The opinion of the court was delivered by: RAYFIEL
The plaintiff in each of the above-entitled actions has moved under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., to review and set aside a compensation order of Deputy Commissioner Thomas F. Hughes, dated February 14, 1961.
The facts, which are not disputed, follow:
On January 18, 1952, one Angelo Pinto, hereinafter called the claimant, while employed as a longshoreman by Nessa Corporation aboard the M/S 'Bowplate', was struck by a cargo net, causing him to sustain an injury to his back. Later that day, while engaged in his employment, he sustained a low back sprain. He was given medical treatment.
Thereafter, in a compensation order dated April 4, 1956, it was found that he was wholly disabled from January 30, 1952 to February 26, 1952, after which he returned to work of a restricted nature, and that he was partially disabled from February 27, 1952 to June 14, 1953.
On June 13, 1953 the claimant was working as a longshoreman for the Pittston Stevedoring Company, discharging cargo from the SS 'Imperial'. While lifting and moving the cargo he sustained a severe sacro-iliac strain, herniation of the discs between the 3rd and 4th, and 4th and 5th lumbar vertebrae, and arachnoid adhesions. Pittston furnished him with medical treatment. The compensation order of April 4, 1957 found that as a result of this accident he was wholly disabled from June 15, 1953 to November 25, 1954 and permanently partially disabled from November 26, 1954 to April 4, 1957.
In the aforementioned compensation order of that date Deputy Commissioner John A. Willard made an award, in which he ordered Nessa and its insurance carrier, Liberty Mutual Insurance Company, to pay the claimant compensation as follows: four weeks from January 30, 1952 to February 26, 1952 for temporary total disability; 60 3/7 weeks, from February 27, 1952 to June 14, 1953 for temporary partial disability, and 123 weeks, from November 26, 1954 to April 4, 1957, for permanent partial disability. The employer and its insurance carrier were directed, until otherwise ordered, to continue payments to the claimant for permanent partial disability.
Under the same order Pittston Stevedoring Corporation and its insurance carrier, Michigan Mutual Liability Company, were directed to pay the claimant compensation as follows: 75 4/7 weeks, from June 15, 1953 to November 25, 1954 for temporary total disability; 123 weeks, from November 26, 1954 to April 4, 1957, for permanent partial disability. They were further directed, until otherwise ordered, to continue to make biweekly payments to the claimant for permanent partial disability.
Each of the insurance carriers, on behalf of its insured employer, continued to make bi-weekly payments pursuant to the award until each had paid to the claimant the sum of $ 10,000, the limit provided in Section 914, Subd. (m), of Title 33, U.S.C.A. at the time of the accidents for permanent partial disability. They suspended further payments to the claimant on the ground that the maximum statutory compensation had been paid for the claimant's temporary total and permanent partial disability.
The claimant then made application pursuant to Section 922 of said Title for a reconsideration of his case. In his application he claimed that he was permanently and totally disabled due to a change in his physical condition which occurred since the hearing of April 4, 1957.
A hearing was held before Hon. Thomas F. Hughes, Deputy Commissioner, on April 6, 1960. The claimant testified respecting his condition, as did various doctors who had examined him.
Thereafter, on February 14, 1961, Deputy Commissioner Hughes made a compensation order and award modifying the order and award of April 4, 1957. In this new order he found as a fact that 'as a result of the combined effects of the injuries of January 18, 1952 and June 12, 1953' the claimant was 'from March 3, 1960, permanently and totally disabled from engaging in gainful employment'. (Emphasis mine.) He held the employer Nessa Corporation and its insurance carrier, and the employer Pittston Stevedoring Corporation and its insurance carrier, jointly liable for permanent total disability from March 3, 1960, and directed each employer, or carrier, to pay the claimant 50% Of the maximum weekly compensation from that date, and 'during the continuance of the claimant's permanent total disability, or until otherwise ordered * * *.'
The plaintiffs herein contend that Deputy Commissioner Hughes erred in making this award. They concede that the claimant is totally and permanently disabled, but, they say, his disability is the combined result of both accidents, each of which resulted in only permanent partial disability. They contend that by reason of that fact the claimant's compensation should be paid out of the Special Fund established under Section 908(f) of said Title, which reads as follows: 'Injury increasing disability: (1) If an employee receive an injury which of itself would only cause permanent partial disability but which, combined with a previous disability, does in fact cause permanent total disability, the employer shall provide compensation only for the disability caused by the subsequent injury: Provided, however, That in addition to compensation for such permanent partial disability, and after the cessation of the payments for the prescribed period of weeks, the employee shall be paid the remainder of the compensation that would be due for permanent total disability. Such additional compensation shall be paid out of the special fund established in section 944 of this title.'
I agree with the plaintiffs' contention. Section 908(f), supra, precisely covers the situation in the case at bar. The Deputy Commissioner found as a fact that the first injury and the second injury, each standing alone, caused permanent partial disability, but that when the second injury was combined with the first injury the claimant became permanently totally disabled, a finding based, in part at least, on the following testimony of Dr. Shenkman at page 58 of the record of the hearing before Deputy Commissioner Hughes on April 6, 1960:
'By Mr. Ruckersfeldt: Q. I believe that you said, Doctor, in answer to Mr. Johnson's question, I just want to be clear on this now, that the disability is not from either one of the accidents but ...