Travelers Insurance Company v. Cardillo
| Decision Date | 19 July 1955 |
| Docket Number | 23683.,Dockets 23558,23216,No. 308,346,305,308 |
| Citation | 225 F.2d 137 |
| Parties | The TRAVELERS INSURANCE COMPANY and Todd Shipyards Corporation, Plaintiffs-Appellants, v. Frank A. CARDILLO, Deputy Commissioner, Federal Security Agency, Bureau of Employees' Compensation, Second Compensation District, and Joseph Tropea, Defendants-Appellees. IRA S. BUSHEY & SONS, Inc., Plaintiff-Employer-Appellant, and American Policyholders' Insurance Company and/or American Mutual Liability Insurance Company, Plaintiff-Insurance Carrier-Appellant, and Hartford Accident & Indemnity Company, Plaintiff-Insurance Carrier-Appellant, and The State Insurance Fund, Plaintiff-Insurance Carrier-Appellant, v. Thorleif JOHANSEN, Defendant-Claimant-Respondent, and Frank A. Cardillo, Deputy Commissioner, Second Compensation District, Defendant-Respondent. TODD SHIPYARDS CORPORATION, Inc., Employer-Plaintiff-Appellant, and Massachusetts Bonding & Insurance Company, Insurance Carrier-Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF LABOR, Bureau of Employees' Compensation, Second District and Frank A. Cardillo, as Deputy Commissioner and Raymond Lebowitz, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
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Galli & Locker, New York City (Urban S. Mulvehill, New York City, of counsel), for plaintiffs-appellants, The Travelers Insurance Company and Todd Shipyards Corporation.
Alexander & Ash, New York City (Sidney A. Schwartz, New York City, of counsel), for appellants, Ira S. Bushey & Sons, Inc., and American Mutual Liability Insurance Company.
Joseph Dean Edwards, New York City (Cornelius V. Gallagher and Paul Koch, New York City, on the brief), for Ira S. Bushey & Sons, Inc., Employer, and Hartford Accident & Indemnity Company, Insurance Carrier.
Bernard Katzen, New York City, Gen. Atty. of The State Insurance Fund, New York City (Victor Fiddler, Glen Oaks, N. Y., and George J. Hayes, New York City, on the brief), for appellants, Ira S. Bushey & Sons, Inc. and The State Insurance Fund.
Joseph Dean Edwards, New York City (Cornelius V. Gallagher and Paul Koch, New York City, on the brief), for Todd Shipyards Corporation, Inc., Employer, and Massachusetts Bonding & Insurance Company, Insurance Carrier.
Leonard P. Moode, U. S. Atty., for E. D. of New York, Brooklyn, N. Y., Elliott Kahaner, Asst. U. S. Atty., Brooklyn, N. Y. (Stuart Rothman, Solicitor of Labor, Ward E. Boote, Asst. Solicitor, and Herbert P. Miller, Atty., U. S. Dept. of Labor, Washington, D. C., of counsel), for appellees Deputy Commissioners.
Irving Israel, New York City, by Leonard Taubenblatt, New York City, for appellees, Tropea, Johansen and Lebowitz.
Before CHASE and MEDINA, Circuit Judges, and RYAN, District Judge.
These are appeals from three separate orders entered by the United States District Court for the Eastern District of New York granting defendants' motions for summary judgment, dismissing complaints in actions brought pursuant to 33 U.S.C.A. § 921 to review and set aside as "not in accordance with law" certain compensation orders made by the Deputy Commissioner in each case, under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., and denying plaintiffs' cross-motions for summary judgment.
Although the legal questions in all these cases are substantially the same, the factual situations vary somewhat and will be summarized separately.
The record discloses that claimant Joseph Tropea's history of employment during the period preceding the filing of his claim for compensation was as follows:
and that Todd Shipyards Corporation was insured by the following carriers during the relevant period:
Claimant was employed by Todd as a sheet metal worker and throughout the various periods of employment "worked in noisy places, using a chipping gun with a great many chippers and riveters around." He first experienced difficulty with his hearing early in 1953, when he detected a temporary ringing, and in April or May of 1953 he began to notice some impairment in his ability to hear. As a result of the persistence of the impairment, claimant, on September 4, 1953, consulted an ear specialist who, after examination, advised him that he had a permanent loss of hearing due to his employment and on September 30, 1953, a claim was filed with the Deputy Commissioner for compensation for occupational loss of hearing.
The Deputy Commissioner found that the claimant's occupational exposure resulted in permanent hearing impairment and constituted an injury; that the claim was timely filed from September 4, 1953, the date claimant had knowledge of permanent occupational loss of hearing; that although written notice of injury was not given within thirty days, the employer had knowledge of the injury and was not prejudiced by the lack of written notice; that claimant's average annual earnings at the time of his injury amounted to $4,600; that the period of employment with Todd Shipyards Corporation commencing on December 20, 1950, was the last employment in which claimant was exposed to injurious noises; and that nothing had been paid the claimant as compensation. In view of these findings, the Deputy Commissioner concluded that the employer in the last employment during which the injurious and cumulative effects of the occupational exposure manifested themselves is liable for the payment of compensation; that the Travelers Insurance Company, the carrier covering the employer during such last employment, is liable to discharge the duties and obligations of the employer in respect of such liability; and that as a result of the injury sustained claimant has a permanent partial disability equivalent to 6% binaural loss of hearing, for which he is entitled to 12 weeks' compensation at the maximum rate of $35 a week in the amount of $420.
The only issue raised on appeal with respect to this claim is the appropriateness of the method used by the Deputy Commissioner in allocating liability to the employer and carrier involved.
Claimant Thorleif Johansen was employed as follows:
During claimant's periods of employment, Ira S. Bushey & Sons, Inc., was insured by the following carriers:
Johansen was employed variously as an iron worker, shipfitter and ship carpenter in the repair of vessels and was constantly exposed to loud noises. In December, 1952, claimant noticed recurring episodes of buzzing and ringing in his ears and in January or February, 1953, became aware of a loss of hearing which he thought was of a temporary nature. When no diminution of the impairment was perceived for several months, claimant, on September 16, 1953, went to an ear specialist, who, after examination, informed the claimant that he had a permanent loss of hearing due to his employment. On October 5, 1953, claimant filed a claim with the Deputy Commissioner to recover for such permanent hearing loss.
The Deputy Commissioner found that, as a result of his employment, claimant sustained occupational injury, consisting of permanent binaural impairment of hearing; that the injury arose naturally out of his employment; that although written notice of injury was not given within thirty days, the employer had knowledge of the injury and had not been prejudiced by lack of written notice; that the claim for compensation was timely filed within one year from the date when claimant first had knowledge of a permanent hearing loss due to his employment; that the claimant's average annual earnings at the time of his injury exceeded $2,730; and that nothing had been paid to the claimant as compensation. Accordingly, the Deputy Commissioner concluded that Ira S. Bushey & Sons, Inc., the last employer, in whose employment claimant was continuously exposed for eleven years, was liable for payment of compensation; that the insurance carriers who successively covered such liability of the employer during the period of claimant's last employment were jointly, equally and severally responsible for the discharge of the duties and obligations of the last employer in respect of such liability; and that, as a result of the injury sustained, claimant had suffered permanent partial disability equivalent to 13.8% binaural loss of hearing compensable under the Longshoremen's and Harbor Workers' Act at the maximum rate of $35 a week for 27.6 weeks, or a total amount of $966.
The employer and the three insurance companies involved attack the award on various grounds. All contend that claimant is not entitled to any recovery under the statute in the absence of affirmative proof of impairment of wage-earning capacity. Each of the insurance companies attacks the Deputy Commissioner's determination that all the carriers covering the claimant's last period of...
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