Portland Stevedoring Co. v. Johnson

Ninth Circuit

Portland Stevedoring Co. v. Johnson

442 F.2d 411, 1971 A.M.C. 1646

Court of Appeals for the Ninth Circuit·Decided May 5, 1971·No. No. 25621·Published·Cited by 8 cases

Opinion

PER CURIAM:

Loiselle, a longshoreman, appeals an order of the District Court which set aside an award of permanent partial disability benefits that had been granted under section 8 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 908.

A disability determination by a Deputy Commissioner of the Department of Labor must be accepted unless it is “unsupported by substantial evidence on the record considered as a whole.” O’Leary v. Brown-Pacific-Max-on, Inc., 340 U.S. 504, 508, 71 S.Ct. 470, 472, 95 L.Ed. 483 (1951). Although Loiselle’s actual earnings increased after his injury, the Deputy Commissioner was not bound precisely to gauge his wage-earning capacity by the actual wages received by him after the time of the disabling injury. Travelers Ins. Co. v. McClellan, 288 F.2d 250 (2d Cir. 1961); 33 U.S.C. § 908(h). The evidence showed that the increase in Loiselle’s [412] wages was attributable to salary increases as a result of promotion, a raise in salary, and an extra shift. In light of the limited scope of judicial review in cases such as this, we think that the findings of the Deputy Commissioner should have been allowed to stand. Those findings were not without substantial evidentiary support.

Reversed.

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PER CURIAM:

Loiselle, a longshoreman, appeals an order of the District Court which set aside an award of permanent partial disability benefits that had been granted under section 8 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 908.

A disability determination by a Deputy Commissioner of the Department of Labor must be accepted unless it is “unsupported by substantial evidence on the record considered as a whole.” O’Leary v. Brown-Pacific-Max-on, Inc., 340 U.S. 504, 508, 71 S.Ct. 470, 472, 95 L.Ed. 483 (1951). Although Loiselle’s actual earnings increased after his injury, the Deputy Commissioner was not bound precisely to gauge his wage-earning capacity by the actual wages received by him after the time of the disabling injury. Travelers Ins. Co. v. McClellan, 288 F.2d 250 (2d Cir. 1961); 33 U.S.C. § 908(h). The evidence showed that the increase in Loiselle’s [412] wages was attributable to salary increases as a result of promotion, a raise in salary, and an extra shift. In light of the limited scope of judicial review in cases such as this, we think that the findings of the Deputy Commissioner should have been allowed to stand. Those findings were not without substantial evidentiary support.

Reversed.

Portland Stevedoring Co. v. Johnson, 442 F.2d 411, 1971 A.M.C. 1646 (9th Cir. 1971).

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Opinion

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