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BROWN-PACIFIC MAXON CO. v. CARDILLO

August 3, 1950

BROWN-PACIFIC MAXON CO. et al.
v.
CARDILLO et al.



The opinion of the court was delivered by: KAUFMAN

Plaintiffs seek to set aside, as not in accordance with law, a compensation order made by defendant deputy commissioner under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. The order directs plaintiffs to make specified payments to Ernestine Jacobs as compensation for the disability and death of her husband, Homer V. Jacobs. Jurisdiction is predicated on 33 U.S.C.A. § 921(b). Plaintiffs and defendants have severally moved for summary judgment.

The facts material to this proceeding, as found by the deputy commissioner, are as follows: On January 22, 1948, and for approximately three months prior thereto, Homer V. Jacobs was employed on the island of Guam by the Brown-Pacific Maxon Company. As a result of that employment, Jacobs became acutely ill, and developed a rapidly progressive bilateral pulmonary tuberculosis which caused his death on April 7, 1949.

 On October 7, 1943, Jacobs submitted to an X-ray of his chest, which X-ray disclosed moderate fibrotic changes in each extreme apex, associated with a calcified nodule in the periphery of the right midlung field and calcium deposits in the hilium. These conditions were the residuals of an early lung infection which had become arrested and the lesion had healed. At that time Jacobs exhibited no abnormal physical signs and had no clinical or active tuberculosis. He continued working without any complaints.

 For nine months prior to October, 1947, Jacobs worked in New Orleans, La. In the latter part of October, 1947, he was hired to work for Brown-Pacific as an electrician-helper on a project on the island of Guam. A pre-employment physical examination in New Orleans disclosed that he was then physically fit for the employment.

 Jacobs went from New Orleans to San Francisco, California to await air transportation to Guam. While in San Francisco, he caught a cold which cleared up within a couple of weeks. He arrived in Guam early in November, 1947 and was given employment as a switchboard operator.

 He worked seven days a week, from 3:00 P.M. to 11:00 P.M. He worked under pressure, and being the only operator, he was allowed little time to attend to personal wants. In the latter part of December, 1947, he was assigned to heavy outside electrical work. He worked in a hot and humid climate, under adverse weather conditions, and at times was drenched by rain.

 In the middle of January, 1948, Jacobs developed acute symptoms consisting of shortness of breath, fever, cough, weakness, and loss of weight; he became acutely ill, and developed a rapidly progressive pulmonary disease. On January 24, 1948, he was admitted to the United States Naval Hospital at Guam where a diagnosis of bilateral tuberculosis was made. He was thereafter evacuated to the United States and was hospitalized until his death on April 7, 1949. The deputy commissioner found that 'the employment in Guam aggravated a pre-existing latent pulmonary tuberculosis causing his disability and ultimate death'.

 On the basis of this finding, the deputy commissioner allowed compensation for the period of Jacobs' total disability at the maximum amount permitted by the Act prior to the amendment of June 24, 1948. He also awarded death benefits, and since the death occurred subsequent to the amendment of June 24, 1948, the deputy commissioner computed the death benefits under the increased rate allowed by the amendment.

 The plaintiffs urge in their complaint that the award is contrary to law in that:

 1. The deceased was not exposed by his employment to any risk or hazard peculiar to and inherent in the nature of his work;

 2. The weight of the credible medical evidence failed to establish any causal relationship between the pulmonary tuberculosis, the cause of death, and his occupation.

 3. The amendment of June 24, 1948 establishing increased benefits does not apply in this case.

 Plaintiffs also contend that the award is not in accordance with law in that it was based on erroneous findings of essential facts by the deputy commissioner, namely:

 1. That on January 22, 1948, and for approximately three months prior thereto, the employee was employed ...


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