evidence of experts thereupon would doubtless be accepted, and a finding by a Court or other proper body as to that distance would stand for the fact, despite a conviction that the finding doubtless did not correspond exactly to the actual distance. Except in the realm of pure mathematics, no facts involving distances or amounts are susceptible of precise determination.We do the best we can with the facilities available to us.Thus, in cases involving automobile accidents, decisions are based upon distances estimated by nonexperts; often the witness must base his estimate upon a fleeting glance; and yet the facts as to those distances are properly made the basis of judicial opinion. The law recognizes the virtual impossibility, in many cases, of determining facts of this nature with precision; but the judicial officer or fact-finding body has a duty to make a fact-finding nevertheless, to the best of his ability, with the means at his command or at the command of the witnesses.
The plaintiffs' argument really reduces itself to this: that where a material issue of fact is brought before the Deputy Commissioner, he can make no finding thereupon unless the can determine the essential elements of the fact with mathematical precision. Most inquiries of this nature would be futile if such were the law.
The task may be difficult, but the duty to make the fact-finding exists nevertheless. The plaintiff's argument really defeats itself. A finding of a disability of sixty-five per cent contains the same margin of error as a finding of seventy-five per cent. What warrant, therefore, have the plaintiffs for insisting upon a sixty-five per cent finding as the correct one, when both findings are open to the same philosophical objection?
The plaintiffs elaborate their contention by arguing that the former fact finding of a sixty-five per cent disability was, because of the necessary lack of mathematical accuracy, merely an "opinion" of the Deputy Commissioner, not a "fact"; and that a mistake in this opinion is therefore not a mistake of fact within the purview of the statute, and does not form a basis for review. It seems to me, however, that the possibility of error in such "opinion" of the Deputy Commissioner must have played a large part in the determination of Congress to include the provision for review in the Longshoremen's Act. Moreover, the finding of fact is not an "opinion". It may be based on an opinion, but it is a finding of fact nevertheless.
It is well settled that the Deputy Commissioner is not bound to accept the opinion or theory of any particular medical examiner, but may rely upon his own observation and judgment in conjunction with the evidence. Booth et al. v. Monahan, Deputy Commissioner, D.C., 56 F.2d 168, 169. In the latter case the court specifically ruled that: "The Deputy Commissioner has a right to disregard the percentage figures given by any of the doctors and to use his own judgment * * * and that judgment, when based upon evidence such as found here, is conclusive, and cannot be disturbed by this court, even if a judge would come to a different conclusion on the same evidence. It is highly probable that half a dozen persons hearing the same evidence would all have used different figures in describing the percentage of the impairment, which shows the necessity of having the judgment of some one person conclusive; and in these cases the statute has designated the Deputy Commissioner as that person. " (Italics supplied.)
I conclude, therefore, that the record supports the Deputy Commissioner's finding that he had made a mistake in the former award, and that he was justified in reviewing the case under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, and in thereafter increasing compensation.
The findings of fact of the Deputy Commissioner are supported by competent evidence, and under Del Vecchio v. Bowers, 296 U.S. 280, 56 S. Ct. 190, 80 L. Ed. 229, must be regarded as final and conclusive by this Court and not subject to judicial review. See, also, Voehl v. Indemnity Insurance Co. of North America, 288 U.S. 162, 53 S. Ct. 380, 77 L. Ed. 676, 87 A.L.R. 245; Crowell, Deputy Commissioner v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598; Jules C. L'Hote et al. v. Crowell, Deputy Commissioner, 286 U.S. 528, 52 S. Ct. 499, 76 L. Ed. 1270; Pacific Employers' Insurance Co. v. Phillsbury, Deputy Commissioner, 9 Cir., 61 F.2d 101; Lumber Mutual Casualty Insurance Co. of New York v. Locke, Deputy Commissioner, 2 Cir., 60 F.2d 35; Independent Pier Co. v. Norton, Deputy Commissioner, 3 Cir., 54 F.2d 734.
It is unnecessary, in view of what has already been stated, to discuss the question whether there was a "change in condition".
Another contention advanced by the plaintiffs, that the award based upon the finding of sixty-five per cent disability became res adjudicata, is without merit. The case was reviewed within "one year after the date of the last payment of compensation", and was therefore proper under Section 22 of the Longshoremen's Act, supra.
And now, to wit, this eighth day of March, 1940, the bill of complaint is dismissed.
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