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March 31, 1953

WILLARD et al.

The opinion of the court was delivered by: BYERS

These are three motions having the common object of testing the finality of of an order denying to Evelyn Gooding, an award which she sought under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., by reason of the death of her husband, William Gooding, on March 13, 1950, at the age of 29.

The contested issue was whether his death resulted solely from heart failure resulting from rheumatic fever suffered at the age of 5 years, or if the pre-existing condition was quickened into an organic decline as the result of a fracture of the sixth rib which Gooding sustained when he tripped and fell over a cable strung on a ship's deck, at the close of his daily work on April 14-15, 1948.

 The plaintiff's action is against the Deputy Commissioner, The Atlantic Iron Works, the employer of the decedent, and Aetna Casualty & Surety Company, its carrier. The first and third motions are for judgment of dismissal by the defendants, and the second is for a review of the proceedings before the Commissioner, 33 U.S.C.A. § 921, and a judgment setting aside his order of June 20, 1952 denying relief to the plaintiff.

 There have been two claims involving the same subject matter. The first was heard on December 16, 1948 and February 8, 1949, wherein decedent himself was the claimant; that resulted in an order, dated April 4, 1949, adverse to him, on the ground that the disability which he then asserted was unrelated to the injury resulting from the fall. That record was received in bulk in connection with the widow's claim, and therefore constitutes an integral part of the voluminous record now before the court.

 It contains, in addition to Gooding's own narrative and that of witnesses concerning the nature of his occupation as a welder and the happening of the accident, the testimony of his physicians, Doctors Sigmund S. Breger and Joseph G. Terrence; also that of Dr. Malcolm M. Smith, who first examined the claimant for his employer or the carrier (as to which of the two the record is not clear), and Doctors John Hamilton Crawford, Louis F. Bishop, Shepard Shapiro and John J. Kennedy, all called by the carrier in opposition to the claim.

 The upshot of the foregoing testimony was that Gooding was 5 feet 10 inches in height and weighed between 130 and 140 pounds during his adult years and was therefore of rather a slight build; he had been classified in 4F by the army in 1940 by reason of a heart murmur, and during the ensuing eight years had followed various occupations, some or all of which required of him the performance of strenuous manual labor. In 1944 he had consulted Dr. Breger for a generally rundown and nervous condition in connection with which an electrocardiogram was made, which the doctor said revealed a normal heart. There ensued twenty consultations during the year ended June 11, 1945, and professional advice for loss of weight; injections of liver and iron as a tonic were prescribed, but no treatment for a heart condition was required although the presence was recognized of a systolic murmur accompanied by a heart enlargement.

 It also appears that Gooding was examined in about the month of January, 1948 preparatory to taking a job as a welder and was accepted; he functioned in that capacity until the happening of the accident. It also appears that he was called upon to carry weighty equipment from place to place, climb stairs, ladders, and do other heavy work.

 To state the accident more in detail, he knocked off at about 12:30 A.M. April 15, 1948 and was carrying certain of his equipment with his right hand and arm, and a steel lunch box in his left hand, and when he tripped over the cable, he was thus prevented from breaking the fall by the use of hands or arms; when he struck the deck the lunch box inflicted the injury to the rib which has been described. He at once received first aid and later that morning he was examined by Dr. Smith, who did not discover the fracture, nor order an x-ray, nor strap the area involved. Gooding seemed to be complaining only of pain at the site of this injury and a leg bruise which was unimportant. At that time Dr. Smith tested his heart and found that 'he had a systolic blow with a presystolic rumble and a rather diffuse apex beat visible in the sixth interspace outside of the nipple line.' He was asked:

 'Q. Now, at that point, Doctor, was the man compensating or decompensating in your opinion? A. He was compensating.' Decompensation means that the heart no longer maintains the circulation, according to the testimony.

 On May 3rd Dr. Smith told the patient that he could resume work on the following day if he so desired, although apparently the doctor did not so certify until May 15th.

 For present purposes, the critical time was the interval between the happening of the accident and May 4th, when Dr. Breger, Gooding's personal physician, prescribed digitalis, having then observed progress of decompensation on the part of Gooding's heart, which he said was slightly manifest three days earlier. His testimony will be referred to later.

 If the findings made by the Deputy Commissioner had been specific as to the incidence of decompensation, upon which the entire issue turns, it would have been possible for the court to reach a conclusion as to whether the record as a whole presents substantial evidence to support the rejection of the claim upon the ground tersely stated the 'The death of the employee was unrelated to the injury or his employment.'

 The history of the decedent from the time of the accident was epitomized in the order, in general accord with the testimony, and contains the recital 'that at the time of the injury, the employee was 29 years of age and had a pre-existing rheumatic heart disease; that said rheumatic heart disease culminated in congestive heart failure and death on March 13, 1950 and was neither caused by nor aggravated by said injury or related to the employment.'

 Clearly the foregoing is correct to the extent that the congestive heart failure was not caused by the injury.

 As to the aggravation of the rheumatic heart disease, the evidence seems to call for critical analysis, if the teaching of Universal Camera Corp. v. Labor Board, 340 U.S. 474, 71 S. Ct. 456, 95 LEd. 456, is reasonably understood. True the court was there dealing with the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., but the parallel between its requirements and those of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., which govern these orders, O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 71 S. Ct. 470, 95 L. Ed. 483, is so carefully expounded as to prescribe for any reviewing court of an administrative order, awareness of responsibility for the ultimate pronouncement which cannot be evaded by acquiescence in a labor saving presumption of validity. Not otherwise is the following language 340 U.S. on pages 488 and 489, 71 S. Ct. on page 465, presently understood:

 'A formula for judicial review of administrative action may afford grounds for certitude but cannot assure certainty of application. Some scope for judicial discretion in applying the formula can be avoided only by falsifying the actual process of judging or by using the formula as an instrument of futile casuistry. It cannot be too often repeated that judges are not automata * * *.'

 In what is believed to be an attempt to meet the requirements thus stated, this entire record has been examined in the effort to ascertain whether the conclusion stated by the Deputy Commissioner is supported by substantial evidence.

 It will be apparent that the finding of the Deputy Commissioner necessarily means that death would have come to Gooding when and as it did, had he not sustained the fall on April 15, 1948 and suffered the fractured rib, assuming of course no other intervening casualty. This for the reason that his pre-existing rheumatic heart condition was of such a nature that in a man of his physical characteristics, who followed the calling that he did, it may be thought that the culmination on March 13, 1950 was inevitable.

 All of the professional testimony presented by the carrier necessarily boiled down to that, and it was ...

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