Simmons v. Marshall, 8593.

• Decision Date: 23 February 1938
• Docket Number: No. 8593.,8593.
• Citation: Simmons v. Marshall, 94 F.2d 850 (9th Cir. 1938)
• Parties: SIMMONS v. MARSHALL, Deputy Commissioner of Compensation, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

94 F.2d 850 (1938)

SIMMONS v.MARSHALL, DeputyCommissioner of Compensation, et al.

No. 8593.

Circuit Court of Appeals, Ninth Circuit.

February 23, 1938.

Graham K. Betts and Vanderveer & Bassett, all of Seattle, Wash., for appellant.

Harold A. Seering, of Seattle, Wash., for appellee Lake Washington Shipyards.

Before WILBUR, DENMAN, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

This case involves appellant-employee's rights under the Longshoremen's and Harbor Workers' Compensation Act,33 U.S. C.A. § 901 et seq.The defendant Marshall, Commissioner under the act, refused certain additional compensation claimed by Simmons, whereupon Simmons brought suit in the District Court to set aside the order refusing his claim.The District Court sustained the findings and award of the Commissioner, and dismissed the bill.

The following facts are undisputed: On November 28, 1934, and for a week before that, plaintiff, a painter by trade, was in the employ of the Lake Washington Shipyards painting a ship.Both plaintiff and the employer were subject to the provisions of the act.On the date mentioned, just before closing time, plaintiff and another employee were raising into position a deck-covering called a grid weighing about 250 pounds.The weight was too much for plaintiff, and he suffered from overstrain.The nature of his injury is a matter of dispute in this case, but the employer never contended that he had not suffered an industrial accident and that it did not arise out of his employment within the meaning of the act.

On the recommendation of a physician whom plaintiff consulted on December 5, to the effect that he was suffering from a badly damaged heart, the employer, without contest, paid total disability benefits to plaintiff up to September 11, 1935.It then served notice on the plaintiff and the Commissioner that right to further payments was contested.

Upon the ensuing hearing, the Commissioner found that plaintiff's industrial accident was only a wrenching of the back and that he had completely recovered therefrom before September 11, 1935.He found that plaintiff had suffered and was still suffering from cardiac disability, but that the accident was in no way responsible for that.

The evidence supports the Commissioner's findings.For many years prior to the accident plaintiff had a case of mitral stenosis (valve narrowing) following upon rheumatic infection.In 1931he was examined for other purposes, but the doctor found the heart condition, and that the stenosis was well compensated for — that is, the heart was performing its necessary function adequately.

Both doctors — plaintiff's and defendant's — who examined plaintiff after the accident and before the trial, agree that he now has a common complication of mitral stenosis, to wit, auricular fibrillation (meaning that the heart muscle has weakened, its rhythm is seriously impaired, decompensation has set in — shortness of breath, rapid and irregular pulse, etc.)They agree that plaintiff is unable safely to perform any manual labor such as lifting, climbing, moving heavy objects; although one could do such work at the risk of life or health.

The strongest medical testimony is to the effect that while a single overstrain could start decompensation, it is very rare; that ordinarily it is a gradual development, very common in mitral valvular disease cases.

Plaintiff testifies that he performed heavy work with no heart symptoms prior to the accident.That upon lifting the plank he felt sudden chest pains and dizziness.When he got home his heart rate was rapid and irregular; he was troubled with shortness of breath even while resting, and inability to sleep.

If plaintiff's own testimony is disbelieved, he has not sustained his case.The Commissioner announced he was dissatisfied with plaintiff's credibility.Plaintiff testified that he had done no work since the accident, and later, confronted with...