294 F. 108 | D. Mont. | 1923
That all thereof may have been more in relation to compensation than to insurance is immaterial, for the import of the term “total permanent disability” is like in both aspects. Incidentally, the bureaus’ determinations are not final; the statute (section 1, Act May 20, 1918, 40 Stat. 556, Comp. Ct. 1918, Comp. St. Ann. Supp. 1919, § 514kk) providing that, in event of disagreement between the bureau and insured, action like this at bar may he brought. Therein the whole matter is at large and open to contention, the proceeding in no sense a review of the
Again adverting to the evidence, it is that in 1917 plaintiff enlisted in defendant’s navy and the policy issued. In June, 1918, he entered defendant’s hospital, was diagnosed as of chronic pulmonary tuberculosis, and in October of that year upon, his insistence was discharged “by reason of physical disability incurred in line of' duty.” Intermittently for the greater part of near three years thereafter he was treated in hospitals and sanitariums of defendant and others, and during this interval and thereafter occurred the examinations, reports, determinations, and actions aforesaid. From these it appears, in the main and with little dissent, that subsequent to the discharge plaintiff has given little evidence of tuberculosis, but has been and is subject to chronic bronchitis, fainting spells, extreme nervousness, hysteria, psychosis maniac depressive, is of constitutional psychopathic inferiority, with superimposed emotional irritability and paranoid trend, is unable to make social adjustment, is disabled to care for self, to follow his vocation of mining enginfeer, or any other or vocational training, and reasonably likely to be for an indefinite period. The bureaus rated him variously from no disability to temporary total from discharge to May, 1921, and perhaps later, and in March, 1923, the bureau’s Board of Appeals rated him of disability “permanent total on and after October 10, 1922.” Whether or not this last is or has become final does not appear.
The other evidence is more or less corroborative of the foregoing, and tends to support the contention that at all times subsequent to discharge plaintiff has been and now is totally and permanently disabled. Some of defendant’s witnesses, however, are of the view that this condition is not permanent, in the sense that he may never recover from it, that it is largely due to hysteria and anxiety in respect to insurance and otherwise, and that, this action decided, he may recover. To guard against the consequences of excitement, plaintiff was not present at the trial, and his testimony is presented by deposition subsequently taken. Of this, it is fair to observe it indicates average intelligence at least.
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