Great American Indemnity Co. v. Cardillo

135 F.2d 241, 77 U.S. App. D.C. 306, 1943 U.S. App. LEXIS 4166
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 23, 1943
DocketNo. 8139
StatusPublished
Cited by2 cases

This text of 135 F.2d 241 (Great American Indemnity Co. v. Cardillo) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Great American Indemnity Co. v. Cardillo, 135 F.2d 241, 77 U.S. App. D.C. 306, 1943 U.S. App. LEXIS 4166 (D.C. Cir. 1943).

Opinion

VINSON, Associate Justice.

This is an appeal from an order of the District Court dismissing an action to enjoin the enforcement of an award made by the appellee Deputy Commissioner under the compensation law effective in the District of Columbia.1

The Deputy Commissioner, Cardillo, awarded the appellee Lutton compensation for injuries sustained in the course of and arising out of his employment, directing the appellant, Great American Indemnity Company, and the appellee United States Casualty Company to make the compensation payments for temporary total disability jointly and equally during [242]*242the continuance of such disability or until otherwise ordered.

The sole issue is whether there was substantial evidence presented before the Deputy Commissioner to support his finding that the appellant, Great American Indemnity Company, is liable for one-half of the compensation payments awarded Lutton. We make the following summary of this evidence:

On October 14, 1939, Lutton, a foreman bricklayer, sustained an injury to his right great toe when a tile fell upon it. The toe was mashed and the flesh was pulled away from the toe nail. Within a day or two it became infected, discharging yellowish pus. Lutton continued to work; he did not secure medical treatment, but soaked the toe in warm salt solution at home. On October 25th, while working for the same employer and with the toe still inflamed and discharging pus, he suffered a second injury when a brick fell and hit the same toe. Thereupon he went to the Company doctor for treatment. He was under his care, receiving three or four treatments a week, until December 21, 1939. In this period the nail was removed. In November, 1939, Lutton complained of pain in both groins and, calling the doctor’s attention to the pain, was advised to get a .strap, or suspensory. This he did, and it gave him some relief. After the doctor discharged him, Lutton used an Epsom .salts solution, kept the toe bandaged, and used a shoe with the toe cut out. The yellowish pus continued to discharge after December 21st. The home treatments ceased the latter part of January, 1940. Lutton worked, in the capacity of foreman, through this period.

Although he was not conscious of any further inflammation or pain in or about the toe after February, 1940, the toe was tender when he resumed the wearing of a regular shoe, and the man himself did not get well. His general health never regained its pre-injury status. Beginning with the infection, persisting through its duration and continuing through the spring and early summer of 1940, Lutton lost weight and suffered from chronic fatigue and inertia. During that time he made many statements'to his wife that he felt he was going to have a sick spell. Although he never missed a day’s work as foreman, he nevertheless was exhausted after the day’s work and would take a nap, sometimes before dinner, at other times after dinner, before the usual bedtime. This inertia was described as a “loggy”, “mopey”, and “under par” feeling. He testified that prior to the injury he had seldom taken naps, but that after the injury he was continually taking them. All the evidence indicates that prior to the toe injuries Lutton had been a healthy and vigorous young man. At the time of the hearing he was thirty years of age. The debilitated feeling continued as described until the middle of July, 1940, when it was eclipsed by the more serious illness of which we will speak.

On June 26, 1940, a carbuncle appeared on Lutton’s right shoulder, and drained for several weeks. For a week ending about July 4th he was running a temperature, and spent some time in bed from the carbuncle. On July 8th he returned to work for the same employer, not as a foreman bricklayer, but as a bricklayer, and was working on July 10th when, descending from a scaffold upon which he was working, he dropped to the floor, a distance of about three feet, suffering sudden and severe pain in the left hip. Lutton continued to work on July 10th and 11th. He went to the Company doctor for examination and treatment on July 11th. He worked until 2:30 p. m. on the 12th, and then went home and went to bed because of the hip injury. The pain became markedly worse and he was removed on July 15th to the hospital, where he was confined until September 19, 1940. At the hospital, treatment was rendered for injury to the left hip, and for staphylococcus septicemia. Thereafter he remained under continual medical care and treatment. An X-ray taken on November 29, 1940, disclosed a condition of osteomyelitis of the left pelvis and hip, and a residual condition known as osteoporosis.

The appellant was the insurance carrier for the claimant’s employer during the period when the toe injuries were sustained, but did not occupy this relationship at the time the carbuncle developed. The appellee United States Casualty Company was the carrier when the carbuncle developed and at the time of the injury on July 10, 1940. Lutton made claim and was allowed the statutory compensation by the Commission, to be assumed in equal amounts by both insurance carriers. The causal relation between the carbuncle, the hip injury, the osteomyelitis and the osteoporosis is admitted, and thus is not in issue here. Our sole concern here is the [243]*243causal relation between the toe injury, the infection resulting therefrom, the continuing lowered resistance, and the appearance of the carbuncle. There is no dispute that the appellant is liable, as ordered, if this causal relationship is established.

The medical testimony was characterized by the customary divergence of expert opinion. There was a conflict, for instance, as to whether carbuncles are formed by the invasion of staphylococci through hair follicles or lesions in the skin, or whether they develop as a secondary infection from the bacteremic condition of the blood stream. Although there was competent medical evidence supporting both theories of carbuncular development, the appellant has attempted to capitalize on this conflict by means of a familiar sophistical device. It would have us consider each theory separately, and reject each, in turn, upon the basis that it cannot be established with absolute certainty that the carbuncle arose in that particular way. That there was protracted infection, however, and that there was uncontradicted evidence as to a marked lowered resistance in Lutton beginning very shortly after the first toe injury and continuing to the appearance of the carbuncle, cannot be questioned. Dr. Oscar Hunter, a pathological specialist, stated that, assuming the lowered resistance did play a part, it made no difference, so far as concerned the causal relation, whether the carbuncle was formed from within because of a continuing infection dating from the toe injury, or from without by penetration through hair follicles or other apertures in the skin. Dr. William P. Argy also seemed unwilling to adopt expressly one or the other of these alternative theories. Therefore, since there is no intimation of any reason for the lowered resistance other than the infection following the toe injuries, and no other explanation of the origin and development of the carbuncle is offered, we do not believe that it devolved upon the Deputy Commissioner to select expressly one or the other of these alternative theories as the link in the chain of causation. It was his obligation, as we see it, to consider only the actual result and the general course of the chain of causation which produced that result.

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135 F.2d 241, 77 U.S. App. D.C. 306, 1943 U.S. App. LEXIS 4166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-american-indemnity-co-v-cardillo-cadc-1943.