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.
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.
The above statements are taken from the opinion I filed in this case on July 28, 1939, 40 F.Supp. 957, at which time I denied the motion to dismiss, without prejudice to renew it after complainants herein had been given an opportunity to cross-examine Dr. Moore. This has been done, and in effect the original motion is before me once again, with the question of the right to cross-examine Dr. Moore eliminated.
The basis of the complaint now is the award and findings of fact of the Deputy Commissioner made under date of January 23, 1939, and reading as follows:
"That on November 10, 19368 the deputy commissioner issued a compensation order in which he found that the temporary total disability of claimant terminated October 12, 1936, and that he had suffered a permanent partial disability equivalent to 65% of loss of the right leg; that in said order the deputy commissioner made an award for permanent partial disability of 161.2 weeks, at $13.00 per week, beginning October 13, 1936; that compensation has been paid currently under said order, except insofar as a small amount of recently accrued compensation has been withheld at claimant's request and for his convenience;
"That on December 14, 1938, claimant made application for a review of his case and adjustment of the findings and award; that no improvement in motion of claimant's right knee has been brought about by lapse of time; that, from X-ray findings, the abnormal or diseased condition of said knee resulting from the accident has progressed; that the deputy commissioner made a mistake in a finding of fact as to the degree of permanent partial disability; that there is a permanent partial disability equivalent to 75% of such disability as he would have sustained if he had lost his right leg; that 75% of 248 weeks is 186 weeks; that the period of 186 weeks, beginning October 13, 1936, terminates May 6, 1940; that the total amount of compensation for permanent partial disability, beginning October 13, 1936, amounts to $2418.00.
"Upon the foregoing facts the deputy commissioner makes the following:
"That the employer, McCarthy Stevedoring Corporation, and the insurance carrier, Pennsylvania Manufacturers' Association Casualty Insurance Company, shall pay ...