Opinion
No. 272, Docket 22006.
Argued June 12, 1951.
Decided June 28, 1951.
Purdy, Lamb Catoggio, New York City (Vincent A. Catoggio, New York City, of counsel), for appellants.
Frank J. Parker, U.S. Atty., Nathan Borock, Asst. U.S. Atty., Brooklyn, N.Y., (William S. Tyson, Solicitor, Ward E. Boote, Assistant Solicitor, Herbert P. Miller, Washington, D.C., and Ida I. Kloze, Attorneys, U.S. Department of Labor, Employees' Compensation Division, of counsel), for appellee Willard.
Before SWAN, AUGUSTUS N. HAND and L. HAND, Circuit Judges.
On the day of his death, January 12, 1949, the employee was engaged in loading heavy cases on the S.S. "City of Alma" at Staten Island, New York. The deputy commissioner found that he was 50 years of age and suffered from preexisting arteriosclerotic heart disease and myocardial fibrosis; that the cause of death was acute heart failure; and that the work he was performing at the time of his collapse required severe effort which precipitated the acute heart failure, resulting in his death on the same day. The only issue on appeal is whether the death of the employee was caused by his work as a stevedore. One physician expressed the opinion that it was; two others took the opposite view. All three were heart specialists connected with hospitals of good standing. We cannot say that the deputy commissioner erred in accepting the opinion testimony of the claimant's expert rather than that of the two other experts — particularly when the man died while doing work requiring severe effort. The commissioner's findings "are to be accepted unless unsupported by substantial evidence on the record considered as a whole." O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 508, 71 S.Ct. 470. On the present record the findings must be accepted. For cases involving closely similar facts see Harbor Marine Contracting Co. v. Lowe, 2 Cir., 152 F.2d 845, certioriari denied 328 U.S. 837, 66 S.Ct. 1012, 90 L.Ed. 1613; Commercial Casualty Ins. Co. v. Hoage, 64 App.D.C. 158, 75 F.2d 677, certiorari denied 295 U.S. 733, 55 S.Ct. 645, 79 L.Ed. 1682; Southern Stevedoring Co. v. Henderson, 5 Cir., 175 F.2d 863.
Judgment affirmed.