Wheatley v. Adler

• Decision Date: 17 May 1968
• Docket Number: No. 20455.,20455.
• Citation: 132 US App. DC 177,407 F.2d 307
• Parties: Mary R. WHEATLEY, Appellant, v. Herman ADLER, Deputy Commissioner, United States Department of Labor Bureau of Employees' Compensation, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

132 US App. DC 177, 407 F.2d 307 (1968)

Mary R. WHEATLEY, Appellant, v. Herman ADLER, Deputy Commissioner, United States Department of Labor Bureau of Employees' Compensation, et al., Appellees.

No. 20455.

United States Court of Appeals District of Columbia Circuit.

Argued January 17, 1968.

Decided May 17, 1968.

Mr. Karl G. Feissner, Hyattsville, Md., for appellant.

Mr. George M. Lilly, Atty., Department of Labor, of the bar of the Supreme Court of North Carolina, pro hac vice, by special leave of court, with whom Messrs. David G. Bress, U. S. Atty., Charles Donahue, Solicitor of Labor, Frank Q. Nebeker, Asst. U. S. Atty., and Alfred H. Myers, Atty., Department of Labor, were on the brief, for appellee Adler.

Mr. Joseph S. McCarthy, Washington, D. C., entered an appearance for appellee Associated Transport, Inc.

Before BAZELON, Chief Judge, and PRETTYMAN, Senior Circuit Judge, and DANAHER, BURGER, WRIGHT, McGOWAN, TAMM, LEVENTHAL and ROBINSON, Circuit Judges, sitting en banc.

LEVENTHAL, Circuit Judge:

In this workmen's compensation case appellee, Deputy Commissioner, concluded that the collapse and death of appellant's late husband, Edward E. Wheatley, on February 12, 1964, "did not arise out of and in the course of the employment." Her action to set aside this decision¹ was dismissed by the District Court, which granted summary judgment to appellee. We reverse.

I

The testimony established that the employee began his last day like any other work day. At 8:48 a. m. he punched in at Associated Transport Company, the trucking concern where he had been employed as a mechanic for seventeen years. He changed into work clothes and assembled his tools before starting in on his first repair job. Apparently before beginning actual repair work, Wheatley walked out into the yard adjacent to the garage to answer a call of nature. The "bathroom is way in the back of the terminal" and Wheatley, crippled in one leg, never "done much about climbing the steps," and "didn't do too much running around." It was an average day in winter, temperature about 40 degrees.

At about 9:30, Wheatley was observed heading back to the garage. About 40 feet from the shop, and without any visible reason, he collapsed. Aid was fruitless. The death certificate recited that death occurred at the hospital at 10:22 a. m., and this time was accepted by appellee. The autopsy report stated that Wheatley was suffering from marked arteriosclerotic heart disease, and appellee found that death resulted from myocardial insufficiency.

As appellee found, prior to the collapse neither the employee's wife nor his supervisor nor any co-worker had heard any suggestion from him that he was suffering from an ailment, nor did his appearance that morning suggest to any of them that he was suffering from any ailment or difficulty. His widow's uncontradicted testimony establishes that he had never had a heart problem that he was aware of prior to the date of his death, nor any ailments other than lumbago and an occasional cold. A week prior to his death his face was pink when he came home, and when she asked him about it he said it was cold weather in the mountains where he had been working on a trailer truck.

Appellee's order included these statements as his crucial findings of fact: On the morning of February 12, the employee "was not subject to any employment-related emotional disturbance or to any significant physical exertion." His collapse and death were caused by a myocardial insufficiency, due to a preexisting advanced arteriosclerotic heart disease, which was "neither caused nor aggravated by the employment on February 12, 1964 or prior thereto." The myocardial insufficiency "resulted from the natural progression of the arteriosclerotic heart disease."

Although judicial review of workmen's compensation proceedings is limited,² the courts must set aside compensation orders, including denials of claims, when "not in accordance with law." 33 U.S.C. § 921(b) (1964). An administrative order must be set aside if it rests on factual premises not based on substantial record evidence or if the agency's underlying standards are not in accord with law. With this in mind we examine the record and premises underlying appellee's order.

Claimant's medical expert, Dr. Chapman, testified without contradiction, on examination of the coroner's autopsy report, and of the microscopic slides obtained from the morgue (which revealed an absence of a significant degeneration of heart tissue), that the attack could have begun no more than one and one-half hours before death, and probably began less than an hour before then. The seizure therefore began after Wheatley arrived at work.³ Claimant's expert further testified that such an attack is always preceded by some precipitating event, and that the strain of urinating on a cold day could have brought it on.

Employer's counsel called Dr. Thomas, and assuming in hypothetical form the salient events of the morning (including the urinating in the cold), asked whether he had an opinion "as to whether or not the death arose out of or in the course of the employment." Dr. Thomas testified that, on the basis of the assumptions stated and the autopsy report, he did have such an opinion. (He did not refer to, and it was later brought out, J.A. 19, that he had not examined, the coroner's microscopic slides that Dr. Chapman found material.) In his opinion the death "was not the result of any activity involved in this man's employment." He was then asked to state his reasons, and responded (J.A. 111):

Well, according to the autopsy report this man had generalized arteriosclerosis with significant narrowing of the coronary arteries, and, as Dr. Chapman has indicated to you, anything can cause a sudden demise under these circumstances.

And, as he has pointed out, this can happen in the course of a patient sitting in bed or lying in bed or relaxing or sitting in a chair watching television, without necessarily having any exertion.

The absence of any specific stimulating or exertional episode makes me feel that the attack was in no way related to his employment.

It is conceivable that the mere fact of urinating and the stress and strain of trying to urinate on a cold day — which also is a factor, because coronary artery disease is affected adversely by cold, it produces constriction of blood vessels and it may increase the tendency or the propensity towards heart attacks or sudden death — these factors alone could have been sufficient to produce this death rather than any activity that the individual was in at the time of his death.

Employer's counsel went on to ask whether it was requisite that there be stress or trauma as a factor precipitating heart disease. Dr. Thomas replied that it was not, and added (J.A. 112/3):

On the information, or from the information that I was allowed to read, I would say that there was nothing in the history or the events that were given to me that would make me feel that anything that happened to the deceased on that particular morning may have been a precipitating factor in that respect.

Asked on cross-examination whether he could express an opinion with reasonable medical certainty whether decedent's activities on the job, such as the urinating, were a precipitating factor that caused death, he said that the urination could have caused a stress or strain that precipitated death. Asked whether this was more likely than not the cause, he said he could not really give a yes or no answer. Responding to a question of the commissioner, the witness said this urinating in the cold "could have been a more significant precipitating factor" than anything else the deceased did that he knew about. He was not able to mention any other more probable precipitating factor.

II

The decision and order cannot be supported by reference to the opinion of the expert called by the employer that the employee's death "was not the result of any activity involved in this man's employment." His testimony is intelligible only on the assumption that he regarded Wheatley's urination-in-the-cold, in his own view as likely a precipitating factor as any, as not being "activity involved in this man's employment." The premise underlying his opinion is at core a proposition of law, not science, that lies outside the province of his expertise, and is not sustainable on this record.

The general rule of law is that accidents and deaths "occurring while an employee is on his way to or from toilet facilities, or while he is engaged in relieving himself, arise within the course of employment, subject only to the possible question * * * of the reasonableness of the means or place chosen."⁴ Recovery is denied on this ground when abnormal means are chosen despite the availability of satisfactory conventional facilities, and when the means chosen are both dangerous and unreasonable in the circumstances.⁵ Working in this garage Wheatley used the nearby yard rather than walk, with his "stiff" leg, up a number of steps and across the building to the bathroom in the back. There was no hint that Wheatley had not made customary resort to these ad hoc facilities or that he had been forbidden to do so. Wheatley's use of the yard was not only for his convenience, but may have benefited his employer through the time saved. In any event, the employer did not show that he had forbidden Wheatley's use of the informal facilities, or that there had been no prior use of these facilities which might have put the employer, through its supervisors, on notice of the conduct and prompted a warning if such conduct was to be forbidden. On either of these possibilities, the burden was on the employer to illuminate the facts.

It would not defeat compensation even if the act of urinating, in cold weather out of doors, is taken as not involving an unusual strain. The law in this jurisdiction does not require any unusual stress, and contemplates awards so long as...