The opinion of the court was delivered by: BECHTLE
This matter is before the Court on cross-motions for summary judgment in an action brought by Sun Shipbuilding & Dry Dock Company ("Sun")
to set aside a compensation order of the Deputy Commissioner for the Third Compensation District and to require him to order Jasper Avery, a former employee of Sun, and his attorney to return all amounts paid to them pursuant to the compensation order filed on November 14, 1972, in Avery's favor. The order was made under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., prior to its being amended on October 27, 1972. The amendments were effective thirty days later. This action was filed November 22, 1972.
Sun's principal contention is that Avery's claim is barred by the Act because Sun was not given written notice of his "injury" within thirty days after the date it was incurred and his claim was not filed within one year of that date.
From 1964 to November 5, 1970, Avery was steadily employed as a riveter and chipper in Sun's shipyard.
He left that employer on the last mentioned date for reasons other than impairment of his hearing. He filed his compensation claim on August 4, 1971, for alleged occupational-related loss of hearing. No compensation was paid Avery for loss of hearing except in accordance with the award now being questioned in this action.
As a basis for the award, the Deputy Commissioner found that Avery suffered a 40% loss of hearing,
that the loss was employment related, that he did not give notice of his "injury" within thirty days, that Sun had knowledge of Avery's hearing loss, that riveting and chipping caused the hearing loss and, therefore, Sun was not prejudiced by the lack of timely notice, that for the purpose of the award the date of injury was the last day worked by him at Sun's shipyard, and that, accordingly, the claim was timely filed within the one-year limitation period.
Section 12(a) of the Act 33 U.S.C. § 912(a), requires that notice
of an "injury" for which compensation is payable shall be given to the Deputy Commissioner and to the employer within thirty days after the date of such injury. However, subsection (d) of this section states that the failure to give such notice shall not bar any claim if (1) the employer had knowledge of the injury, and (2) the Deputy Commissioner determines that the employer has not been prejudiced by the failure to give such notice.
The Act contains a one-year limitation period for the filing of claims. Section 13(a), 33 U.S.C. § 913(a), bars the right of recovery for compensation unless the employee's claim is filed within one year of the injury. Regarding the duty of the employer to file a report of an injury set forth in § 30(a) of the Act, 33 U.S.C. § 930(a), subsection (f) of § 30 states that whenever the employer has knowledge of any injury of an employee and fails, neglects, or refuses to file a report thereof, the one-year limitation period shall not begin to run against the claim of the injured employee until such report shall have been furnished.
Prior to October 27, 1972, when the Compensation Act was extensively amended, the test for ascertaining the date of injury in the case of an occupational disease was court-established from a realistic interpretation of the Act. That test required the Deputy Commissioner to determine when the claimant knew or should have known that he has suffered a disability which was caused by or arose out of his employment.
See, Urie v. Thompson, 337 U.S. 163, 170, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949), a case involving silicosis and the statute of limitations, 45 U.S.C. § 56, under Federal Employers' Liability Act ("FELA"). Also see, Travelers Insurance Company v. Cardillo, 225 F.2d 137, 142 (2nd Cir. 1955), cert. denied sub nom., Ira S. Bushey & Sons, Inc. v. Cardillo, 350 U.S. 913, 76 S. Ct. 196, 100 L. Ed. 800; Aerojet-General Shipyards, Inc. v. O'Keeffe, 413 F.2d 793, 795 (5th Cir. 1969); Stancil v. Massey, 141 U.S. App. D.C. 120, 436 F.2d 274, 277 (1970); Associated Indemnity Corporation v. Shea, 455 F.2d 913, 915 (5th Cir. 1972). Thus, for timing purposes, the term "injury" is not the same as "accident" or "disability." It has component parts. One of them is the state of mind or an awareness of certain facts by the victim. The special rule for timeliness in occupational disease cases reflects the realization that such diseases manifest themselves gradually and there can be an advanced degree of disability before the victim is ever aware of the disease.
Hearing loss caused by long exposure to injurious noise is considered an occupational disease. Such loss is particularly insidious and often cannot be pinpointed as occurring at a given time, because the victim does not become aware of the cumulative effect of the loss until it is in an advanced state, such as not being able to hear the radio unless the volume is turned up high. See, Travelers Insurance Company v. Cardillo, supra.
Section 21(b) of the Act, 33 U.S.C. § 921(b), prior to October 27, 1972, though permitting judicial suspension or setting aside of a compensation order in an appropriate Federal District Court, is silent regarding the scope of review.
Such standard is, therefore, governed by § 701 of the Judicial Review Act, 5 U.S.C. § 701. O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 508, 71 S. Ct. 470, 95 L. Ed. 483 (1951); Charlton v. United States, 412 F.2d 390 (3rd Cir. 1969). This Court may set aside the findings of the Deputy Commissioner if they are unsupported by substantial evidence on the record as a whole. See, § 706(2) (E) of that Act, and Young & Company v. Shea, 404 F.2d 1059 (5th Cir. 1968).
The record before the Deputy Commissioner reveals that Avery was experiencing difficulty with his hearing the last three to four years of his employment at Sun. At the hearing on June 15, 1971, in answer to the question by the attorney for Sun as to when he first knew that he had something wrong with his hearing, Avery answered:
"A. Don't happen overnight. I went to a doctor. Several times I thought there may be an accumulation of wax or something. I went to the family doctor [in 1967], and he checked it out. I said I couldn't hear the television and a ringing all the time. He checked it out and said, 'No ...