Harbor Marine Contracting Co. v. Lowe

• Decision Date: 30 April 1945
• Citation: 61 F. Supp. 964
• Parties: HARBOR MARINE CONTRACTING CO. et al. v. LOWE, Deputy Com'r, U. S. Employee's Compensation Commission, et al.
• Court: U.S. District Court — Southern District of New York

61 F. Supp. 964

HARBOR MARINE CONTRACTING CO. et al. v. LOWE, Deputy Com'r, U. S. Employee's Compensation Commission, et al.

District Court, S. D. New York.

April 30, 1945.

John P. Smith, of New York City (Charles F. Bachmann, of Boston, Mass., of counsel), for plaintiffs.

John F. X. McGohey, U. S. Atty., of New York City (Thomas G. Donlan, Asst. U. S. Atty., of New York City, of counsel), for defendant Lowe.

Max L. Katzman, of Brooklyn, N. Y., for defendant Riviello.

GODDARD, District Judge.

Motions by plaintiffs and by defendants for summary judgment.

The suit is to set aside a compensation award made by the defendant Samuel S. Lowe as Deputy Commissioner of the United States Employee's Compensation Commission in favor of the defendant Riviello under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-950. The plaintiffs are Harbor Marine Contracting Company, the employer of Biagio Riviello, the deceased husband of Frances Riviello, and Liberty Mutual Insurance Company, the insurance carrier of the employer.

The grounds on which the plaintiffs seek to set aside the award are:

1. That the findings and award of the Deputy Commissioner are not supported by the evidence;

2. That the deceased did not sustain an accidental injury within the meaning of the Longshoremen's and Harbor Workers' Compensation Act; and

3. That death did not result from and was not related to an accidental injury.

The contention particularly urged by the plaintiffs is that there was no accident on which a finding of an accidental injury could be based.

It appears from the record of the hearings before the Deputy Commissioner that on February 15, 1943, Riviello entered the employ of the Harbor Marine Contracting Company which was engaged in the repair and cleaning of the boilers on a ship designated as Hull No. 162, at Pier 92, East River. For some five years previous Riviello had been employed by the W.P.A. He was put to work sweeping up the soot on the floor of the ship's boiler room. The air in the boiler room was filled with dust and the men had cloths over their noses and mouths for protection. After about an hour Riviello complained of not feeling well and he was transferred to the lighter task of carrying paper bags of soot from the ship to the dock, a distance of about one block. The bags of soot weighed about fifteen pounds each, and he carried one bag on each trip. After doing this work for about forty-five minutes, he again complained that he was not feeling well. He was taken to an Army doctor on the pier and from there was removed to the hospital, where a diagnosis of coronary thrombosis was made. He was discharged from the hospital on March 30, 1943. On April 17th he had a severe pain over his heart and on April 26th he was returned to the hospital where he died on May 5, 1943, of Coronary Sclerosis and infarct of the left ventricular wall.

The Deputy Commissioner heard testimony from the wife of the deceased concerning his general health; from the foreman in charge of the deceased on the day he was working for Harbor Marine Contracting Company concerning the conditions of the work and the actions of the deceased; from two doctors representing the insurance carrier, and from the doctor who had had the care of the deceased while he was in the hospital. The last doctor testified that the work the deceased did was competent to induce the injury. He testified that one coronary artery in the heart of the deceased was 1/10 of normal size, and hence the heart could not obtain all the nutrition necessary to continue functioning under a strain; that this artery had probably been gradually getting smaller, but it was the exertion from the work that produced an extra strain on the heart and caused or aggravated the infarction. Because...