Marshall v. Johnson

HEALY, Circuit Judge

(dissenting).

Claimant is a man somewhat advanced in years, being 67 in 1940. At the supplementary hearing the doctors testified that he was suffering from a diseased heart condition and general breakdown. Both physicians were familiar with the history of the case and with the claimant’s hospital record following the accident, and both testified positively that the effects of the injury — which was minor in character— and the ensuing cold had rather quickly spent themselves; and that the claimant’s existing disability was in no way caused or contributed to by the.injury or its aftermath of cold.

It is abundantly clear, I think, that the deputy commissioner believed the testimoony of the physicians and that he adopted their view of the matter. His supplementary order terminating the compensation was as follows: “The injury sustained by *547the claimant on June 3, 1936, was an abrasion of the right leg above the ankle; while in the hospital for the care of the said injury the claimant acquired a cold, and the award of compensation in the compensation order of March 4, 1937, was based upon the finding that the injury was the proximate cause of claimant’s continuing disability. Upon the basis of the testimony presented at the hearing on September 13, 1940, I find that the claimant is disabled as the result of a hypertensive cardiovascular disease and general breakdown and that on September 13, 1940, the claimant had recovered from the disability caused by the said injury sustained on June 3, 1936; that the claimant is entitled to 208-5/7 weeks’ compensation at $14.26 per week and amounting to $2,976.27; that the employer has paid $3,204.43 to the claimant as compensation.”

Upon these facts there was a supplementary award to the effect that the employer “shall pay to the claimant compensation as follows: $2,976.27; that the employer shall have credit on this award for $3,204.-43 previously paid to the claimant as compensation.”

It seems plain enough from these findings that the deputy commissioner was of the belief that he had been in error in his earlier award. Certainly, the findings reflect the view of thé officer that the claimant was not at the time of the supplementary hearing suffering from any compensable disability, or from any disability growing out of the injury and its aftermath. From what has been said of the medical testimony it is apparent that there was ample evidence to support this view. Findings in this sort of proceeding are usually informal. It was not necessary that the words “mistake” or “change in conditions” be used, and neither phrase was in fact employed here; it is enough that the deputy commissioner find, as he did, that the claimant was no longer disabled as a consequence of the injury.

I see no occasion for confusion because of the language of the supplementary award. It was merely the deputy commissioner’s way of saying that the claimant was entitled to the amounts paid him as compensation under the previous award, and that the employer was relieved of any obligation to pay further compensation. The statute dealing with the modification of awards, 33 U.S.C.A. § 922, provides that “such new order shall not affect any compensation previously paid.”