Viviаn Joyner was a longshoreman employed by the Hampton Roads Stevedoring ■Corp., and while engaged for his employer in storing cargo in the hold of the S.S. Wisconsin sustained personal injury which allegedly resulted in his death. The injury was sustained on June 15, 1948, and the death occurred on July 17, 1948.
The surviving widow made claim for compensation under the Longshoremen’s and Harbor Workers’ Compensation Act, U.S.C.A. 33, §§ 901-950, and the Deputy Commissioner for the Fifth Compensation District, Norfolk, Virginia, found as a fact that the death of Vivian Joyner resulted from the accidental injury received and awarded compensation as provided under the amendment to the act which became effective on June 24, 1948 — after the injury and before the death — and under which аmendment the allowable funeral benefit was increased and the limitation of the total amount payable in death cases was removed. A petition was filed in the District Court for the Eastern District of Virginia, and upon the hearing the District Court upheld the Commissioner as to the award of compensation, but reversed him as to the applicability of the amendment of June 24, 1948, holding that the act in effect ■on the date of the injury, that is, June 15, 1948, rather than the act in effect on the date of the death, that is, July 17, 1948, applied.
The Commissioner’s finding is: “The deceased employee * * * sustained personal injury resulting in his death, when, while lifting a piece of freight, he struck his head against a deck beam, which resulted in a sub-dural hematoma or preсipitated a cerebral thrombosis, terminating in his death on July 17, 1948.” There appears to be no serious contention, certainly such is not justified, that the deceased did not “strike his head against a deck beam”; though it is seriously contended, and not without ground, that there is no substantial evidence to support the finding that the blow “resulted in a sub-dural hematoma or precipitated a cerebral thrombosis terminating in his death * * This Court is of the opinion and holds that there is substantial evidence in the record to support this finding. This evidence may be summarized as follows: Deceased struck his head on the top of the vessel when raising up with an article of freight and another workman immediately came and took his place; when he hit his head he fell and was picked up; when talked to he did not have much to say and he was then carried up on deck; a suggestion was made to get a doctor, his condition appeared to be serious and the boss directed that he be sent to a hospital; he had not complained of feeling bad that day before the accident, and at breakfast that morning he and his nephew joked and discussed Jackie Robinson, Brooklyn’s second baseman; though deceased had neurosyphilis he appeared to be in good health and showed no disability from this disease; he became progressively worse after the accident, and on July 10, 1948, his condition was such that a doctor thought it advisable to make an exploratory opening in his head to see if a clot of blood might be present; in accordance with the doctor’s idea, arrangements were made to have such exploratory operation performed, but the wife of the deceased would not permit it. The condition of the deceased continued thereafter to grow gradually worse until he died, thirty-two days after the injury, and during all of that time deceased continued under disability. One of the doctors who saw deceased testified: “We found in examination that he had neuro-syphilis, and it was a question of whether he had a *78 cerebral thrombosis due to his syphilis or whether he had a sub-dural hematoma due to a head injury; * * * (the blow on the head) could cause еither one (either a cerebral thrombosis or a sub-dural hematoma) ;. * * * I think it is a fact that a crack on the head will shake up symptoms of a latent syphilis that was not doing any harm before.”
We are not called upon to say whether or not the blow caused the death, but only whether there is substantial evidence to uphold the finding of the Commissioner that such is true. Another may have reached a contrary conclusion, it may be that a contrary conclusion may have been more reasonable, though we do not so imply; but according to our view there is substantial evidence tending to show that the blow either was the sole cause of the death or that it combined with the previously existing condition of the decеased to hasten his death. Under the authorities, recovery is allowed if the injury concurs with a disease to cause disability or death. In the case of Southern Stevedoring Co. v. Henderson, 5 Cir.,
It is true that there is no positive expert medical testimony to establish the finding that the injury caused the death, but such is not required by the law. In Jarka Corp. of Philadelphia v. Norton, Deputy Commissioner, D. C.,
In fact, where there is medical opinion that the death is not related to the injury, the circumstances may outweigh the physician’s express opinion.
In Utah Delaware Mining Co. v. Industrial Comm.,
In Liberty Mutual Insurance Co. v. Marshall, Deputy Commissioner, D. C.,
' The question involved in the cross-appeal of the Deputy Commissioner must be decided,in his favor as the Court is of the opinion and holds that the provisions of the amendment which became effective on June 24, 1948, which was subsequent to the injury but prior to the death, are ap- , *79 plicable. Section 6 of the amendment of June 24, 1948, 33 U.S.C.A. § 906, note, provides: “The provisions of this Act shall be applicable only to injuries or deaths occurring on or after the effective date hereof.” The District Judge was of the opinion that “thе words used in the statute ‘injuries or deaths’ as affected by the limitation have the same meaning” and stated: “The act provides compensation in event of either injury or death, and where the death occurs subsequently to the date of injury the rights of the parties were fixed as of the date of the injury.” It might be conceded that if “the rights of the parties were fixed as оf the date of the injury” the ruling of the District Court would be correct, but this piemise does not appear to be sound. In the first place, as stated in cross-appellant’s brief, “the words ‘or deaths’ would be superfluous if they are to be given the same meaning as the word ‘injuries’ which precedes them.” There is no reason to suppose that the words “or deaths” were inserted without purpose. On the other hand, if Congress did intend to make the amendment applicable to deaths occurring thereafter, regardless of the date of the injury, the question comes to mind: what words might have been employed to more clearly express such intention.
It is to be borne in mind that, as construed by the Courts in several cases the act gives twо separate rights, one relating to compensation for injury payable to the injured employee, and the other relating to death benefits payable to the dependents. When death occurs, a new cause of action arises. This is the express holding of the Second Circuit in International Mercantile Marine Co. v. Lowe, Deputy Commissioner,
While, of course, the question decided in the cases just referred to is not identical *80 "with the question here, these cases do definitely hold that the cause of action arising frоm death is separate and distinct from > the cause of action arising from injury. It j appears sensible and logical to say that the law in effect on the date when the cause accrues is the applicable law, especially in view of the provision of the amendment that it shall be applicable to “deaths occurring on or after the effective date hereof.”
Similar amendments to laws of somewhat different nature have been construed to apply where the injury occurred before, but the death occurred after the amendment, even in the absence of an express direction ' making it applicable to deaths occurring thereafter. Donoho v. Atlantic Basin Iron Works,
In the case of Moore v. Troop D, above, the opinion contains this statement: “The rights of the parties arising from the dеath of an injured workman are fixed as of the date of death. The right to death benefits springs into existence at that time and the law which must control the compensation to be paid is that which was in effect when the right came into existence.” [
Our conclusion does not amount to giving retroactive effect to the amendment and is not, therefore, in conflict with many of the cases cited by the cross-appellee. We find nothing in any of the cases cited by the cross-appellee, with the possible exception of Thorpe v. Dept, of Labor et al.,
Cross-appellee also cites Riggs v. Lehigh Portland Cement Co.,
Assuming that the holding in the case of Thorpe v. Dept, of Labor,
Our decision in this respеct, we think, is in line with the policy of the law to give a liberal interpretation to the provisions of this act, as set out in Baltimore & Philadelphia Steamboat Co. v. Norton, Deputy Commissioner,
The judgment of the District Court in upholding the finding of the Deputy Commissioner that the death of the employee was caused by the injury is affirmed and that Court’s judgment in applying the act in effect at the time of the injury rather than at the time of the death is reversed; and the case is remanded for judgment in accordance with this opinion.
Affirmed in part; reversed in part.