Stansfield v. Lykes Bros. SS Co., 9930.

• Decision Date: 12 January 1942
• Docket Number: No. 9930.,9930.
• Citation: 124 F.2d 999
• Parties: STANSFIELD v. LYKES BROS. S. S. CO., Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

124 F.2d 999 (1941)

STANSFIELD v. LYKES BROS. S. S. CO., Inc.

No. 9930.

Circuit Court of Appeals, Fifth Circuit.

December 11, 1941.

Rehearing Denied January 12, 1942.

Owen D. Barker, of Galveston, Tex., for appellant.

M. L. Cook, of Galveston, Tex., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was brought under Sec. 21, Longshoremen and Harbor Workmen's Compensation Act,¹ against Shepperd, the deputy commissioner, and against the claimant to set aside a second award of date, February 1, 1941, modifying and increasing by 10%, the award of 15% permanent partial disability, the commissioner had made June 6, 1939. The claim was; that by the terms of the Act the first award became final 30 days thereafter and could not be changed or amended except (1) "on the ground of a change in conditions," or (2) "because of a mistake in a determination of fact by the deputy commissioner;"² and that the so-called second award was procedurally³ and in substance,⁴ invalid.

The defense on procedural grounds was; that the applicable procedure is that presented by Section 919; that the procedure so prescribed is completely informal and does not require any specific charge or basis to be laid; and that therefore there was no denial of due process or of a hearing when the commissioner, the proof all in, based his award on mistake, though the proceeding was instituted to inquire whether there had been a change in conditions. The substantial defense was that the mistake referred to in the statute, was a mistake of fact as to the actual physical condition of claimant, and that the commissioner, on sufficient evidence, had found that there was.

The record before the district judge showed that the first award was entered in an informal proceeding in which the commissioner considered; an agreed statement of facts in which the parties in effect agreed, that the plaintiff had suffered a compensable injury of 35 weeks and one day, for temporary total disability, and a 15% permanent partial disability of the left arm, waived formal hearing and requested the entry of a formal order; the reports of two doctors, Dr. Eggers and Dr. Aves. This was the report of Dr. Eggers: "The force caused his shoulders to `fold' together and `tore lose' his left collar bone. His right shoulder and arm, hand and elbow, is all right. The medial or external end of the clavicle is dislocated upward and forward. There is a liberal amount of fibrous tissue about it creating a false joint. The motion is very free without restriction. As the shoulders are brought forward, there is a medial excursion of about one half inch. As this moves he complains of pain. The amount of permanent partial disability in this case, I would recommend is 15% of the left shoulder."

This was Dr. Aves' report: "The sling came against his left shoulder pinning his chest laterally. The result of this was a complete dislocation of the inner end of the left clavicle with wide separation and of course, bruises on both shoulders. On account of the extensive tearing of ligaments at the site of dislocation, the result is far from perfect. The man's complaints are not severe at the sight of dislocation as one would imagine, but he complains principally of pain in the left shoulder, which is due to a chronic arthritis, which no doubt was made worse by the injury. I estimate his permanent disability as 15% of the left shoulder region."

The award and order of June 6, 1939, followed the agreement and the doctors' reports, and gave claimant a 15% permanent partial disability. The installments under this award have now been fully paid. The award and order under review gave him 10% additional disability, and awarded him $466.76. The findings of fact upon which this order was based recite: The original injury and the first award; that the commissioner finds that as a result of the injury, he sustained, claimant has a permanent partial disability in that when he "lifts his left arm into certain positions, to-wit, at or above the level of his shoulder, the upper dislocated inner end of the left clavicle causes pressure on his trachea which embarrasses or interferes with his breathing"; that on June 6, 1939, the date the first award was entered and the compensation order issued, this fact was neither developed by either party at interest nor known to the deputy commissioner, the evidence presented by the attending physician being that he had 15% permanent partial disability affecting only the use of his left arm in the region of his shoulder; that the partial disability found in the left arm, was not the extent of the disability that he sustained; "that the pressure of the dislocated left clavicle which existed at the time but was not known to the deputy commissioner, exercised pressure on the trachea and added to the permanent partial disability in the left arm so that the award entered on June 6, 1939, was not adequate and in as much as a greater award would have been entered had the fact that the dislocated left clavicle caused pressure on the trachea been known, it therefore constituted a mistake as to the actual facts, as to the nature and extent of the permanent partial disability that existed when the first award was made." No finding was made by the commissioner as to a change in conditions but the evidence is conclusive that there was no change. The district judge made no ruling on the procedural point. Finding however that, though the commissioner did not know of the condition of pressure of the left clavicle on the trachea affecting claimant's breathing, the claimant did know of it,⁵ and did not until the second hearing, advise the deputy commissioner of it, he held that "an employee may not thus withhold the facts from the deputy commissioner and be lawfully given a modification of the award on the ground of a mistake in a determination of fact by the commissioner." Declaring: "It is clear the case comes neither within the letter nor the spirit of Section 922," he gave judgment for plaintiff. Stansfield alone appealing, is here urging; that the decision, that because claimants held the information back, it could not be found that there was a mistake in a determination of fact by the commissioner, was erroneous; that the sole question is whether there was a mistake, however induced or brought about, in a determination of fact; that though plaintiff's witnesses disputed the fact, the commissioner, on the evidence of claimant and of two physicians, that the clavicle does press upon his trachea and affect his breathing, has found that he did make a mistake in his determination of fact that the sole injury was to his left arm, in that he did not know of the additional injury when he made his first award and would not have so made it if he had known of it. He therefore insists that the commissioner properly held that there had been a mistake of fact in the first hearing and properly gave a new award.

Appellee insists: That the district judge was right; that the statute authorizing a re-opening for "mistake in a determination of fact by the commissioner", does not contemplate a case of this kind, where the fact now relied on though fully known to, was not presented by the claimant, but on the contrary he agreed that the injury in fact and in extent, was as first found by the commissioner; that it has to do with cases where, upon evidence presenting the true conditions, the commissioner has made a mistake of fact, or where through ignorance of the facts the parties have failed to produce evidence of the true conditions. It insists too upon its procedural point; that the judgment should be affirmed for the further reason, that an award is final and conclusive and may not be re-opened except in a proceeding where the parties have notice and a hearing; and that the notice here having been for a hearing on the issue of change in condition, and the hearing having been held on that ground with the evidence showing that there was no change, there was no proper ground for the re-award.

We cannot agree with appellee on its procedural point. The procedure was and should be informal and while it is true that the inquiry was prosecuted to determine if the physical fact in question, the pressure of the clavicle on the trachea, existed as a change of condition, the fact about it was fully developed by testimony pro and con, and as developed was in the record, for such effect on claimant's rights as it was entitled to. There was no formal pleading and it would be to import into a most informal proceeding the most formal kind of pleading rules, to hold that the evidence was not in for all purposes merely because there was no formal setting up of the issue of mistake. Besides no complaint of this was made to the Commissioner. No effort was made after the announcement of his award to have him re-open the matter for further testimony, and it is too late now to put forward the claim that such testimony was or might be available.

On the substantial defense that the evidence does not show a mistake in a fact determination within the statute, the case is not without its difficulties. Nearly all Compensation Acts, State as well as Federal, have from the beginning had provisions in them for re-opening and re-awarding for change in condition. Many have from the beginning had a provision for re-opening for mistake. Some like the Federal Act, have introduced it by amendment. Some have had provisions giving a general right to...