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Sun Shipbuilding & Dry Dock Co. v. McCabe

decided: February 22, 1979.

SUN SHIPBUILDING & DRY DOCK COMPANY, PETITIONER
v.
LEO MCCABE; STANLEY J. DCZUKIEWSKI; JOHN J. APRIL; RUTHERFORD H. PICKETT; HENRY J. MALINOWSKI; JOHN A. CECI; JOSEPH W. BONKOWSKI; TEDDY W. KLECKO; FRANK J. SABOT; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR; AND BENEFITS REVIEW BOARD, DEPARTMENT OF LABOR, RESPONDENTS



PETITION FOR REVIEW BENEFITS REVIEW BOARD; U.S. Department of Labor

Before Gibbons, Van Dusen and Rosenn, Circuit Judges.

Author: Rosenn

Opinion OF THE COURT

We have before us a petition for review of decisions rendered by the Benefits Review Board of the United States Department of Labor affirming compensation awards under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901, Et seq. (LHWCA). Nine former employees of Sun Shipbuilding & Dry Dock Co. ("Sun Ship") filed claims for compensation pursuant to LHWCA in 1972. Each alleged a progressive hearing loss as a result of work-related conditions at Sun Ship.

The cases were consolidated and a combined hearing was held before an administrative law judge ("ALJ") in 1974. The ALJ in granting compensation to the claimants under the Act made four rulings which were affirmed by the Benefits Review Board ("BRB") and form the basis of this appeal.

First, the ALJ ruled that although symptoms of hearing loss had been experienced by each claimant prior to 1972, the Act's one-year statute of limitations did not bar recovery. The ALJ determined that the effective "date of the injury" for the occupational disease was when the claimants were first advised of the impairment by their physician in mid-1972. In addition, the ALJ ruled that the statute of limitations had not begun to run because of Sun Ship's failure to file a report within ten days of becoming aware of the claimant's injury as required under section 930(a) and (f) of the Act. The ALJ found that the employer was aware of the occupational disease from which the claimant had been suffering since as early as 1969 and no report was ever filed.

Second, the ALJ decided that the claimants' failure to give notice to the employer within 30 days of the injury as required by the Act was excused because, as stated above, Sun Ship was aware of the claimants' disease. In addition, the ALJ believed that Sun Ship was not prejudiced by the failure to give notice.

Third, the ALJ determined that loss of hearing was a "scheduled loss" entitling claimants to compensation under the Act without proof of decreased wage earning capacity.

Fourth, the ALJ did not reduce the compensation award in consideration of the degree of hearing loss that was the result of work on land or non-work related stimuli.

The Benefits Review Board affirmed the finding of liability, but, having found the audiometric data relied on by the ALJ to be unreliable, reversed and remanded the issue of damages. On remand, the ALJ recalculated damages, but refused to make an apportionment for non-occupational factors. On appeal, the Benefits Review Board affirmed. Sun Ship has petitioned for review of both Benefits Review Board decisions. Because we believe these claims are barred by the statute of limitations and the notice provision of the Act, we will limit our decision to those issues.

I. SCOPE OF REVIEW

Before considering the substantive claims raised by the petition, we will analyze the review provisions of the Act. A disputed claim for compensation is first heard before an ALJ. The ALJ makes findings of fact and determines the validity of the claim. 33 U.S.C. § 919. The losing party may appeal to the BRB which reviews the ALJ's decision but it does not make any independent findings of fact. 33 U.S.C. § 921. The statute provides for the BRB's scope of review: "The findings of fact in the decision under review by the Board shall be conclusive if supported by substantial evidence in the record considered as a whole." 33 U.S.C. § 921(b)(3).

A dissatisfied litigant may then file a petition for review of the BRB decision in the United States court of appeals. 33 U.S.C. § 921(c). The statute does not set forth the standard of review to be applied in the court of appeals. Case law has established, however, that this court is to review the decisions of the Benefits Review Board for errors of law, and to make certain that the BRB adhered to its scope of review provision. Sun Shipbuilding & Dry Dock Co. v. Walker, 590 F.2d 73, 76 n.12 (3d Cir. 1978); Director, OWCP v. Universal Terminal & Stevedoring Corp., 575 F.2d 452, 454 (3d Cir. 1978); Presley v. Tinsley Maintenance Service, 529 F.2d 433 (5th Cir. 1976).

The Director's brief suggests that the court of appeals should not independently review the substantiality of the evidence supporting the ALJ's decision, but it should limit review to the question of whether the Board's substantial evidence determination is "irrational" or "lacks a reasonable legal basis." The ...


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