442 F2d 411 Portland Stevedoring Company v. J Johnson U S
442 F.2d 411
PORTLAND STEVEDORING COMPANY, an Oregon corporation, Plaintiff-Appellee,
Reginald J. JOHNSON,1 Assistant Deputy Commissioner, Fourteenth Compensation District, Bureau of Employees Compensation, U. S. Department of Labor, Defendant,
Dale M. LOISELLE, Intervenor-Defendant, Appellant.
United States Court of Appeals, Ninth Circuit.
May 5, 1971.
Raymond J. Conboy, Donald R. Wilson, John J. Haugh, of Pozzi, Wilson & Atchison, Portland, Or., for intervenor-defendant-appellant.
Sidney I. Lezak, U. S. Atty., Portland, Or., for defendant.
Floyd A. Fredrickson, of Gray, Fredrickson & Heath, Portland, Or., for plaintiff-appellee.
Before DUNIWAY, ELY, and HUFSTEDLER, Circuit Judges.
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-Maxon, 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 wages 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.
After Assistant Deputy Commissioner Johnson and Loiselle both had filed timely notices of appeal, the Department of Justice decided not to pursue the appeal on behalf of the Deputy Commissioner, and his appeal was dismissed. Loiselle has, of course, persevered in his protest against the District Court's conclusion