538 F.2d 73 (3rd Cir. 1976), 75-1984, Nacirema Operating Co., Inc. v. Benefits Review Bd., United States Dept. of Labor, Washington, D.C.

Docket Nº:75-1984.
Citation:538 F.2d 73
Party Name:NACIREMA OPERATING CO., INC., and Liberty Mutual Insurance Co., Petitioners, v. BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, WASHINGTON, D. C., and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
Case Date:July 02, 1976
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 73

538 F.2d 73 (3rd Cir. 1976)

NACIREMA OPERATING CO., INC., and Liberty Mutual Insurance

Co., Petitioners,

v.

BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR,

WASHINGTON, D. C., and Director, Office of

Workers' Compensation Programs, United

States Department of Labor, Respondents.

No. 75-1984.

United States Court of Appeals, Third Circuit

July 2, 1976

Argued April 6, 1976.

Page 74

Vincent H. Cohen, Anne White Foley, Hogan & Hartson, Washington, D. C., for petitioners.

William J. Kilberg, Sol. of Labor, Laurie M. Streeter, Associate Sol., Harry L. Sheinfeld, Atty., U. S. Dept. of Labor, Washington, D. C., for Director, Office of Workers' Compensation Programs, for respondents.

Before BIGGS, GIBBONS and HUNTER, Circuit Judges.

OPINION

GIBBONS, Circuit Judge.

This petition to review an order of the Benefits Review Board involves many of the same issues decided recently in the companion case of Atlantic & Gulf Stevedores, Inc. v. Director, Office of Workers' Compensation Programs, --- F.2d ---- (3d Cir. 1976). In this instance the claimant is a permanently disabled longshoreman rather than the widow of a deceased longshoreman. The Atlantic & Gulf case controls here and requires that we set aside the decision of the Benefits Review Board.

On May 25, 1973, claimant Peter Fulton suffered a heart attack while engaged in longshoring activities for petitioner Nacirema Operating Company, a stevedore. In July of 1973 Fulton filed a claim for benefits under the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §§ 901-50. The Administrative Law Judge found that the heart attack was work-related and has left the claimant permanently disabled. Neither the employer nor the Director, Office of Workers' Compensation Programs, contested those findings. Thus the claimant was not a respondent before the Benefits Review Board and is not a respondent here.

The Administrative Law Judge also found that prior to his myocardial infarction on May 25, 1973, Fulton was suffering from a permanent partial disability within the meaning of § 8(f) of the LHWCA, 33 U.S.C. § 908(f). He further found:

"The evidence is totally persuasive that the Claimant was suffering from a 'manifest' disability which existed previous to his heart attack on May 23, 1973, and that the provisions of Section 8(f) of the Act are...

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