Gilbert Pacific, Inc. v. Donovan
Gilbert Pacific, Inc. v. Donovan
Opinion of the Court
Mrs. Katusha Bradford, a resident of New Orleans, went to the Orient as a civilian employee of the United States in 1946. She did clerical work for the government at a variety of posts in Japan, Iwo Jima and Korea until 1956. In 1956 she left her job with the United States and was employed by Gilbert Pacific, Inc. as a secretary on Okinawa. Among her duties was the fingerprinting of some eight hundred Okinawan employees of Gilbert Pacific. On April 30, 1959, after a period of weight loss and intermittent coughing, Mrs. Bradford submitted to a physical examination and was found to have tuberculosis. She entered the United States Army Hospital on Okinawa and was subsequently returned to New Orleans, Louisiana, where she is presently hospitalized.
Gilbert Pacific seeks to enjoin the payment of this award on the grounds that the Findings of Fact were unsupported by substantial evidence, that certain evidence was ignored, and that, in any event, this award is at variance with the law. The primary issue before the court on this motion to dismiss filed by the United States is whether there is substantial evidence to support the Findings of Fact, and, if so, whether disease contracted from a co-employee comes within the coverage of the Act.
The most relevant findings of fact made by the Commissioner directed to the cause of Mrs. Bradford’s illness may be stated briefly. She had received a medical examination before leaving for the Orient which showed no active tuberculosis. During her ten years with the United States government, she and her co-employees were x-rayed at periodic intervals. Her direct contact with Orientals other than co-employees was minimal. During her three years with Gilbert Pacific she was in close contact with Okinawan co-employees who were not subjected to x-ray control, her employer neither offering nor requiring this protection. In fact, one of her major roles at Gilbert Pacific was the fingerprinting of these Okinawan employees. Her outside contact with Orientals was approximately the same as when she was with the United States government. Statistics indicated that the tuberculosis rate on Okinawa during her employment was from four to eight times greater than in New Orleans. Three specific cases of tuberculosis among Okinawan co-employees were proven. Medical testimony indicated that Bradford’s tuberculosis was activated anywhere from six or nine months to three years before it was discovered. In her youth Mrs. Bradford apparently had tuberculosis without being aware of it, but it was obviously quiescent until the time periods in suit.
The scope of the District Court’s review of administrative factual determinations is, of course, severely limited. Only when substantial evidence in the record viewed as a whole is lacking may the court upset the Commissioner’s findings.
Plaintiff’s main thrust is against the Commissioner’s finding of meaningful contact between Bradford and the three infected Okinawans. But this isolated attack disregards the total findings of the Commissioner.
The only novel proposition advanced by plaintiff is that contraction of tuberculosis from a co-employee is not an injury arising out of and during the course of employment as contemplated by the Act. Plaintiff points to three cases in which compensation was denied a claimant infected by his co-employees. The first of these cases, Dansky v. Cardillo,
However, the argument advanced by the employer is not wholly without merit. The federal Act does not purport to compensate employees who are simply sick or injured.
But here this court is not called upon to decide whether the Act covers the sim-
In Grain Handling Co. v. Sweeney, supra, 102 F.2d 465, Judge Learned Hand articulated the occupational disease and infection coverage of the Act: “In order to recover a workman must be exposed to hazards greater than those involved in ordinary living, and the disease must arise from one of these.” In Grain Handling the employee contracted tuberculosis by excessive exposure to grain dust in his job as a grain scooper in the hold of a ship and was granted compensation. The claimant in Todd Dry Docks v. Marshall, supra, while making repairs on a ship, was placed in the proximity of ship’s passengers suffering from spinal meningitis. In granting compensation for the disease so contracted, the Ninth Circuit adopted the following language of the Indiana Appellate Court: “ * * it is generally accepted that a disease, which is not the ordinary result of an employee’s work, reasonably to be anticipated as a result of pursuing the same, but contracted as a direct result of unusual circumstances connected therewith, is to be considered an injury by accident, and comes within the provisions of acts providing for compensation for personal injury so caused.” (Quoted from United Paperboard Co. v. Lewis, 65 Ind.App. 356, 117 N.E. 276, 277.) In Todd Dry Docks, the infected passengers were not the concern of the claimant or his employer, but his work necessarily brought him within the ambit of danger created by them.
Compensation was granted under the similar provisions of the Alaska Workmen’s Compensation Statute
Mrs. Bradford, in the present case, was exposed to a tuberculosis rate almost equal to that in Board of National Missions and was likewise compelled to deal with persons actually infected with the disease. Moreover, her personal contact with these infected persons was more closely connected with her work than in Todd Dry Docks. Additionally, she was exposed to the increased hazard referred to by Judge Hand in Grain Handling, and the Commissioner found that she contracted the disease from that increased hazard.
Neither the court nor the Commissioner is compelled to choose which particular phrase of Section 902(2) grants coverage.
Judgment accordingly.
. O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483.
. Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477, 67 S.Ct. 801, 91 L.Ed. 1028; Contractors v. Pillsbury, 9 Cir., 150 F.2d 310.
. Cardillo v. Liberty Mutual Co., supra, 330 U.S. 478, 67 S.Ct. 801.
. The Supreme Court makes it clear that the “substantial evidence” must be drawn from “the record considered as a whole.” O’Leary v. Brown-Pacific-Maxon, supra, 340 U.S. 508, 71 S.Ct. 472. (Emphasis added.)
. Travelers Insurance Company v. Donovan, 95 U.S.App.D.C. 331, 221 F.2d 886; Todd Dry Docks v. Marshall, 9 Cir., 61 F.2d 671; Board of National Missions of Presbyterian Church In U. S. of America v. Alaska Industrial Bd., D.C. Alaska, 116 F.Supp. 625.
. Contractors v. Pillsbury, supra; Grain Handling Co. v. Sweeney, 2 Cir., 102 F.2d 464.
. D.C.D.C., 40 F.Supp. 336.
. Buckley v. Gallagher Bros. Sand & Gravel Corp., 300 N.Y. 447, 92 N.E.2d 38; Harman v. Republic Aviation Corporation, 298 N.Y. 285, 82 N.E.2d 785.
. The federal Act covers injury “arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment * * *” 33 U.S.C.A. § 902(2). (Emphasis added.) See Todd Dry Docks v. Marshall, supra, 61 F.2d 673:
“The question [scope of ‘injury’] is not concluded by the decisions of the New York courts, because the statute in the respects under consideration differs from the New York [Act], from which, in the main, our [Act] is taken.”
See also Harman v. Republic Aviation Corporation, supra.
. “It is indeed necessary not to extend the statute so as to make it a general health insurance * * * ” Grain Handling Co. v. Sweeney, supra, 102 F.2d 465.
. Contractors v. Pillsbury, supra; Grain Handling Co. v. Sweeney, supra; Board of National Missions of Presbyterian Church In U. S. of America v. Alaska Industrial Bd., supra; Brown-PacificMaxon Co. v. Cardillo, D.C.S.D.N.Y., 91 F.Supp, 968; Lockheed Overseas Corporation v. Pillsbury, D.C.S.D.Cal., 52 F.Supp. 997.
. A.C.L.A.1949, § 43-3-38.
. See also Travelers Insurance Company v. Donovan, supra, in which a stenographer in Japan who processed Japanese war brides was granted compensation for contraction of tuberculosis. The court took notice of the increased incidence of tuberculosis in Japan over Washington, D. 0., claimant’s prior residence.
. Contractors v. Pillsbury, supra; Grain Handling Co. v. Sweeney, supra; Board of National Missions v. Alaska Industrial Bd., supra.
Reference
- Full Case Name
- GILBERT PACIFIC, INC., Employer, and Commercial Insurance Company of Newark, New Jersey, Insurance Carrier v. P. J. DONOVAN, Deputy Commissioner, United States Department of Labor, Bureau of Employees Compensation, Seventh Compensation District
- Cited By
- 2 cases
- Status
- Published