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April 7, 1937

CARDILLO, Deputy Com'r, et al.

The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a suit in equity brought to review the award made by the Deputy Commissioner and to enjoin enforcement of said award as provided by Longhoremen's and Harbor Workers' Compensation Act § 21, title 33, § 921, U.S.Code (33 U.S.C.A. § 921).

By stipulation this suit was submitted on the record made before the Deputy Commissioner and briefs of the solicitors for the respective parties.

 The facts are as found by the Deputy Commissioner and are as follows:

 On the 13th day of November 1934, the claimant above named was in the employ of the employer above named at Brooklyn in the State of New York, in the Second Compensation District established under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, and that the liability of the employer for compensation under said act was insured by the State Insurance Fund; that on said day, the claimant herein while performing service as a longshoreman for the employer and engaged in lifting a heavy axle, with a crowbar on board the S. S. Thurland Castle, which was afloat in New York Harbor, sustained personal injury resulting in his disability when another axle rolled over his left foot which resulted in lacerated wounds of the great, second, and third toes of the left foot; that written notice of injury was not given within thirty days, but that the employer had knowledge of the injury and had not been prejudiced by lack of such written notice; that the employer furnished the claimant with medical treatment, etc., in accordance with section 7 (a) of the said act (33 U.S.C.A. § 907 (a) and note); that the average annual earnings of the claimant herein at the time of his injury amounted to the sum of $1,248; that following and as the result of the injury, an infection developed in the injured foot; that the claimant was admitted to the Long Island College Hospital on November 24, 1934, with a diagnosis of cellulitis and lymphangitis of the left foot, leg, and thigh; that after his discharge from the hospital on December 10, 1935, medical treatment was continued at the hospital clinic; that several days thereafter, and also as a result of the injury, an ulcer developed on the ball of the injured foot; that the claimant was under continual medical treatment at the hospital clinic for approximately one and one-half years; that during this period, the ulcer remained unhealed and that there were several recurrences of the infection in the foot and leg; that the claimant was readmitted to the Long Island College Hospital on July 6, 1936; that two days prior to his readmission, the infection had again recurred in the injured foot and extended into the leg, including the knee; that he also had a general toxemia and debility; that X-rays taken following his readmission on July 6, 1936, disclosed evidence of an old chronic osteomyelitis of the lower half of the left femur but no areas of active bone destruction or evidence of acute or active osteomyelitis; that due to toxicity and the long-standing chronic nature of the leg infection caused by the injury, amputation was necessary and was performed at about mid thigh of the left leg; that about twenty-five years prior to the date of this injury, the claimant had an osteomyelitis of the lower end of the left femur; that as the result of such osteomyelitis, the claimant had a claw-foot deformity; that such osteomyelitis and claw foot were due to natural causes; that the claimant nevertheless had a useful foot and leg and satisfactorily and continually performed his regular duties as a longshoreman without difficulty or disability up to the date of this injury; that as a result of the injury, the claimant was wholly disabled from November 14, 1934, to November 13, 1936, inclusive, and is entitled to 104 3/7 weeks' compensation at $16 per week for such temporary total disability; that on the latter date, the stump still showed evidence of inflammation and of discharge, which condition required further medical treatment; that the claimant was wholly disabled on such date and will continue to be wholly disabled until the stump has fully healed; that because of the amputation resulting from the injury, the claimant has lost 100 per cent. of the left leg; that the compensation for temporary total disability to November 13, 1936, inclusive is $1,670.86; that the employer and carrier have paid $1,437.34 to the claimant as compensation.

 On the foregoing facts as found by the Deputy Commissioner, he made an award and compensation order on December 11, 1936, which the plaintiff seeks in this suit to review.

 The findings of fact of the Deputy Commissioner are not contrary to, but are supported by, the evidence. See all of the testimony of Dr. Edgar M. Bick (particularly transcript of record of hearing 10-16-36, p. 37) and of Dr. William G. Doran (particularly transcript of record of hearing 11-13-36, pp. 114, 119 and 120).

 It is true that there is a conflict between the testimony of Dr. Bartley on the one hand, and of Dr. Bick and Dr. William G. Doran on the other, but the question of the weight of the evidence was for the Deputy Commissioner's determination.

 The Deputy Commissioner was not bound to accept the opinion of Dr. Bartley, but had the right to rely upon his own observations and other evidence. Joyce v. United States Deputy Commissioner (D.C.) 33 F.2d 218; Jarka Corporation of Philadelphia v. Norton, Deputy Commissioner (D.C.) 56 F.2d 287; Zurich General Accident & Liability Insurance Company v. Marshall, Deputy Commissioner (D.C.) 56 F.2d 652.

 There was evidence to sustain the Deputy Commissioner's findings of fact and they should not be disturbed in a suit to review. Crowell, Deputy Commissioner, v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598; Del Vecchio v. Bowers, 296 U.S. 280, 56 S. Ct. 190, 80 L. Ed. 229; Voehl v. Indemnity Insurance Company of North America, 288 U.S. 162, 53 S. Ct. 380, 77 L. Ed. 676, 87 A.L.R. 245; Lumber Mut. Casualty Ins. Co. of New York v. Locke, Deputy Commissioner (C.C.A.) 60 F.2d 35.

 The plaintiffs contend that the reliable testimony in the record shows that the Deputy Commissioner erred in an award of 100 per cent. loss of use as against the complainants.

 This contention is raised by paragraph 8, subdivision eighth, of the complaint, which reads as follows: "The deputy commissioner failed to allow a deduction in his award for the previous disability in accordance with Section 8 of the Act."

 Section 8 of the act is title 33, § 908, U.S.Code (33 U.S.C.A. § 908), and subdivision (f) thereof (33 U.S.C.A. § 908 (f), to which plaintiffs must ...

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