Hampton Roads Stevedoring Corp. v. O'Hearne, 6091.

• Decision Date: 07 August 1950
• Docket Number: No. 6091.,6091.
• Citation: 184 F.2d 76
• Parties: HAMPTON ROADS STEVEDORING CORPORATION v. O'HEARNE.
• Court: U.S. Court of Appeals — Fourth Circuit

184 F.2d 76 (1950)

HAMPTON ROADS STEVEDORING CORPORATION v. O'HEARNE.

No. 6091.

United States Court of Appeals Fourth Circuit.

Argued June 28, 1950.

Decided August 7, 1950.

Leon T. Seawell, Norfolk, Va., for appellant and cross-appellee.

Herbert P. Miller, Assistant Chief Counsel, Bureau of Employee's Compensation, Washington, D. C. (George R. Hummrickhouse, U. S. Atty., Richmond, Va., John P. Harper, Asst. U. S. Atty., Norfolk, Va., and Ward E. Boote, Assistant Solicitor, Department of Labor, Employees' Compensation Division, Washington, D. C., on brief), for appellee and cross-appellant.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and GILLIAM, District Judge.

GILLIAM, District Judge.

Vivian Joyner was a longshoreman employed by the Hampton Roads Stevedoring Corp., and while engaged for his employer in storing cargo in the hold of the S.S. Wisconsin sustained personal injury which allegedly resulted in his death. The injury was sustained on June 15, 1948, and the death occurred on July 17, 1948.

The surviving widow made claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act, U.S.C.A. 33, §§ 901-950, and the Deputy Commissioner for the Fifth Compensation District, Norfolk, Virginia, found as a fact that the death of Vivian Joyner resulted from the accidental injury received and awarded compensation as provided under the amendment to the act which became effective on June 24, 1948 — after the injury and before the death — and under which amendment the allowable funeral benefit was increased and the limitation of the total amount payable in death cases was removed. A petition was filed in the District Court for the Eastern District of Virginia, and upon the hearing the District Court upheld the Commissioner as to the award of compensation, but reversed him as to the applicability of the amendment of June 24, 1948, holding that the act in effect on the date of the injury, that is, June 15, 1948, rather than the act in effect on the date of the death, that is, July 17, 1948, applied.

The Commissioner's finding is: "The deceased employee * * * sustained personal injury resulting in his death, when, while lifting a piece of freight, he struck his head against a deck beam, which resulted in a sub-dural hematoma or precipitated a cerebral thrombosis, terminating in his death on July 17, 1948." There appears to be no serious contention, certainly such is not justified, that the deceased did not "strike his head against a deck beam"; though it is seriously contended, and not without ground, that there is no substantial evidence to support the finding that the blow "resulted in a sub-dural hematoma or precipitated a cerebral thrombosis terminating in his death * * *." This Court is of the opinion and holds that there is substantial evidence in the record to support this finding. This evidence may be summarized as follows: Deceased struck his head on the top of the vessel when raising up with an article of freight and another workman immediately came and took his place; when he hit his head he fell and was picked up; when talked to he did not have much to say and he was then carried up on deck; a suggestion was made to get a doctor, his condition appeared to be serious and the boss directed that he be sent to a hospital; he had not complained of feeling bad that day before the accident, and at breakfast that morning he and his nephew joked and discussed Jackie Robinson, Brooklyn's second baseman; though deceased had neurosyphilis he appeared to be in good health and showed no disability from this disease; he became progressively worse after the accident, and on July 10, 1948, his condition was such that a doctor thought it advisable to make an exploratory opening in his head to see if a clot of blood might be present; in accordance with the doctor's idea, arrangements were made to have such exploratory operation performed, but the wife of the deceased would not permit it. The condition of the deceased continued thereafter to grow gradually worse until he died, thirty-two days after the injury, and during all of that time deceased continued under disability. One of the doctors who saw deceased testified: "We found in examination that he had neuro-syphilis, and it was a question of whether he had a cerebral thrombosis due to his syphilis or whether he had a sub-dural hematoma due to a head injury; * * * (the blow on the head) could cause either one (either a cerebral thrombosis or a sub-dural hematoma); * * * I think it is a fact that a crack on the head will shake up symptoms of a latent syphilis that was not doing any harm before."

We are not called upon to say whether or not the blow caused the death, but only whether there is substantial evidence to uphold the finding of the Commissioner that such is true. Another may have reached a contrary conclusion, it may be that a contrary conclusion may have been more reasonable, though we do not so imply; but according to our view there is substantial evidence tending to show that the blow either was the sole cause of the death or that it combined with the previously existing condition of the deceased to hasten his death. Under the authorities, recovery is allowed if the injury concurs with a disease to cause disability or death. In the case of Southern Stevedoring Co. v. Henderson, 5 Cir., 175 F.2d 863, 866, an award was upheld where it appeared that the deceased, who was suffering with a bad heart, died as a result of climbing a ladder. In the opinion in that case it is said: "Since there was evidence before the commissioner that the climbing of the ladder superimposed upon the defendant's heart a condition that hastened his death, and since to hasten one's death is to cause it, we turn at once to the issue as to the accidental character of the injury." There are other cases to this effect.

It is true that there is no positive expert medical testimony to establish the finding that the injury caused the death, but such is not required by the law. In Jarka Corp. of Philadelphia v. Norton, Deputy Commissioner, D. C., 56 F.2d 287, 288, the Court said: "I am unwilling to hold that a claimant, in order to establish a case for compensation, must produce expert medical testimony to substantiate his claim, where it is proven that he sustained a fracture of the back and is now unable to work, and where the disability, not having existed before the injury has been more or less continuous since the injury. I am also unwilling to hold that the Commissioner is bound to accept the opinion of a medical expert for a respondent merely because uncontradicted."

In fact, where there is medical opinion that the death is not related to the injury, the circumstances may outweigh the physician's express opinion.

In Utah Delaware Mining Co. v. Industrial Comm., 76 Utah 187, 289 P. 94, 99, that Court said: "Notwithstanding the opinion expressed by the attending physician — it was but an opinion — that he saw no connection between the present disabilities of the applicant and the injuries sustained by him at the time of the accident, nevertheless the commission had before it sufficient evidence to justify the finding that the disabilities were attributable to the accident." In this case there was no medical expert evidence in conflict with the finding of the Deputy Commissioner — in fact, the doctors said they could not express an opinion.

In Liberty Mutual Insurance Co. v. Marshall, Deputy Commissioner, D. C., 57 F. Supp. 177, 178, it is said in sustaining an award: "I have taken the time necessary to carefully consider all of the authorities that Counsel have collected and exhaustively reviewed in their oral arguments before the Court. The great weight of Federal Court authority is to the effect that, even where all the medical testimony is all one way, the Deputy Commissioner is not bound by such medical testimony if there is other competent testimony requiring a finding different from that indicated by the medical testimony." For this position that Court cited several cases and the law in this respect seems well settled.

The question involved in the cross-appeal of the Deputy Commissioner must be decided in his favor as the Court is of the opinion and holds that the provisions of the amendment which became effective on June 24, 1948, which was subsequent to the injury but prior to the death, are applicable. Section 6 of the amendment of June 24, 1948, 33 U.S.C.A. § 906, note, provides: "The provisions of this...