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October 22, 1958

GOOD IMPRESSIONS, INC. and National Surety Corp., Plaintiffs,
Theodore BRITTON, Defendant

The opinion of the court was delivered by: TAMM

On March 18, 1958, the defendant, acting under the Longshoremen's and Harbor Workers' Compensation Act as made applicable to the District of Columbia, made an award which allowed the claim of one Frank C. Duell. The plaintiffs, the employer of Frank C. Duell and the employer's insurance carrier, have filed suit in this court pursuant to Sec. 21 of the Longshoremen's and Harbor Workers' Compensation Act (Title 33 U.S.C.A. § 921) as made applicable to the District of Columbia by Title 36 D.C.C. § 501 (1951) to have this compensation award set aside. Subsequent to the filing and serving of the complaint, both the plaintiffs and the defendant filed motions for summary judgment. On October 8, 1958, counsel for all parties came before this Court and argued in support of their respective contentions.

The plaintiffs and the defendant presented various points to this Court upon which they based their motions for summary judgment. This Court feels that only one of these points need be discussed as a determination of that point will be dispositive of the case.

 The illness upon which Mr. Duell filed and based his claim occurred as follows: After reporting for work on January 31, 1956, Mr. Duell began to suffer from a headache, and later he felt nauseated. Around lunch time he lay down for about one/half hour. He did not feel well throughout the afternoon and left work around 5 p.m. Enroute home he stopped at Dr. Sarao's office where he was treated for an earache. Upon his arrival at home he lay down for he was still feeling ill. He ate nothing but toast and tea, and finally about 9:30 p.m. he went upstairs to retire for the night. As he ascended the stairs, a pain struck him across the chest. He made his way into the bathroom where he fell to the floor. His wife finally contacted a Dr. Ottman who arrived on the scene about 11:30 p.m., and he immediately sent the claimant to Washington Sanitarium. The next morning, Mrs. Duell telephoned her husband's employer and told one of the workers, in substance, that her husband was ill -- that the doctor said he had had a heart attack and that he was in the hospital.

 At the time of his entry into the hospital, it was determined by Dr. Hare that the claimant was suffering a myocardial weakness with sinus arrhythmia, with evidence of changes in the musculature. After remaining in the hospital for four days, the patient was allowed to return home, but upon his arrival another other heart episode occurred, and he was immediately returned to the hospital. Dr. Hare testified that after Mr. Duell's readmission, 'there had been extensive change, and my interpretation was that he was suffering from an acute anterior infarct or occlusion.' (Tr. p. 84) Dr. Bailey testified that his diagnosis at the time of readmission was coronary arteriosclerosis with old anteroseptal myocardial infarction. The record also shows that the claimant suffered heart failure on March 12, 1957, in addition to the episodes referred to above. Dr. Bernard Walsh, who testified on behalf of the plaintiffs (respondents at the Board hearing), did not examine the claimant until March 18, 1957.

 No other notice of Duell's illness was given the employer until the claimant filed a formal claim for compensation in late January, 1957. During at least a part of the period from January 31, 1956 to January, 1957, the claimant received 'non-occupational sick benefit' through his employer.

 The plaintiffs contend that they did not receive timely notice of the claim asserted. Title 33 U.S.C.A. § 912 deals with the subject of notice in cases of this type and reads as follows:

 '(a) Notice of an injury or death in respect of which compensation is payable under this chapter shall be given within thirty days after the date of such injury or death (1) to the deputy commissioner in the compensation district in which such injury occurred and (2) to the employer.

 '(d) Failure to give such notice shall not bar any claim under this chapter (1) if the employer (or his agent in charge of the business in the place where the injury occurred) or the carrier had knowledge of the injury or death and the deputy commissioner determines that the employer or carrier has not been prejudiced by failure to give such notice, or (2) if the deputy commissioner excuses such failure on the ground that for some satisfactory reason such notice could not be given; nor unless objection to such failure is raised before the deputy commissioner at the first hearing of a claim for compensation in respect of such injury or death.'

 The findings of the commissioner relative to notice are as follows:

 'That written notice of the claimant's illness was not given to the deputy commissioner and the employer within thirty days, but that the claimant's wife notified the employer of the claimant's illness by telephone on February 1, 1956, and the employer, having such knowledge, was not prejudiced by the lack of such written notice.'

 The plaintiffs concede that the plaintiff-employer had knowledge of the claimant's illness, but argue that it was not sufficient knowledge 'which reasonably would have put the employer on notice that the injury would be or was claimed to have been the result of employment.' Plaintiffs also contend that they were prejudiced in this matter of notice.

 The defendant alleges that the plaintiffs do not now have the right to assert anything either with respect (a) to written notice, or (b) to knowledge, or (c) to prejudice because they did not raise such issues before the deputy commissioner and thus cannot raise them now before this Court. However, as the plaintiffs point out, the issue of notice was raised (Govt.Et. 1, Tr. p. 4), and the deputy commissioner made findings with respect to notice, knowledge and prejudice. Also, the transcript shows that inquiry was made at the hearing before the Bureau of Employees' Compensation and that evidence was received relating to notice and knowledge. Finally, the case of Bethlehem Steel Co. v. Parker, D.C., 72 F.Supp. 35, affirmed at 4 Cir., 163 F.2d 334, lends support to the ability of the plaintiffs in the present case to raise these issues. In that case, a particular point relating to notice was not presented to the deputy commissioner, but the trial court treated that point as being properly before him for consideration. At page 37 of 72 F.Supp., Judge Coleman wrote as follows:

 'Although, as just stated, this precise point was not presented to or argued before the Deputy Commissioner, nor, in fact, is it specifically presented in claimant's petition for review of the Deputy Commissioner's findings, nevertheless, we are of the opinion that since the question of insufficiency of the notice was raised before the Deputy Commissioner at the first (and only) hearing before him, and since the allegations in the petition for review are broad enough to embrace all phases of that question, we should treat the specific point as now properly before us for consideration.'

 As stated previously, the plaintiffs concede that they had knowledge of the claimant's illness, but contend that it was not 'sufficient knowledge.' The question for determination at this point resolves itself into this: Was the knowledge which the employer had of the ...

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