Appeal from the District Court of the United States for the Eastern District of Pennsylvania; George A. Welsh, Judge.
Upon December 8, 1929, Willard Carlton was injured while employed by the appellant on board a steamship in the Delaware River at Philadelphia. Carlton was employed as a "holdman", viz., one who works within the hold of a ship. The injury incurred by Carlton and the requirement of his treatment as it existed upon March 27, 1935, five and a half years after his injury, were described as follows by an orthopedic consultant, "We are dealing with a chronic back pain undoubtedly sacro-iliac in origin, in an individual whose work requires an unusual degree of strain upon the back muscles and articulations. He has been given a long course of conservative treatment without any appreciable benefit. It seems to me, therefore, that the rational thing to do is to obliterate that which is producing his pain, that is, the sacro-iliac articulation. An arthrodesis on this joint would, in all liklihood, result in a complete cure of his condition no matter what the diagnosis may prove to be * * * ".
The question presented for our determination is whether or not the employer's insurance carrier should pay for this operation in view of the circumstances set out hereafter.
Following his injury in 1929, Carlton received the long course of conservative treatment described by the orthopedic consultant in his communication to the Deputy Commissioner, and compensation was paid to Carlton during various periods of disability until terminated as of July 3, 1931, by order of the Deputy Commissioner filed upon July 6, 1931. The record contains neither the order which required compensation to be paid to Carlton nor the order which terminated it. We are therefore not informed as to whether the order requiring the payment of compensation included directions as to medical or surgical attendance. Since the burden of proof upon these issues rests upon th eappellants I think we are justified in an assumption that the order of compensation included no direction to the appellants concerning medical or surgical attendance for Carlton, and that the order terminating compensation did not refer to medical or surgical attenance.
Upon October 31, 1932, Carlton filed suit in the District Court praying a mandatory order requiring the Deputy Commissioner to review the order terminating compensation as provided by subsection (b) of Section 21 of the Longshoremen's and Harbor Worker>' Compensation Act, 33 U.S.C.A. § 921(b). This suit was dismissed and no appeal was taken by Carlton.It appears from the opinion of the District Court*fn1 in the case referred to that Carlton and the insurance carrier entered into an agreement for a lump sum settlement for a stated consideration, that compensation was terminated by order of the Deputy Commissioner for this reason and that more than thirty days after the order of termination Carlton sought review of the Deputy Commissioner's order. The District Judge, construing Sections 21 and 22 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 921 and 922, held that the order terminating compensation was final and not subject to review upon the expiration of the thirty day period prescribed by the statute, and that the Deputy Commissioner could review an order relating to an award only within the "term" of the award. The provisions of the settlement referred to are not part of the record in the case at bar, and in view of the burden of proof upon the appellants in this connection we may assume that the release did not purport at least specifically to relieve the appellants of any obligation in respect to furnishing medical or surgical attendance to Carlton.
Upon March 27, 1935, however, Carlton filed an application with the Deputy Commissioner for further medical, surgical and hospital treatment on account of his continuing injury. Upon May 27, 1935, the Deputy Commissioner made the following finding of fact and order:
"that on March 27, 1935, the claimant made appication for further medical, surgical and hospital treatment on account of his injury, such as might be determined by the Deputy Commissioner to be required by the nature of the injury and the process of recovery; that a condition causing pain and disability still exists resulting from the injury of December 8, 1929; that the performance of an operation to fuse the right sacro-iliac articulation is required for the cure of this condition; that this operation will require hospitalization and aftercare, the furnishing of a back brace, and probably physiotherapy treatments; that such surgical operation and other treatment is treatment which the nature of the injury and the process of recovery requires, and which it is the duty of the employer and insurance carrier to furnish under the provisions of Section 7(a) of the Act, 33 U.S.C.A. § 907(a).
"Upon the foregoing facts it is ordered by the Deputy Commissioner that the employer and insurance carrier furnish claimant with appropriate medical, surgical and other attendance or treatment for the relief of the condition from which the claimant is now suffering."
We think that there is no doubt that the findings of fact of the Deputy Commissioner as to Carlton's need of surgical attendance and the cause of it, as indicated, are fully supported by the record before the Deputy Commissioner and, if legally correct, could not be set aside the District Court. Calabrese v. Locke, D.C., 56 F.2d, 458; Pocahontas Fuel Co., Inc., v. Monahan, D.C., 34 F.2d 549, affirmed 1 Cir., 41 F.2d 48; Candado Stevedoring Corporation v. Locke, D.C., 57 F.2d 905, modified without reference to this point 2 Cir., 63 F.2d 802. The question presented to the court below and to ourselves is solely one of law and may be stated as follows: Did the order of the Deputy Commissioner of July 6, 1931 (the District Court refusing review), terminating Carlton's compensation, also terminate his right to further medical or surgical attendance?
The appellants contend that if the medical and surgical benefits provided by subsection (a) of Section 7 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 907(a) may be defined as "compensation", that is to say, are included within the term "compensation" as used by the Act, it follows, Carlton's right to "compensation" being terminated, that his right to medical benefits and surgical attendance was terminated likewise and cannot be revived now.
The appellants rest their argument upon the words used in the Act itself. For example, subsection (a) of Section 4 of the Act, 33 U.S.C.A. § 904(a), provides that every employer shall secure the payment to his employees of the compensation payable under Sections 7, 8 and 9, 33 U.S.C.A. §§ 907-909. Subsection (a) of Section 7 provides that the employer shall furnish the employee with " * * * such medical, surgical, and other attendance or treatment * * * as the nature of the injury or the process of recovery may require." Section 8 provides that compensation for disability shall be paid by the employer to the employee at the rate and in the manner specified by that section. Section 9 provides for compensation to be paid upon the death of an employee to his dependents. These provisions indicate an intention upon the part of Congress to treat medical and surgical attendance as "compensation."
Further examples of such intention are given by the appellants. They contend that since Section 6(a) of the Act, 33 U.S.C.A. § 906(a), which provides that "no compensation shall be allowed for the first seven days of the disability, except the benefits provided for in Section 7 [section 907 of this chapter] * * * " indicates that the "benefits" to the employee provided by Section 7, namely, medical and surgical attendance, must be treated as "compensation" within the meaning of the Act. Referring to those provisions of subsection (a) of Section 7 of the Act, 33 U.S.C.A. § 907(a), which provide that if the employee shall unreasonably refuse to submit to medical or surgical treatment the Deputy Commissioner may " * * * suspend the payment of further compensation during such time as such refusal continues * * * ", the appellants contend that since the word "compensation" is used as quoted, the section itself relating to medical and surgical treatment, the word "compensation" must refer to medical and surgical treatment.
The appellants also call our attention to the provisions of subsection (a) of Section 13 of the Act, 33 U.S.C.A. § 913(a), providing that the right to compensation for disability and the right to compensation for death shall be barred unless claims are filed within one year after the injury or death.This section provides the only statute of limitations contained in the Act relating to the filing of claims. Since it is the only statute of limitations for filing claims contained in the Act and since medical or surgical attendance is not referred to in it, the appellants take the position that the word "compensation" must of necessity include medical and surgical attendance. The appellants cite the case of Liberty Mutual Insurance Co. v. Parker, a decision by Judge Chesnut in the District Court of the United States for the District of Maryland, reported in 19 F.Supp. 686, in support of their position. The point decided by Judge Chesnut, however, in the cited case was that compensation provided by Section 8 of the Act, 33 U.S.C.A. § 908, was barred if a claim was not filed within a year. The phrase occurring in the latter portion ...