Einbinder v. Novinger, Inc., 17471.

• Citation: 320 F.2d 714
• Decision Date: 29 May 1963
• Docket Number: No. 17471.,17471.
• Parties: Charles EINBINDER, Deputy Commissioner, U. S. Department of Labor, Bureau of Employees' Compensation District, Appellant, v. NOVINGER, INC., et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

320 F.2d 714 (1963)

Charles EINBINDER, Deputy Commissioner, U. S. Department of Labor, Bureau of Employees' Compensation District, Appellant, v. NOVINGER, INC., et al., Appellees.

No. 17471.

United States Court of Appeals District of Columbia Circuit.

Argued April 3, 1963.

Decided May 29, 1963.

Mrs. Barbara Deutsch, Attorney, Department of Justice, of the bar of the Supreme Court of Connecticut, pro hac vice, by special leave of court, with whom Mr. Joseph D. Guilfoyle, Acting Asst. Atty. Gen., at the time the brief was filed, Messrs. David C. Acheson, U. S. Atty., and Sherman L. Cohn, Attorney, Department of Justice, were on the brief, for appellant. Mr. Frank Q. Nebeker, Asst. U. S. Atty., also entered an appearance for appellant.

Mr. M. S. Mazzuchi, Washington, D. C., for appellees.

Before BAZELON, Chief Judge, and FAHY and BURGER, Circuit Judges.

PER CURIAM.

In this workmen's compensation case,¹ the District Court set aside the Deputy Commissioner's award² solely on the ground that his findings were unsupported by evidence.³ Since the District Court's review was confined to the record before the Deputy Commissioner, we are as well situated as the District Court to determine whether the award is "in accordance with law."⁴ Accordingly we have examined the record in the light of the principles governing judicial review in workmen's compensation cases⁵ and conclude that there is sufficient evidence on the record as a whole to support the Deputy Commissioner's determination. The order below setting aside his determination is therefore

Reversed.

BURGER, Circuit Judge, dissents.

1 Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq., applicable in the District of Columbia under D.C.Code §§ 36-501 et seq. (1961).

2 See 33 U.S.C. § 921.

3 The District Court filed neither findings of fact and conclusions of law, nor an opinion. The reasons for setting aside workmen's compensation awards should be included in the record. And where, as here, the court relies on a lack of substantial evidence, it should at least state which findings are unsupported.

4 33 U.S.C. § 921(b).

5 Voris v. Eikel, 346 U.S. 328, 74 S.Ct. 88, 98 L.Ed. 5 (1953); O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483 (1951); Cardillo v. Liberty Mutual Co., 330 U.S. 469, 67 S. Ct. 801, 91 L.Ed. 1028 (1947); Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229 (1935); American Mercury Ins. Co. v. Britton, 114 U.S.App. D.C. 280, 314 F.2d 285 (1963); Hancock v. Einbinder, 114 U.S.App.D.C. 67, 310 F.2d 872 (1962); Vincent v. Einbinder, 113 U.S.App.D.C. 246, 307 F.2d 387 (1962); United Painters & Decorators v. Britton, 112 U.S.App.D.C. 236, 301 F.2d 560 (1962); ...