220 F.2d 820 | D.C. Cir. | 1955
Lead Opinion
Appellant is the widow of Herbert W. Friend. She appeals from a summary judgment of the District Court granted in favor of the Deputy Commissioner of the District of Columbia Compensation District and his two co-defendants, the employer of her deceased husband and the employer’s insurer. She sued these defendants in the ’ effort to have set aside the Deputy Commissioner’s order rejecting her claim that the circumstances of her husband’s death entitled her to death benefits under the Longshoremen’s and Harbor Workers’ Compensation Act.
Our task is to ascertain whether the Deputy Commissioner’s findings are supported by substantial evidence upon the record considered as a whole, O’Leary v. Brown-Pacifie-Maxon, 340 U. S. 504, 71 S.Ct. 470, 95 L.Ed. 483, read in light of Universal Camera Corp. v. National Labor Relations Board, 340 U. S. 474, 71 S.Ct. 456, 95 L.Ed. 456,
One is struck by several salient facts. While at work February 14, 1950, in the
In the order of July 22, 1953, now before us, the Deputy Commissioner again found, on the record of "both proceedings,
The case turns on whether the White House injury materially aggravated the diseased aortic condition.
Proceeding on the foregoing basis it will be seen that the finding of the Deputy Commissioner that the fatal rupture of the diseased area was due to a natural and progressive deterioration of the aorta wall cannot be accepted. On February 14, 1950, an aggravating injury was superimposed upon the diseased condition of the aorta and until death added its injurious effect to what otherwise might have been a natural, progressive or unavoidable course of deterioration. The ultimate conclusion that death was not causally related to the injury is thus deprived of one of its two express premises.
The other premise of the conclusion, interwoven with the one just discussed, is that “the enforced cessation of work and curtailment of all physical activities during his disablement” had the beneficial effect of reducing “the hazard of earlier fatal rupture”, and therefore the death was not hastened by the injury. The testimony underlying this premise is that the inactivity which began August 1, 1950, lengthened Friend’s life as compared with its expectancy at that time. As one doctor replied, “any inactivity of that type would certainly lengthen his life” when asked “if, as a result of the incident of February 14, 1950,” he gave up “his active duty as an electrician as of August 1, 1950.” As another said, the less active a patient is who has an aneurysm “certainly it tends to lengthen his life.” Still another said that part of the treatment of an aneurysm is to prevent any undue stress or strain in order to “lessen the chances of an early termination, early rupture.” Of course none of this is evidence that the February injury in and of itself tended to or did lengthen Friend’s life, but that the enforced inactivity which began August 1, 1950, did so from that time forward in the condition he then found himself. Before August arrived, however, the February injury had begun to shorten Friend’s life. The uniform medical testimony attributes a lengthening of life to physical inactivity of one in his condition. If this view is accepted, as it was by the Deputy Commissioner, the unusual physical strain which precipitated the White House in
There have been two hearings involving the controlling features of this case. A third is not required. Our duty now is to give such directions as will enable the Commissioner to dispose of the case. The evidence as a whole, which we have carefully examined, and the findings of the Deputy Commissioner of the pre-existing aneurysm and the White House injury which aggravated that diseased condition, require the conclusion that this accidental injury hastened the deterioration of the weakened wall of the aorta toward the fatal rupture. This is so notwithstanding that the employee’s inactivity beginning August 1, 1950, enforced by the injured condition, tended thenceforth to extend his life span beyond what it. would have been had he continued a. more active life. Since, in addition,, the injury arose out of and in the course-of employment, the death of the employee comes within the compensable-provisions of the Act. “To hasten death, is to cause it.” Avignone Freres, Inc., v. Cardillo, 73 App.D.C. 149, 150, 117 F.2d: 385, 386.
The judgment of the District Court: accordingly will be reversed and the case remanded with directions for its. remand to the Deputy Commissioner for an appropriate award in accordance with, this opinion.
Reversed and remanded.
. Hereinafter referred to as the Act, 44 Stat. 1424 et seq., as amended, 33 U.S.C.A. § 901 et seq., made applicable to the District of Columbia by § 36-501, D.C. Code 1951.
. For subsequent history see National Labor Relations Board v. Universal Camera Corp., 2 Cir., 190 F.2d 429.
. Whether or not this pre-existing condition was actually an aneurysm of the aorta, as the Commissioner found, or a predisposition to or suspicion of such an aneurysm, is not altogether clear from the evidence. But uncertainty in this regard is immaterial since in any event there was a pre-existing diseased condition.
. The order of March 15, 1951, was incorporated by reference into the order of ' July 22, 1953. Moreover, as previously stated, the present order was made on the basis of the facts adduced at the earlier as well as at the later hearing.
. “It is the universal holding of the courts in compensation eases that the fact that an employee is diseased does not bar his right to recover for accidental injury notwithstanding, except for such diseased condition, the injury would not have occurred.” Hoage v. Employers’ Liability Assur. Corporation, 62 App.D.C. 77, 79, 64 F.2d 715, 717, certiorari denied sub nom. Employers’ Liability Assurance Corporation v. Kerper, 290 U.S. 637, 54 S.Ct. 54, 78 L.Ed. 554.
. The term “injury” is defined as “accidental injury or death arising out of and in the course of employment”. 88 U.S.C.A. § 902(2).
. Furthermore, the record shows that the testimony which hypothetically dissociates tho injury, assuming it aggravated the diseased condition, from the death, is that of doctors who held the opinion, herein-above referred to, that no aggravating injury had in fact occurred, contrary to the findings of the Deputy Commissioner.
Dissenting Opinion
(dissenting in part).
Though the record does not support, the Deputy Commissioner’s finding that the accident did not cause death, I think it does not require a finding that the-accident did cause death. If an accident, causes both deterioration which shortens life and inactivity which lengthens-life, I think the accident does not cause-death unless the deterioration shortens-life more than the inactivity lengthens-it. I would remand the case to the Deputy Commissioner for new findings»