Old Dominion Stevedoring Corporation v. O'Hearne, 6849.
| Citation | 218 F.2d 651 |
| Decision Date | 06 January 1955 |
| Docket Number | No. 6849.,6849. |
| Parties | OLD DOMINION STEVEDORING CORPORATION and Liberty Mutual Insurance Company, Appellants, v. Stephen O'HEARNE, Deputy Commissioner, U. S. Department of Labor, Bureau of Employees' Compensation, Fifth Compensation District, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
L. S. Parsons, Norfolk, Va. (Venable, Parsons, Kyle & Hylton, Norfolk, Va., on the brief), for appellants.
Herbert P. Miller, Atty., U. S. Dept. of Labor, Washington, D. C. (Lester S. Parsons, Jr., U. S. Atty., Wm. F. Davis, Asst. U. S. Atty., Norfolk, Va., Stuart Rothman, Sol. of Labor, and Ward E. Boote, Asst. Sol. of Labor, U. S. Dept. of Labor, Washington, D. C., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This appeal raises the question whether Abner Davis, an employee of the Old Dominion Stevedoring Corporation, is entitled under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., to full compensation on the basis of permanent partial disability for the loss by accidental injury of an eye affected by pre-existing chronic non-congestive glaucoma.
On November 26, 1952, while the claimant was engaged in loading a ship afloat on the James River at Newport News, Virginia, he was struck in the left eye by a hand iron which slipped from the hand of a fellow worker, and suffered a laceration of the cornea. His average weekly wage was $45 per week and he was away from work for one day as the result of the injury. He filed a claim for compensation and a hearing was had in which medical testimony on behalf of the employer and the insurance carrier indicated that the deficiency in the eye was not due to the accident but to the pre-existing disease and the case was dismissed.
The claimant, however, continued to suffer pain in the eye and consulted a physician on March 18, 1953, who first performed an operation to relieve the tension in the eye; but the pain persisted and on May 29, 1953 the eye was removed. The claimant then applied for a review of the order dismissing his claim on the ground of mistake, and the case was reopened and a new hearing granted. The District Commissioner then found that at the time of the injury the claimant had 20 per centum visual efficiency in the eye, and that the eye was useful to him, and as he sustained a 100 per centum loss through the removal of the eye as the result of the injury, the claimant was allowed compensation for 152/7 weeks at $30 per week, for temporary total disability, and compensation for 140 weeks at $30 per week for permanent partial disability. On petition to review the latter award the District Court affirmed the decision of the Deputy Commissioner, and this appeal followed.
The appellants contend that the award was wrong for three reasons: (1) that there is not substantial evidence, looking at the record as a whole, to support the finding that the injury caused the loss of the eye; (2) that since § 908(c) (16) of the Act provides that compensation for the loss of 80 per centum or more of the vision of an eye shall be the same as for loss of the eye, it follows that loss of an eye whose visual efficiency is only 20 per centum, as in the present case, is the loss of an industrially blind eye for which there can be no compensation; and (3) that under § 908(f) (1) (2), which pertains to an injury increasing disability, the most that claimant can recover in this case is compensation for 20 per centum visual loss, since this was the visual efficiency of the eye prior to the accident. We do not think that any of these contentions should be sustained.
There was substantial evidence, looking at the record as a whole, to justify the finding of the Deputy Commissioner that the injury which occurred on November 26, 1952 caused or contributed to the pain which resulted in the removal of the eye on May 29, 1953. One of the doctors for the appellants found that one year prior to the accident the claimant had a corrected visual efficiency of 20 per centum in the left eye, notwithstanding the glaucoma. The claimant testified that prior to the accident he could see and that when he was struck in the eye on the day of the accident, the pain immediately began, and continued until the eye was removed; and that during this period the sight decreased until he became almost if not totally blind. The appellants' doctors were of the opinion that the loss of sight was due to the glaucoma and not to the accident, and one of them was of the opinion that the claimant was blind before the accident. On the other hand the claimant's doctor removed the eye because of the pain and he testified that it was reasonable to believe the claimant's testimony that he had sight in the eye before the accident. Thus an issue of fact was raised on which substantial evidence in the claimant's favor was offered which justified the determination of the Commissioner. It is well settled in compensation law that it is sufficient to justify an award if the accident was only a concurring cause or if it merely aroused a pre-existent but dormant disease into disastrous activity. Hampton Roads Stevedoring Corp. v. O'Hearne, 4 Cir., 184 F.2d 76, 78; see also Larson on Compensation Law, §§ 12.20, 59.20.
The second contention centers around the finding of the Commissioner that the claimant only possessed visual efficiency of 20 per centum in the injured eye prior to the accident. Section 908 (c) (16) of the Act provides that compensation for loss of 80 per centum or more of the vision of an eye shall be the same as for the loss of the eye; and it is argued that within the meaning of the Act, an eye with only 20 per centum visual efficiency is industrially blind and for its total loss no compensation can be allowed. We do not think that this can be inferred from the Act. It does not follow that there should be no recovery for the loss of an...
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