Southern SS Co. v. Norton

• Decision Date: 17 September 1941
• Docket Number: No. 1408.,1408.
• Citation: Southern SS Co. v. Norton, 41 F. Supp. 108 (W.D. Pa. 1941)
• Parties: SOUTHERN S. S. CO. v. NORTON, Deputy Compensation Commissioner, et al.
• Court: U.S. District Court — Western District of Pennsylvania

41 F. Supp. 108

SOUTHERN S. S. CO. v.NORTON, DeputyCompensation Commissioner, et al.

No. 1408.

District Court, E. D. Pennsylvania.

September 17, 1941.

Geo. F. Blewett, of Philadelphia, Pa., for plaintiff.

Gerald A. Gleeson, U. S. Atty., and J. Barton Rettew, Jr., Asst. U. S. Atty., both of Philadelphia, Pa., for defendant Norton.

E. Herman Fuiman, of Philadelphia, Pa., for defendant Moultrie.

KALODNER, District Judge.

Plaintiff filed his bill for the purpose of reviewing and setting aside an order for the payment of compensation made by Deputy Commissioner Norton, under the provisions of the Longshoremen's and Harbor Workers' Compensation Act,33 U.S.C.A. § 901 et seq., upon the ground that the order was not in accordance with the law.The bill prays that interlocutory and permanent injunctions be granted, restraining the Deputy Commissioner from enforcing the award of compensation or from imposing any penalty upon the plaintiff for not complying with the provisions of the award, and directing the Deputy Commissioner to set aside his findings of fact and to make an order disallowing the claim.

It was to this bill of complaint that the motion to dismiss was filed.

The plaintiff in the bill is the employer.The defendants named are the Deputy Commissioner and the employee.

Moultrie, the defendant-employee, was injured on August 24, 1939, in the course of his employment, when he was struck on the left side of his face over the eye by a cargo net.He was at that time engaged in supervising the discharge of cargo from the tween decks on the "SS San Antonio".

At the hearings before the Deputy Commissioner, the report of Dr. Kelly, who examined the employee at the instance of the Deputy Commissioner, was introduced in evidence.The report disclosed that the visual form field in the left eye was contracted uniformly about one-fourth.The report went on to say (N.T.p. 11): "In my opinion, there is a partially dislocated lens in this eye.This condition with a slight haziness of the media and with vitreous opacities is sufficient to account for the diminution in vision.In my opinion, this condition could have been caused by the above injury.Likewise, it was perfectly possible that this could have existed before the injury."

Dr. O'Brien, another impartial physician, rendered his report, in which it was stated that there was a dislocated lens in the left eye, and that "This man's condition may be due to the accident or it may have existed prior to this injury".

Moultrie himself testified that the left eye was normal and his vision was normal prior to the accident, but that he could not see so well out of the left eye after the accident.

Dr. Holland, for the employer, testified that while there was some physical injury to the eye due to the accident, the latter caused no impairment of sight.Dr. Colgan, also for the employer, testified much to the same effect.He said (N.T.p. 32): "There wasn't any loss of vision as related to the injury on August 24."

The Deputy Commissioner made a finding of fact to the effect, inter alia, that by March 7, 1940, a permanent disability had developed as a result of the injury suffered by the employee in the accident, and that the loss of vision attributed to the injury was equivalent to 25 per cent of such disability as the employee would have suffered if he had lost his left eye; and made an award in the amount of $816.55.

The bill of complaint followed.

The employer's position in the bill and in its brief is that the testimony adduced before the Deputy Commissioner is not sufficient to support the findings or award; more specifically, that because the medical testimony by the impartial examiner, Dr. Kelly, stated that the doctor found that the loss of vision could be attributable either to the accident or an old condition, which of the two, the doctor could not or did not say, therefore, no causal relation between the accident and the injury had been established by the testimony, and there was consequently no evidence to support the findings of fact or the award.

A narrow issue is thus presented: whether, in the absence of a direct statement by a physician (testifying either as an impartial witness or in behalf of the employee) that the injury or loss of vision resulted from the accident, there was sufficient competent evidence to support a finding (not based on other medical testimony) by the Commissioner to the effect that the injury did result from the accident.

It must be remembered in this connection that the employee testified that his vision was impaired after the accident, although it had not been impaired prior thereto.

In my opinion the authorities in this circuit hold that the evidence adduced before the Deputy Commissioner supports the findings and the award.

In Di Giorgio Fruit Corporation v. Norton, 3 Cir., 93 F.2d 119, certiorari denied302 U.S. 767, 58 S.Ct. 480, 82 L.Ed. 596(questioned on other grounds in Kobilkin v. Pillsbury, 9 Cir., 103 F.2d 667, 669), a longshoreman suffered contusions and lacerations to the globe of his left eye when he was struck by the stalk of a bunch of bananas which fell upon him in the course of his employment.The court said (page 120 of 93 F.2d):

"In our opinion, the Deputy Commissioner had before him sufficient evidence to support his finding that the injury to Henson's eye was by its nature a progressive one and originally resulted from the accident which occurred upon July 25, 1932; that the globe of the eye with its lens proceeded through various progressive stages of degeneration culminating...