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November 22, 1957

Elvira NARDI, Plaintiff,
John A. WILLARD, Deputy Commissioner, Second Compensation District, Defendant

The opinion of the court was delivered by: BRYAN

Plaintiff is the widow of Louis Nardi, a deceased longshoreman. She sues under Section 21 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 921, to set aside an order of the Deputy Commissioner of the Second Compensation District which denied her claim for compensation benefits for the death of her husband. The Deputy Commissioner rejected plaintiff's claim upon the grounds that the dealt of the employee was unrelated to the injury sustained, and that the claimant had failed to give the employer notice of the employee's death within thirty days of its occurrence, as the statute requires.

Plaintiff has moved for summary judgment, and the defendant in turn seeks summary judgment in its favor without formal motion. See Dickhoff v. Shaughnessy, D.C.S.D.N.Y., 142 F.Supp. 535.

Both parties rely, as they must, solely on the record before the Deputy Commissioner. The question presented is whether, on that record, considered as a whole, the Deputy Commissioner's findings are supported by substantial evidence. If they are, such findings are to be accepted and given effect by the courts. If they are not the determination must be set aside. O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 508, 71 S. Ct. 470, 95 L. Ed. 483; Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456; Gooding v. Willard, 2 Cir., 209 F.2d 913, 916; Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. Cf., Friend v. Britton, 95 U.S.App.D.C. 139, 220 F.2d 820, 821.

 In Gooding v. Willard, supra, the Court of Appeals of this circuit defined the substantial evidence test in the following language (209 F.2d at page 916):

 '* * * 'substantial evidence' means more than evidence which, considered by itself alone, would be sufficiently persuasive to induce the trier of fact to give it the credence and weight essential to support findings. It must have those characteristics to such an extent that in the setting made by the entire record the trier may reasonably find in accordance with it after giving due consideration to whatever else is shown both in opposition or in accord. Judicial review has been extended by the Administrative Procedure Act to embrace adequate exploration of the record as a whole to enable the reviewing court to arrive at its own judgment in determining that.'

 The facts as they appear from the record before the Deputy Commissioner are as follows:

 The decedent, a short stocky man, 62 years old, five feet eight inches in height and weighing some 175 pounds, died on November 30, 1953, while attending a union meeting. The death certificate, executed by the medical examiner, gave the cause of his death as arteriosclerotic heart disease. There was no autopsy.

 Just one month before, on October 30, 1953, while decedent was working as a longshoreman in the employ of Jules S. Scotnick, Inc., stevedores, he had suffered a collapse while tiering cargo in the hold of the S.S. Trien Marsk. He felt a severe pain in the chest, went into a cold sweat, had difficulty in breathing, and apparently 'passed out'. He was brought up from the hold and examined by Dr. Tagliambe, the employer's doctor, who diagnosed his ailment as strain of the left chest wall and angina pectoris, gave him an injection and sent him home. He told Dr. Tagliambe that he had had pain in the same region some seven or eight months previously for which he had received no medical treatment and lost no time from work.

 The injury was reported within the statutory period and the decedent was paid compensation as a temporarily totally disabled employee from October 30, 1953 to November 4, 1953.

 On November 5, 1953 the decedent was examined by Dr. Secondari, a cardiologist to whom he was sent by Dr. Tagliambe. Dr. Secondari reported that his findings were 'suggestive of left ventricular strain or coronary insufficiency'. He advised that the patient be kept at rest.

 On November 5 the decedent returned to work and continued to work until November 9, 1953. On November 9 he was told that he should cease to work in view of the findings made by Dr. Secondari.

 On November 18 he was again examined by Dr. Tagliambe, who found that he had 'minimal complaints at the present time referrable to left chest wall region' with blood pressure, pulse and respiration within normal limits.

 On November 19, 1953, at the instance of his son, he went to see Dr. DeGregorio, a cardiovascular specialist, whose diagnosis was 'arterio sclerotic heart disease; coronary sclerosis; enlarged heart; coronary insufficiency; regular sinus rhythm.' Complete bed rest was recommended.

 Decedent did not return to work after he had been told to cease work on November 9, and in the interval prior to his death had recurrent chest pains. Apparently, however, when he left to attend the union ...

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