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July 16, 1940

NORTON, Deputy Compensation Commissioner, et al.

On Motion to Dismiss Bill of Complaint

When this motion first came before me, I remanded the cause for further testimony to clear up obscurities in the record. Accordingly, further evidence was taken before the deputy commissioner, and the record is now in proper shape for consideration of the motion.

Toler, an employee of Luckenbach Steamship Co., Inc., claimed that he was injured, and sought to recover compensation under the appropriate statutes. At the hearings he testified that he was struck on the wrist or arm by a rope, causing the disability complained of. Dr. Moore, impartial medical expert, testified that Toler was suffering from a tenosynovitis caused by a blow on the forearm above the wrist.

Toler's original testimomy was not clear, and it was difficult to gather therefrom whether he was struck on the wrist or on the forearm. The question became material because Dr. Moore, specifically ascribed the tenosynovitis to a trauma on the arm.

 Nevertheless, the deputy commissioner made a finding and award in favor of the employee. Thereupon the employer, Luckenbach, adopted the usual procedure and filed a complaint in a civil action in this court, seeking to restrain the enforcement of the deputy commissioner's award. In this action the deputy commissioner and the employee were named as defendants. The defendants filed a motion to dismiss the bill; and it was at that time that I sent the case back for further testimony.

 When the latter was taken, Toler, the employee, testified specifically that the blow which he suffered was on the forearm about three inches above the wrist, and Dr. Moore established the causal relation between the blow and the ensuing disability. In this shape the record comes before me again upon the motion to dismiss the complaint.

 Apparently the deputy commissioner allows his former finding and award to stand (based upon both the old and new testimony). Luckenbach, the plaintiff here, still seeks the injunction and relief prayed for in the complaint, and the defendants still press their motion to dismiss.

 This court is not, of course, a fact-finding body in compensation cases under the present proceedings. It is true that the Longshoremen's and Harbor Workers' Compensation Act 33 U.S.C.A. ยง 901 et seq., has been construed, in Crowell v. Benson, 285 U.S. 22, 54, 52 S. Ct. 285, 76 L. Ed. 598, to empower the District Court upon petition to try certain fundamental and jurisdictional issues; but since no such application has been made in this case, the duty of the District Court is limited to determining whether the findings of the deputy commissioner are supported by the evidence. Georgia Casualty Co. v. Hoage, 61 App.D.C. 195, 59 F.2d 870; Lowe et al. v. Central Railroad Co. of New Jersey, 3 Cir., 113 F.2d 413, opinion filed June 29, 1940. See also, Southern Steamship Conpany v. Norton et al. 41 F.Supp. 103, 886, this District, opinion by Judge Kirkpatrick filed July 9, 1940.

 As has already been sufficiently indicated there is ample evidence in the record to sustain the findings and award of the deputy commissioner. That there may have been countervailing evidence or circumstances is a matter for the commissioner to consider in coming to a decision, but does not concern the Court under these proceedings. Nor is my view of the matter altered by what may be contradictions in the testimony of the employee himself. Under familiar rules of evidence, contradictions in the restimony of a claimant or plaintiff do not invalidate all his testimony: the fact-finding tribunal, whether it be a jury or a commissioner, may pick and choose, accept and reject, as its judgment dictates.

 The gravamen of the plaintiff's complaint is that there is no evidence to sustain the findings and award. That contention has already been disposed of against the plaintiff.

 It is to be noted that in the latter's brief it is stated that Dr. Moore was of the belief that Toler's tenosynovitis "most likely" resulted from a twisting suffered by him while working for another employer. The testimony upon the basis of which this statement is made (the original and not the new testimony) does not bear out the statement. All that Dr. Moore said was that a tenosynovitis, such as existed in this case, could be caused by a twisting as well as by a blow; but he insisted that Toler's injury was traumatic, that is, caused by the blow.

 In the testimony given by Dr. Moore after the case was remanded, Dr. Moore stated positively that the tenosynovitis suffered by Toler was caused by the blow inflicted on him by the rope, while working for Luckenbach.

 It has been held that the District Court, in reviewing the finding of a deputy commissioner, is "precluded from weighing the evidence, being required to examine the record and ascertain whether there was any evidence to support the commissioner's finding." South Chicago Coal & Dock Co. et al. v. Bassett, Deputy Commissioner, etc., 309 U.S. 251, 60 S. Ct. 544, 546, 84 L. Ed. 732.

 In the same case it was held that a deputy commissioner's finding of fact, if there was evidence to support it, was "conclusive", and that it was the duty of the District Court to ascertain whether it was so supported, and if so, to give the finding effect without a retrial. See, also, Del Vecchio v. Bowers, 296 U.S. 280, 287, 56 S. Ct. 190, 80 L. Ed. 229; The Admiral Peoples, 295 U.S. 649, 653, 55 S. Ct. 885, 79 L. Ed. 1633; Voehl v. Indemnity Insurance Co. 288 U.S. 162, 166, 53 S. Ct. 380, 77 L. Ed. 676, 87 A.L.R. 245; L'Hote v. Crowell, 286 U.S. 528, 52 S. Ct. 499, 76 L. Ed. 1270.

 The entire record is before me. Since that record upon examination is seen to afford ample support for the findings and award of the deputy commissioner, no useful purpose can be served by allowing further proceedings upon the complaint. The motion to dismiss is therefore granted.


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