Bethlehem Steel Corporation v. Lawrence Clayton, Jr., and Director, Office of Workers' Compensation Programs, U. S. Department of Labor

Fifth Circuit

Bethlehem Steel Corporation v. Lawrence Clayton, Jr., and Director, Office of Workers' Compensation Programs, U. S. Department of Labor

578 F.2d 113, 1978 U.S. App. LEXIS 9623, 1979 A.M.C. 1025

CourtCourt of Appeals for the Fifth Circuit

DecidedAugust 10, 1978

Docket78-1235

StatusPublished

Cited by7 cases

This text of 578 F.2d 113 (Bethlehem Steel Corporation v. Lawrence Clayton, Jr., and Director, Office of Workers' Compensation Programs, U. S. Department of Labor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bethlehem Steel Corporation v. Lawrence Clayton, Jr., and Director, Office of Workers' Compensation Programs, U. S. Department of Labor, 578 F.2d 113, 1978 U.S. App. LEXIS 9623, 1979 A.M.C. 1025 (5th Cir. 1978).

Pincite

Opinion

PER CURIAM:

After Lawrence Clayton injured his back while working at Bethlehem Steel’s shipyard in Beaumont, Texas, he filed a claim against his employer under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq. Following a hearing before an administrative law judge, Clayton was awarded compensation for temporary disability; the Benefits Review Board affirmed that decision. Bethlehem Steel contends that the ALJ erred in admitting, over objection, the ex parte report from Clayton’s personal physician who had examined Clayton a number of times since the accident. Bethlehem Steel further contends that if the physician’s report is excluded as hearsay there is insufficient evidence to support the ALJ’s findings. No responsive brief has been filed. We agree with Bethlehem Steel and remand the case to the ALJ for further proceedings.

Our decision in this case is controlled by Southern Stevedoring Company v. Voris, 190 F.2d 275 (5th Cir. 1951). That case also involved a claim under the Longshoremen’s Act as well as a challenge to the admission of ex parte statements from doctors. As we said in that case, “By admitting these ex parte statements, upon which the deputy commissioner apparently based his decision, at least in part, the right of cross examination was effectively denied appellants upon a crucial issue. Even under the liberal provisions of the Longshoremen’s Act, we can not sanction this practice.” 190 F.2d at 277.

Southern Stevedoring has not been overruled by later cases. Dicta in Young and Company v. Shea, 397 F.2d 185, 188 (5th Cir. 1968), cert. denied, 395 U.S. 920, 89 S.Ct. 1771, 23 L.Ed.2d 237 (1969), stated that hearsay was admissible in proceedings under the Longshoremen’s Act. But Shea did not purport to announce a different rule and, in fact, depended upon Southern Stevedoring. Moreover, Shea directly relied upon a Second Circuit case, Rocker v. Celebrezze, 358 F.2d 119 (2d Cir. 1966), which had held that hearsay was admissible in Social Security hearings. In a later Fifth Circuit case, however, this court carefully distinguished claims under the Longshoremen’s Act from those under the Social Security Act. Cohen v. Perales, 412 F.2d 44 (5th Cir. 1969). Perales reasoned that because of the different statutory provisions, ex parte statements could be admitted under the Social Security Act though they could not be used under the Longshoremen’s Act. In reversing this court’s decision, the Supreme Court did not disturb this analysis of proper procedures; instead the Supreme Court reached a different conclusion based upon the facts. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

The decision and order is vacated and the cause is remanded for further proceedings not inconsistent with this opinion.

VACATED AND REMANDED.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

After Lawrence Clayton injured his back while working at Bethlehem Steel’s shipyard in Beaumont, Texas, he filed a claim against his employer under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq. Following a hearing before an administrative law judge, Clayton was awarded compensation for temporary disability; the Benefits Review Board affirmed that decision. Bethlehem Steel contends that the ALJ erred in admitting, over objection, the ex parte report from Clayton’s personal physician who had examined Clayton a number of times since the accident. Bethlehem Steel further contends that if the physician’s report is excluded as hearsay there is insufficient evidence to support the ALJ’s findings. No responsive brief has been filed. We agree with Bethlehem Steel and remand the case to the ALJ for further proceedings.

Our decision in this case is controlled by Southern Stevedoring Company v. Voris, 190 F.2d 275 (5th Cir. 1951). That case also involved a claim under the Longshoremen’s Act as well as a challenge to the admission of ex parte statements from doctors. As we said in that case, “By admitting these ex parte statements, upon which the deputy commissioner apparently based his decision, at least in part, the right of cross examination was effectively denied appellants upon a crucial issue. Even under the liberal provisions of the Longshoremen’s Act, we can not sanction this practice.” 190 F.2d at 277.

Southern Stevedoring has not been overruled by later cases. Dicta in Young and Company v. Shea, 397 F.2d 185, 188 (5th Cir. 1968), cert. denied, 395 U.S. 920, 89 S.Ct. 1771, 23 L.Ed.2d 237 (1969), stated that hearsay was admissible in proceedings under the Longshoremen’s Act. But Shea did not purport to announce a different rule and, in fact, depended upon Southern Stevedoring. Moreover, Shea directly relied upon a Second Circuit case, Rocker v. Celebrezze, 358 F.2d 119 (2d Cir. 1966), which had held that hearsay was admissible in Social Security hearings. In a later Fifth Circuit case, however, this court carefully distinguished claims under the Longshoremen’s Act from those under the Social Security Act. Cohen v. Perales, 412 F.2d 44 (5th Cir. 1969). Perales reasoned that because of the different statutory provisions, ex parte statements could be admitted under the Social Security Act though they could not be used under the Longshoremen’s Act. In reversing this court’s decision, the Supreme Court did not disturb this analysis of proper procedures; instead the Supreme Court reached a different conclusion based upon the facts. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

The decision and order is vacated and the cause is remanded for further proceedings not inconsistent with this opinion.

VACATED AND REMANDED.

Cite This Page — Counsel Stack

Bluebook (online)

578 F.2d 113, 1978 U.S. App. LEXIS 9623, 1979 A.M.C. 1025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bethlehem-steel-corporation-v-lawrence-clayton-jr-and-director-office-ca5-1978.

Opinion

Related

Cite This Page — Counsel Stack