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MCCARTHY STEVEDORING CORP. v. NORTON

July 28, 1939

McCARTHY STEVEDORING CORPORATION et al.
v.
NORTON, Deputy Compensation Commissioner, et al.



The opinion of the court was delivered by: KALODNER

This is a motion to dismiss a bill of complaint in equity.

The complainants are an employer and its insurance carrier: defendants are the Deputy Commissioner for the Third Compensation District of the United States Employees' Compensation Commission, and the employee.

 The bill seeks to enjoin the carrying out of an award for compensation made by the Deputy Commissioner under date of January 23, 1939, upon the ground that the Deputy Commissioner erred in making findings of fact and erred in matters of law, including matters of procedure. In essence, this proceeding is an appeal from the award.

 Since I am of the opinion that there should be further hearing before the Deputy Commissioner, I shall discuss here only one of the grounds set forth in the bill, that complainants were not afforded the opportunity to cross-examine Dr. C. Howard Moore.

 On November 10, 1936, the Deputy Commissioner had issued a compensation order in which he found, inter alia, that the claimant had suffered a permanent partial disability equivalent to sixty-five per cent of loss of the right leg, and had made an award for permanent partial disability of 161.2 weeks.

 Upon application on December 14, 1938, by the claimant for a review of the said order and after notice, hearings were held before the Deputy Commissioner on January 3, 1939, and January 18, 1939. At these hearings, written reports of Dr. Moore, an impartial physician called in by the Commission, were put in evidence, Dr. Moore not appearing. On the basis of these medical or orthopedic reports, the Commissioner, in the award here complained of, made a finding that the permanent partial disability amounted to seventy-five per cent of loss of the right leg, and made an award of 186 weeks instead of 161.2 weeks.

 As stated, Dr. Moore did not appear at either of the hearings. Counsel for the employer and the insurance carrier objected to the introduction of Dr. Moore's reports, partly on the ground that he was not available for cross-examination. The Deputy Commissioner suggested a meeting with Dr. Moore, but the date was unsuitable for counsel for the carrier. The Deputy Commissioner also suggested a hearing at which Dr. Moore would be summoned at the expense of the carrier; this was rejected as unsatisfactory. There were no further hearings, and Dr. Moore was never cross-examined.

 While I think that complainants might have made more energetic attempts to secure Dr. Moore's attendance for purposes of cross-examination than the record reveals, nevertheless I do not think that what they did or failed to do is sufficient to amount to a waiver of the right to cross-examine.

 Section 14 (h) of the Longshoremen's and Harbor Workers' Compensation Act, Act of March 4, 1927, c. 509, 44 Stat. 1424, U.S.C.A. Tit. 33, §§ 901-950, provides that the Deputy Commissioner shall, where the right to compensation is controverted, "make such investigations, cause such medical examinations to be made, or hold such hearings, and take such further action as he considers will properly protect the rights of all parties."

 Crowell v. Benson, 285 U.S. 22, 47, 48, 52 S. Ct. 285, 291, 76 L. Ed. 598, is dispositive of the issue under consideration: "The statute provides for notice and hearing, and an award made without proper notice, or suitable opportunity to be heard, may be attacked and set aside as without validity. The objection is made that, as the deputy commissioner is authorized to prosecute such inquiries as he may consider necessary, the award may be based wholly or partly upon an ex parte investigation and upon unknown sources of information, and that the hearing may be merely a formality. The statute, however, contemplates a public hearing, and regulations are to require 'a record of the hearings and other proceedings before the deputy commissioners.' Section 23(b), 33 U.S.C.A. § 923(b). This implies that all proceedings by the deputy commissioner upon a particular claim shall be appropriately set forth, and that whatever facts he may ascertain and their sources shall be shown in the record and be open to challenge and opposing evidence. Facts conceivably known to the deputy commissioner, but not put in evidence so as to permit scrutiny and contest, will not support a compensation order. Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U.S. 88, 93, 33 S. Ct. 185, 57 L. Ed. 431; Chicago Junction Case, 264 U.S. 258, 263, 44 S. Ct. 317, 68 L. Ed. 667; United States v. Abilene & Southern Ry. Co., 265 U.S. 274, 288, 44 S. Ct. 565, 68 L. Ed. 1016. An award not supported by evidence in the record is not in accordance with law. But the fact that the deputy commissioner is not bound by the rules of evidence which would be applicable to trials in court or by technical rules of procedure (section 23(a), 33 U.S.C.A. § 923(a), does not invalidate the proceeding, provided substantial rights of the parties are not infringed. Interstate Commerce Comm. v. Baird, 194 U.S. 25, 44, 24 S. Ct. 563, 48 L. Ed. 860; Interstate Commerce Comm. v. Louisville & Nashville R. Co., supra; Spiller v. Atchison, T. & S.F. Ry. Co., 253 U.S. 117, 131, 40 S. Ct. 466, 64 L. Ed. 810; United States v. Abilene & Southern Ry. Co., supra; Tagg Bros. & Moorehead v. United States, supra [280 U.S. 420], at page 442, 50 S. Ct. 220 [74 L. Ed. 524]." Crowell v. Benson, supra.

 In the present case, at the hearing before the deputy commissioner on January 3, 1939 (page 8, Notes of Testimony), counsel for the insurance carrier objected to the offer in evidence of Dr. Moore's report on the ground that he did not have an opportunity to cross-examine the doctor or the examiner with relation to the report. At the January 18, 1939, hearing, counsel for the insurance carrier again objected to the admission in evidence of Dr. Moore's written report on the ground that he had not had an opportunity to cross-examine the doctor.

 It is clear that under Crowell v. Benson, supra that the deprivation of the cross-examination

 In Interstate Commerce Comm. v. Louisville & Nashville R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 L. Ed. 431, the Supreme Court interpreted the meaning of the term "hearing" as used in the Interstate Commerce Act. Under the latter Act, as under the Longshoremen's Act, the Commission, in conducting hearings, is not bound by strict rules of evidence. Said the Supreme Court in the Interstate ...


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