Potenza v. United Terminals, Inc., 41
| Decision Date | 01 October 1975 |
| Docket Number | No. 41,D,41 |
| Citation | 524 F.2d 1136 |
| Parties | Edward POTENZA, Claimant-Appellee, v. UNITED TERMINALS, INC., Employer-Appellant, and Federal Insurance Company, Carrier-Appellant, Director, Office of Workers' Compensation Program, United States Department of Labor, Party in Interest-Appellee. ocket 74-2635. |
| Court | U.S. Court of Appeals — Second Circuit |
Linden & Gallagher, Leonard J. Linden, New York City, for employer and carrier appellants.
William J. Kilberg, Sol. of Labor, Marshall H. Harris, Associate Sol., Jean S. Cooper, Atty. U. S. Dept. of Labor, Washington, D. C., for Director, Office of Workers' Compensation Programs.
Before MOORE, FEINBERG and OAKES, Circuit Judges.
In October 1972, appellee Edward Potenza was struck on the face by a falling carton of bananas while working as a longshoreman. Because of the pain in his jaw and other symptoms Potenza went to an oral surgeon, Dr. Albert Albanese, who discovered that Potenza had cancer of the jaw. A large portion of appellee's jawbone was removed and replaced with a bone graft. The cancerous condition had apparently been present, unknown to Potenza, for many years but had caused no symptoms. Potenza filed a claim for compensation benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, against his employer, United Terminals, Inc., and its insurance carrier, Federal Insurance Company, both appellants here. Thereafter, the administrative law judge found that the pre-existing cancer was aggravated by the work-related injury. In addition to the compensation award, appellants were also ordered to pay Potenza's attorneys' fees. The decision of the administrative law judge was affirmed by the Benefits Review Board of the United States Department of Labor.
On review by the Board, the findings of fact of the administrative law judge are "conclusive if supported by substantial evidence in the record considered as a whole." 33 U.S.C. § 921(b)(3). Although the quoted statutory language appears to apply in terms only to review by the Board, the legislative history makes clear, as must logically be the case in any event, that the same standard was intended to apply to review in the courts of appeals. See H.R.Rep. No. 92-1441, 1972 U.S.Code Cong. & Admin.News p. 4698, at 4709, 4718. There clearly was substantial evidence in the record here to support the finding of aggravation of the pre-existing cancer. Although appe...
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...Cong. & Admin.News 1972, p. 4698; Nardella v. Campbell Machine, Inc., 525 F.2d 46, 47-48 (9th Cir. 1975); Potenza v. United Terminals, Inc., 524 F.2d 1136, 1137 (2d Cir. 1975). See also Atlantic & Gulf Stevedores, Inc. v. Dir., Office of Workers' Comp. Programs, 542 F.2d 602, 605-06 (3d Cir......
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