W. R. Grace & Co. v. Marshall , 56 F.2d 441 ( 1931 )

CUSHMAN, District Judge

(after stating the facts as above).

The compensation order, as appears from the foregoing, is attacked by the bill of complaint on two grounds:

First, that the inhalation of ore dust was not the cause of claimant’s disabled condition.

Second, that at the time of the third hearing his condition had improved since the previous hearing, that is, he had recovered.

Although it has been held in the Fifth circuit that the District Court should try such cases de novo (Crowell v. Benson, 45 F.(2d) 66) such is not the rule in this circuit. Northwestern Stevedoring Co. v. Marshall, 41 F.(2d) 28. See, also, W. J. McCahan Sugar Refining & Molasses Co. v. Norton (C. C. A.) 43 F.(2d) 505, and Wheeling Corrugating Co. v. McManigal (C. C. A.) 41 F.(2d) 593.

As to the first question presented, there having been no review of the first compensation order under section 21 of the act (44 Stat. 1436, 33 USCA § 921) the matter is not open to review, and the only question for the deputy commissioner’s consideration upon the third hearing was as to whether there had been any change shown, subsequent to the previous hearing, in the condition of the claimant. Section 22 of the Act (44 Stat. 1437, 33 USCA §922).

Touching the second issue made by the complaint and the answer, while there may have been testimony including that of the claimant himself that he was better—that is, that his condition had improved, yet there is no lack of evidence that his condition had not sufficiently improved to justify his returning to work.

The evidence of claimant and his wife is to the effect that he was not able to work.

Dr. Warren B. Penney, a witness on behalf of the defendant (now complainant) insurance carrier, testified, in part, as follows:

“ * * * Now, the lung condition, as far as physical examination shows, if there had been any change from that first examination it has been improved, because that examination showed some rales in the upper part of the chest. He gave a history of coughing and expectorating quite a lot through that time. Since then the history does not show that he is doing as much of that. The rales are gone. * * *

“I do not think that that—by that I do not mean that his lungs were all right and that it would be advisable for him to work. * * *

“The Deputy Commissioner: The doctor is on record in the former hearing. The only benefit that has come out from the doctor’s testimony today is the question of whether or not there has been any change from the time of the last hearing which would show that the man had recovered from his injury.

“Mr. Sulgrove: Well, I was not at the former hearing, and I might have got the issues a bit confused in my mind. I will ask the doctor this question.

“Q. Do you find his condition substantially changed now from what it was at the last hearing? A. No. * * *

“The Deputy Commissioner: (Interrupting) Just a minute. We are going over the same ground on which I interrupted Mr. Sulgrove. That, matter has been passed upon and an award has been made and a compensation order has been issued, from which no appeal was taken, and the only question remaining here now is whether his condition is changed and whether this man has recovered from his disability. * * *

“Q. But whatever his condition may be, is it still substantially the same as it'was the last time that you testified? A. There is nothing particularly changed.”

Dr. Ralph C. Schaeffer, called as a witness on behalf of the employer and insurance carrier, testified, in part, as follows:

“ * * * A. I didn’t say that he was unable to work. This man — many people work with a worse heart than he has, but it is not advisable to work with a degeneration such as that.

“Q. Well, he is then to all practical, purposes unable to work today? A. It is up to him whether he should work or not.

“Q. If you were his physician, you would say that he should not go to work, wouldn’t you? A. A man with that should never go to work.”

In view of the foregoing answers it is unnecessary to quote or state further of the evidence before the deputy commissioner. The foregoing is sufficient to show that the deputy commissioner’s finding of continued disability and the compensation, order made thereon March 20, 1930, was not unsupported by the evidence.

The bill of complaint will be dismissed.

The findings of fact, conclusions of law, and decree will be settled upon notice.

The clerk will notify the attorneys for the parties to this cause of this ruling.