Hoage v. EMPLOYERS'LIABILITY ASSUR. CORPORATION

• Decision Date: 03 April 1933
• Docket Number: No. 5710.,5710.
• Citation: 64 F.2d 715,62 App. DC 77
• Parties: HOAGE, Deputy Commissioner, et al. v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Ltd.
• Court: U.S. Court of Appeals — District of Columbia Circuit

62 App. DC 77, 64 F.2d 715 (1933)

HOAGE, Deputy Commissioner, et al. v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Ltd.

No. 5710.

Court of Appeals of the District of Columbia.

Argued March 7 and 8, 1933.

Decided April 3, 1933.

James E. McCabe, of Washington, D. C., for appellants.

Charles B. Tebbs and Frank H. Myers, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

This is a compensation case in which the deputy commissioner made an award. The insurance carrier applied to the Supreme Court of the district for an injunction, which was granted, and an appeal from that decree taken here.

The relation of master and servant is admitted; also that the employment was within the provisions of the act. The main question involved is whether the injury complained of was covered by the act. Appellee also defends on the ground that it was not the insurance carrier chargeable on the risk, and that even if it were, it is not liable because the notice of injury required by the act to be given by the employee to the employer or the carrier was not in fact given. The deputy commissioner found the facts to be as follows:

Injured (appellant) was employed by Southern Dairies (Inc.), in its plant in the District of Columbia. It was his duty to record temperatures, repair pipes, and perform other services in the cooling rooms of the plant. The rooms were used for hardening ice cream and were maintained at temperatures ranging from zero degrees F. to 22 degrees below zero F. His duty was to observe the temperature in these rooms each two hours and to record it in a log book. There were seven of these rooms and the inspection and recording of the temperature occupied on each inspection from 15 to 20 minutes. On the day in question, which was the 4th of December, 1930, injured, on returning to the engine room, noticed a peculiar numbness in his right foot. A similar numbness on previous occasions had been overcome after a little while by stamping his feet.

On the 4th of December, however, he was unable to renew circulation in the usual manner, and the resulting condition continued and grew worse and the numbness extended throughout his foot with gradually increasing symptoms. Notwithstanding, he continued to perform his duties as usual, but on December 9th and again on December 11th he consulted his family physician and later, on December 26th, a blood specialist; "that it was found that the claimant * * * was suffering from thrombo-angitis obliterans, and was possibly complicated by arteriosclerosis; that the claimant continued at his work until January 3, 1931, when he was compelled to relinquish his employment because of the condition in his right leg, which was found to be interference with the blood circulation in the foot; that on January 5, 1931, resection of the femoral artery and vein, right leg, was performed and portions of the resected area were examined by the pathologist, who reported a finding of arteriosclerosis, Monckeberg's type; however, the resection of the femoral artery did not restore proper circulation in the member, and the third, fourth and fifth toes of the right foot became gangrenous, and it became necessary to amputate the right foot above the knee, which was performed, January 23, 1931 * * *; that the medical evidence adduced before the Deputy Commissioner shows that thermic changes from extreme cold to comparatively warm temperatures will produce vasomotor changes which cause a hypostatic condition in the blood flow — i. e., a tendency to retard circulation, and that a disturbance of this character will result in numbness in the member affected, the foot in this case; furthermore, where hypostatic changes occur in a person suffering from arteriosclerosis there is a tendency for the blood to clot, particularly where the internal wall of the blood vessels have undergone some pathological change with the resulting occlusion in this case of the blood vessels and subsequent thrombosis in the larger vessels of the leg; that the medical evidence shows that exposure to thermic changes such as the evidence discloses in this case will aggravate a pre-existing condition of arteriosclerosis and will precipitate a condition such as that suffered by the claimant herein, the static or stationary condition of the blood being the proximate cause of a subsequent thrombotic condition; that the immediate effects of cold cause an interference in the superficial circulation which, but for the arteriosclerosis in this case, would probably not have resulted in any disability, and the evidence of thermic changes coupled with the previously existing condition gives a complete picture of the underlying causes which result in the disability to the claimant herein, all of which have a causal relation with his employment, and the resulting gangrene and amputation of the claimant's right leg were proximately caused by the condition of his employment."

In the case of Crowell v. Benson, 285 U. S. 22, 46, 52 S. Ct. 285, 291, 76 L. Ed. 598, the Supreme Court said that "as to questions of fact, arising with respect to injuries to employees within the purview of the act, the findings of the deputy commissioner, supported by evidence and within the scope of his authority, shall be final." And in this court and in the other federal appellate courts the rule is well established that mere conflict in the testimony or a preponderating weight of evidence will not justify disturbing the findings of the commissioner. Except as to so-called "constitutional rights" the decision of the commissioner is final where there is evidence to support it, and an award made by the commissioner in such circumstances can be set aside only "if not in accordance with law."

We have been at pains to examine carefully the medical evidence taken before the deputy commissioner, and it is enough to say that sufficient appears to support the findings and conclusions of the deputy commissioner. We are therefore confined to the inquiry, Did appellant Kerper receive an injury arising out of and occurring in the course of his employment — which, of course, includes the query whether there was an aggravation by injury resulting in disability from a pre-existing condition.

It is insisted by the appellee that there is no evidence in the record of any injury within the terms of the compensation act. It says that what occurred was the normal effect of cold on blood vessels diseased by longstanding arteriosclerosis, and that this does not constitute an accidental injury within the meaning of the statute.

The term "injury," as defined by the statute (Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424 et seq. 33 USCA §§ 901-950 as made applicable to the District of Columbia, 45 Stat. 600, title 19, D. C. Code, 1929, §§ 11 and 12, 33 USCA § 901 note; title 33, USCA § 902), means "accidental injury or death...