Contractors v. Pillsbury
| Decision Date | 22 June 1945 |
| Docket Number | No. 10950.,10950. |
| Parties | CONTRACTORS et al. v. PILLSBURY, Deputy Commissioner, United States Employees' Compensation Commission et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Claude F. Weingand, of Los Angeles, Cal., for appellants.
Frank J. Hennessy, U. S. Atty., and James T. Davis, Asst. U. S. Atty., both of San Francisco, Cal. (Ward E. Boote, Chief Counsel, U. S. Employees' Compensation Commission, and Herbert P. Miller, Asst. Chief Counsel, both of New York City, of counsel), for appellee Pillsbury.
Before DENMAN, STEPHENS, and BONE, Circuit Judges.
This is an appeal from a judgment dismissing a complaint of appellants (employer and insurance carrier) to enjoin the enforcement of an award made by Deputy Commissioner, Warren H. Pillsbury, to appellee, William Donoho, under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., made applicable to employees of persons engaged in national defense work by the Defense Base Act of August 16, 1941. 42 U.S.C.A. §§ 1651-1654.
Donoho was employed by a group of employers, hereafter called Contractors, who were associated in a joint venture having to do with work on a defense base project on the Island of Samoa. The work and labor of Donoho was performed from March to September, 1942 at this defense base, and he claims that his injury arose out of and in the course of this employment. He filed a claim with the Deputy Commissioner for a disability resulting from this claimed injury, and in his claim alleged contraction of pulmonary tuberculosis while so employed.
At the hearing the issues were stated to be (1) whether Donoho's claimed tuberculosis was the result in whole or in part of any occupational exposure in the course of his work sufficient to constitute an injury, as such term is defined in said Act; (2) whether such injury occurred in the course or arose out of his employment; (3) extent and duration of disability.
At the hearing before Pillsbury the parties also agreed that Donoho was in the employ of Contractors throughout the period covered by the claim and that liability for compensation under the Act was secured by appellant, Liberty Mutual Insurance Company; that the claim was within the provisions of the so-called Defense Bases Act, Act of Congress of August 16, 1941, extending provisions of the Federal Longshoremen's and Harbor Workers' Compensation Act to employees on air, military and naval bases of the United States outside of the continental United States, and also within the jurisdiction of the appropriate Deputy Commissioner; that there was no claim of intoxication or wilfully self-inflicted injury; that there had been timely notice or knowledge of Donoho's claim; that his average earnings during the time involved might be taken for the purposes of the proceeding at $85 a week, including maintenance; that no compensation has been paid, and that Donoho had been to no expense for medical treatment, he being then hospitalized at the tubercular hospital of the County of Los Angeles.
The Deputy Commissioner made findings generally supporting the contention of Donoho that he had contracted an active pulmonary tuberculosis as a result of conditions of his employment where he was serving as a male nurse, truck driver and as a steward in the mess hall. While driving a truck during a portion of this time of service he had been thoroughly soaked by rain four or five times a day. Testimony was to the effect that the rainfall was approximately 190 inches a year with temperatures ranging from 90 to 100 degrees. His work day ran from 12 to 16 hours. Donoho testified that after two or three months of the work so performed, he commenced to feel great fatigue which continued thereafter. He completed his contract of service and returned to the United States about September 25, 1942 and from that date has done no work.
In February of 1943, Donoho was examined for military service and was found to be suffering from active pulmonary tuberculosis. Shortly thereafter he was put in a hospital for treatment and was, at the time of the hearing, still hospitalized.
The Deputy Commissioner found that his active tuberculosis was caused to develop and become disabling either by contraction of original infection from unknown sources or by reactivation of a previous undisclosed and arrested pulmonary tuberculosis by conditions of his said employment, principally overwork and exposure.
The Deputy Commissioner further found that defendants (appellants here) had notice of Donoho's contention within proper time; that the employer (Contractors) did not furnish him with medical treatment in accordance with 7(a) of the Act after being notified of the discovery of the tuberculosis; that the employer is liable for the reasonable cost of (hospital) care, if charge is made therefor, the amount to be fixed by further proceedings if the parties do not agree thereon; that the average annual earnings of Donoho at the time of his injury exceeded the maximum sum prescribed by the Act of $1,950, his actual earnings in said employment being $85 a week. Also that as a result of the said injury Donoho was wholly disabled from ...
To continue reading
Request your trial
-
Southern Stevedoring Co. v. Henderson
...Co., 5 Cir., 134 F.2d 440; Liberty Mutual Ins. Co. v. Gray, Deputy Commissioner, 9 Cir., 137 F.2d 926; Contractors v. Pillsbury, Deputy Commissioner, 9 Cir., 150 F. 2d 310; C. F. Lytle Co. v. Whipple, Deputy Commissioner, 9 Cir., 156 F.2d Under the evidence and the findings, the illness of ......
-
Perini Corporation v. Heyde
...& Warehouse Co. v. Cyr, 200 F.2d 633 (C.A.9, 1952); Liberty Mutual Ins. Co. v. Gray, 137 F.2d 926 (C.A.9, 1943); Contractors P. N. A. B. v. Pillsbury, 150 F.2d 310 (C.A.9, 1945); Lowe v. Central Ry. Co. of N. J., 113 F.2d 413 (C.A.3, 1940); Southern Stevedoring Co. v. Henderson, 175 F.2d 86......
-
Aromando v. Rubin Bros. Drug Sales Co., A--482
...are placed on the record. McCarthy v. Industrial Commission, 194 Wis. 198, 215 N.W. 824, 825, 826 (Sup.Ct.1927); Contractors v. Pillsbury, 150 F.2d 310, 313 (9 Cir. 1945); 2 Larson, Workmen's Compensation, § 79.53 (1952); cf. N.J. State Bd. of Optometrists v. Nemitz, 21 N.J.Super. 18, 28, 9......
-
Board of National Missions v. Alaska Industrial Bd.
...Mut. Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028; Crescent Wharf & Warehouse Co. v. Cyr, 9 Cir., 200 F.2d 633; Contractors v. Pillsbury, 9 Cir., 150 F.2d 310. 2. Tuberculosis as a Compensable Plaintiffs contend that tuberculosis does not come within Sec. 43-3-38, A.C. L.A.1949, beca......