Calbeck v. Strachan Shipping Co.

306 F.2d 693
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 1, 1962
DocketNo. 19034
StatusPublished
Cited by13 cases

This text of 306 F.2d 693 (Calbeck v. Strachan Shipping Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962).

Opinions

JONES, Circuit Judge.

The Deputy Labor Commissioner made an award to the widow and children of Matthew Gee under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq. The district court reached the conclusion that the awax*d was not supported by substantial evidence on the record as a whole. It set aside the award and the Deputy Commissioner has appealed.

Matthew Gee was a sixty-year-old stevedore. On March 5, 1957, while employed by the appellee, Strachan Shipping Company, he was engaged in the unloading from a vessel to a barge of triple superphosphate fertilizer. The conveyer belt which was moving the fertilizer “choked up” and a quantity of the fertilizer “splattered over” Gee and he stated to a coworker that he was “all choked up in his chest.” He went home and complained to his wife about his chest. On the next day Gee visited Dr. J. F. Rader and reported to him that the fertilizer got into his chest, made his chest, eyes and nose hurt, and made his breathing difficult. Dr. Rader believed that Gee’s trouble was bronchitis caused by the fei~tilizer and prescribed an antihistamine. Gee improved but his condition again worsened. He was X-rayed and hospitalized. The X-ray indicated a residuum or effusion in the left chest.

Dr. Rader, suspecting that Gee had carcinoma of the lung referred him to Dr. Tom R. Jones, a specialist in diseases of the heart and lungs. Dr. Jones made an examination resulting in a tentative diagnosis of either carcinoma or tuberculosis. Tests were made eliminating the latter. Dr. Jones formed an opinion during the early part of May, 1957, that Gee had a lung carcinoma which was incurable and inoperable. He was also of the opinion that this condition was also pi-esent on March 12, 1957, when X-rays had been made. Gee was admitted to a Veterans Hospital in Houston on August 26th, where Dr. Jones’ diagnosis was confirmed by a biopsy. He returned home on September 5th on leave of absence, returned on September 29th, and five days later, on October 4, 1957, died. Compensation benefits wei'e claimed by Gee’s widow and children under the Act. The Deputy Commissioner found that Gee’s death was proximately caused, aggx-avated or accelerated by the employment. Benefits, as provided in the Act, were awarded. The employer and its insurance carrier sought a review in the District Court of the Southern District of Texas and prayed for injunctive relief against the enforcement of the Deputy Commis-sioixer’s award. The district court granted the relief sought, supporting its decision by a written opinion. Strachan Shipping Company v. C. D. Calbeck,, Deputy Commissioner, D.C., 190 F.Supp. 255. From the final judgment of the district court enjoining the enforcement of the award, the Deputy Commissioner and the widow and children of Gee-have appealed.

The question before the district court, as stated and decided by it,, was whether there was reliable, probative, and substantial evidence in the record as a whole to support the Deputy Commissioner’s finding that the “fertilizer incident” resulted in Gee’s permanent disability and caused or accelerated' his death. Such is the question before us. as it is submitted by the Deputy Commissioner. The Deputy Commissioner-states, as the rule by which we should' be guided, that an award can be made-even though the claim is unsupported by, or is even in conflict with, medical evidence, if thei*e is other evidence tending to establish causation. From this statement of principle the Deputy Commissioner reasons that the sequence of.' [695]*695physical events justifies the finding -of causation, and states that it is the Deputy Commissioner’s task to decide whether the given injury is to be deemed the legal cause of the given consequence. It is not to be doubted that the findings of triers of fact who reach conclusions contrary to the weight of the medical testimony may be upheld. Sentilles v. Inter-Caribbean Shipping Corporation, 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142; Todd Shipyards Corporation v. Donovan, Deputy Commissioner, 5th Cir.1962, 300 F.2d 741. An injury which hastens an employee’s death may be regarded as causing it. Mississippi Shipping Co. v. Henderson, 5th Cir.1956, 231 F.2d 457.

In the Deputy Commissioner’s order there is included in his findings of fact the following statement:

“The employee’s death was the result of the natural and unavoidable progression of the injury and the conditions and the ailments that were proximately caused, aggravated or accelerated by the employment. The injury and death arose out of and in the course of the employment. The chain of causation proceeded in a logical and orderly fashion and was direct and continuous from the day of the injury to and including the day of death.”

The uncontroverted fact is that Gee had cancer of the lung which had probably spread to the pleural cavity prior to March 5, 1957, and by that date his condition had progressed to the incurable stage. There is nothing more than surmise and conjecture, there is no substantial evidence, to support a finding that the fertilizer accelerated the growth of the cancer or that the cancerous condition was aggravated by it. If the judgment of the district court is to be reversed and the award of the Deputy Commissioner is to be reinstated, it must be as a result of a determination that substantial evidence shows that the fertilizer incident masked the cancer and so delayed its diagosis that treatments were not given which probably would have prolonged Gee’s life for a brief period of time. Such is the somewhat narrow question before us.

The review is of the record as a whole, and the administrative order is to be sustained if it appears, upon that review, that substantial evidence supports the findings. Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; O’Leary, Deputy Commissioner, v. Brown-Pacific Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483. Questions of credibility are for the Deputy Commissioner to determine. National Labor Relations Board v. Walton Manufacturing Co., 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829. The burden of showing that the accident caused an acceleration of the death of the employee was upon the claimant. Gooding v. Willard, 2nd Cir.1954, 209 F.2d 913.

If the whole record has within it the substantial evidence that is required to sustain the finding, that evidence must be found in the testimony of Dr. James G. Jones. He was a specialist in internal medicine and at the time of the hearing had been practicing for a year in the City of Houston. He had never examined Gee and so his testimony was based upon the clinical and hospital records, upon X-rays and upon the hypotheses incorporated in the questions of counsel.

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C. D. Calbeck v. Strachan Shipping Company
306 F.2d 693 (Fifth Circuit, 1962)

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306 F.2d 693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calbeck-v-strachan-shipping-co-ca5-1962.