Calbeck v. Strachan Shipping Company

• Decision Date: 01 August 1962
• Docket Number: No. 19034.,19034.
• Citation: 306 F.2d 693
• Parties: C. D. CALBECK, Deputy Labor Commissioner, Eighth Compensation District, and Mrs. Alberta Gee, Individually and on behalf of her minor children Rivers Gee and Andrew Gee, Appellants, v. STRACHAN SHIPPING COMPANY and Texas Employers' Insurance Association, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

306 F.2d 693 (1962)

C. D. CALBECK, Deputy Labor Commissioner, Eighth Compensation District, and Mrs. Alberta Gee, Individually and on behalf of her minor children Rivers Gee and Andrew Gee, Appellants, v. STRACHAN SHIPPING COMPANY and Texas Employers' Insurance Association, Appellees.

No. 19034.

United States Court of Appeals Fifth Circuit.

August 1, 1962.

W. Jiles Roberts, Jack Shepherd, Asst. U. S. Atty., Houston, Tex., Morton Hollander, W. Harold Bigham, Marvin S. Shapiro, Attys., Dept. of Justice, Washington, D. C., William H. Orrick, Jr., Asst. Atty. Gen., Woodrow Seals, U. S. Atty., for appellants.

C. A. Brown, Galveston, Tex., for appellees, Royston, Rayzor & Cook, Galveston, Tex., of counsel.

Before TUTTLE, Chief Judge, and HUTCHESON and JONES, Circuit Judges.

JONES, Circuit Judge.

The Deputy Labor Commissioner made an award to the widow and children of Matthew Gee under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. The district court reached the conclusion that the award was not supported by substantial evidence on the record as a whole. It set aside the award and the Deputy Commissioner has appealed.

Matthew Gee was a sixty-year-old stevedore. On March 5, 1957, while employed by the appellee, Strachan Shipping Company, he was engaged in the unloading from a vessel to a barge of triple superphosphate fertilizer. The conveyer belt which was moving the fertilizer "choked up" and a quantity of the fertilizer "splattered over" Gee and he stated to a coworker that he was "all choked up in his chest." He went home and complained to his wife about his chest. On the next day Gee visited Dr. J. F. Rader and reported to him that the fertilizer got into his chest, made his chest, eyes and nose hurt, and made his breathing difficult. Dr. Rader believed that Gee's trouble was bronchitis caused by the fertilizer and prescribed an antihistamine. Gee improved but his condition again worsened. He was X-rayed and hospitalized. The X-ray indicated a residuum or effusion in the left chest.

Dr. Rader, suspecting that Gee had carcinoma of the lung referred him to Dr. Tom R. Jones, a specialist in diseases of the heart and lungs. Dr. Jones made an examination resulting in a tentative diagnosis of either carcinoma or tuberculosis. Tests were made eliminating the latter. Dr. Jones formed an opinion during the early part of May, 1957, that Gee had a lung carcinoma which was incurable and inoperable. He was also of the opinion that this condition was also present on March 12, 1957, when X-rays had been made. Gee was admitted to a Veterans Hospital in Houston on August 26th, where Dr. Jones' diagnosis was confirmed by a biopsy. He returned home on September 5th on leave of absence, returned on September 29th, and five days later, on October 4, 1957, died. Compensation benefits were claimed by Gee's widow and children under the Act. The Deputy Commissioner found that Gee's death was proximately caused, aggravated or accelerated by the employment. Benefits, as provided in the Act, were awarded. The employer and its insurance carrier sought a review in the District Court of the Southern District of Texas and prayed for injunctive relief against the enforcement of the Deputy Commissioner's award. The district court granted the relief sought, supporting its decision by a written opinion. Strachan Shipping Company v. C. D. Calbeck, Deputy Commissioner, D.C., 190 F.Supp. 255. From the final judgment of the district court enjoining the enforcement of the award, the Deputy Commissioner and the widow and children of Gee have appealed.

The question before the district court, as stated and decided by it, was whether there was reliable, probative, and substantial evidence in the record as a whole to support the Deputy Commissioner's finding that the "fertilizer incident" resulted in Gee's permanent disability and caused or accelerated his death. Such is the question before us as it is submitted by the Deputy Commissioner. The Deputy Commissioner states, as the rule by which we should be guided, that an award can be made even though the claim is unsupported by, or is even in conflict with, medical evidence, if there is other evidence tending to establish causation. From this statement of principle the Deputy Commissioner reasons that the sequence of physical events justifies the finding of causation, and states that it is the Deputy Commissioner's task to decide whether the given injury is to be deemed the legal cause of the given consequence. It is not to be doubted that the findings of triers of fact who reach conclusions contrary to the weight of the medical testimony may be upheld. Sentilles v. Inter-Caribbean Shipping Corporation, 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142; Todd Shipyards Corporation v. Donovan, Deputy Commissioner, 5th Cir.1962, 300 F.2d 741. An injury which hastens an employee's death may be regarded as causing it. Mississippi Shipping Co. v. Henderson, 5th Cir.1956, 231 F.2d 457.

In the Deputy Commissioner's order there is included in his findings of fact the following statement:

"The employee\'s death was the result of the natural and unavoidable progression of the injury and the conditions and the ailments that were proximately caused, aggravated or accelerated by the employment. The injury and death arose out of and in the course of the employment. The chain of causation proceeded in a logical and orderly fashion and was direct and continuous from the day of the injury to and including the day of death."

The uncontroverted fact is that Gee had cancer of the lung which had probably spread to the pleural cavity prior to March 5, 1957, and by that date his condition had progressed to the incurable stage. There is nothing more than surmise and conjecture, there is no substantial evidence, to support a finding that the fertilizer accelerated the growth of the cancer or that the cancerous condition was aggravated by it. If the judgment of the district court is to be reversed and the award of the Deputy Commissioner is to be reinstated, it must be as a result of a determination that substantial...