Walker v. Rothschild Intern. Stevedoring Co.

• Decision Date: 12 January 1976
• Docket Number: 74-1494.,No. 74-1340,74-1340
• Citation: 526 F.2d 1137
• Parties: Eddie R. WALKER, Petitioner, v. ROTHSCHILD INTERNATIONAL STEVEDORING CO. and American Motorists Insurance Company, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

526 F.2d 1137

Eddie R. WALKER, Petitioner, v. ROTHSCHILD INTERNATIONAL STEVEDORING CO. and American Motorists Insurance Company, Respondents.

Nos. 74-1340, 74-1494.

United States Court of Appeals, Ninth Circuit.

October 31, 1975.

Rehearing Denied January 12, 1976.

Lee A. Holley and Martin P. Detels, Jr. (argued), Detels, Draper & Marinkovich, Seattle, Wash., for petitioner.

Charles Preston (appeared), U.S. Dept. of Labor, Washington, D.C., for respondents.

Before ELY and HUFSTEDLER, Circuit Judges, and TAYLOR, District Judge.^*

OPINION

PER CURIAM:

This matter is before this Court on the petition of E. R. Walker and the petition of Rothschild International Stevedoring Co. (employer) and American Motorists Insurance Company (insurance carrier) for a review of the final decision of the U.S. Department of Labor Benefits Review Board (Board) as authorized under and pursuant to Title 33 U.S.C. § 921(c). The matter is within the provisions of the Longshoremen's and Harbor Workers' Compensation Act, Title 33 U.S.C. § 901 et seq.

By an Order of this Court, filed on August 9, 1974, the petitions for review were consolidated and for the purposes of this appeal, Eddie R. Walker is deemed petitioner and Rothschild International Stevedoring Co. and American Motorists Insurance Company are respondents.

The Benefits Review Board, after reviewing the record as a whole, agreed with the Administrative Law Judge (Law Judge) that petitioner was not compensably disabled from and after November 3, 1970, the time his employer ceased paying benefits. However, the Board did not agree with the Law Judge that petitioner's claim had not been timely filed. The Board decided that in the circumstances of this case, petitioner's claim was timely filed.

The findings of the Board are to be accepted by this Court unless they are unsupported by substantial evidence in the record considered as a whole. O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504-508, 71 S.Ct. 470-472, 95 L.Ed. 483 (1951); Banks v. Chicago Grain Trimmers Association, 390 U.S. 459, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968); Portland Stevedoring Company v. Johnson, 442 F.2d 411 (9th Cir. 1971).

We have carefully reviewed the entire record in this matter and it is our opinion that the decision of the Board must be affirmed.

Petitioner sustained an accidental injury in the course of his employment as a stevedore with his employer on March 19, 1970. He was first examined by Dr. Harry L. Levitt, an orthopedic surgeon, on April 3, 1970 and Dr. Levitt treated petitioner for his complaints until November 3, 1970. On November 4, 1970, Dr. Levitt advised petitioner's then attorney that petitioner was not responding to treatment and that there were no objective findings from his examinations of petitioner indicating why he should have such persistent symptoms. The doctor discharged petitioner from his care and advised him he should seek the care of another physician. On the same date, Dr. Levitt advised the respondent insurance carrier to the same effect. On November 9, 1970, the insurance carrier notified the Board of Employees' Compensation, U.S. Dept. of Labor, that, based on Dr. Levitt's report, it was not going to pay any further compensation until it had further medical information to substantiate his condition. Petitioner was advised by the office of the Deputy Commissioner that the insurance carrier had suspended payments of compensation, the last payment being on November 3, 1970.

On October 21, 1971, Dr. Albert L. Cooper, who was at that time petitioner's physician, filed an "Attending Physician's Report", BEC-204, dated October 10, 1971, with the Deputy Commissioner's office. This report referred to the date petitioner was injured and disabled for work. It also stated that the periods of disability were from April 15, 1970 to October, 1970 and from March 17, 1971 to the date of the report. October, 1970 was the date stated that petitioner was able to return to light work and no date was given as to when he could return to his regular occupation. On December 19, 1971, petitioner filed a Form BEC-203, titled "Employee's Claim for Compensation".

The respondents contend that petitioner's claim was not filed until the date he filed his Form BEC-203, more than one year after the date of the last payment for compensation on November 3, 1970. Petitioner argues that Form BEC-204, filed by Dr. Cooper, was in his behalf and complied with the statutory requirements for filing a claim. Section 13(a) of the Act (33 U.S.C. § 913(a)), prior to the 1972 amendments, provided:

"The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within one year after the injury, . . . except that if payment of compensation has been made without an award on account of such injury . . . a claim may be filed within one year after the date of the last payment."

The Board concluded that the Act should be liberally construed for the filing of Workmen's Compensation claims and that since a Form BEC-204 was filed by petitioner's physician prior to the one year limitation, the claim was timely filed. In the circumstances of this case, we agree. See McKinney v. O'Leary, 460 F.2d 371 (9th Cir. 1972) wherein this Court recognized that a claimant might even file a claim by telephone with the Deputy Commissioner, or a member of his staff, if that person then placed a memorandum in the file and thereafter an insurance carrier paid the claimant temporary total disability for a period of time. The Court stated at p. 373:

"Various types of informal writings have been liberally construed in determining whether a claim has been filed pursuant to 33 U.S.C. § 913(a) . . We agree with the parties that under the special circumstances of this case a claim was timely filed in compliance with the Act and that appellant's failure to file a formal written claim within one year does not bar consideration of his claim."

Although petitioner vigorously contends that from and after the date of his injury and November 3, 1970 he was unable to work because of pain, the several doctors who examined and treated him, with the exception of one, were unable to make any objective findings which would explain the symptoms complained of by petitioner and which would prevent him from doing longshoring work as a result of the injury on March 19, 1970. He was not only examined and treated by specialists in orthopedics, but also examined by a neurologist whose report was negative.

At the hearing before the Law Judge, medical testimony was given by three doctors. One doctor who practices osteopathic medicine testified in behalf of petitioner. This doctor did not see petitioner until approximately two and one-half years after the accident. Her testimony was to the effect that she found some muscle spasm which was disabling and that it was very possible that the accident could have caused the condition. There was no testimony from this doctor that the accident probably caused the injury.

Dr. Levitt, a practicing orthopedic surgeon for 38 years, was the first doctor to see petitioner on April 3, 1970 and continued to examine and treat him until November 3, 1970. At the hearing, Dr. Levitt testified that there were no objective findings on which he could place an opinion that the petitioner had any permanent disability as a result of the March 19, 1970 injury, either in the examinations he made, the X-rays he took, nor with the help of a neurosurgeon.

Dr. Walter S. Kimball, an orthopedic surgeon for 23 years, testified that he examined petitioner on April 4, 1972 and as a result of the history he took and the examination he made, he found little objective findings that petitioner was disabled, that his disability would not be more than 1% and that he could be returned to some gainful occupation.

Dr. David Anderson, an orthopedic surgeon, examined petitioner on October 12, 1971 and reported, in effect, that his examination did not corroborate to any degree petitioner's apparent pain symptom complex.

We do not deem it necessary to set forth in detail all the medical testimony and reports contained in the record. Suffice it to say that the findings of the Law Judge and the Review Board, in regard to petitioner's disability, are supported by substantial evidence in the record as a whole.

It appears from the record that the Law Judge, in making his findings and conclusions, took into consideration all the testimony given at the hearing, as well as all medical reports of other doctors submitted to him. In this case, the Administrative Law Judge, as the trier of the facts, is the judge of the credibility of the witnesses, both lay and medical. Banks v. Chicago Grain Trimmers Association, supra.

In Mid-Gulf Stevedores, Inc. v. Neuman, 333 F.Supp. 430 (E.D.La.1971), the court observed . . . "`with respect to any conflict in the medical testimony offered by the parties, the Commissioner Law Judge is not bound to accept the opinion or theory of any particular medical examiner.'"

Petitioner further claims that the Law Judge committed misconduct at the hearing in that he unduly restricted the amount and type of cross-examination by petitioner's counsel. We do not find from the record that the Law Judge abused his discretion or acted arbitrarily. We are of the opinion that the Law Judge conducted the hearings in a fair and impartial manner.¹

The decision of the Benefits Review Board is affirmed.

HUFSTEDLER, Circuit Judge (dissenting):

I cannot agree with the majority that substantial evidence in the record considered as a whole supports the Board's disallowance of benefits to the petitioner. We must be mindful that the Supreme Court requires us to reweigh the evidence in these cases; we cannot simply apply a substantial evidence test. (Universal Camera Corp. v. N.L.R.B. (1951) 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.)¹

The only evidence that tends to support the Board's determination that...