Sun Shipbuilding & Dry Dock Co. v. McCabe, 78-1389

• Decision Date: 22 February 1979
• Docket Number: No. 78-1389,78-1389
• Citation: 593 F.2d 234
• Parties: SUN SHIPBUILDING & DRY DOCK COMPANY, Petitioner, v. Leo McCABE, Stanley J. Czukiewski, 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.
• Court: U.S. Court of Appeals — Third Circuit

Page 234

593 F.2d 234

SUN SHIPBUILDING & DRY DOCK COMPANY, Petitioner, v. Leo McCABE, Stanley J. Czukiewski, 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.

No. 78-1389.

United States Court of Appeals Third Circuit.

Argued Dec. 12, 1978.

Decided Feb. 22, 1979.

John J. Runzer, Jeffrey C. Hayes, Alan K. Cotler, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for petitioner.

Carin Ann Clauss, Sol. of Labor, Laurie M. Streeter, Associate Sol., Joshua T. Gillelan, II, Atty., U. S. Dept. of Labor, Washington, D. C., for respondents.

Before GIBBONS, VAN DUSEN and ROSENN, Circuit Judges.

OPINION OF THE COURT

MAX ROSENN, Circuit Judge.

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 cases cited by the Director, however, do not support this constricting contention.

It is true that this court does not determine if the Board's decision is supported by substantial evidence; we review the Board's determination of whether the ALJ's decision is supported by substantial evidence. ¹ In order to determine whether the Board has properly adhered to its scope of review, the court of appeals must make an independent review of the record and decide whether the ALJ's findings are supported by substantial evidence. This we must do even if the court would reverse the Board only for an "irrational" determination. In each of the cases in which an evidentiary question has been posed, the court of appeals has undertaken this task. See, e. g., Atlantic & Gulf Stevedores, Inc. v. Director, OWCP, 542 F.2d 602 (3d Cir. 1976). In none of the cases, did the court give as much deference to the Board's determination as is suggested by the Director in the instant case. For example, in O'Keeffe v. Smith, Hinchman & Grylls Associates, 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965), relied on by the Director, the Court stated:

The rule of judicial review has therefore emerged that the inferences drawn by the Deputy Commissioner (now ALJ) are to be accepted unless they are irrational Or "unsupported by substantial evidence on the record . . . as a whole."

Id. at 362, 85 S.Ct. at 1014 (emphasis supplied), See Atlantic & Gulf Stevedores, Inc. v. Director, OWCP, supra, 542 F.2d at 608. See generally Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 50 (2d Cir. 1976) Aff'd sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977) (concluding a general discussion on the deference given to Board in different context, Judge Friendly states: "We therefore reject the argument that the BRB's decisions in these cases must be affirmed if they are rational but wrong.")

Thus, in this case, the court must review the facts to determine whether there is substantial evidence on the record taken as a whole to support the ALJ's findings. Only in this manner can we determine whether the BRB properly exercised its review function. We agree with the Director's argument, however, insofar as it suggests that in a case where the substantiality of the evidence is a very close question, the Board's decision should be upheld.

II. STATUTE OF LIMITATIONS

Section 13(a) of the LHWCA contains a limitations period for claims compensable under the Act: "The right to compensation for disability under this chapter shall be barred unless a claim therefore (Sic) is filed within one year after the injury . . . ." 33 U.S.C. § 913(a).

For an occupational disease, such as loss of hearing, the date of injury may be difficult to ascertain. Thus, the courts developed a rule requiring that two factors coalesce before the date of injury is established. First, " 'the accumulated effects of the deleterious substance (must) manifest themselves,' " I. e., the employee must know he is "injured." Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 143 (2d Cir.), Cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955), quoting from Urie v. Thompson,337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) (establishing same requirement under Federal Employer's Liability Act, 45 U.S.C. § 51 Et seq.). Second, the date of injury will not precede the "date on which the employee first realized, or should have first realized, that his ailment was job-related." Sun Shipbuilding & Dry Dock Co. v. Bowman, 507 F.2d 146, 150 (3d Cir. 1975). ²

The ALJ held that the date of injury for each claimant was the date he was advised by Dr. Maurice Saltzman in August or September 1972 that his hearing loss was work-related. Because the claims were filed in October 1972, the ALJ held that they were not barred by Section 13(a). This determination, however, was based on an erroneous understanding of the law.

In setting the date of injury in mid-1972, the ALJ noted "that the effect of the occupational disease must manifest itself to a physician rather than to an unschooled employee. (Aerojet-General Shipyards, Inc. v. O'Keeffe, 413 F.2d 793 (5th Cir. 1969).)" This aspect of Aerojet, however, was explicitly rejected by this Circuit in Sun Shipbuilding & Dry Dock Co. v. Bowman, supra, 507 F.2d at 149. Although a physician telling an employee that his injury is work-related establishes a date no later than which the employee knows this fact, it does not exclude the possibility that the employee should have known of the relationship of the injury to employment prior to that date.

The ALJ, however, did not rely exclusively on Aerojet. He also stated: "In any event the...