Perini Corporation v. Heyde

• Decision Date: 11 December 1969
• Docket Number: Civ. A. No. 4075.
• Citation: 306 F. Supp. 1321
• Parties: PERINI CORPORATION, Plaintiff, v. Clarence L. HEYDE, Deputy Commissioner, and James H. Reed, Claimant, Defendants.
• Court: U.S. District Court — District of Rhode Island

306 F. Supp. 1321

PERINI CORPORATION, Plaintiff, v. Clarence L. HEYDE, Deputy Commissioner, and James H. Reed, Claimant, Defendants.

Civ. A. No. 4075.

United States District Court D. Rhode Island.

December 11, 1969.

Robert W. Lovegreen, Providence, R. I., for plaintiff.

Lincoln C. Almond, U. S. Atty., Providence, R. I., William J. Gearon, Asst. U. S. Atty., and Leavenworth Colby, Special Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for defendant Heyde.

Bruce G. Tucker, Providence, R. I., for defendant Reed.

OPINION

Statement of Case

PETTINE, District Judge.

The matter before the court is a complaint to review and set aside an order filed by the defendant Deputy Commissioner pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927, 44 Stat. 1424 as amended 33 U.S.C. § 901 et seq.¹

A compensation order was entered by the deputy commissioner awarding the defendant claimant benefits for temporary total disability resulting from an employment injury sustained by the claimant on January 19, 1967.²

The issue before the deputy commissioner was the extent of the injury and the disability of the employee on or after July 24, 1967. The plaintiff seeks in this action judicial review of his findings of fact numbered 10 and 11 and the award based thereon contending the former is inaccurate because of incompleteness and the latter is not supported by substantial evidence in the record as a whole.

Question Presented

The sole question presented in this review proceeding is: Whether the record, considered as a whole, supports the deputy commissioner's findings that the claimant continued to be temporarily totally disabled as a result of his employment related injury.

Discussion of the Law and its Application to the Facts

The scope of judicial review in cases such as the one at bar is set forth in O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483 (1951) in which the Supreme Court said:

"* * * The standard, therefore, is that discussed in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. It is sufficiently described by saying that the findings are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole * * *

* * * We do not mean that the evidence compelled this inference; we do not suggest that had the Deputy Commissioner decided against the claimant, a court would have been justified in disturbing his conclusion * * *" (Emphasis supplied)

Similarly with reference to the inference drawn by a deputy commissioner, the Supreme Court in Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 477, 67 S.Ct. 801, 806, 91 L.Ed. 1028 (1947) said:

"In determining whether a particular injury arose out of and in the course of employment, the Deputy Commissioner must necessarily draw an inference from what he has found to be the basic facts. The propriety of that inference, of course, is vital to the validity of the order subsequently entered. But the scope of judicial review of that inference is sharply limited by the foregoing statutory provisions. If supported by evidence and not inconsistent with the law, the Deputy Commissioner's inference that an injury did or did not arise out of and in the course of employment is conclusive. No reviewing court can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the Deputy Commissioner is factually questionable.

* * * It is likewise immaterial that the facts permit the drawing of diverse inferences. The Deputy Commissioner alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. * * *" (Emphasis supplied)

And in language even more restrictive, the Supreme Court in O'Keeffe v. Smith, Hinchman & Grylls Associates, 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965) has added:

"The rule of judicial review has therefore emerged that the inferences drawn by the Deputy Commissioner are to be accepted unless they are irrational or `unsupported by substantial evidence on the record * * * as a whole.' * * *"

* * * * * *

"We agree that the District Court correctly affirmed the finding of the Deputy Commissioner. While this Court may not have reached the same conclusion as the Deputy Commissioner, it cannot be said that his holding * * * is irrational or without substantial evidence on the record as a whole * * *" (Emphasis supplied)

Under these interpretations of the Longshoremen's Act by the Supreme Court of the United States it must follow that if the findings of the hearing officer are supported by substantial evidence contained in the record considered as a whole and if the conclusions therefrom are consistent with applicable law, the order must stand.³

The burden is on the plaintiff to show that the evidence before the commissioner does not support the compensation order complained of in the reviewing proceedings.

The concept of disability is not purely a medical question as is urged by the plaintiff in argument to this court. It is an economic one based on a medical foundation. Once the physical character of the claimant to do light work is established the question then evolves as to the degree of physical ability and job opportunity available. The burden is on the employer to establish that an employee injured in the course of his employment who proves he is disabled from his regular employment has actual opportunities to obtain other work. This long established idea of disability was enunciated in 1937 in Eastern S.S. Lines v. Monahan, D.C., 21 F.Supp. 535, 537.

"Under the circumstances here disclosed, of a man who by reason of physical injury and disability could do only a special and very limited class of work, a man left a `nondescript' in the labor market, the burden was upon the employer to show the availability of employment." (Citations omitted-emphasis supplied)⁴

I will now examine the transcript of the hearing before the commissioner on September 25 and October 30, 1968.

The significant testimony of the claimant was as follows:

1. In March, 1967 he underwent an operation on his back to correct a ruptured disc (injured in the course of his employment with the Perini Corporation on January 19, 1967).

2. That though authorized by his doctor to return to light work as of June 19, 1967 for a period of eight weeks, his request for the same was refused by his employer, the plaintiff, because, "* * there was no light duty on the bridge."

3. He took issue with his doctor's advice to return to work on July 24, 1967 contending he was not physically able to do so since he was unable to lift or bend and was in constant discomfort and pain. (The claimant did state he did seek employment at said time from the plaintiff corporation but was advised he had been laid off).

4. Has not been able to go back to his former work in any capacity for any company; continues to have pain and inability to bend over.

5. Left employment with a gasoline service station when he was unable to pick up a can of oil which he was asked to move by his employer.

6. Though advised to take educational rehabilitation, he has not done so because of financial inability to meet the necessary expenses involved.

7. Has spent the year 1968 hanging around without any prescribed treatment or exercise for his back excepting swimming and push-ups which he did on his own.

8. Other than return to Perini Corporation and the gas station, which was for only a few hours, he made no attempt to obtain light work nor did he place his name on any employment list or seek rehabilitation.

Doctor George R. Horan, an orthopedic surgeon, testified that as of February 19, 1968, the claimant was able to do light work. Dr. Paul Thornton Welch, a neurosurgeon and one of the attending physicians, likewise stated that though the employee was not physically capable of performing his usual work as of August, 1967 and October 21, 1968, he was capable of doing light work as of those dates; vocational rehabilitation was recommended as of February 15, 1968. Dr. Julius Stoll, Jr., a neurosurgeon and attending physician, also stated that the claimant could perform light work and should be trained for a new line of work.

The question is whether or not all this testimony constitutes substantial evidence supporting the findings and inferences from such evidence, of the deputy commissioner and whether the award is in accordance with the law. To put it differently, can it be said that the deputy commissioner's findings of fact and award are wholly unsupported by the evidence, clearly arbitrary or capricious?

It is most obvious that the weight of the medical testimony militates against the deputy commissioner's conclusion of total disability. The medical experts were in complete agreement that Mr. Reed, while unable to perform his usual work, was able to do light duties on the occasions of the various examinations by them.

However, the deputy commissioner was not bound to slavishly render an opinion consonant only with the testimony of the doctors "if rational inferences lead in other directions." The commissioner had the responsibility of selecting, "the more reasonable inference in the light of the evidence as a whole and the `common sense of the situation.'"⁵

The court does not have the benefit of a well developed transcript nor of the cerebrations of the deputy commissioner in concluding as he did. It may well be that this court would have arrived at a different result but this does not carry the implication that the deputy commissioner's determination was irrational and not in accordance with law based on substantial evidence.

The commissioner had the benefit of observing the parties and it was solely...