Avignone Freres, Inc. v. Cardillo, 7638.

• Decision Date: 30 December 1940
• Docket Number: No. 7638.,7638.
• Citation: 73 App. DC 149,117 F.2d 385
• Parties: AVIGNONE FRERES, Inc., et al. v. CARDILLO, Deputy Com'r of U. S. Employees Compensation Commission, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

73 App. DC 149, 117 F.2d 385 (1940)

AVIGNONE FRERES, Inc., et al. v. CARDILLO, Deputy Com'r of U. S. Employees Compensation Commission, et al.

No. 7638.

United States Court of Appeals for the District of Columbia.

December 30, 1940.

Norman B. Frost, Frank H. Myers, and Frederic N. Towers, all of Washington, D. C., for appellants.

Edward M. Curran, U. S. Atty., William S. Tarver, Asst. U. S. Atty., Z. Lewis Dalby, Chief Counsel, Charles T. Branham, U. S. Employees' Compensation Commission, and Crandal Mackey, all of Washington, D. C., for appellees.

Before STEPHENS, VINSON, and EDGERTON, Associate Justices.

EDGERTON, Associate Justice.

This is a bill to set aside an award of compensation for the death of an employee.¹ The District Court dismissed the bill. The question is whether the Deputy Commissioner's finding that death resulted from an injury is supported by substantial evidence.

On August 16, 1936, in the course of his employment, a diabetic employee accidentally bruised his toe. In consequence the toenail came off, infection and gangrene developed and spread to the foot and leg, the toe was amputated on September 10, the metatarsal bone on September 26, the foot on November 7, and the leg just below the knee on November 18. The stump never completely healed and the man never returned to work. He was treated in a hospital from August 26, 1936, until July 11, 1937. Treatment and dressings continued at his home until October 1, 1937. On that day he lapsed into coma and died. So much is undisputed.

His last illness was diagnosed, in his lifetime, as pneumonia. The death certificate gave the cause of death as diabetes mellitus. An attending physician testified that "the immediate cause of death was due to the particular hemorrhage present at the brain and the death was entirely respiratory." A pathologist performed an autopsy and testified that "This man died as a result of a chronic glomerulonephritis," a pathological condition of the kidney, "with considerable other complications."

Two attending physicians said that there was no "causal connection" or "causal relation" between the injury, with its consequent series of operations, and the man's death. The pathologist said that "the injury is not a part and parcel of the nephritis that killed him * * * I cannot draw a direct causal effect between this injury to his foot and the cause of death as a result of the nephritis."

But the same pathologist testified that "the nephritis, of course, and the diabetes and the arteriosclerosis all going along together with the injury resulted in his death." In a report to the insurance carrier a month after the injury, one of the two attending physicians said, "In a diabetic, an injury of this kind, though trivial at the onset, may reach most serious proportions, and * * * in the case of Raymond Cook a very slight injury is unquestionably progressing to the point where he will lose his leg if not his life." At the hearing, this physician testified that "slight injuries to persons suffering diabetes often prove fatal" and that "when you start fooling around with surgery with a diabetic you are fooling around with something that has its potential danger." A...