Southern Stevedoring Co. v. Voris

• Citation: 218 F.2d 250
• Decision Date: 07 January 1955
• Docket Number: No. 15096.,15096.
• Parties: SOUTHERN STEVEDORING CO., Inc., et al. v. Hugh A. VORIS, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

218 F.2d 250 (1955)

SOUTHERN STEVEDORING CO., Inc., et al. v. Hugh A. VORIS, et al.

No. 15096.

United States Court of Appeals, Fifth Circuit.

January 7, 1955.

E. D. Vickery, John R. Brown, Houston, Tex., Royston & Rayzor, Houston, Tex., of counsel, for appellants.

Herbert P. Miller, Atty. U. S. Dept. of Labor, Washington, D. C., Malcolm R. Wilkey, U. S. Atty., Houston, Tex., C. B. Smith, Asst. U. S. Atty., Galveston, Tex., Harry H. Burns, Houston, Tex., Stuart Rothman, Sol. of Labor, Washington, D. C., of counsel, for appellee.

Before HUTCHESON, Chief Judge, RIVES, Circuit Judge, and DAWKINS, District Judge.

DAWKINS, District Judge.

This cause originated in a claim by Willie Wilson for compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., against Southern Stevedoring Co., Inc., and its compensation insurer, Texas Employers' Insurance Association, filed with and considered by Hugh A. Voris, Deputy Commissioner for the United States Department of Labor for the Eighth Compensation District in Galveston, Texas.

Claimant reported an injury on October 16, 1951, while working on a vessel in the Port of Houston, Texas, alleging that a load of dunnage being lifted in the hold of a vessel struck him on the upper portion of his back and the back of his head. He was immediately taken to a hospital in Houston and was there cared for by Dr. Paul W. Best, physician for the insurance carrier, where he remained until October 27th, following. For the remainder of October, November and until December 20th, he was treated by Dr. Best at his office, principally with heat therapy. On that date he was released as being able to return to work.

On January 23, 1952, Wilson collapsed at his home and was returned to the hospital where he was found to have paralysis (left hemiplegia). Best called in two other doctors, Bunting, an internist, and Goodall, a neuro-surgeon. All three doctors diagnosed the trouble as "spontaneous subarachnoid hemorrhage", but were of the opinion that it had no connection whatever with his injury of October 16, 1951. However, after full hearing, the Commissioner held to the contrary and found that the paralysis was caused or contributed to by the injury and the court below reached the same conclusion. The employer and insurer have appealed.

As stated by attorneys for appellants, the sole question presented here is: "Was there reliable, probative and substantial evidence upon a consideration of the whole record to support the Deputy Commissioner's finding that there was a causal relation between the claimant's injury of October 15, 1951, and the disability which resulted from a spontaneous subarachnoid hemorrhage in the brain on January 23, 1952?"

The contention below and here is that the case is covered by the Administrative Procedure Act, 5 U.S.C.A. § 1001, et seq., and the finding of the Commissioner should be set aside for the reason it is:

"(5) Unsupported by substantial evidence in any case subject to the requirements of Sections 1006 and 1007 of this title * * *"

* * * * * *

"In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error."

The Commissioner's findings of fact, supporting liability and recovery were as follows:

"That on the 16th day of October 1951, the claimant above named was in the employ of the employer above named at Houston, in the State of Texas, in the Eighth Compensation District, established under the provisions of the Longshoremen\'s and Harbor Workers\' Compensation Act, and that the liability of the employer for compensation under said Act was insured by Texas Employers\' Insurance Association; that on said day, claimant herein, while performing service for the employer as a longshoreman on the S. S. Reuben Tipton then upon navigable waters of the United States at Houston, Texas, sustained personal injury as a result of being struck on portions of his back and on the upper portion of the back of his head by a slingload of dunnage; that he was knocked down due to this blow, striking various parts of his body; that he sustained a back sprain and cerebral concussion of undetermined degree; that claimant continued to complain of head symptoms and of back trouble from the date of injury until January 23, 1952, when he suffered a cerebral hemorrhage at his home; that medical findings do not indicate the exact location of such hemorrhage, but that it has caused partial paralysis of the left side of claimant\'s body, that is, in the use of his left arm and left leg; that claimant had a weakness and loss of use to some degree of the left arm and left leg throughout the period of time between the date of injury on October 16, 1951 and the date of the hemorrhage on January 23, 1952; that there has been an increase of the same symptoms following the hemorrhage on January 23, 1952 which claimant had between the date of injury and the date of the hemorrhage; that claimant has some degree of arterial hypertension as shown by examinations following the injury of October 16, 1951, and that medical opinion is divided as to whether the cerebral hemorrhage or stroke sustained January 23, 1952 was entirely the result of such hypertension or was due to and was hastened by the injury sustained by claimant on October 16, 1951; that, as a weakness in the use of claimant\'s left extremities was apparent following the injury of October 16, 1951 and that such condition continued until the stroke on January 23, 1952, and as there was an increase or intensity of the same symptoms following said stroke which he had prior to the stroke or hemorrhage, it is thereby found from all the evidence that the injury of October 16, 1951 was a material factor in causing the stroke and resulting increase in the loss of use of claimant\'s left arm and left leg; that notice of injury was given within thirty days after the date of such injury to the Deputy Commissioner and to the employer; that the employer furnished claimant with medical treatment etc., in accordance with Section 7(a) of the said Act until February 11, 1952; that the employer and insurance carrier are liable for any further medical treatment that may be of benefit or considered necessary on account of claimant\'s condition; that the average earnings of the claimant herein at the time of his injury amounted to the sum of $32.63 per week; that as a result of the injury sustained, the claimant has been wholly disabled from October 16, 1951 to the present time, and has a continuing total disability for work; that he is entitled to 64 4/7 weeks\' compensation at $21.75 per week (2/3 of $32.63) from the date of injury to and including the date of last hearing in the case, January 9, 1953, amounting to $1404.43; that the employer and insurance carrier have paid thereon the sum of $425.00, leaving compensation due as of January 9, 1953 in the sum of $979.43; that Mr. Ben Grumbles, Attorney at Law, has rendered legal services in claimant\'s

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