Rothschild & Co. v. Marshall , 56 F.2d 415 ( 1930 )

NETERER, District Judge

(after stating the faets as above).

It is obvious that the Congress intended that the Longshoremen’s and Harbor Workers’ Compensation Act (33 USCA §§ 901-950) be construed liberally in behalf of the injured workers, and has created the deputy commissioner a special tribunal not bound by common law or statutory rules of evidence or by technical or formal rules of procedure to “make such investigation or inquiry or conduct such hearing in such manner as to best ascertain the rights of the parties.” 33 USCA § 923. This statutory review (33 USCA § 921) is distinguished from a suit in equity in that the court is limited to the evidence before the deputy commissioner, and may not substitute its judgment as to the weight in conflicting evidence; if there is substantial evidence to sustain the award, the court’s jurisdiction ends. O. R. & N. Co. v. Fairchild, 224 U. S. 510, 32 S. Ct. 535, 56 L. Ed. 863; I. C. C. v. Union Pacific R. R. Co., 222 U. S. 541, 32 S. Ct. 108, 56 L. Ed. 308; Ohio Valley Co. v. Van Avon Borough et al., 253 U. S. 287-297, 40 S. Ct. 527, 64 L. Ed. 908, dissenting opinion. See, also, Zurich Gen. Accident & Liability Ins. Co. v. Marshall, etc., 42 F.(2d) 1010, filed May 9, 1930, this court.

The.memorandum filed by Judge Bourquin December 23,1929, or the order entered enjoining enforcing the stated award February 24, 1930, was not a final judgment of the issue precluding the commissioner from making further examination and order. Any order made by the deputy commissioner may be modified when conditions change (33 USCA § 922), and the court is powerless to cut off this power and duty, and the court did not so intend, as it directed the “Deputy Commissioner will proceed accordingly.” The act confers comprehensive powers on the deputy commissioner, with a view to properly protect the rights of all parties. See sections 914, 919, 922, 33 USCA.

The objections to the jurisdiction and protests to hearing by the deputy commissioner cannot obtain. An examination of the record discloses that the claimant was injured. The testimony of the doctor who attended him and of the associates present at the injury disclose that the injury was serious. The impairment of the ligaments in the lumbar region, as disclosed by the attending physician, is not contradicted or modified by the testimony of the physicians who were called by the employer and insurance carrier at the further hearing. Their testimony was all predicated upon conditions of the X-ray which it did or did not demonstrate, and it is conceded that the injury to the ligament between the fourth and fifth lumbar vertebra was not disclosed upon X-ray, and would not be, but the testimony of the attending physician is positive that it was present; and, considering the circumstances under which the injury was occasioned, the effect upon the claimant, the court cannot say that the finding was capricious and unwarranted. The testimony of the physicians called at the first hearing, in view of the entire record, is not convincing. And there being competent evidence to sustain the finding, the court should not disturb it (Obrecht-Lynch Corp. v. Clark (D. C.) 30 F.(2d) 144). The commissioner observed the demeanor of the witnesses, could weigh the interest or lack of interest displayed, determine where the truth of the matter lay, and the court, merely because physicians disagreed, should not set aside the award. Joyce v. U. S. Deputy Commissioner, etc. (D. C.) 33 F.(2d) 218; see, also, Pocahontas Fuel Co. v. Monahan (D. C.) 34 F.(2d) 549; and Zurich Gen. Acc. & Liability Co. v. Marshall, supra.

Dismissed.