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06/21/62 Superior Cafeteria and v. Theodore Britton

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


June 21, 1962

FIRE INSURANCE CO. OF PITTSBURGH, APPELLANTS

v.

THEODORE BRITTON, DEPUTY COMMISSIONER, DISTRICT OF COLUMBIA COMPENSATION DISTRICT, BUREAU OF EMPLOYEES'

Before WASHINGTON, BASTIAN and WRIGHT, Circuit Judges.

UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1962.CDC.100

SUPERIOR CAFETERIA AND LUNCH CO., Inc., and National Union

Compensation, United States Department of

Labor, Appellee.

June 21, 1962.

Petition for Rehearing Denied Sept. 12, 1962.

PER CURIAM.

This is a workmen's compensation case, in which the employer and its insurance carrier seek to set aside an award made by the Deputy Commissioner. The employee, a man of 69, suffered an inguinal hernia when he lifted a case of canned goods during his employment. Surgery was originally recommended, but was not performed because the employee's poor state of health was deemed by the surgeons to preclude it. He suffered from myocardial weakness, coronary insufficiency, interference with transmission of the heart beat, and urinary infection. Appellants urge that under Section 8(f) of the governing statute *fn1 the employee was suffering from a "previous disability," and that appellants should accordingly be relieved from payment of compensation for permanent partial disability resulting from the hernia. We do not agree. We accept the Government's position that the employee's underlying weakness and poor health did not under the circumstances of this case constitute previous disability within the meaning of the statute, or increase his disability from the work-produced hernia, but simply prevented possible reduction of the hernia disability by surgery. We therefore regard Section 8(f) as inapplicable. *fn2 The grant by the District Court of summary judgment to the Government will accordingly be

Affirmed.


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