U.S. Court of Appeals for the Ninth Circuit, 1971

Portland Stevedoring Co. v. Johnson

Portland Stevedoring Co. v. Johnson
U.S. Court of Appeals for the Ninth Circuit · Decided May 5, 1971
442 F.2d 411; 1971 A.M.C. 1646 (Federal Reporter, Second Series)

Portland Stevedoring Co. v. Johnson

Opinion of the Court

PER CURIAM:

Loiselle, a longshoreman, appeals an order of the District Court which set aside an award of permanent partial disability benefits that had been granted under section 8 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 908.

A disability determination by a Deputy Commissioner of the Department of Labor must be accepted unless it is “unsupported by substantial evidence on the record considered as a whole.” O’Leary v. Brown-Pacific-Max-on, Inc., 340 U.S. 504, 508, 71 S.Ct. 470, 472, 95 L.Ed. 483 (1951). Although Loiselle’s actual earnings increased after his injury, the Deputy Commissioner was not bound precisely to gauge his wage-earning capacity by the actual wages received by him after the time of the disabling injury. Travelers Ins. Co. v. McClellan, 288 F.2d 250 (2d Cir. 1961); 33 U.S.C. § 908(h). The evidence showed that the increase in Loiselle’s *412wages was attributable to salary increases as a result of promotion, a raise in salary, and an extra shift. In light of the limited scope of judicial review in cases such as this, we think that the findings of the Deputy Commissioner should have been allowed to stand. Those findings were not without substantial evidentiary support.

Reversed.

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