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decided: March 29, 1965.



Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg

Author: Per Curiam

[ 380 U.S. Page 359]

 Robert C. Ecker drowned during a Saturday outing while boating on a South Korean lake. At the time of his death he was employed at a defense base in South Korea by the respondent, Smith, Hinchman & Grylls Associates, a government contractor.

[ 380 U.S. Page 360]

     The decedent had been hired in the United States under an oral contract the terms of which provided that he was to be transported to South Korea at his employer's expense, remain there for two years, and then, at his employer's expense, be transported back to the United States. The employer paid his rent and provided him with a per diem expense allowance for each day of the year, including weekends and holidays, to cover "the necessary living expenditures in the Korean economy." He worked on a "365 day per year basis . . . subject to call to the job site at any time." He "quite often" worked on Saturdays and Sundays and at other times outside the normal work day. The employer considered all its employees to be "in the course of regular occupation from the time they leave the United States until their return." The employer expected the decedent and its other employees to seek recreation away from the job site on weekends and holidays.

Based upon the above stipulated facts, the Deputy Commissioner of the Bureau of Employees' Compensation, United States Department of Labor, petitioner herein, determined "that the accident and the subsequent death of the decedent arose out of and in the course of employment." 222 F.Supp. 4, 6. He therefore awarded death benefits to the decedent's widow and a minor child in accordance with the terms of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq. (1958 ed.), as extended by the Defense Base Act, 55 Stat. 622, as amended, 42 U. S. C. § 1651 et seq. (1958 ed.). The employer and its insurance carrier, respondents herein, then brought this action in the United States District Court for the Middle District of Florida to set aside and enjoin the enforcement of this compensation award. The District Court affirmed the compensation award and granted the Deputy Commissioner's motion for summary judgment. 222 F.Supp. 4.

[ 380 U.S. Page 361]

     A panel of the Court of Appeals for the Fifth Circuit summarily reversed and set aside the award. 327 F.2d 1003. But compare the later decision of another panel of the Fifth Circuit in O'Keeffe v. Pan American World Airways, Inc., 338 F.2d 319.

The petition for writ of certiorari is granted and the judgment of the Court of Appeals is reversed. Section 2 (2) of the Act, 33 U. S. C. § 902 (2) (1958 ed.), provides workmen's compensation for any "accidental injury or death arising out of and in the course of employment." Section 19 (a), 33 U. S. C. § 919 (a) (1958 ed.), provides for the filing of a "claim for compensation" and specifies that "the deputy commissioner shall have full power and authority to hear and determine all questions in respect of such claim." Section 20 (a), 33 U. S. C. § 920 (a) (1958 ed.), provides that "in any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary . . . that the claim comes within the provisions of this chapter." Finally, § 21 (b), 33 U. S. C. § 921 (b) (1958 ed.), provides that the Deputy Commissioner's compensation order may be suspended and set aside by a reviewing court only "if not in accordance with law."

In cases decided both before and after the passage of the Administrative Procedure Act, 60 Stat. 237, as amended, 5 U. S. C. § 1001 et seq. (1958 ed.), the Court has held that the foregoing statutory provisions limit the scope of judicial review of the Deputy Commissioner's determination that a "particular injury arose out of and in the course of employment." Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 477-478; O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 507-508.

"It matters not that the basic facts from which the Deputy Commissioner draws this inference are undisputed rather than controverted. . . . It is likewise

[ 380 U.S. Page 362]

     immaterial that the facts permit the drawing of diverse inferences. The Deputy Commissioner alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. . . . Moreover, the fact that the inference of the type here made by the Deputy Commissioner involves an application of a broad statutory term or phrase to a specific set of facts gives rise to no greater scope of judicial review. . . ." Cardillo v. Liberty Mutual Ins. Co., supra, at 478.

The rule of judicial review has therefore emerged that the inferences drawn by the Deputy Commissioner are to be accepted unless they are irrational or "unsupported by substantial evidence on the record . . . as a whole." O'Leary v. Brown-Pacific-Maxon, Inc., supra, at 508.

The Brown-Pacific-Maxon case held that the standard to be applied by the Deputy Commissioner does not require "a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A. C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the 'obligations or conditions' of employment create the 'zone of special danger' out of which the injury arose." Id., at 507. And, borrowing from language in Matter of Waters v. Taylor Co., 218 N. Y. 248, 252, 112 N. E. 727, 728, the Court in Brown-Pacific-Maxon drew the line only at cases where an employee had become "so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his ...

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