APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil Action No. 72-2325).
Van Dusen, Hunter and Garth, Circuit Judges.
This case involves a suit by Sun Shipbuilding & Dry Dock Company, a self-insured employer, to set aside an award granted against it by the Deputy Commissioner, United States Department of Labor, Office of Workmen's Compensation. On July 23, 1971,*fn1 Jasper Avery, a former employee of Sun, filed a claim alleging that he had sustained a hearing loss as a result of his years of work for Sun and seeking compensation under the Longshoremen's and Harbor Workers' Compensation Act*fn2 (hereinafter "LHWCA"). After a hearing which began on June 15, 1972, the Deputy Commissioner found that Avery had sustained a 40% hearing loss and that he was entitled to compensation under the Act. This decision was affirmed by the district court, 371 F. Supp. 365 (E.D. Pa. 1974), and Sun filed a timely appeal. We reverse.
Under the statutory scheme, a claimant must comply with each of two essential deadlines in order to be entitled to compensation. First, he must notify both his employer and the Deputy Commissioner of the injury within thirty days after its occurrence. 33 U.S.C. § 912(a). Second, he must file his claim for compensation within one year of the date of injury. Id. § 913(a).*fn3 Both deadlines are subject to exceptions, however. Failure to comply with the thirty-day notification requirement will not bar recovery if: (1) the employer (or his agent or carrier) had knowledge of the injury and the Deputy Commissioner determines that the employer or carrier has not been prejudiced by the failure to give such notice, or (2) the Deputy Commissioner excuses such failure on the ground that for some satisfactory reason such notice could not be given. Id. § 912(d).*fn4 Similarly, the one-year statute of limitations is tolled where the employer has knowledge of the injury but fails to file a report with the Secretary. Id. § 930(f). Sun argues that Avery is barred by his failure to comply with both deadlines, each of which is sufficient by itself to prevent recovery, and that he cannot avail himself of either of the tolling provisions.*fn5
The facts of the case are briefly as follows: Avery worked as a chipper and riveter for various shipbuilding companies from 1941 to 1961 and did not begin working regularly for Sun until March, 1961.*fn6 Prior to his starting work for Sun on that date, Avery was given a rather cursory*fn7 pre-employment physical examination, and the medical record of that examination, which Avery signed, stated that he had a "marked hearing impairment." Avery was twice laid off by Sun for periods of several months, and medical records from April 22, 1963 and March 23, 1964, the two dates on which he returned to work, similarly indicated that he had a hearing deficiency. However, Avery did not recall having been given physical examinations on those dates. When Avery left Sun's employ in 1970, he did so because of a bad knee rather than because of his hearing problem.
After a hearing at which both Avery and Sun were represented by counsel, the Deputy Commissioner found that Avery did not give notice of the injury within thirty days, as required by 33 U.S.C. § 912(a), but that Sun had knowledge of Avery's hearing loss and was not prejudiced by the lack of timely notice; that the date of injury was November 5, 1970, the last day on which Avery worked for Sun; and that the claim was timely filed within one year, as required by 33 U.S.C. § 913(a).
While the district court found an "almost unavoidable" inference from the record that Avery did not file his claim within one year of knowing of his hearing loss, it upheld the Commissioner on the ground that there was "substantial evidence" to support the finding that Sun had knowledge of Avery's hearing loss. Since it is undisputed that Sun did not file a report of Avery's injury, as required by 33 U.S.C. § 930(a), until after Avery filed his claim for compensation, the district court concluded that the one-year statute of limitations provided by section 913(a) was tolled in accordance with section 930(f).
Sun challenges the findings of the Deputy Commissioner as being arbitrary, capricious, contrary to law and unsupported by substantial evidence, and argues that the district court affirmance was likewise erroneous. We agree with these contentions and believe that the Deputy Commissioner erred with respect to two crucial issues: the date of Avery's injury, and the question of whether Sun had knowledge of the injury.
In selecting November 5, 1970 as the date of injury, the Deputy Commissioner both applied an improper legal standard and disregarded uncontroverted evidence, including testimony by Avery himself. It is well recognized that in the case of occupational ailments such as hearing loss, the Deputy Commissioner in determining the date of injury should adopt a realistic approach which takes into account the fact that these ailments may manifest themselves only gradually. The courts have therefore determined that the "date of injury" for such ailments is the "date of manifestation," the date when the employee first realizes that he has an ailment. See, e.g., Urie v. Thompson, 337 U.S. 163, 170, 93 L. Ed. 1282, 69 S. Ct. 1018 (1949); Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 142-43 (2d Cir.) cert. denied, 350 U.S. 913, 76 S. Ct. 196, 100 L. Ed. 800 (1955).
The Deputy Commissioner, however, appears to argue two distinct and inconsistent standards for determining the date of injury, both of which are erroneous. First, taking the same view as he did during the hearing, he argues that the date of injury is the date of last exposure to the allegedly injurious stimuli which caused the ailment. However, we are unaware of any authority which so holds, and the one case cited by the Deputy Commissioner in support of this view, Monti Marine Corp. v. Quigley, 167 F. Supp. 690 (E.D. N.Y. 1958), is inapposite. In Monti Marine, neither the right of the claimant to compensation nor the timeliness of his suit or of his notification were contested. Rather, the suit merely involved a dispute between two insurance carriers as to which one should compensate the claimant, and the court held only that the claimant could recover from the insurance company whose policy covered him at the time he was exposed to the injurious stimuli.
Appellee also appears to take the view that the date of injury is the date on which the cumulative effects of exposure to injurious stimuli "manifest themselves to a physician rather than an unschooled employee," citing Aerojet-General Shipyards, Inc. v. O'Keeffe, 413 F.2d 793, 795 (5th Cir. 1969). We decline to follow this dictum, however. In Aerojet-General, the claimant had previously been dissuaded from filing a claim by erroneous medical advice that his ailment was not work-related, and thus it was perfectly understandable that the court ruled that the limitations period did not begin to run until the claimant received correct advice from a doctor. Aerojet-General did not hold, however, that in the absence of prior erroneous medical advice, as was the case here, a correct medical diagnosis is necessary to determine the date from which the limitations period begins to run.
Nevertheless, we do agree with the approach taken by the court in Aerojet-General, as well as by the District of Columbia Circuit,*fn8 insofar as those courts state that the date of injury should be the date on which the employee first realized, or should have first realized, that his ailment was job-related. See Aerojet-General, supra, at 795. This approach seems the most logical to us, since it provides for the running of the one-year limitations period and the thirty-day notification ...