Marzacco v. Lowe, C. A. 3246.

• Citation: 58 F. Supp. 900
• Decision Date: 12 January 1945
• Docket Number: No. C. A. 3246.,C. A. 3246.
• Parties: MARZACCO v. LOWE, Deputy Commissioner of U. S. Employees' Compensation Commission, et al.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

58 F. Supp. 900

MARZACCO v. LOWE, Deputy Commissioner of U. S. Employees' Compensation Commission, et al.

No. C. A. 3246.

District Court, D. New Jersey.

January 12, 1945.

Nathan Baker, of Hoboken, N. J., for plaintiff.

Thorn Lord, U. S. Atty., of Newark, N. J., for defendant Samuel S. Lowe, Deputy Commissioner.

John W. Taylor, of Newark, N. J. (Charles F. Bachmann, of Boston, Mass., of counsel), for defendant Steamship Terminal Operating Corp.

FAKE, District Judge.

This cause comes before the court in proceedings for a judicial review of a compensation order made by the Deputy Commissioner dated November 15, 1943, wherein the claim of the plaintiff for compensation benefits against the defendant-employer was denied.

Plaintiff's deceased, who was 57 years of age, had been employed for some years as a longshoreman and was so employed on January 7, 1941, when he suffered a heart attack and died while at work. The claim is based on an alleged accidental injury said to have occurred on the preceding day when deceased, while engaged with others in moving a case of machinery in the hold of a vessel, was struck by a crowbar which slipped from his grasp falling on his jaw and chest.

The Deputy Commissioner found in his memorandum of November 9, 1943, that deceased was suffering at the time from a serious heart ailment of prior standing of which he had no knowledge. This is fully borne out by the uncontradicted testimony of medical experts based on an autopsy.

The Deputy Commissioner then stated the problem before him as follows: "The only question is, therefore, did he suffer an accidental injury to his chest which precipitated the attack or was it the attack that compelled him to drop the crowbar, which in falling, struck his chest?"

Upon a reading of the entire record and a study of the briefs, it is clear that the Deputy Commissioner properly stated the narrow issue on which the entire case depended. The Deputy Commissioner found that the death of deceased on January 7, 1941, was not the result of an accidental injury sustained in the course of his employment on January 6, 1941, nor was the death precipitated by the alleged accident of that date.

The question before the Deputy Commissioner having been thus clearly stated, it may be well for this court to state specifically the more limited question which arises here.

Because the issue was such a narrow one before the Deputy Commissioner and is further limited on review here, it becomes necessary to give very close study to the statutory and case law on the subject before attempting to state the question which is left for this court to decide.

The statute with which we are concerned is known as the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S. C.A. § 901 et seq., 921(b) thereof provides that: "If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part * * *." This language was construed by Mr. Chief Justice Hughes in Crowell v. Benson, 285 U.S. 22, 46, 52 S.Ct. 285, 291, 76 L.Ed. 598, to mean that, "* * * the findings of the deputy commissioner, supported by evidence and within the scope of his authority, shall be final." (Emphasis added.) This construction was arrived at to support the validity of the act in the year 1932.

Thereafter, and in January of 1944, the Circuit Court of Appeals for the Second Circuit decided the case of Steamship Terminal Operating Corporation, et al. v. Schwartz, 2 Cir., 140 F.2d 7, 8, and in a per curiam opinion said: "— the Supreme Court has several times declared that, if there is evidence to support the findings of a deputy commissioner, they must be affirmed; and by this we understand `substantial' evidence." Later, in March of 1944, and after the word "substantial" had been thus added by the Second Circuit, the Supreme Court again dealt with the subject in Norton v. Warner Co., 321 U.S. 565, 568, 64 S.Ct. 747, 749, and said: "* * * the District Court was not warranted in setting aside such an order because the court would weigh or appraise the evidence differently. The duty of the District Court, we said, was to give the award effect, `if there was evidence to support it.' 309 U.S. at page 258, 60 S.Ct. at page 548, 84 L.Ed. 732¹." In May of 1944 an opinion in the case of Bernatowicz v. Nacirema Operating Co., 3 Cir., 142 F.2d 385, was handed down in this circuit, and there again the word "substantial" is added to the phrase used by the Supreme Court.

Nothing else appearing, this court would be called upon to state the question here in the language of the Supreme Court, omitting the requirement of substantial evidence. But as to this we shall see.

The National Labor Relations Act, 29 U.S.C.A. § 160(f) provides that, "The findings of the Board as to the facts, if supported by evidence, shall * * * be conclusive." (Emphasis added.) It is noted that this statutory provision is substantially the same as the language used in the construction placed on the statutory provision with which we are here concerned. In construing the meaning of the language above quoted from the National Labor Relations Act, the Supreme Court said, in Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126, "We agree that the statute, in providing that `the findings of the Board as to the facts, if supported by evidence, shall be conclusive', * * * means supported by substantial evidence. * * * Substantial evidence is more than a mere...