Director, Office of Workers' Compensation, U.S. Dept. of Labor v. Brandt Airflex Corp.

Decision Date26 February 1981
Docket NumberNos. 78-2309,78-2314 and 78-2315,s. 78-2309
Citation207 U.S. App. D.C. 128,645 F.2d 1053
PartiesDIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. BRANDT AIRFLEX CORPORATION and U. S. Fire Insurance Company and John F. Delinski, Respondents. John F. DELINSKI, Petitioner, v. BRANDT AIRFLEX CORPORATION, Employer/Respondent, and U. S. Fire Insurance Company, Carrier/Respondent, and Director, Office of Workers' Compensation Programs, Respondent. BRANDT AIRFLEX CORPORATION, Employer, and U. S. Fire Insurance Company, Carrier, Petitioners, v. John F. DELINSKI, Claimant, Respondent and Director, Office of Workers' Compensation Programs, Respondent.
CourtU.S. Court of Appeals — District of Columbia Circuit

Petitions for Review of Orders of the Benefits Review Board.

Joshua T. Gillelan, Atty., Dept. of Labor, Washington, D. C., for Director, Office of Workers' Compensation Programs, Petitioner in No. 78-2309 and Respondent in Nos. 78-2314 and 78-2315. Cornelius S. Donoghue, Jr., Acting Associate Sol., and Mary A. Sheehan, Atty., Dept. of Labor, Washington, D. C., were on the brief for Petitioner in No. 78-2309 and Respondent in Nos. 78-2314 and 78-2315. Gilbert T. Renaut, Atty., Dept. of Labor, Washington, D. C., also entered an appearance for Director, Office of Workers' Compensation Programs, Petitioner in No. 78-2309 and Respondent in Nos. 78-2314 and 78-2315.

James F. Green, Washington, D. C., with whom James A. Mannino, Washington, D. C., was on the brief, for Delinski, Petitioner in No. 78-2314 and Respondent in Nos. 78-2309 and 78-2315.

Gerald Herz, Washington, D. C., with whom Jeffrey W. Ochsman, Rockville, Md., was on the brief, for Brandt Airflex Corp. and U. S. Fire Ins. Co., Respondents in No 78-2309 and 78-2314 and Cross-Petitioners in No. 78-2315.

Before ROBINSON, MacKINNON and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

John F. Delinski (Delinski), now deceased, 1 was a sheet metal worker hired by Brandt Airflex Corporation (Brandt) in September 1974 to assist in the construction of an office building in Washington, D.C. On December 13, 1974, Delinski arrived at the job site and proceeded to climb the stairs leading to the ninth floor where he was working. The elevators had not yet been installed. After climbing about seven flights of stairs, he suffered what was later diagnosed as congestive heart failure. He was hospitalized for one week and was thereupon advised by his doctors not to resume his employment.

Subsequently, Delinski filed a claim under the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §§ 901-950 (1976) (the Act). 2 Brandt and its insurance carrier, U.S. Fire Insurance Company, stipulated that Delinski suffered an injury on December 13, 1974, and that the parties were subject to the Act, but claimed that the injury was not related to Delinski's employment and that, in any event, liability was limited to 104 weeks of compensation pursuant to section 8(f) of the Act. 3 The Administrative Law Judge (ALJ) found against the employer and its insurance carrier on both of these defenses. On appeal to the Benefits Review Board of the Department of Labor, the ALJ was reversed on the issue of the applicability of section 8(f). The Director of the Office of Workers' Compensation Programs of the Department of Labor (Director), who has responsibility for administering the Special Fund from which payments must be made when section 8(f) applies, and Delinski himself petitioned for review of this portion of the Board's decision. 4 Brandt and its insurance carrier petitioned for review of the finding that Delinski suffered a compensable injury. We affirm the decision of the Board.


The Act authorizes payment of compensation for "accidental injury or death arising out of and in the course of employment." 33 U.S.C. § 902(2) (1976). After a formal hearing, the ALJ found that Delinski had suffered such a work-related injury. In keeping with section 21(b)(3) of the Act, 5 the Benefits Review Board affirmed the ALJ's findings of fact since they were supported by substantial evidence in the record considered as a whole. We agree with the Board's assessment of the sufficiency of the evidence.

The building under construction included four underground parking levels. The top three levels were already open to the public for parking at $2.50 or $3.00 per day, and the bottom level was available for use by the construction workers at $1.00 per day. Delinski parked his car on the bottom level at the commencement of his work day and was on his way to his workplace in the building when the injury occurred. Brandt argues that the injury preceded Delinski's arrival at his place of employment and therefore did not occur "in the course of" his employment or "aris(e) out of" it. 6 This is an attempt to invoke the so-called "going and coming rule," which generally bars compensation for injuries sustained off work premises by employees going to or coming from work. See Foster v. Massey, 407 F.2d 343, 345 (D.C.Cir. 1968), and cases cited therein. In support of its argument, Brandt cites the Supreme Court's decision in O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483 (1951). However, we read O'Leary as demonstrating that the going and coming rule is inapposite to the facts of this case.

In O'Leary, the Court found coverage under the Act when an employee drowned while attempting to rescue someone by swimming through a dangerous channel which was marked as forbidden for swimming. The employee had spent the afternoon at a recreational center maintained by his employer which was located near the shoreline. The Court held that coverage under the Act "is not confined by common-law conceptions of scope of employment.... All that is required is that the 'obligations or conditions' of employment create the 'zone of special danger' out of which the injury arose." 340 U.S. at 506-07, 71 S.Ct. at 471-72 (citations omitted); accord, Amalgamated Ass'n of Street, Electric Ry. & Motor Coach Employees v. Adler, 340 F.2d 799, 801 (D.C.Cir. 1964).

In the instant case, Delinski was "obligated" to work on the ninth floor on the day of the injury and, because the elevators were not yet functional, had to climb the stairs to the ninth floor in order to get to work. Nine flights of stairs (plus four flights from the discount parking level) in the elevatorless building constituted the "zone of special danger" out of which Delinski's heart attack arose. It defies reason and the remedial nature of the Act to suggest that the employment premises here were limited to the discrete job site on the ninth floor and that the employer's liability was limited accordingly. See A. Larson, The Law of Workmen's Compensation § 15.41 (1978). See also O'Keeffe v. Smith, Hinchman & Grylls Assocs., 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965). Therefore, we are fully satisfied that the ALJ's finding that Delinski was on the employer's premises at the time of the heart attack and that the attack occurred "in the course of" Delinski's employment "has substantial roots in the evidence and is not forbidden by law." Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 478, 67 S.Ct. 801, 806, 91 L.Ed. 1028 (1947); accord, Evening Star Newspaper Co. v. Kemp, 533 F.2d 1224, 1226 (D.C.Cir. 1976).

Brandt also argues that Delinski's heart condition was preexisting and that it did not change permanently as a result of the episode in question i. e., Delinski's permanent, total disability did not "aris(e) out of" his employment with Brandt on December 13, 1974. The record before the ALJ weighs heavily against such a claim. The ALJ found that Delinski was only partially disabled before the 1974 incident in question. Although physicians detected Delinski's coronary artery disease as far back as 1971, he continued working thereafter in an extremely strenuous occupation. He was referred to as one of the better workers during this period and the record shows that he performed his duties fully until his heart attack. While it is true that his doctor originally suggested Delinski's retirement back in 1973, the same doctor approved his return to work. 7

Although there was some conflicting testimony concerning the temporal effect of the December 13, 1974 trauma, there was ample evidence for the ALJ to conclude that Delinski became totally and permanently disabled on that date. It is the ALJ's province, as the trier of fact, to weigh contradictory evidence, judge the credibility of witnesses, and reach an ultimate conclusion as to the facts. Nardella v. Campbell Machine, Inc., 525 F.2d 46, 48-49 (9th Cir. 1975); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962). And it is well settled that an employer is liable for the consequences of a work-related injury which aggravates a preexisting condition. E. g., J.V. Vozzolo, Inc. v. Britton, 377 F.2d 144, 147-48 (D.C.Cir. 1967) (preexisting coronary arteriosclerosis).

Moreover, the history of this statute makes clear its remedial purpose, and its implementation has always presumed that doubts would be resolved in favor of the claim and coverage. 8 Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 1081 (D.C.Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976); Evening Star Newspaper Co. v. Kemp, 533 F.2d 1224, 1227 (D.C.Cir. 1976). This court most recently reaffirmed the breadth of that presumption in Riley v. U.S. Industries, 627 F.2d 455 (D.C.Cir. 1980), noting that the strength of the presumption that an injury "aris(es) out of" employment is enhanced where it has been established that the injury occurred "in the course of" employment. Id. at 458; accord, Wheatley v. Adler, 407 F.2d 307, 312 (D.C.Cir. 1968) (en banc). In any event, the standard of judicial review...

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