and agreed between the parties that "if the doctors were called to testify they would testify in accordance with their respective reports contained in your file." (Report, p. 14).
We turn now to the various reports of these eleven doctors, with the observation that, since the Commissioner had before him only those reports, which are contained in the record before us, and the doctors involved did not personally appear before the Commissioner, the Court is in just...
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